Obligations of States in Respect of Climate Change: Climate Justice Proceedings in the International Court of Justice

Writer: Harper West

Editor: Tatum Cempella

I. Introduction and Background

Students from the Pacific Islands, a region increasingly threatened by climate change, have not waited silently as their homes face rising sea levels. Through their youth-powered program, they have brought climate change to the International Court of Justice (ICJ) in a case that, if decided in their favor, would set a new precedent for environmental justice and have the potential to hold high-polluting countries accountable for global warming. Pacific Islands Students Fighting Climate Change (PISFCC), the group that advocated for this hearing, began in 2019 at the University of the South Pacific with just twenty-seven students.¹ In 2021, the case came to the ICJ when the country of Vanuatu, a small island in Oceania to the east of Australia, sought an advisory opinion from the court on the responsibility of countries to mitigate climate change.² One hundred and thirty-two countries cosponsored the resolution, and the ICJ was called on to provide an advisory opinion on legal questions that would clarify the obligations of countries to protect the environment and other humans from their climate change emissions.³ More specifically, the countries ask the ICJ to clarify what the “legal consequences” are for countries that cause harm to states, particularly “small island developing States” and “peoples and individuals of the present and future generations affected by the adverse effects of climate change.”⁴ The ICJ has yet to deliver its official ruling, but the responses of the participating countries provide insight into the current standing of climate change within international law.

Vanuatu, the country leading the campaign, declares that not limiting emissions that contribute to global warming is a violation of international law.⁵ Moreover, Arnold Kiel Loughman, Attorney General of Vanuatu, asserts that it is a country’s “due diligence to prevent significant harm to the environment.”⁶ These questions of law will now be decided by the ICJ’s fifteen judges, who, prior to the hearings, were briefed on the science behind global warming by the U.N.’s Intergovernmental Panel on Climate Change.⁷ Though the verdict is not expected until late 2025, this case can still be analyzed as a significant step towards bridging environmental justice gaps around the world and is a promising example of how student empowerment can have real-world influence. 

II. Why Pacific Island Nation-States and Others Seek Justice

While rising sea levels affect the entire globe, low-lying islands such as those in the Pacific are especially vulnerable. Many are barely elevated above sea level, so when water levels rise, crucial amounts of land are lost on islands that are already small.⁸ In the Pacific, 90% of island residents live within a mere three miles of the ocean.⁹ This puts their homes and businesses at great risk of being washed away, particularly as flooding has become more frequent in recent years. For example, Pago Pago, the capital of American Samoa, went from zero yearly floods in 1980 to a staggering 102 floods per year, as of 2023.¹⁰ These floods are not only monetarily costly but also displace Indigenous populations. 

Smaller nations are seeking the aid of wealthier nations because they are largely not responsible for the emissions that significantly damage their environments. In fact, as a whole, the Pacific Islands produce only about 0.2% of greenhouse gas emissions per year.¹¹ Though they may not always see the direct consequences, wealthier nations emit more pollution. Historically, the United States has created 20% of global emissions since 1850.¹² While it does make more sense that larger countries would pollute more due to the needs of a larger population, the pollution is dramatically disproportionate to land mass, with 80% of all greenhouse gases emitted by the twenty wealthiest nations—many of which, like the United Kingdom, occupy relatively little land mass.¹³ Moreover, even if emissions are considered on a per capita basis, wealthy countries like New Zealand, Canada, Australia, and the U.S. continue to emit more.¹⁴ Thus, Pacific Island nation-states and other small countries are arguing for a legal consequence to potentially incentivize wealthy countries to slow pollution. Pollution knows no boundaries, and despite the regulations that may exist within these countries to slow climate change, they are still impacted by places beyond their borders. After all, everyone shares the same atmosphere. 

III. Current Climate Legislation and the Interests of Notable Countries

As argued in the ICJ proceedings, wealthy nations such as the United States believe that documents like the Paris Agreement do not necessitate the creation of new international law.¹⁵ In a written reply to questions presented by ICJ judges, the United States argued that the Paris Agreement does not provide “legally binding criteria or parameters for the substance of the greenhouse gas (GHG) emissions targets or mitigation policies and measures.”¹⁶ Vanuatu, in response to this same question posed by judges, claimed that the harm to the environment caused by such countries “trigger[s] legal consequences under the general law of State responsibility” and breaches due diligence—the obligation to prevent environmental harm—as well as other duties outlined in Article 4 of the Paris Agreement.¹⁷ As stated in Article 4.1 of the Paris Agreement, it is the goal of participating countries to decrease global temperatures “on the basis of equity, and in the context of sustainable development and efforts to eradicate poverty.”¹⁸ Though this does not explicitly necessitate monetary assistance by countries that have signed the agreement, it could be interpreted that the Agreement’s promotion of equity would support this argument to slow emissions and climate change.

