The recent advisory decision issued by the International Court of Justice (ICJ), runs (including headnote summary, etc.) to 140 pages, and is far too detailed for me to offer an in-depth analysis. What follows then, is simply a potted history of how we arrived here, and the implications that arise.

It’s over two years since the Guardian reported on the start of this long and winding road. Pacific Islands Students Fighting Climate Change (PISFCC) was founded in 2019, and pushed for a UN resolution to seek an opinion from the ICJ “clarifying nations’ obligations to tackle the climate crisis and the consequences they should face for inaction.” Of course, given the state of play at the UN, they were pushing against an open door, and the opinion was duly requested in resolution 77/276 adopted by the United Nations General Assembly on 29^th March 2023.

The Court rightly took some considerable time over its deliberations, but I suspect the outcome was never in doubt. While its Judges were deliberating, some straws in the wind were offered up by the absurd decision of the European Court of Human Rights in the case of Verein Klimaseniorinnen Schweiz and others v Switzerland; and still further by the UK Supreme Court in the deeply worrying decision in the case of R (on the application of Finch on behalf of the Weald Action Group) v Surrey County Council and others.

Against that background, it would have been a surprise if the ICJ had done anything other than come to the conclusions it did. In order to understand the answers, though, first it is necessary to know what the questions were.

The nature of the Resolution

For those of us who are used to the English adversarial system, where the idea is that a disinterested judiciary impartially administers justice by deciding which of two opposing claims is legally correct, the way international law operates comes as something of a shock. Perhaps the wording of the letter to the ICJ shouldn’t have seemed so surprising, given the increasingly bizarre pronouncements of the UN Secretary-General (think “global boiling”). Although the questions to be put to the ICJ could have been reduced to a short paragraph, it didn’t work like that. Instead it was subjected to a quasi-hysterical rant that left it in no doubt that the narrative wasn’t to be questioned in reaching its decision; and it could equally be in no doubt regarding the conclusions it was expected to reach. Sure enough, it duly delivered.

The letter starts as it means to go on:

Recognizing that climate change is an unprecedented challenge of civilizational proportions and that the well-being of present and future generations of humankind depends on our immediate and urgent response to it…

No pressure, then, ICJ Judges.

It then recalled various UN resolutions over the years – relating to the protection of the global climate for present and future generations of humankind; on the human right to a clean, healthy and sustainable environment; on the 2030 Agenda for Sustainable Development; on human rights and climate change; as well as the need to ensure gender equality and empowerment of women.

Next it emphasised the importance of the UN Charter; of the Universal Declaration of Human Rights; and sundry UN Conventions, before recalling the Holy Grail of the UN Framework Convention on Climate Change, the Kyoto Protocol and Paris Agreement. Thus it inserted the concept of “the emission reductions required to hold the increase in the global average temperature to well below 2 degrees Celsius above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5 degrees Celsius above pre-industrial levels, and between current levels of adaptation and levels needed to respond to the adverse effects of climate change”.

One might have thought that ICJ Judges could be trusted to be aware of all this stuff, but the UN General Assembly was taking no chances. Next it reminded the ICJ that the UNFCCC and the Paris Agreement are to be interpreted so as “to reflect equity and the principle of common but differentiated responsibilities and respective capabilities, in the light of different national circumstances”.

That wasn’t enough. The ante had to be upped some more. It went on to note “with profound alarm” that despite all these brilliant Conventions, Protocols and Agreements, greenhouse gases continue to rise and that developing countries are suffering climate plagues of Biblical proportions (I paraphrase) . I don’t think my cynicism is entirely unjustified. The effects the letter referred to are as follows:

…including [presumably this is thus not an exclusive list and they are keeping their options open with a view to adding to it] persistent drought and extreme weather events, land loss and degradation, sea level rise, coastal erosion, ocean acidification and the retreat of mountain glaciers, leading to displacement of affected persons and further threatening food security, water availability and livelihoods, as well as efforts to eradicate poverty in all its forms and dimensions and achieve sustainable development…

To profound alarm the letter added the UN’s “utmost concern” regarding the scientific consensus represented by the IPCC – just in case the ICJ dared to consider re-opening this issue. And what, exactly, is this scientific consensus that must not be challenged, but must rather be noted with profound alarm?

