Highest UN Court's Ruling on Climate Change

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The opinion transforms what was once treated as a moral imperative into a legal obligation. Countries can no longer hide behind the fig leaf of "we're doing our best" when their best demonstrably isn't good enough. The court made it clear that nationally determined contributions (NDCs) under the Paris Agreement aren't subject to "unfettered discretion." Translation: you can't just promise whatever sounds politically convenient.

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OBLIGATIONS OF STATES IN RESPECT OF CLIMATE CHANGE

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Transcript

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This is Heliox, where evidence meets empathy. Independent, moderated, timely, deep, gentle, clinical, global, and community conversations about things that matter. Breathe easy. We go deep and lightly surface the big ideas. Welcome to the Deep Dive, where we cut through the noise and get straight to the insights. Great to be here. Today, we're diving headfirst into something pretty major. A real legal landmark that just sent ripples across the globe. You mean the International Court of Justice advisory opinion? Exactly. The ICJ, the UN's highest court, has delivered its first ever advisory opinion on climate change. Yeah, and it's not just another report, is it? It's a hefty document, like 133 pages. Right, and it sets out the actual legal obligations of states. It really is monumental. I think a lot of people are waiting for this because it goes beyond just policy ideas. This opinion is about interpreting the international law that already exists, clarifying what countries are already supposed to be doing about the climate crisis. And that's exactly our mission today. We want to unpack the core of this opinion. Makes sense. Like what did the U.N. General Assembly actually ask the court? What did the court come back with? And crucially, what does it all mean? Right. Yeah. What does it mean for how countries and really for you, our listener, engage with climate action from now on? So we'll need to look at the science they used. Definitely. The scientific basis. And then the different layers of law, treaties, customary law, even human rights law. And wrap up with the consequences. Right. What happens if states drop the ball? Absolutely. The legal consequences. Think of this deep dive as, well, your shortcut to understanding this really critical legal framework. A framework that seems poised to shape, well, our collective future. It really could. So the science has been clear for a while. The warnings are loud. Increasingly so. So the world basically asked, OK, legally, what are countries already bound to do? And that question didn't just pop up randomly, did it? It was a collective push towards the ICJ. How did this specific request get started? Well, what's fascinating is that the request came directly from the UN General Assembly. OK. And it wasn't just a few states. The resolution was co-sponsored by 132 member states. Wow, 130? Yeah, and adopted without a vote. That level of consensus really showed the global demand for this legal clarity. So near unanimous support. Pretty much. It was a broad collective call saying, court, we need guidance here. And the General Assembly framed it with two core questions, didn't they? Can you walk us through those? Sure. The first one was really about mapping out the existing duties. It asked, what are the obligations of states under international law to protect the climate system from human caused greenhouse gas emissions for present and future generations? So spelling out the fundamental responsibility. Exactly. What should states be doing, legally speaking? OK, that covers the should. But what about the what if they don't? What do they ask about consequences? Right. That was the second question. It went into the legal fallout. What are the legal consequences for states that cause significant harm by their actions or inactions? Actions or inactions. Important distinction. Very. And it's specifically mentioned, particularly for injured states like small island developing states and for affected peoples and individuals. Ah, focusing on accountability, especially for the most vulnerable. Precisely. Those already feeling the sharp end of climate change. So the ICJ, the top UN court, gets these big questions. Did they have to take it? Could they have just said no? Well, they unanimously affirmed they had jurisdiction. They were clear their role is to state the existing law, not to make new law. They're interpreters, not legislators. And given the huge support from member states? They basically said there were no compelling reasons to refuse the request. It was seen as swearly within their judicial job description. And this interpretation, it wasn't just based on dusty law books, was it? Science played a huge role. Oh, absolutely. They explicitly acknowledged the General Assembly calling climate change an unprecedented challenge of civilizational proportions. Strong language. Very. And the court leaned heavily on the IPCC reports the Intergovernmental Panel on Climate Change. Right. The IPCC. That's seen as the gold standard for climate science. It is. Established way back in 88, it pulls together thousands of scientific papers. The court called it the best available science. So what key scientific points did the court pull out from the IPCC? What did they really emphasize? A few critical things. First, that human activities have unequivocally caused global warming. No ambiguity there. Unequivocally. And the global surface temperature is already 1.1 degrees Celsius above pre-industrial levels. And the greenhouse gas levels. Higher now than any time in at least 800,000 years. 