Opinion: International Court: Nations Are Liable for Fossil Fuel Harms

Love, Justice and Climate Change

Last week, the highest court of the UN issued a landmark “advisory opinion” that nations can be held liable for their emissions that have contributed to global warming. The 15 judges on the International Court of Justice (ICJ) were unanimous in declaring that the production and consumption of fossil fuels “may constitute an internationally wrongful act” on the part of a nation. They further found that nations and communities harmed by human-caused climate change may be entitled to “reparations”.

While the court’s opinion is not binding on nations, it is binding on other U.N. bodies and is expected to influence judicial proceedings throughout the world.

Young People Get It Started
This decision was the culmination of a long process that was begun in 2019 by 27 law students from the University of the South Pacific in Vanuatu. Their idea was to change international law by getting the ICJ to issue an advisory opinion about the climate crisis. First they organized a grassroots group of students throughout the Pacific islands. Then they set out to convince the 18 nations/territories of the Pacific Island Forum to take the issue to the International Court of Justice. The youth-led group also linked up with other youth organizations around the world to lobby more nations.

In 2021, the government of Vanuatu, a nation of 80 islands and 300,000 people east of northern Australia, decided to take the lead. As a result of their efforts, the members of the Pacific Island Forum unanimously supported taking the issue to the ICJ. These nations then continued to work diplomatically to get other nations in all parts of the world to support the initiative.

UN General Assembly Unanimously Asks for Advisory opinion
In 2023, with 105 nations sponsoring the resolution, the UN General Assembly unanimously agreed to formally request an advisory opinion from the international court. The General Assembly burst into applause when the resolution was approved. As the New York Times put it, they asked the Court to decide “Can countries be sued under international law for failing to slow down climate change?”

The court then took two years studying the issues and taking input. They received 91 written statements, 107 oral statements, and 65 responses to follow-up questions by the judges. Opinions expressed to the court differed widely, of course, among low income nations, wealthy nations, oil producing nations, small island nations, etc. The court also arranged a private meeting with scientists from the IPCC, the major UN scientific body on climate change. It was the “highest level of participation in a proceeding” in the court’s history.

Climate Change Is a Threat to Human Well-being
In their 133 page opinion, the Court endorsed the scientific findings of the IPCC saying, “climate change is a threat to human well-being and planetary health and there is a rapidly closing window of opportunity to secure a livable and sustainable future for all.… Choices and actions implemented between 2020 and 2030 will have impacts now and for thousands of years.”

Nations Responsible for Extraction as Well as Emissions
Significantly, the Court found that countries are responsible not only for their greenhouse gas emissions, but also for their fossil fuel production and subsidies. This is particularly important because some countries’ production of fossil fuels is even more significant than their emissions. The U.S., for instance, in addition to emitting a huge quantity of greenhouse gases, is also the largest producer of fossil gas and oil and the third largest producer of coal in the world, much of which is exported.

Liability for Climate Harm
Prof Viñuales, who represented Vanuatu on the case, summarized the Court’s findings this way: “Perhaps the main take away from the opinion is that the court recognized the principle of liability for climate harm, as actionable under the existing rules.”

What I love About This
Obviously, many nations will be reluctant to change their policies or behavior as a result of this ruling, but it has shifted the landscape for legal action on climate and reparations very significantly. I love that this case started with law students sill in school, was pursued by one of the smallest, most vulnerable nations in the world (Vanuatu), and ended with a rare unanimous decision by the 15 judges of the International Court of Justice.

Russ Vernon-Jones was principal of Fort River School 1990-2008 and is currently a member of the Steering Committee of Climate Action Now-Western Massachusetts. He blogs regularly on climate justice at www.russvernonjones.org.