THE ICJ CLIMATE ADVISORY OPINION AND THE EXPANSION OF STATE RESPONSIBILITY UNDER INTERNATIONAL LAW

ABSTRACT

This article specifically discusses in detail about the advisory opinion given by the International Court of Justice to understand its implications and effects. It explains how it holds states responsible and the legal consequences a state faces for not abiding by the said obligations. It even emphasizes on the criticisms and positive aspects of the International Court of Justice opinion, which help in understanding the opinion deeply and thoroughly on why the expansion of state responsibility and the legal consequences that a state faces it plays an important role in climate change expansion and how states interpret the opinion.

INTRODUCTION

Climate change plays a very important role in understanding how climate change affects individuals and state as there are huge amounts of emissions of global greenhouse gases and fossil fuels and various other factors which contribute to the reason of Global warming and these emissions could cause present and future problems and hinderances to people as well as states if they are not taken up urgently, this is why Global warming has become a global issue. The issues of climate changes were firstly approached by Vanuatu and the tiny Pacific islands nations and other countries which were facing huge problems in the increase of global warming threat as the small island states have very low global greenhouse emissions but are still faced with huge problems of sea rising, coastal erosion and huge cyclones due the huge emission of global greenhouse gases from large emitting state’s, these small states wanted the general assembly to put forward a request to the  International Court of Justice (ICJ)for a climate advisory opinion. The United Nations General Assembly had approached the International Court of Justice for a climate advisory opinion on the basis of the request and questions that were put forward in order to understand, under international law, the legal obligations that a state has to follow and the appropriate legal consequences for the acts and omissions that occur and lead to climate harm.

The ICJ advisory opinion on climate change shows a huge development in international law by clarifying states accountability and legal consequences if any act or omission is done by the state that leads to climate harm, But the question remains about its enforceability.

United Nations General Assembly questions

The United Nations General Assembly had put forward two questions in the resolution through 77/276 for the International Court of Justice to put forward an advisory opinion on climate change.

• firstly, to understand and clarify the states obligations under international law for climate change and the legal consequences for an act or omission contributing to climate harm and emission of greenhouse gases.
• secondly, it wanted guidance about the legal consequences that would rise when a state fails to fulfil those obligations that are stated and such acts or omissions cause a contribution to climate harm and harm to present and future generations.

As per these two questions, it clearly focused mainly on safeguarding the smaller states and Pacific islands, which have the least contribution to greenhouse gas emissions and contribution to climate harm and for safeguarding the present and future generations.

ICJ Declaration of the Opinion

The ICJ looked into the questions very carefully and answered particularly towards the opinion it focused mainly on various aspects of the treaty-based climate obligations, customary international law and Human Rights and Environmental Protection.

The ICJ response to the first question it made sure that its objective on the advisory opinion was the obligations and responsibilities of the states that all climate treaties states should adopt all the necessary steps to prevent further climate related harm. It even emphasised that the states are not only responsible under the UNFCCC, Kyoto Protocol and the Paris Agreement they are also obligated under the customary international law. It also highlighted the factor of human rights obligations have to be taken into consideration in order to reduce the loss of present and future generations, it also hampers certain human rights which consist of Right to Life, a healthy environment; a healthy standard of living, to privacy, family, and home; the right of indigenous people. The states under the Vienna Convention for the Protection of the Ozone Layer, Montreal Protocol, Kigali Amendment, the Convention on Biological Diversity and the United Nations Convention have the obligation to reduce and take precautionary measures to reduce emissions of greenhouse gases causing harm to the climate.[1]

In response to the second question, the ICJ focused on more on the legal consequences of a state’s failure to adhere to the obligations, treating such non adherence as capable of giving rise to an international wrongful act and makes the state responsible for its action and also emphasized stating that the state has to cease its act and omissions of the act causing harm to the climate or emission of greenhouse gases, and if so still proceeds to do so after the breach of obligation they need to ensure that necessary precaution is taken and provide guarantee and assurance on the non-reoccurrence of the wrongful acts or omissions and need to provide full reparation to the injured state in any type of form financial compensation or restitution. they should have the nexus between the wrongly committed act and the damage caused to the state. The court even specified the Law of the Sea have the obligation to protect sea life and have the necessary obligation to protect the environment and the climate system.

It also talks mainly about the reduction of fossil fuel production and fossil fuel exploration licenses to the private sector for the production of fossil fuels and any such conduct that may lead to an internationally wrongful act or if it violates a state’s customary duty to take reasonable precaution for climate protection. It further even talk’s about if a state fails to exercise due diligence by not taking the necessary precaution and regulatory measure to limit the amount of production by private sectors under their jurisdiction will make the state responsible.it even adds that even if ISDS claims are used in order to the challenge for state adaption to the policies will lead to further disputes but states may have the duty to still revise their policies of licensing and other policies even if investor state claims ISDS.

Flaws of the Opinion

The court clearly specifies in the advisory opinion that it was called upon first to only establish the applicable legal framework of state responsibility to solely protect the climate system and to outline the general terms for legal consequences that can occur[2] in this statement it clearly says that the court speaks very strictly on the present international laws and no changes in order to meet different factors of climate change, this makes the opinion not applicable in every factor globally.