800,000 years. It's hard to even grasp. It really is. And they also looked at historical contributions, which is often a sticking point in negotiations. Right. Who omitted what and when. Yeah. And the court noted these big historical differences. Developed countries, responsible for about 57 percent of cumulative CO2 from 1850 to 2019. Over half. And developing regions. Around 28 percent. And the least developed countries, just 0.4 percent. Wow. That really underscores the whole common but differentiated responsibilities idea, doesn't it? Exactly. Shared problem, but different histories and capacities. And the consequences the court highlighted. The real world stuff. Really severe impacts. Sea level rise, obviously. Extreme weather, hurricanes, droughts, heat waves. We're seeing more and more of those. Definitely. Biodiversity loss, huge impacts on human health. And they put a number on vulnerability. 3.3 to 3.6 billion people are highly vulnerable. Billions. And that 1.5 degree threshold we keep hearing about, is it just a nice target? Not according to the science the court cited. The IPCC says we're more likely than not to reach 1.5 degrees C before 2040, even with low emissions. So it's almost baked in now. Getting very close. And crucially, the IPCC adds that 1.5 degrees C warming is not considered safe for most nations. So it's less an aspiration, more a critical danger limit. A danger limit we're about to cross. OK, so given this massive scale, how did the court define the scope of its job here? Was it narrow? Not at all. They took a really broad view. Materially, it covers all state actions or emissions contributing to human-caused emissions. Even private actors within a state. Yes. If the state has jurisdiction, it reflects that climate change is a common concern of mankind. A global problem. And territorially, it's global too. The obligations they outline apply to all states everywhere. It's a universal legal framework. Okay, let's get into the legal meat then. The state obligations. It seems like a multi-layered cake of laws. That's a good way to put it. First layer, the big climate treaties, UNFCCC, Kyoto, Paris. How did the court see them fitting together? Essentially, as mutually supportive, they build on each other, they don't conflict. The UN Framework Convention, the UNFCCC from 92, that's the foundation. Its ultimate objective is preventing dangerous human interference with the climate. And it's its binding commitments. Yes, legally binding commitments for everyone, like tracking emissions. But there's a key distinction. Between developed and developing nations. Exactly. Developed country parties have extra leading obligations on emissions cuts, and some of them, the Annex II parties, must provide finance and technology to help developing countries adapt. Right. Then came Kyoto. How did that add to the picture? Kyoto got more specific. It put actual numbers, quantified emission reduction targets, on certain developed countries. Even though its main commitment period is over. Right. But the court said it's still in force and still relevant to the overall legal picture. It showed the direction of travel. Which brings us to the Paris Agreement, 2015. The big one now, that 1.5 degree goal. Yes. What about the NDCs? The nationally determined contributions, each country's climate plan. Did the court give them teeth? This is really interesting. The court stressed NDCs are not subject to unfettered discretion. Meaning countries can't just promise whatever they feel like. Pretty much. The court elevated them. They must show progression getting better each time. They must reflect the country's highest possible ambition. Highest possible ambition. And this is key taken together. All the NDCs must be capable of achieving the 1.5 degree temperature goal. Wow. So it's not just about individual effort, but collective success towards that 1.5 target. Exactly. It shifts NDCs from just pledges to something with real legal expectation tied to that global goal. Aiming for climate safety is now embedded in the legal obligation. So countries have to aim higher, collectively hit the target. What about the actions themselves? Mitigation cutting emissions and adaptation preparing for impacts. States have a due diligence obligation for both. For mitigation, they need to pursue domestic measures with best efforts. Due diligence. What does that mean practically? It means taking all reasonable, careful steps to prevent harm, like setting up laws, regulations, enforcement mechanisms. It's not just hoping for the best. And for adaptation. Same standard. Due diligence. Planning and implementing things like ecosystem restoration, early warning systems, using the best science. The court sees adaptation and mitigation as complementary. You need both. Makes sense. And the cooperation part. Finance technology for developing nations. Developed states shall provide financial resources. That's treaty language. Shall provide, not may provide. Right. And support technology transfer and capacity