Climate activists are having their day in court, if Wednesday’s International Court of Justice (ICJ)’s unanimous opinion is a bellwether. The Hague court declaration that governments were legally liable for greenhouse gas emissions is the latest addition to the increasing volume of climate litigation around the world. The judges described as “wrongful acts under international law” the grant of exploration and extraction licenses and subsidies for the coal, oil, and gas industry, which only reluctantly recognised responsibility for global warming in the 2023 COP28 summit. They further pronounced that states had to pay reparations, including monetary compensation and the restitution of damaged infrastructure from catastrophic climate incidents.
The non-binding ICJ opinion is the outcome of a 2023 UN General Assembly resolution that sought to ascertain the obligations of governments to tackle global warming and the consequences if they failed to honour them. In the court hearings, youth activists representing vulnerable communities from frontline states in the Pacific and the Caribbean, which bear the brunt of rising sea levels, argued that the handful of countries that produce the vast bulk of GHG emissions should be held legally accountable for the impact from the climate crisis. The ICJ’s determination builds on two previous opinions on the responsibilities of governments on a question of the gravest importance for the survival of the planet. The first relates to a query from the Commission of Small Island States on Climate Change and International Law. In response, the International Tribunal on the Law of the Sea, in May 2024, declared that rich countries had a duty to reduce emissions faster than developing nations. Emissions must be curbed from land-based sources, international shipping, and aviation sectors, the tribunal averred. The Inter-American Court of Human Rights earlier this month ruled that a stable climate was a human right that states must protect. Meanwhile, the recent spurt in lawsuits to challenge public and corporate inaction to counter climate change has focused on carbon reduction targets and claims for damages against climate-related disasters, according to the UN Environment Programme.
It is a moot point whether the spurt in climate litigation will hasten the transition away from fossil fuels. In April 2023, the US Supreme Court declined a bid by energy firms to transfer cases to federal courts after state courts determined that the matter fell within the jurisdiction of states, regarded as a more favourable arena for the plaintiffs. Even so, there is growing concern that President Trump, who has quit the 2015 Paris climate deal, could endeavour to secure legal immunity for energy firms, much like the 2006 waiver won by the firearms industry from accountability for violence. Some European countries have similarly argued that their climate obligations extend no further than the commitments they have made under the Paris deal, which allows nations to determine their own emissions reduction targets. The stakes in the climate contestation could not be greater.
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