…that anthropogenic emissions of greenhouses gases are unequivocally the dominant cause of the global warming observed since the mid-20th century, that human-induced climate change, including more frequent and intense extreme events, has caused widespread adverse impacts and related losses and damages to nature and people, beyond natural climate variability, and that across sectors and regions the most vulnerable people and systems are observed to be disproportionately affected…

Then it acknowledges that as temperatures continue to rise, it’s all going to go to hell in a handcart, and so it emphasises the urgency of scaling up action and finding the money to do so. It concludes by expressing “serious concern” that the goal of mobilising £100 billion per annum by 2020 hasn’t been met (I think we can reasonably infer from this that it’s up to the ICJ to produce a decision that will enable the money to be extracted from some nasty rich countries).

Finally we arrive at the questions that the ICJ is to answer (but not before insisting that it has to have “particular regard” to the various Conventions and Treaties referred to above):

First:

What are the obligations of States under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases for States and for present and future generations?

Second:

What are the legal consequences under these obligations for States where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect to:

States, including, in particular, small island developing States, which due to their geographical circumstances and level of development, are injured or specially affected by or are particularly vulnerable to the adverse effects of climate change?

and

Peoples and individuals of the present and future generations affected by the adverse effects of climate change?

The decision

After listing a huge number of organisations (and the individuals representing them) – this part runs to thirteen pages – that made submissions, the ICJ finally got around to looking at the law. Before I turn to that, I note that the UK representative was the Rt Hon. Lord Richard Hermer, KC, HM Attorney General for England and Wales. I am curious to know the gist of his submission. According to the BBC’s report of the judgment:

…developed countries, including the UK, argued that existing climate agreements, including the landmark UN Paris deal of 2015, are sufficient and no further legal obligations should be imposed…

Unfortunately, I haven’t been able to find anything more on the UK government’s website.

Back to the ICJ. It commenced by noting that it has a discretion as to whether or not to issue an advisory decision, and then decided that it would exercise its discretion to do so, noting that there was no compelling reason why it should decline to offer its opinion.

It then turned “to the context in which resolution 77/276 was adopted, as well as to the relevant scientific background.” Inevitably there followed six or so pages dealing with the context (basically a recitation of the various UN jamborees that have led to this point) and another five or so pages discussing “the science”, with particular reference to the work of the IPCC. Finally, on page 39 of the judgment, the ICJ got around to discussing the scope and meaning of the questions it has been asked to answer. It noted that it has the power to interpret the questions put to it for an advisory opinion and that it is for the Court “to appreciate and assess the appropriateness of the formulation of the questions”. Further, that if questions put to the Court are ambiguous or vague, the Court may clarify them before giving an opinion. However, it wasted no time in concluding that “[i]n the present instance, the Court considers that there is no need for it to reformulate the questions submitted to it”.

Paragraph 97 is interesting. It touches on the question of whether states can be liable for historic emissions, and notes that there is an issue as to whether states can be held responsible for actions taken before they were covered by a treaty obligation. It sidestepped the issue by noting that the questions involve the obligations of all (rather than asking about the liability of individual) states. As we will see later, it also seeks to impose a further legal duty based on general concepts of international law, rather than one based solely on Treaty obligations.

I am racing through the judgment, because there is much that is of interest to an international lawyer, but which is of less interest to a curious layperson. Some time is spent analysing the UN Charter, international climate treaties, the UN Convention on the Law of the Sea, and other environmental treaties, before the ICJ turns its attention to customary international law. After a fairly brief review of this latter area, it concludes, at paragraph 139:

…that the duty of States to prevent significant environmental harm applies in the context of climate change and that this duty forms part of the most directly relevant applicable law….

Looking at the UN Charter, the ICJ next concluded (at paragraph 142):

…that the duty to co-operate for the protection of the environment forms part of customary international law and can also serve as a guiding principle for the interpretation of other rules. It forms part of the most directly relevant applicable law.

By paragraph 148 we are getting to the meat of the UN’s ongoing determination to transfer wealth from developed countries to developing ones:

In the view of the Court, the principle of common but differentiated responsibilities and respective capabilities reflects the need to distribute equitably the burdens of the obligations in respect of climate change, taking into account, inter alia, States’ historical and current contributions to cumulative GHG emissions, and their different current capabilities and national circumstances, including their economic and social development. The principle of common but differentiated responsibilities and respective capabilities thus acknowledges, on the one hand, the historical responsibility of certain States and, on the other, that the measures which can be expected from all States with respect to addressing climate change are not the same.

