ICJ Hearings Offer New Chance to Get Rich Countries to Pay for Climate Crisis

Five years ago, a group of 27 law students at the University of the South Pacific came together and hatched a bold new plan to bring the issue of climate justice before the United Nations’ top court.

Pacific Islands Students Fighting Climate Change was born, and the youth-led group quickly grew to include more than 100 members from countries across the South Pacific. They were tired of world leaders failing to take aggressive action to curb greenhouse gas emissions and thereby fueling a climate crisis that disproportionately harms Pacific Island communities.

The law students decided to turn to international humanitarian law as a potential remedy, successfully rallying leaders of Pacific states to request an advisory opinion from the International Court of Justice (ICJ) on states’ legal obligations to prevent devastation wreaked by climate change. The opinion would set forth consequences for countries that violate human rights by causing significant harm to the world’s climate. In March 2023, the United Nations General Assembly unanimously adopted a resolution, spearheaded by the nation of Vanuatu, calling on the ICJ to issue the advisory opinion — the first time such a resolution has been passed with consensus.

The ICJ began public hearings at The Hague on December 2. Over the course of two weeks, the court will hear arguments from more than 100 countries and international organizations, including youth-led organizations and Indigenous groups, about what states are obligated to do to ensure the environment’s habitability and mitigate the climate crisis. While an ICJ advisory opinion is nonbinding, it marks the first time the UN’s highest court has been asked to clarify nations’ legal responsibility to prevent climate change.

Humanitarian groups have highlighted how the dangerous planetary temperature rise spurred by fossil fuel extraction threatens a range of fundamental human rights, including the right to health, food, housing and even life. Since 1850, rich countries, especially the United States, have contributed a disproportionate share of greenhouse gas emissions, while poorer countries are left to grapple with the climate crisis’s most devastating impacts.

Ahead of the hearings, the Center for International Environmental Law released a report outlining the human rights and legal basis for states and corporations to provide reparations for harm caused by the climate crisis. While the ICJ hearings mark a historic development, as the report outlines, it isn’t the first time that an international body has weighed in on the legal obligations of states and corporations to mitigate climate harm.

“Under international law, those whose human rights are violated have a right to remedy, including full reparation for climate-related harms,” the report’s authors wrote. “Existing national, regional, and international reparation mechanisms provide precedents and examples from which experience could be drawn for repairing climate harm.”

One of these examples can be found in the case Billy et al. v. Australia. In May 2019, a group of Indigenous Torres Strait Islands residents filed a petition to the UN, arguing that Australia’s failure to reduce greenhouse gas emissions and cease fossil fuel extraction would render their home islands uninhabitable in less than 15 years.

“The Authors have a deep concern that their culture and way of life, which is intimately linked with their land and sea territories in the Torres Strait, is gravely threatened by the effects of climate change and sea level rise in particular,” the Torres Strait Islanders wrote in their petition. “Unless urgent action is taken, climate change is predicted to make their islands uninhabitable within their and their children’s lifetimes.”

A UN committee decided in September 2022 that Australia had violated the group’s right to life under the International Covenant on Civil and Political Rights. The UN asked Australia to adequately compensate the Torres Strait Islanders for the harm inflicted, marking the first time an international tribunal found a country responsible for climate harm under human rights law.

Other international courts have issued rulings against states for their complicity in environmental harm and ordered reparations. In La Oroya v. Peru, the Inter-American Court of Human Rights — the human rights tribunal for American states — ruled this March that Peru had failed to control toxic industrial pollution from a mining complex in the Andes.

Families in the town were exposed to heavy metals and carcinogens in their soil, air and water for 100 years, and the town’s children have tested positive for dangerously high levels of lead in their blood. The Inter-American Court of Human Rights found that the community’s exposure to the harmful pollution amounted to a human rights violation, and, crucially, ordered the state to implement both individual and collective reparations. This includes environmental remediation, free specialized health care for residents, relocating families who wish to move, tightening air quality standards and creating a system for tracking environmental quality data in mining areas.

In May, the International Tribunal for the Law of the Sea, an independent judicial body established by UN convention, became the first international court to issue an advisory opinion on the climate crisis. The court ruled that human-caused greenhouse gas emissions are a form of marine pollution and found that states have a legal obligation to take measures to curb emissions.

These cases are among those that set important legal precedents for the hearings in front of the ICJ this month. And the hearings couldn’t arrive at a more crucial time: The UN Climate Change Conference, COP29, recently concluded in Azerbaijan with a disappointing and paltry climate finance deal. Climate justice activists and negotiators from Global South nations had called for wealthy countries to provide at least $5 trillion a year to help poor countries adapt to the climate crisis and decarbonize their economies. But COP29 negotiators instead inked a final agreement of $300 billion — a bitter outcome that one activist said was “a drop in the ocean compared to what is needed” and another negotiator called a “travesty of justice.”

In the face of COP29’s failures, human rights and climate advocates are hoping that international law could be another tool in the climate action toolkit, compelling rich countries to pay reparations for the climate disasters that they’ve played an outsize role in causing.

Of course, one might wonder: Even if the ICJ concludes that countries should face legal consequences for climate-based human rights violations, will world leaders actually listen? How would those consequences be enforced?

Notably, Australia rejected the UN’s findings in Billy et al. v. Australia and has neglected to pay the Torres Strait Islanders compensation. And the power of international law feels particularly precarious amid the U.S. and its allies’ unbridled and ongoing support for Israel’s genocide in Gaza. President Joe Biden’s administration has said it will not limit arms sales to Israel, despite well-documented evidence that Israel has committed human rights abuses. The International Criminal Court, the UN’s other top court in The Hague that prosecutes war crime cases against individuals, recently issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant — warrants that the U.S. and other Western nations have either rejected or ignored.

However, even though the ICJ’s opinion is nonbinding, it provides authoritative guidance and is expected to be cited in future climate litigation and negotiations. The hearings have already received an unprecedented level of participation, and the fact that the issue of climate justice made its way to one of the world’s highest courts, thanks to a youth-led grassroots movement, shouldn’t be discounted.

Given the magnitude of the crisis, every tool, every effort, counts. Basically, this is the first step in a long struggle for equitable climate action under international law. But we need a lot more than one step — hopefully, by the time the rest of the steps come, it won’t be too late.