The ICJ ruling that countries could be legally liable for the impact of carbon emissions could have major consequences for CAs in the future. So we’ve given over our regular CA View slot to Senior Associate, Steven Blane, and Associate, Calum Atterbury, of Pinsent Masons LLP to explain the implications

When the Secretary General of the United Nations declares a court’s judgment as “a victory for our planet, for climate justice and for the power of young people to make a difference” it requires careful consideration. António Guterres’s comments came in response to the International Court of Justice’s (ICJ) advisory opinion on the obligations of states when it comes to climate change. The top UN court’s process was initiated following pressure from, among others, small island states such as Vanuatu which are on the frontline of this crisis.

A laborious court process followed over two years, seeing oral submissions from 96 countries and 11 international organisations. When the ICJ issued its opinion in July, it concluded that states do have obligations under international law to ensure the protection of the climate and environment from greenhouse gas emissions (GGEs). For only the fifth time in its 80-year history, the ICJ’s opinion was unanimous.

The impact of the opinion is significant, but effects are unlikely to be immediate. The opinion is ‘advisory’, so it doesn’t bind countries to any particular action. Instead, it clarifies the obligations which international law imposes. Future cases will be needed to determine whether a state has breached its obligation in any particular circumstances.

The obligations are imposed in two main ways. First by climate treaties, such as the Paris Agreement (though this is relevant only to signatories of those treaties), and second by customary international law which imposes duties on all states.

In the future, if a country has breached its climate obligations, it may be sued by another country for compensation for losses arising from that ‘harm’. Whether a country had breached its obligation would be a factual question for the ICJ and could only be answered if the alleged impacted country brings a claim.

In practice, significant barriers exist to directly attributing one country’s contribution to global emissions. The data required to determine the percentage of its overall contribution is vast and complex. And if it can’t be established the action will fail.

The ICJ recognised this difficulty in its opinion but noted that it was not impossible to establish the necessary ingredients for a claim. We agree. The hurdles to establishing causation are likely to be lessened as climate knowledge improves, and as AI becomes better able to analyse and interpret the complex and necessary data. It may only be a matter of time before causation is successfully established.

Shifting speed

While countries are left to consider options for future legal challenges, the broader political impact of this decision could be more immediate. States can be held responsible for private actors’ conduct within their borders – this risk of attribution may coax countries into revising their policies, licensing frameworks and subsidy arrangements.

“The ICJ’s opinion sits atop an increasing body of regional judgments which recognise that the protection of human rights requires countries to act on climate change”

For example, will legislatures now tighten climate change legislation or governments revise policy? The opinion highlighted that policies subsidising fossil fuels or approving new gas licences could breach a country’s obligations to protect the climate from GGEs. It is up for debate whether countries with significant extractive industries are likely to change their regulatory regime. The ICJ’s opinion has to be considered alongside broader domestic pressures to act on climate change. The urgency of that shift, and whether the ICJ’s opinion will accelerate it, is the real question.

The ICJ’s opinion sits atop an increasing body of regional judgments which recognise that the protection of human rights requires countries to act on climate change. Within the past 18 months alone, similar decisions have been reached by the European Court of Human Rights and the Inter-American Court of Human Rights. A decision of the African Court on Human and Peoples’ Rights on the same issue is also expected shortly.

Ultimately, for businesses, while the true impact of the ICJ’s opinion and the regional decisions will take time to become clear, the short-term impact should be minimal. But until the dust has settled, and we see how countries react to it, there will be uncertainty. Cop30 may provide an insight into domestic policy positions as the opinion is likely to feature in talks and negotiations. Businesses must remain alert to this, and future discussions, given the impact which changing policy and political shifts can have across their global operations.

Time will tell whether the opinion turns out to be the “victory” the Secretary General suggests, but it appears more likely to be another step on the long road towards generating greater international consensus on the steps necessary to combat climate change.

pinsentmasons.com

 Find more resources at the ICAS sustainability hub