In March 2023, following a campaign led by Vanuatu, the United Nations General Assembly adopted a resolution requesting an advisory opinion from the ICJ on the obligations of countries to address the climate crisis under international law. It also asked the Court to consider the legal consequences of failing to act.

This advisory opinion could open many doors to advance climate justice, and protect the environment for present and future generations. It will clarify international responsibilities, which the EU will need to uphold in its policies. This opinion has the potential for shaping the international obligations of EU Member States - being ‘developed nations’ - towards countries who are more vulnerable to climate change and spur transformative EU climate action.

In addition, it could inspire the Court of Justice of the European Union (CJEU) and national courts to take a stronger stance on nature and biodiversity protection. For example, an ICJ advisory opinion that affirms nations’ legal responsibility to address both the biodiversity and climate crises could see the CJEU recognise the threats to human rights from biodiversity depletion and enforce appropriate measures; further, the “polluter pays principle’’ could become applicable in the compensation of vulnerable states and their populations. As European and national courts have grown increasingly confident in using international climate change obligations as a precedent in their own proceedings, WWF hopes the ICJ advisory opinion will further incentivise them to do so.

Manuel Pulgar-Vidal, WWF Global Climate and Energy Lead, and COP20 President, said:
“There are already legal obligations for countries to tackle the climate crisis, in addition to the economic, social, environmental and humanitarian imperatives. The Court’s opinion has the potential to establish this in international law with more authority than any previous court ruling on climate change. With most countries falling far short of their obligations to reduce emissions and protect and restore nature, this advisory opinion has the potential to send a powerful legal signal that states need to fulfil duties to act. 

“WWF hopes to encourage the Court and countries making their own submissions to recognise that nature is a climate ally, and that action to protect our natural world must take place in parallel with action to reduce emissions, to ensure we have a living planet for future generations.”

The WWF submission emphasises that biodiversity loss impacts humanity’s ability to mitigate the effects of climate change itself. Certain ecosystems and species play a significant role in the removal and sequestration of CO2 from the atmosphere and can reduce the risks associated with natural disasters exacerbated by climate change.

It also highlights that climate and nature action are essential to ensure that existing international human rights law obligations are upheld. These include the right to a healthy environment, the right to health and life, the right to an adequate standard of living including food and water, and the right to non-discrimination.

With regard to the consequences for states who do not fulfil their obligations, WWF calls on the Court to establish a duty for countries to stop harming nature, and adopt the “polluter pays” principle in the compensation of states that have suffered significant, often irreversible damage, resulting from pollution by greenhouse gas emissions. WWF also encourages all countries to take immediate measures to ensure their compliance with their international obligations to preserve, protect, and restore biodiversity, and the compliance of other countries. 

When the ICJ publishes its final opinion, it will add to other significant legal rulings from international and national courts that have underlined the legal obligations of states to act on climate and nature. One example is the recent ruling by the International Tribunal for the Law of the Sea (which WWF also made a submission to) which found that states have a legal obligation to tackle the climate crisis to preserve marine ecosystems. Another is the European Court of Human Rights that found human rights were being compromised due to lack of climate action.

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NOTES TO EDITOR

WWF was advised on its submission to the ICJ by international law firm Squire Patton Boggs and barristers from 20 Essex Street, Matrix Chambers, Brick Court Chambers, Doughty Street Chambers and No 5 Chambers.