July 23 was a landmark day in the global fight for affixing legal responsibility on all nations for inaction to contain the harmful impact of climate change on people around the world. That day, the International Court of Justice (ICJ) at the Hague delivered an unequivocal judgement that governments are legally accountable for failure to act in accordance with the commitments they made while pledging support to the Paris Agreement on Climate Change, which the Conference of Parties adopted in 2015. A panel of 15 judges gave their verdict in the form of an advisory opinion to the UN. The ICJ was responding to a referral by the UN General Assembly of a case initiated by several countries in 2023.
While this verdict cannot be enforced by the ICJ, it provides a strong legal basis for international and national litigation against governments that are lax in fulfilling their commitments towards climate change mitigation. Under international law, even countries that have not signed the Paris Agreement or have exited from it, like the US, will now be open to legal scrutiny for acts of omission and commission that run counter to the global agenda for containing climate change.
The verdict is a tribute to ICJ’s wisdom in identifying the International and inter-generational harm being caused by governments that are unresponsive to the threat of climate change. The case presents a remarkable story of how young climate activists combined audacity of imagination with astute activism at the global level, to invoke ICJ’s intervention by engaging the UN. It was initiated by law students from low-lying Pacific islands that face an imminent danger of their homes, fields and heritage being submerged by rising sea levels due to global warming.
In 2019, a law student from Solomon Islands came up with the idea of approaching the UN for legal action. Cynthia Houniuhi was alarmed at the devastation caused by climate change in her home country. She proposed the idea in a classroom discussion. Undeterred by skepticism from some adults, she persuaded law students from other Pacific islands to unite in a fight for climate justice. Under her leadership, 27 law students across the islands formed an organisation called Pacific Island Students Fighting Climate Change (PISFCC).
The Islanders had reason to be alarmed and energised for action. Sea levels had risen 3.5 cm across their countries over a decade. Nasa estimates that in the next 30 years, Pacific islandnations such as Tuvalu, Fiji and Kiribati will experience at least 15 cm of sea level rise. According to the Intergovernmental Panel on Climate Change’s estimates, large portions of Tuvalu’s main island could get completely flooded and become totally uninhabitable by 2050.
Due to this existential threat, Tuvalu is taking steps to become the world’s first ‘digital nation’, and has initiated the ‘Future Now Project’, which involves creating its digital twin in the metaverse—preserving its culture and ensuring that its legal status and statehood survives in the case of its geological disappearance.
Other small island nations are at grave danger too, as global temperatures rise in the Caribbean and Indian Ocean regions. The PISFCC has campaigned vigorously to build a global coalition of endangered island nations. Houniuhi enlisted the support of Vanuatu’s minister for foreign affairs. The government of Vanuatu garnered diplomatic support from other countries while PIFCC mobilised youth activists across the world. In March 2023, 132 governments co-sponsored a resolution in the General Assembly urging the UN to seek the ICJ’s legal opinion on the liability of countries for climate inaction. As the UN decided to approach the ICJ, World’s Youth for Climate Justice emerged as a global coalition of young climate activists. They campaigned on the slogan: “We are bringing the world’s biggest problem before the world’s highest court.”
By 2024, Earth had heated by 1.34°C since pre-industrial times. The Paris Accord set an upper limit of 1.5°C by 2100, although recent estimates suggest that the barrier is likely to be breached even before 2030. While there are manifold dangers to humanity from atmospheric and land surface warming, the grave danger posed by marine warming is a rise in the sea levels. That will result in coastal flooding in larger countries and submersion of small islands. Alarmed by that imminent existential threat, the island nations sought the ICJ’s legal intervention through the UN.
As the world rallied behind the Pacific island nations, the UN posed two questions to the ICJ:
1. What are countries obliged to do, under international law, to protect people around the world from the consequences of global warming?
2. What are the legal consequences for countries whose actions significantly harmed the environment?
The ICJ responded through a legal advisory. It said that lack of effort by countries ‘to develop the most ambitious plans to contain climate change’ would be a breach of commitments made by them under the Paris Agreement. Failure to deliver on those commitments can lead to other countries initiating legal action against the errant ones. Even within countries, governments can be legally challenged by their citizens for actions which fall short of stated commitments towards climate protection.
Other environmental issues, ranging from air and water pollution to deforestation, have been addressed by national courts in the past. Concerns on biodiversity loss, such as protection of endangered animals, have also drawn judicial support. However, this is the first far-reaching legal pronouncement on climate change at the global level.
The harmful impact of climate change has been addressed by courts or human rights bodies within some countries. In 2019, the Supreme Court of the Netherlands declared that protection from the potentially devastating effects of climate change is a human right. The European Court of Human Rights and its American counterpart have both opined that the dangers posed by climate change infringe on human rights.
The verdict given by the ICJ is even more powerful by holding all governments legally accountable for their failure to address the most serious threat to the survival of our civilisation.
K Srinath Reddy | Distinguished Professor, Public Health Foundation of India
(Views are personal)
(ksrinath.reddy@phfi.org)