Despite arguing that the Paris Agreement is sufficient on its own, wealthy countries that have committed themselves to the Agreement’s goal of reducing warming are often not meeting the standards that climate scientists believe are necessary to achieve said goals. The projected amount of fossil fuel emissions that governments expect to produce by 2030 is said to be more than double the amount that is needed to limit warming by the Agreement’s standards.¹⁹ Further, after the hottest year on record, U.S. President Donald Trump withdrew from the Paris Agreement at the beginning of his second term in January 2025, citing economic reasons.²⁰ Wealthy countries have the money, as evidenced by an agreed-upon $300 billion deal introduced at the twenty-ninth Conference of the Parties to the United Nations Framework Convention on Climate Change (COP29), the U.N.’s annual climate change conference.²¹ To assist smaller nations with the disastrous effects of climate change, wealthy nations agreed to pool $300 billion each year until 2035.²² While this may seem like a significant amount, the total falls short of what climate experts believe the true cost of addressing the climate emergencies of these smaller nations could be—upwards of $1.3 trillion.²³ Moreover, although money is certainly useful, it does not address the root of the problem. The planet continues to warm, and the islands continue to sink further into the sea. The prospect of leaving the Pacific islands is far from the desired solution for citizens, to whom the land is important for the preservation of their livelihoods, culture, and heritage.

IV. Potential Implications of the Ruling

Unlike a traditional court, the ICJ’s opinion in this case is non-binding and serves mainly to answer legal questions. However, the ruling can influence law around the world, and the decision of the ICJ is “authoritative…and cannot be neglected.”²⁴ If a country does not comply with the ruling, a group could sue and take the country back in front of the ICJ.²⁵ Such a ruling would have a legal basis that could then be applied to other cases in that country. One outlook is that the prominence of this case was progress in and of itself, regardless of the outcome. Over ninety countries and eleven intergovernmental organizations participated in the legal proceedings.²⁶ Although not all countries agreed that climate change needed to be addressed via international law, the simple fact that this case was highly debated in the world’s highest court shows momentum for the environmental justice movement and the amplification of marginalized voices of smaller nation-states. Though it will take more than legal action to address the needs of these countries and a changing climate, this case exemplifies that progress is possible and that students can make their voices heard. As the world anticipates the final verdict of the ICJ in regard to this case, we must be reminded that even small progress is still progress, and to keep fighting our own battles with climate change, however local they may be. 

1. Pac. Islands Students Fighting Climate Change, Our Journey, pisfcc.org/ourjourney. ↩︎
2. United Nations, Landmark Climate Change Hearings Represent Largest Ever Case Before UN World Court (Dec. 2024), news.un.org/en/story/2024/12/1157671. ↩︎
3. Id. ↩︎
4. Id. ↩︎
5. Karen Zraick, What to Know About a Landmark Court Case, N.Y. Times (Dec. 2024), nytimes.com/2024/
   12/05/climate/icj-climate-case-hague.html. ↩︎
6. Molly Quell, A Landmark Climate Change Case Opens at the Top UN Court as Island Nations Fear Rising Seas, Associated Press (Dec. 2024), apnews.com/article/eu-world-court-icj-climate-global-warming-
   e954301f0258509f67e66ae2762da6f6. ↩︎
7. Id. ↩︎
8. Clare Nullis, Climate Change Transforms Pacific Islands, World Meteorological Ass’n (Aug. 2024), wmo.int/news/media-centre/climate-change-transforms-pacific-islands. The average elevation of the Pacific Island nations is only 1–2 meters above sea level. ↩︎
9. Seth Borenstein & Charlotte Graham-McLay, The Worldwide Catastrophe of Rising Seas Especially Imperils Pacific Paradises, Guterres Says, Associated Press (Aug. 2024), apnews.com/article/sea-level-rise-climate-change-pacific-united-nations-guterres-ed5d2c968432215038e41319b22fc1e8. ↩︎
10. Id. ↩︎
11. Id. ↩︎
12. Simon Evans, Analysis: Which Countries are Historically Responsible for Climate Change?, CarbonBrief (Oct. 2021), carbonbrief.org/analysis-which-countries-are-historically-responsible-for-climate-change. ↩︎
13. Borenstein & Graham-McLay, supra note 9. ↩︎
14. Evans, supra note 12. ↩︎
15. Written Replies of the United States of America, Obligations of States in Respect of Climate Change, 2024 I.C.J. Acts & Docs, No. 187-20241220-OTH-66-00-EN, at 8 (Dec. 2024). ↩︎
16. Id. at 4. ↩︎
17. Replies from Republic of Vanuatu & Melanesian Spearhead Group, Obligations of States in Respect of Climate Change, 2024 I.C.J. Acts & Docs, No. 187-20241220-OTH-67-00-EN, at 18 (Dec. 2024). ