State Responsibility and Climate Change: Interpreting the ICJ Advisory Opinion
Keywords:
- State Responsibility, climate change, advisory opinion, International Court of Justice., Erga Omnes Obligations, Climate Reparations, Due Diligence ObligationAbstract
The intersection of state accountability and climate change is one of the most notable and important aspects of current international law. The International Court of Justice has given us an advisory opinion on the obligations of states concerning climate change, and it is most definitely a major milestone on the intersection of the two fields. This chapter identifies what the opinion means for international state responsibility, and addresses how the Court’s reasoning influences the existing structures of wrongful acts, due diligence, and reparations, and how they apply to climate change caused by human activity.
This chapter has divided the subject at hand into three components. The first is a description of how the Court sees climate change obligations when it comes to treaties, especially the UNFCCC and Paris Agreement, as well as some rudimentary components of international law, especially the no harm rule, and the duty to avert transboundary environmental harm. The second considers the challenges of attribution, especially on the diffuse, cumulative, and causality of climate change, and seeks to determine if the traditional rules of attribution in the ILC Articles on State Responsibility in the face of climate change. The last section deals with the international wrongful acts and climate change, especially the potential, and to an extent, the inevitability of cessation and non-repetition, and full reparation for the small island developing states, as well as other communities that are disproportionately affected by the variation climate change brings.
This chapter contends that although the advisory opinion contributes to normative clarity, when it comes to the State responsibility doctrine, there are still considerable gaps that do not address the potential remedies for the climate vulnerable. Closing these gaps will call for creative judicial activism, as well as additional multilateral measures that fall outside the boundaries of the advisory opinion.
References
Obligations of States in Respect of Climate Change, Advisory Opinion, [2025] I.C.J. (July 23)
United Nations: States Should Support Vanuatu Climate Resolution, Climate Rights Int'l (Feb. 16, 2026), https://cri.org/united-nations-states-should-support-vanuatu-climate-resolution/.
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ICJ Advisory Opinion (n 1) [148]–[152]; ARSIWA (n 2) art 14, addressing the extension of internationally wrongful acts in time, particularly relevant to the cumulative and continuous nature of greenhouse gas emissions; Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Advisory Opinion) [2011] ITLOS Rep 10 [131].
Vishakha, supra note
Roza de Jong, Towards State Responsibility in the ICJ Climate Change Advisory Opinion? A Cross-Regime Analytical Perspective, World’s Youth for Climate Justice: Global Climate Justice Symposium (July 13, 2024),
As said by Mary Robinson, the former High Commissioner for Human Rights, during a full-day panel discussion on climate change and human rights by the Human Rights Council in March 2015. The connection between human rights and the environment was already recognised in 1972 during the first un Conference on the Human Environment, but did for a long time not yet refer to climate change. unhrc, ‘Summary Report of the Office of the United Nations High Commissioner for Human Rights on the Outcome of the Full-Day Discussion on Specific Themes Relating to Human Rights and Climate Change’, 1 May 2015, 29th session, A/hrc/29/19, para. 77
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United Nations Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) 1771 UNTS 107; Paris Agreement (adopted 12 December 2015, entered into force 4 November 2016) UNTS Reg No I-54113
ICJ Advisory Opinion (n 1) [134]–[141]; cf Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Advisory Opinion) [2011] ITLOS Rep 10 [131], in which the Seabed Disputes Chamber articulated a due diligence standard applicable to environmental harm in international law.