And at paragraph 150:

The Court thus notes that on one end of the spectrum are the most developed States which have contributed significantly to the overall amount of GHG emissions since the Industrial Revolution, and which have resources and the technical capacity to implement wide-ranging emission reductions. On the other end are those least developed States that have contributed only minimally to historical emissions and have only a limited capacity to transform their economies. In between are States that have progressed considerably in their development since the conclusion of the UNFCCC in 1992, in line with that instrument’s expectation that “the share of global emissions originating in developing countries will grow to meet their social and development needs” (UNFCCC, third preambular paragraph), and some of which now contribute significantly to global GHG emissions and possess the capacity to engage in meaningful mitigation and adaptation efforts, as well as other States with significant resources and technical capabilities to contribute to addressing global climate change.

I suspect the “in-between” states referred to there definitely include China. Good luck in persuading them to cough up some dosh.

Paragraph 157 deals with inter-generational equity:

In the Court’s view, intergenerational equity is a manifestation of equity in the general sense and thus shares its legal significance as a guide for the interpretation of applicable rules. Accordingly, considerations of intergenerational equity must play a role infra legem, without displacing or exceeding the limits of the applicable law. Due regard for the interests of future generations and the long-term implications of conduct are equitable considerations that need to be taken into account where States contemplate, decide on and implement policies and measures in fulfilment of their obligations under the relevant treaties and customary international law.

For the avoidance of doubt, the conclusion reached at paragraph 161 is everything that the UN might have hoped for:

For these reasons the Court concludes that the principles of sustainable development, common but differentiated responsibilities and respective capabilities, equity, intergenerational equity and the precautionary approach or principle are applicable as guiding principles for the interpretation and application of the most directly relevant legal rules.

Skipping through the decision, things become quite interesting from paragraph 304 onwards. Paragraph 304 contains this nugget:

…While States have obligations to make individual contributions to collective efforts under the duty to prevent significant harm to the environment, the interpretation and fulfilment of their substantive obligations under that duty must also take account of the situation of other States and, as far as possible, be fulfilled in co-operation with other States…

Does this allow individual states to evade responsibility by saying that the lack of co-operation from other major emitters means they aren’t obliged to take individual action if such measures would be futile? Almost certainly not – see paragraph 306:

…The Court recognizes that the duty to co-operate leaves States some discretion in determining the means for regulating their GHG emissions. However, this discretion cannot serve as an excuse for States to refrain from co-operating with the required level of due diligence or to present their effort as an entirely voluntary contribution which cannot be subjected to scrutiny...

And paragraph 308:

…Climate change is a common concern. Co-operation is not a matter of choice for States but a pressing need and a legal obligation…

Paragraph 315 seeks to avoid allowing parties to evade liability by not being a party to climate change treaties:

…Customary obligations are the same for all States and exist independently regardless of whether a State is a party to the climate change treaties…

Only on page 116 does the ICJ get around to dealing with the legal consequences of its findings regarding various aspects of international law. Critically (at paragraph 406):

...it is not the Court’s task in this Opinion to establish the individual responsibility of a State or group of States for the damage caused to the climate system (see paragraphs 107-110 above); such responsibility can only be established on a case-by-case basis...

Paragraph 421 onwards deals specifically with determination of state responsibility in the climate change context. At this point I think it is worth referring to my own article in which I seek to explain the difficulties involved in apportioning liability for climate change damage (even assuming – as of course the ICJ does – that the IPCC science is beyond challenge). For I am not alone in observing that these issues are profoundly complex. The ICJ acknowledges as much:

The Court recalls that climate change is a highly complex and multifaceted phenomenon involving possible responsibilities for multiple States over long periods of time. The unprecedented nature and scale of harm resulting from climate change give rise to particular issues in relation to the application of the customary rules on State responsibility. That is so because concentrations of GHG emissions are not produced by a single activity or group of activities identifiable or associated with a certain State or States. Moreover, it is the collective and aggregate effects of GHGs, anthropogenic as well as from natural sources, that cause damage to the climate system. While, in general, all States both contribute to these emissions and are adversely affected by climate change, it is to be recalled that States have contributed to significantly different degrees to the concentration of GHGs in the atmosphere and are affected differently by the effects of climate change. The Court finds it necessary to address, as part of its reply to the General Assembly, some of the issues raised by these special features of climate change to the application of the customary rules on State responsibility.

