Climate Change and the Courtroom: Why the ICJ’s Opinion Matters in the Fight for Global Climate Justice
In March 2023, the United Nations (UN) General Assembly voted to ask the International Court of Justice (ICJ) to clarify the legal obligations for countries to address climate change under international law, and what the consequences would be under the obligations set. With 91 written statements and 62 written comments, this case, Resolution A/RES/77/276, is the largest seen by the world court, and its impact will surpass the record-breaking statements and comments. This case was prompted by the Pacific Island, Vanuatu, who declared in 2021 that it sought an advisory opinion from the ICJ on international climate change responsibility and accountability. From December 2nd to the 13th, the ICJ in The Hague, Netherlands, conducted hearings on the advisory opinion and is now in the process of making its decision. The ICJ’s opinions on international obligations and consequences are significant, as these opinions will be applied globally and reinforce progressive climate action worldwide. The sheer number of statements and comments in support for this resolution is vast and symbolizes the collective will for a solution to climate concerns. Through defined obligations to climate change, international powers can be pressured into abiding by concrete standards and be held accountable for their failed promises, setting a precedent for a more climate-friendly future. There are several cases making way for a future of accountability.
Resolution A/RES/77/276 is one of many current cases where countries want legal clarification directly from the courts regarding their climate change obligations. One example is an advisory opinion requested by Chile and Colombia from the Inter-American Court of Human Rights (IACHR) on how climate change impacts human rights established through the American convention, which highlights the need for regional standards. The American Convention, a treaty signed in 1969 by the Organization of American States (OAS), guarantees several rights such as right to life, right to protection from torture, and freedom of expression. Contextualizing the impact of climate change within the American Convention showcases the danger that climate change imposes on humanity, and its violation of human rights established through the convention. The are courts increasingly being asked to clarify their regions’ obligations to climate change, and existing treaties such as the American Convention serve as frameworks for justifying climate obligations as matters of human rights. The Inter-American Court advisory opinion request addresses a smaller region than the ICJ request, but both contribute to bettering climate justice and responsibility.
Clear responsibilities from the courts to nations are essential because countries have been disingenuous in their responsibilities regarding climate change. The Duarte Agostinho and Others v. Portugal and 32 Other Member States of the Council of Europe case was a complaint by six Portuguese children against 33 countries for violating human rights by failing to take substantial action on climate change and failing to adhere to emission reductions set by the Paris Agreement, and requires that the accused countries take more significant steps towards addressing climate change. Some of the alleged human rights violations include one plaintiff’s right to life being threatened by forest fires in Portugal and heat waves threatening another plaintiff’s physical and mental well-being. Although the court has not decided whether states will be held liable for cross-border climate impacts, this case directly highlights the shortcomings of European countries’ role in protecting human rights and the environment.
This case is an example that countries have been unable to keep their promises when it comes to financing climate change mitigation and solutions. Because there are no legal expectations or repercussions regarding sincerity in aid, the lack of commitment to fully funding pledges and aid programs is exacerbated to the point that over 30 countries have not adhered to the Paris Agreement’s emission reductions.
The effect of insincerity in aid due to an absence of legal expectations can even be seen in organizations fighting climate change. For example, the Conference of Parties (COP) is an annual conference on the progress of climate action under the United Nations Framework Convention on Climate Change (UNFCCC). At COP28 (2023), the conference agreed to fund and operationalise a fund that seeks to cover storm and drought damages initiated or worsened by climate change for climate-vulnerable countries. However, the amount pledged by countries has not equaled the amount received. Much of the fund was repurposed aid or loans.
An absence of legal expectations allows countries to set financial goals that they consistently fail to meet. This unaccountability comes at the cost of humanity’s well-being and the earth in its entirety. Advisory opinions are not legally binding, but clear-cut opinions from the courts hold weight and can be used as sources to influence national climate change policy, influence full funding from COP pledges, and influence overall UNFCCC goals by plaintiffs globally.
Despite a lack of action internationally, there have been victories in the battle of climate change that deserve recognition. The KlimaSeniorinnen v Switzerland case is an example of the positive outcomes that can come from a dire situation.
The case came about when a collective of senior women made a case against the Swiss government for violation of human rights protection, took the case to the Swiss court but was rejected. Thus, the women brought their case against the Swiss government to the European Court of Human Rights (ECHR). The basis of the case now became that the Swiss government failed to protect its citizens from the human rights threat of heat waves amplified by a changing climate and that the Swiss court rejected the senior women’s case on arbitrary grounds — meaning the Swiss court failed to give sufficient reasoning as to why they rejected the plaintiff’s case.
Fortunately, the ECHR ruled in favor of the plaintiffs, finding that Switzerland violated the right of access to court and to protect its constituents from the effects of climate change. In addition, Switzerland had failed to meet its past GHG emission targets.
In March of 2025, the Committee of Ministers of the Council of Europe recognized that Switzerland is still not complying with the requirements of the ECHR and that its policies are not congruent with the global warming limit of 1.5°C. This case highlights that there are victories for people advocating for climate justice and that international courts recognize that a lack of climate action direction impacts the human rights of citizens everywhere, indicating that judicial action can motivate progressive policy change.
Although within the past year, the KlimaSeniorinnen v Switzerland case pushed the needle towards climate accountability and the acknowledgement of climate change being a human rights concern, the Duarte Agostinho and Others v. Portugal and 32 Other Member States of the Council of Europe case and Inter-American Court of Human Rights advisory opinion request are still testaments to why a demand for the ICJ to clarify legal obligations and consequences for climate change under international law is necessary. The advisory opinion does not rule in favor of one side over the other, but clarifying legal obligations to climate change would be a significant step. As argued by the KlimaSeniorinnen collective, a lack of commitment towards climate change by a country is an infringement on the human rights of its citizens. A lack of commitment towards climate change on an international level, is an infringement on the rights of humanity as a whole. Through a detailed and equitable advisory opinion, its legal guidance can help the world move closer towards a more just and green place for all.
Edited by Maura Mullholland