ICJ Holds Hearings in Advisory Proceedings on States’ Climate Obligations

Convening just a week after the Baku Climate Change Conference, the International Court of Justice (ICJ) held oral hearings in the advisory proceedings on the obligations of States with respect to climate change. The ICJ will deliver its advisory opinion in open court sometime in 2025.

According to the Earth Negotiations Bulletin (ENB) summary report of the hearings, “[t]he hearings provided… [an] opportunity to set the course for ambitious climate action in this critical decade.”

The hearings drew a crowd distinct from the climate negotiations – ambassadors, legal counsel of foreign ministries, and international lawyers. States and admitted organizations had submitted 91 written statements and 62 written comments to inform the Court’s deliberations.

The oral hearings served as a platform for those who submitted written statements – and for those who didn’t – to substantiate their views on States’ obligations under international law – and legal consequences that apply following breach of these obligations, especially with regard to future generations and small island developing States (SIDS) that are particularly vulnerable to the adverse effects of climate change. In total, the Court heard 96 oral statements from States and 11 from international organizations.

According to ENB, “[s]tatements touched upon the role of the… UNFCCC, the Paris Agreement on climate change, and other environmental treaties, as well as human rights law, customary international law, and general principles of international law in defining the scope of States’ obligations.” Speakers also “debated the point in time at which knowledge of the adverse impacts of greenhouse gas (GHG) emissions gave rise to States’ duty of due diligence to prevent harm to the environment.”

Perspectives diverged on the legal consequences of breaching those obligations. Some underscored the climate regime’s non-punitive approach to compliance, while others emphasized the customary rules of State responsibility, including obligations to cease wrongful conduct and provide reparations.

The ENB report notes that the chief motivator behind the request for the advisory opinion was many countries’ dissatisfaction with the pace of the climate talks – and the effectiveness of the Paris Agreement. Indeed, the current set of nationally determined contributions (NDCs) puts the world on track to 3°C of warming compared to pre-industrial levels, far above the 1.5°C goal. “Negotiations in Baku raised significant doubts about many countries’ commitment to transition away from fossil fuels, the key driver of climate change,” ENB flags. During the hearings, many speakers hoped the Court’s advisory opinion would help course correct.

States and admitted international organizations have one last opportunity to inform the Court’s deliberations. The judges invited written responses to their questions regarding: fossil fuel production; the interpretation of mitigation obligations under the Paris Agreement; the right to a healthy environment; and declarations related to State responsibility and liability for loss and damage.

Building on a campaign by Pacific youth, in 2023, the small island State of Vanuatu was able to gather sufficient support for the UN General Assembly (UNGA) to unanimously adopt a resolution requesting the ICJ to give an advisory opinion on the obligations of States with respect to climate change. Specifically, the UNGA requested the ICJ to clarify:

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 GHGs for States and for present and future generations; and
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, SIDS, 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.

“Once the Court releases its opinion sometime in 2025,” the ENB analysis of the hearings notes, “it will, in all likelihood, mark a watershed moment for international climate governance.” “Despite its non-binding nature, the opinion will likely be picked up and referenced in climate litigation around the globe, and perhaps even stir up the climate negotiations and foster enhanced action,” it suggests.

The ICJ hearings on the obligations of states in respect of climate change took place at the Peace Palace in The Hague, the Netherlands, from 2-13 December 2024. [ENB Coverage of ICJ Hearings]

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This story is part of a project that seeks to raise awareness and build momentum and knowledge around the ICJ advisory opinion on obligations of States in respect of climate change and to promote a better understanding of the implications of the advisory opinion among sustainable development decision makers.