Chief amongst these issues are questions relating to attribution and causation, which require clarification in view of the special features of climate change. Indeed, the need for such clarifications is self-evident given that, under the rules on State responsibility, only an action or omission attributable to a State can give rise to international responsibility. Moreover, in cases where reparation is claimed, it must be shown that the damage for which reparation is claimed has been factually and legally caused by a State.

Paragraphs 427 and 428 are particularly interesting, and is, I think, one of the paragraphs that has given rise to much of the excitable reporting of the judgment:

Failure of a State to take appropriate action to protect the climate system from GHG emissions — including through fossil fuel production, fossil fuel consumption, the granting of fossil fuel exploration licences or the provision of fossil fuel subsidies — may constitute an internationally wrongful act which is attributable to that State. The Court also emphasizes that the internationally wrongful act in question is not the emission of GHGs per se, but the breach of conventional and customary obligations identified under question (a) pertaining to the protection of the climate system from significant harm resulting from anthropogenic emissions of such gases….

…In relation to private actors, the Court observes that the obligations it has identified under question (a) include the obligation of States to regulate the activities of private actors as a matter of due diligence. Therefore, attribution in this context involves attaching to a State its own actions or omissions that constitute a failure to exercise regulatory due diligence….

Also paragraph 429:

The Court further notes that some participants submitted that it is difficult to invoke responsibility in the context of climate change given that the wrongful conduct is cumulative in nature, involving different States over a period of time, and involving a plurality of States that cause injury to a plurality of injured States. In this respect, the Court observes that while climate change is caused by cumulative GHG emissions, it is scientifically possible to determine each State’s total contribution to global emissions, taking into account both historical and current emissions….

I profoundly disagree with this bland and casual statement. It is far more complex than that. I dealt with the difficulty of (inter alia) establishing the emissions on a state by state basis here.

Paragraph 431 is crucial:

Therefore, in the climate change context, the Court considers that each injured State may separately invoke the responsibility of every State which has committed an internationally wrongful act resulting in damage to the climate system and other parts of the environment. And where several States are responsible for the same internationally wrongful act, the responsibility of each State may be invoked in relation to that act.

This is immensely problematic. If the IPCC and the UN (and Ed Miliband and the rest of them) are to be believed, every state (including the UK) has suffered climate change injury. Equally, every state has (on the basis of the ICJ’s analysis) at some time, and to a greater or lesser extent, “committed an internationally wrongful act resulting in damage to the climate system and other parts of the environment.” I discuss the implications of this bizarre paragraph below.

The ICJ specifically discussed the issue of causation from paragraph 433 onwards. I won’t go into detail, and I observe that it rather airily dismissed the causation issues that I dealt with at some length in Gimme, Gimme, Gimme. I am not an international lawyer, and I have not practised law for some years, so what do I know compared to these eminent Judges? Still, I venture to suggest that the issues I raise are of relevance, and should be argued in any case brought against a state as a result of the advisory ICJ decision. Despite the erudition on display (as one would expect from eminent international Judges) and despite the length of the decision, the section dealing with causation is cavalier in its simplicity, given the complexity of the issue, especially in this context. It is is this, more than anything else, that convinces me that this is a political decision doing the UN’s bidding, rather than a truly independent and objective Court finding. Anyone defending a claim issued on the back of this decision shoud certainly seize on the words of the ICJ at paragraph 454:

In the climate change context, reparations in the form of compensation may be difficult to calculate, as there is usually a degree of uncertainty with respect to the exact extent of the damage caused.