building. While there's no dollar amount specified in the opinion, this support must be enough to enable the 1.5 degrees C goal reflecting developed countries capacity and developing countries needs. It's about fairness and enabling everyone to act. OK, that covers the treaties. But the court also looked beyond treaties to customary international law. Yes. These are like the underlying rules of the road that apply to everyone, treaty or not. So what are those core duties? Two main ones. First, the duty to prevent significant environmental harm. This is fundamental. And it applies globally, not just neighbor to neighbor. Yes. Explicitly to global commons like the climate system, it requires heightened vigilance and prevention. What does that look like? Proactive national systems laws, enforcement, and crucially doing environmental impact assessments, EIAs, for activities that could release significant GHGs. Even if one project seems small on its own. Yes, the court acknowledges the cumulative nature. Even individual significant activities can trigger this duty because they add up. Okay, that's the prevention duty. What was the second customary rule? The duty to cooperate. It's rooted right in the UN Charter, a basic principle. And essential for climate change, presumably. The court called international cooperation indispensable. It requires good faith collective action from everyone. So how do these customary rules interact with the treaties? Do the treaties replace them? No, they coexist and inform each other. Think of it like layers of safety. Fully complying with the climate treaties suggests you're probably meeting your customary duties. But it doesn't erase them. Exactly. They reinforce each other, creating a stronger overall legal net. The court didn't stop there, did it? It looked at other environmental treaties, too. Yeah, ones that protect parts of the climate system, like the Ozone Layer Convention and its Montreal Protocol. How do they connect? Well, some ozone-depleting substances are also powerful greenhouse gases, so phasing them out helps the climate, too. They also looked at the Biodiversity Convention. Because ecosystems are involved. Right. Protecting forests, for example, acts as mitigation. Healthy ecosystems help with adaptation, too. They're part of the climate system. Makes sense. Okay, moving to the oceans. The court gave great weight to another court's opinion, the Law of the Sea Tribunal. Yes, the ITLOS opinion on NCLUS, the UN Convention on the Law of the Sea and Climate Change. And the core obligation there for oceans. Under NCLUS, states have a duty to protect and preserve the marine environment from climate change effects and GHG emissions. That sounds pretty broad. It is. It requires far-reaching and efficacious measures with a stringent standard of due diligence. Similar standard again, due diligence. Yes, and it also includes cooperating on rules and doing those environmental impact assessments for activities potentially harming the marine environment. And there was that interesting point about sea level rise in maps. Oh yeah, that was quite specific. The court noted a consensus among states. There's no obligation under In-Loughless for states to update their maritime zone charts once they're established, even if sea levels rise. Why is that significant? Well, think about small island nations. Even if their land shrinks physically, this potentially gives them a legal anchor. Their established maritime zones and the resources and rights that come with them might be legally protected from shrinking away on paper. It's a potential lifeline. Fascinating point. Okay, finally, the human element, international human rights law. How does climate fit in there? The court was very clear. Climate change profoundly impacts a wide range of human rights. It stated the environment is the foundation for human life. So specific rights are threatened? Absolutely. The right to life itself. The right to health. The right to an adequate standard of living that includes food, water, housing. Even the right to privacy, family, and home. And it doesn't affect everyone equally? No. The court specifically highlighted that vulnerable groups, women, children, indigenous peoples, are hit disproportionately hard. This demands equity in climate action. Now, this idea of a specific human right to a clean, healthy and sustainable environment, it's gained traction recently. What did the ICJ say? This was a big moment. The court concluded this right is essential for the enjoyment of other human rights. Yes. And they pointed to that 2022 UN General Assembly resolution passed with 161 votes as strong evidence of its wide global acceptance. It's a powerful recognition linking environmental health directly to human dignity. What about borders? Do human rights obligations stop at a country's edge when it comes to climate pollution? Not necessarily. The court recalled that human rights treaties, like the Maine Covenant on Civil and Political Rights, can apply extraterritorially when a state exercises jurisdiction or effective control outside its own territory. So, takeaway. States must take necessary measures, mitigation, adaptation, laws regulating companies to protect the climate system in order to guarantee human rights. These duties are all woven together. Treaty, customary law, human rights. Okay, so we have this complex web of obligations. What happens when