CLIMATE JUSTICE: iCJ LANDMARK DECISION
A landmark opinion of the International Court of Justice (ICJ) (‘the Court’) was delivered in late July, in relation to ‘obligations of states in respect of climate change’. The Advisory Opinion, was sought by resolution of the United Nations General Assembly in 2023, on request of Vanuatu, in relation to the following issues:
What are the obligations of States under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases for States and for present and future generations?
What are the legal consequences under these obligations for States where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect to:
States, including, in particular, small island developing States, which due to their geographic circumstances and level of development, are injured or specifically affected by or are particularly vulnerable to the advice effects of climate change?
Peoples and individuals of the present and future generations affected by the adverse effects of climate change?
Whilst the resolution was put to the United Nations General Assembly by Vanuatu, the preliminary work was the result of the campaigning efforts of a small group of students from the University of South Pacific. In this sense, the case engages strongly with the principles of intergenerational equity and justice, procedurally and substantively. This is a point that is further argued—in the context of the three waves of climate litigation—that our solicitor, Isabella and her fellow University of Oxford colleagues explore in their forthcoming paper for the Oxford Review of Education Special Issue titled ‘Climate Change Litigation as a Tool for Climate Change Education’.
How did the ICJ answer these questions?
Overall, the Court found unanimously that states are required to prevent significant harm to the climate system and this obligation is a function of international law. Another key finding was that 1.5-degree Celsius target—embedded within the United Nations Framework Convention on Climate Change (UNFCCC) Paris Agreement—is legally binding.
Obligations of states under international law
On the first issue, the Court found that states have an obligation and customary duty to prevent significant harm to the environment, and such duty extends to the harm to the wider climate system responsible for climate change.
Legal consequences
On the second issue, the ICJ determined that where states violate these aforementioned international obligations, they can be liable for a range of legal consequences. The International Institute for Sustainable Development (IISD) summarise these obligations, outlined in the opinion, as:
Cessation and guarantees of non-repetition related to wrongful acts (i.e. fossil fuel permits) that cut across the findings of the ICJ.
Reparation for harm committed, taking the form of restitution or restoration of eco-systems, compensation or through public apologies.
What does this mean for New Zealand, and other high emitting countries?
Ultimately, decisions of the ICJ—whilst very significant—are not binding, meaning that the government is not required to adhere, or respond to the unanimous decision of the Court. However, decisions of the ICJ are significant and can accelerate domestic litigation to achieve progress, which in this setting could be towards stronger climate action or climate reparations. Legal commentators have identified that this landmark opinion ‘raises the bar for governments’, including the government of Aotearoa New Zealand.
Aotearoa New Zealand was one of many countries that gave evidence to the Court, alongside members of civil society and international organisations, and we are not immune to the Court’s determination. However, the ICJ opinion comes at a time when domestic policy and legislative changes are affecting Aotearoa New Zealand’s own emissions projections and climate adaptation, including the decision to reverse the ban on issuing new oil and gas permits. Furthermore, the implementation of the Fast Track Approvals Act 2024, which includes applications for fossil fuel extraction, also cut across this landmark determination.
Although this advisory opinion is focused on international law, the Climate Change Priority Inquiry (‘the Inquiry’), a kaupapa inquiry of the Waitangi Tribunal is currently being heard. The Inquiry focuses on breaches of Te Tiriti Waitangi principles in relation to climate change policy, including decisions pertaining to adaptation policy such as the ETS and carbon trading.
Although the final report for the Climate Change Priority Inquiry has not yet been released, the significance of these two pieces of litigation cannot be understated, especially given that they both centre procedural and substantive climate justice.