It seems beyond doubt that this judgment will be used to justify claims against individual states, as the final part of the conclusion makes clear. The ICJ concludes:

Unanimously, Is of the opinion that a breach by a State of any obligations identified in response to question (a) constitutes an internationally wrongful act entailing the responsibility of that State. The responsible State is under a continuing duty to perform the obligation breached. The legal consequences resulting from the commission of an internationally wrongful act may include the obligations of: (a) cessation of the wrongful actions or omissions, if they are continuing; (b) providing assurances and guarantees of non-repetition of wrongful actions or omissions, if circumstances so require; and (c) full reparation to injured States in the form of restitution, compensation and satisfaction, provided that the general conditions of the law of State responsibility are met, including that a sufficiently direct and certain causal nexus can be shown between the wrongful act and injury.

At the end of the decision, paragraph 456 is overtly political, and makes it clear that the issued decision is part of the process of trying to achieve the UN’s objective with regard to climate change:

Before concluding, the Court recalls that it has been suggested that these advisory proceedings are unlike any that have previously come before the Court. At the same time, as the Court concluded earlier, the questions put to it by the General Assembly are legal ones (see paragraph 40), and the Court, as a court of law, can do no more than address the questions put to it through and within the limits of its judicial function; this is the Court’s assigned role in the international legal order. However, the questions posed by the General Assembly represent more than a legal problem: they concern an existential problem of planetary proportions that imperils all forms of life and the very health of our planet. International law, whose authority has been invoked by the General Assembly, has an important but ultimately limited role in resolving this problem. A complete solution to this daunting, and self-inflicted, problem requires the contribution of all fields of human knowledge, whether law, science, economics or any other. Above all, a lasting and satisfactory solution requires human will and wisdom — at the individual, social and political levels — to change our habits, comforts and current way of life in order to secure a future for ourselves and those who are yet to come. Through this Opinion, the Court participates in the activities of the United Nations and the international community represented in that body, with the hope that its conclusions will allow the law to inform and guide social and political action to address the ongoing climate crisis.

Implications

The implications for the UK, and its current Labour government, strike me as intriguing, to say the least. I posited in Are There Two Sides to Ecocide? that the Scottish government has a dilemma in deciding whether or not to press on with the Ecocide Bill – does it provide exemptions for the renewable energy companies who are causing so much environmental damage, thereby undermining the Bill, or does it allow them to fall within its scope, thereby undermining its energy policy? Or does it decline to allow the Bill to go forward, thereby undermining its claims to be in the environmental vanguard?

Similarly, in the event that an individual or a country sues the UK in reliance on the ICJ decision, how should the UK government respond? It has insisted on the vital importance of international law (even while paying lip service to it). Does it deny responsibility for any such claim that might be made on the basis of the UK’s historic emissions? Or does it acknowledge some liability? If the former, how does it continue to claim to be at the forefront of the fight against climate change? If the latter, how does it explain to UK voters that their taxes are going to have to go up even more to pay these damages? Especially given that we are always being told (disingenuously) that the costs of net zero are justified because they are less than the costs of inaction. How ironic it would be if we ended up paying the enormous costs of net zero, saw no benefit from them in the form of mitigation of climate change, and also ended up paying damages to others for the climate change they claim they are suffering.

What’s the alternative? Does the UK admit the claim based on historic emissions, but deny any obligation to pay damages, because the UK is in turn owed damages by those other countries (the vast majority of them) who are not following the UK’s “lead”, who are not making meaningful efforts to reduce their own emissions, and who are manifestly failing to comply with the obligation detailed by the ICJ to co-operate with other nations with regard to emissions reductions and climate change mitigation? Remember, in this context, paragraph 431:

Therefore, in the climate change context, the Court considers that each injured State may separately invoke the responsibility of every State which has committed an internationally wrongful act resulting in damage to the climate system and other parts of the environment. And where several States are responsible for the same internationally wrongful act, the responsibility of each State may be invoked in relation to that act.

Where does it end? Will every nation sue every other nation for their breaches of the duties established by the ICJ? Who will pay? It can safely be assumed that Russia, Iraq, Inda, China, USA (under Trump) and the other big emitters won’t be in a hurry to part with any money. Will the UK, yet again, be the mugs who pay for everything?

However this pans out, I think the ICJ decision will turn out to be a very low point indeed, despite the high moral tone it has adopted. It has opened Pandora’s Box, and potentially unleashed chaos. It seeks to build international co-operation. Instead, there is a distinct possibility that this will lead to countries being at each other’s throats for decades to come. It is a most unwelcome development, whatever the climate-concerned might wish to believe to the contrary.