states don't meet them? What are the consequences? Right. The court was careful to say it wasn't judging any specific state in this opinion. It was outlining the general legal framework for responsibility. But the rules exist. Oh, yes. The standard rules on state responsibility under customary international law. Fully applicable. And what about things like the Paris Agreement's Loss and Damage Fund or its Compliance Committee? Do they replace legal responsibility? No. The court said those mechanisms are facilitative and non-punitive. They help states comply, but they do not exclude the general rules on state responsibility. So they don't let states off the legal hook. Exactly. Now, this seems tricky. How do you prove one country's failure to regulate caused harm somewhere else through global climate change, attribution and causation? Yeah, it's complex, but the court addressed it. The Wrongful Act isn't necessarily the omission itself, but the state's breach of its legal obligations, like failing to regulate polluters properly, that failure is attributable to the state. OK, the failure is the breach. Yes. And for reparations, you need a sufficiently direct and certain causal nexus between that wrongful act and the injury. Sounds like a high bar for climate change. The court suggested the standard is flexible enough. Scientific evidence, they said, can help establish the link between overall human-caused emissions and climate harm, even if you can't trace one molecule to one flood. It's about contribution to the overall problem. Okay. This brings up that term ergo omnis obligations. Duties owed to everyone. How does that play out? This is a really profound part of the opinion. The court found that obligations protecting global commons, like the climate system, are ergo omnis owed towards all. Meaning? Meaning all states have a shared legal interest in protecting the atmosphere and the high seas. Specifically, customary law duties, like preventing significant global harm, are ergo omnis. And treaty obligations. Those under UNFCCC and Paris are ergo omnis parts owed to all the other states signed up to those treaties. So what's the practical implication, the so what, for you listening, if it's owed to everyone who can complain? That's the point. Because they're owed to all, any state can potentially invoke the responsibility of a state that's breaching these obligations. Even if that state isn't directly harmed itself? Yes. Any state can demand that the breaching state stop its wrongful act and guarantee it won't happen again. But what about compensation? Money for damages. Ah, there's a distinction. Only injured states or those specially affected can claim full reparation, including compensation. Other states, the non-injured ones, can only seek reparation on behalf of the injured party or the collective interest. Interesting distinction. So what's the full menu of legal consequences if a state is found responsible? Several potential outcomes. First, cessation. The state has to stop the wrongful act. That might mean revoking bad laws or policies. Okay, stop the harm. Second, guarantees of non-repetition if needed to make sure it doesn't happen again. Promises for the future. And third, for injured states, full reparation. This could be restitution, undoing the harm if possible, compensation, money, or satisfaction, like an apology or formal acknowledgement. And if the damage is hard to quantify precisely. The court noted compensation might be awarded as a global sum based on equitable considerations. So there's flexibility to ensure accountability, even with complex, diffuse harms like climate change. Right. So let's try to wrap this up. What have we really unpacked today? Well, we've seen the ICJ lay out this really powerful, interconnected legal framework. Yeah. Pulling together treaties, customary law, law of the sea, human rights law, clarifying these existing obligations. And emphasizing key principles. Due diligence, cooperation, the need for progressive climate action, and the absolute centrality of science. It's not a final judgment against any specific country, as you said. No, but it's an essential legal compass. It gives real legal weight to the scientific consensus. Providing states with clearer guidance on their duties, but also potentially new tools for holding each other accountable. Exactly. And I think this deep dive really hammers home that climate change isn't just an environmental issue or just an economic one. Absolutely not. It is, as the court makes clear, fundamentally a matter of international law and human rights. The court has stated the law. It's clarified these obligations owed not just between states, but to all of us, present and future generations. So the big question now is the response, isn't it? How will you, listening to this, think about how states can translate these legal duties into action? Into the urgent, ambitious, equitable action needed. The court's done its part by stating the law. Now, how does the world respond? Thanks for listening today. Four recurring narratives underlie every episode. Boundary dissolution, adaptive complexity, embodied knowledge, and quantum-like uncertainty. These aren't just philosophical musings, but frameworks for understanding our modern world. We hope you continue exploring our other podcasts, responding to the content, and checking out our related articles at heliocspodcast.substack.com.