Rising Tides, Rising Obligations: The ICJ's Role in Climate Governance

On August 16, 2024, the International Court of Justice (ICJ) sent a press release that 62 written comments have been filed under their advisory proceedings on the Obligations of States in Respect of Climate Change by United Nations Member States, Non-United Nations Member entities, and international organizations. This press release came after the Vanuatu ICJ Initiative, driven by Vanuatuan youth groups focusing on climate activism, prompted the Government of Vanuatu to bring this case to the International Court of Justice (ICJ). According to the U.S. National Science Foundation, by 2060, sea levels are projected to rise by a meter, which will make small Pacific Islands, like the Republic of Vanuatu, unstable by permanently damaging their groundwater supplies. This comes after it was determined that these islands are only responsible for 0.03% of global greenhouse gas emissions. If the comments on this proceeding are accepted, they could reinforce the obligations of United Nations Member States, Non-United Nations Member entities, and international organizations to take concrete steps against climate change. These obligations, as mandated by international laws and treaties, such as the Paris Agreement, are crucial for protecting present and future generations, particularly those of endangered nations, such as the Republic of Vanuatu.

Achieving unanimous agreement among all states on a single issue has shown to be an exceedingly challenging task. One of the most known examples is the Paris Agreement, the most comprehensive international climate protection treaty to date. Since 2015, 195 out of 198 Parties have signed and ratified the Paris Convention. Yet, the main issue is the Paris Agreement’s non-punitive compliance mechanism that focuses on facilitation rather than enforcement. The Paris Agreement’s Article 15 states that “the mechanism referred to in paragraph 1 of this Article shall consist of a committee that is expert-based and facilitative in nature, and function in a transparent manner, non-adversarial and non-punitive […]”. Thus, the Paris Agreement still lacks legally binding sanctions for non-compliance and failure to meet commitments. For example, in 2017, the United States, one of the largest global emitters, announced its withdrawal from the Paris Agreement, which it later formally enacted in 2020 and annulled in 2021. The Trump Administration stated they were withdrawing the United States from the Paris Agreement because of the unfair economic burden imposed on American workers, businesses, and taxpayers by the United States pledged under the Agreement. This move demonstrated how countries can legally exit the agreement without facing punitive consequences, despite their significant impact on global emissions. The United States’ withdrawal delayed its own climate commitments and weakened the agreement’s overall momentum, as other nations became less inclined to strengthen their pledges without comparable commitments from major emitters.

However, even before the Paris Agreement, this lack of commitment to signed treaties had long been observed with other earlier international climate protection treaties, such as the United Nations Framework Convention on Climate Change (UNFCCC) (1992) and the Kyoto Protocol (1997), the first international agreement to establish legally binding goals for reducing greenhouse gas emissions. For instance, despite ratifying the Kyoto Protocol in December 2002, Canada withdrew from it in December 2011, which meant that this withdrawal would take effect starting from December 2012, only two weeks before the Kyoto Protocol’s first commitment period would end. Previously, Canada committed to reducing its greenhouse gas emissions by 6% below 1990 levels by 2012. Yet, Canada’s emissions had actually increased significantly from 461 megatonnes in 1990 to 690 megatonnes in 2009—an increase of approximately 49.7%. Canada eventually withdrew from the Kyoto Protocol due to the speculated reasons of increasing compliance costs, a change in government, and resistance from oil-abundant provinces against the implementation of the Kyoto Protocol, avoiding penalties for non-compliance. Even though the Kyoto Protocol has a more legally binding and harsher compliance mechanism than the Paris Agreement, Canada avoided penalties for non-compliance. This revealed how countries could simply withdraw from agreements without facing sanctions, revealing the limitations of enforceability and its weakened overall impact on global emissions reduction. After all these developments, the international community now stands at a turning point in the fight against climate change, where advisory opinions from the International Court of Justice may pave the way for stronger compliance mechanisms and address the enforcement gaps inherent in current climate agreements.

That said, the International Court of Justice’s advisory opinions are not legally binding because, under Article 59 of the International Court of Justice Statute, advisory opinions do not have parties and cannot bind states. That is, they do not have dispositifs (operative clauses), meaning the advisory opinions are just judicial responses to the questions submitted. Still, they can be used to clarify binding international law and hold states accountable in cases of breach of international obligations and non-compliance with international agreements. Historically, small Pacific Island states have made multiple efforts to use international legal channels to hold larger, high-emitting countries accountable for climate-related obligations under treaties, such as the Kyoto Protocol and the Paris Agreement. These Pacific Island nations, vulnerable to rising sea levels and extreme weather, have repeatedly expressed their concerns through various United Nations frameworks, often citing the disproportionate threat they face despite their minimal contributions to global greenhouse gas emissions. For instance, in 2002, Tuvalu, along with the Republic of Kiribati and the Republic of Maldives, announced that they planned to take legal action against major polluting countries—the Commonwealth of Australia and the United States, who had not ratified the Kyoto Protocol. Moreover, in 2011, the Republic of Palau turned to the United Nations World Court for an opinion on damage caused by greenhouse gas emissions, eventually bringing this case to the International Court of Justice. However, the United States protested this, and because of fear of losing billions in foreign aid, the Republic of Palau postponed this initiative.

In recent years, the Republic of Vanuatu has become a prominent advocate for climate justice on behalf of other Pacific Island countries with support from over 130 nations. Thanks to the Republic of Vanuatu’s actions, the United Nations General Assembly (UNGA) adopted a resolution to push the International Court of Justice to clarify the obligations of states under international law regarding climate protection. This ongoing case demonstrated the urgency of establishing enforceable legal obligations for high-emission nations to protect the most vulnerable nations from this disproportionate harm. By appealing to the International Court of Justice in April 2023, for the first time, the Republic of Vanuatu and other small Pacific nations have a chance to successfully secure a formal acknowledgment of the responsibilities of high-emission and polluting nations and a possible revision of the existing international climate change laws. Building on this momentum, on December 2, 2024, the first public hearings will be held for this case, Obligations of States in Respect of Climate Change, without strong political opposition. In anticipation of this event, numerous climate-focused organizations and legal experts have been preparing briefs and analyses, highlighting the significance of this hearing for the present and future generations of the world, especially its most vulnerable regions. The Republic of Vanuatu and its supporters expressed their hope and wish that the International Court of Justice will offer a definitive clarification on the United Nations Member States, Non-United Nations Member entities, and international organizations’ obligations to mitigate climate change under international law and strengthen legal precedent for climate accountability.

This case, Obligations of States in Respect of Climate Change, will likely set a new international standard by emphasizing that climate action is a shared responsibility and crucial for protecting endangered communities worldwide. This initiative, led by the Republic of Vanuatu and supported by over 130 nations, shows the growing urgency for a legal framework that prevents states from evading their commitments under non-compliance, as previously seen with cases such as Canada’s withdrawal from the Kyoto Protocol and the United States exit from the Paris Agreement. Should the International Court of Justice issue an advisory opinion, it could provide legal grounds for enforcing climate obligations under existing treaties, such as the Paris Agreement. Although the International Court of Justice's advisory opinions are non-binding, they can still significantly influence international norms and policies by clarifying ambiguous legal obligations and encouraging compliance. This outcome could also propel nations to adopt stricter national measures and incentivize a more solid international response to climate change while helping to bridge the current enforcement gaps in international climate agreements. The International Court of Justice’s anticipated decision in January 2025 may therefore mark a turning point toward a more enforceable, justice-oriented approach to climate governance, with the Republic of Vanuatu and other Pacific Island nations leading this initiative to ensure their survival.