 As per the UNFCCC convention Article 3(1), it mentions the developed countries should take the leading example and responsibility for the contribution towards a climate change.[3] the court recognized the appropriate responsibility, but it forgot to point out certain countries which are major and historical emitters of greenhouse gases which makes this advisory opinion not able to enforce legal consequences eligible for major emitters. Trail Smelter Arbitration (United States vs Canada), although in the Trail Smelter case, the court highlighted that “countries should not permit their territories which cause transboundary harm to another country’s territory in any way”.[4]In this case, the court did highlight single state responsibility of causing transboundary harm to other states, but did not give clarity on how responsibility is decided among multiple emitting states

 It fails to emphasize the obligations of states to protect the climate for communities that are critical for their habitat and for their cultural way of life, which is hugely affected by greenhouse gases and climate change and to make a sustainable world climate.[5] Furthermore, the IPCC Inter governmental Panel Climate Change has specified that the states with lowest historical contribution to greenhouse gases and to climate harm suffer the worst due to the climate change, the advisory opinion ignored these points in their advisory opinion. The advisory opinion should have specified the precautions that should be taken by the states in order to decrease climate harm and to protect the present and future generations, but instead it specified it in a normal language and left in the hands of the states to decide on their own interest on what basis they should take precautions for the future and present generation according to its policy framework[6].

The advisory strongly mentions that the state must use due diligence as a part of taking precautionary measures against climate harm but fails to specify the legal benchmark required and it does not clearly mention what the required criteria in order to fulfil the legal requirements of the climate change policy Pulp Mills on the River Uruguay (Argentina v Uruguay) in this case the court highlights “the obligation to prevent transboundary harm is an obligation of due diligence”. This statement by the court does not specify what are the legal criteria for fulfilling due diligence, what regulations are sufficient, and what is adequate for prevention[7].

The advisory opinion becomes too harsh on the developing countries that are dependent on the share of global emissions which are very important for their special needs and development, the sudden change in these factors in order to adapt quickly to the new policies for climate change will be drastic harm to their economy, “they need to have international cooperation from developed countries in order to understand that that the developing countries need finance and technological needs to satisfy their requirements as a state”[8], this statement by judge Xue separate opinion gives a clarity about how, the states will not be able to deal with the huge impact which would have a harmful impact on their economy, in order for them to adapt to the adverse effects of the climate change and their need for basic and all round development of the state, The states have to maintain the current method for their economic growth and for capital inflow in order to maintain a well-balanced state. Phasing out fossil fuel production and removal of issuance of exploration licenses to foreign investors and private companies would reduce capital inflow into the sector and indirectly hamper the economy by adapting directly to the policies of climate change the court should have raised these issues in the advisory opinion in order to articulate their points clearly and the benefits of the states as well.

Towards the end the main part of the advisory opinion that remains questioned is about its enforceability which is not at all easy and many major states that have a huge history of emission of greenhouse gases which may consist of states that are powerful and may treat the policy as a political choice rather than as an obligation this this raises significant question about the enforceability of the advisory opinion especially in relation to the developing countries, they will struggle to adapt to the new policy requirement because they have major reasons like economic growth and development of their states and for capital inflow which are reliant on developed countries in such cases.

 CONCLUSION

In the end the International court of Justice 2025 Opinion on climate change  advisory it makes a huge impact on the significant development of the reduction of climate harm and clarifies obligations of state by interlinking climate change obligations to treaty law, customary law, humanitarian law and environmental safety in order to achieve reduction in climate harm and this would contribute to reducing the gas emissions and to reinforce the legal consequences of non-compliance with the objective of addressing the global crisis.

However, the advisory opinion is not binding in nature and makes the opinion to be treated as a political choice and not as an obligation; the advisory opinion didn’t put responsibility and legal consequences on large emitters who have a history of huge emissions of greenhouse gases and even lacked important standards for states’ liability, which leaves very important questions unsettled. Even though the opinion did point out due diligence and legal consequences but also failed to emphasize what legal consequences would be given if a state fails to function as per the obligation of climate change. It even fails to take all-round factors of developing states trying to adapt to the policy when GHG and fossil fuel may play a significant role in the development of their economy and cooperation from developed states would lead to capital inflow.

Other than these flaws, the opinion might influence the climate litigation; it also plays a huge role in domestic policymaking and international development. But it does not provide a complete resolution to the challenges of climate change, it marks a major step towards legal accountability and adds legal weight and responsibility on climate change on a global scale.

REFERENCES

[1] International Court of Justice, Obligations of States in Respect of Climate Change (Press Release No 2025/36, July 2025) 2–3

[2] Ibid para 3

[3] United Nations Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) 1771 UNTS 107, art 3(1).

[4] Trail Smelter Arbitration (USA v Canada) (1941) 3 RIAA 1905, 1965–1966.

[5] International Court of Justice, Obligations of States in Respect of Climate Change (Advisory Opinion, Separate Opinion of Vice-President Sebutinde).

[6] Ibid para 7

[7] Pulp Mills on the River Uruguay (Argentina v Uruguay) (Judgment) ICJ Rep 2010, paras 101.

[8] Obligations of States in Respect of Climate Change (Advisory Opinion, Separate Opinion of Judge Xue) ICJ, 23 July 2025, para 71.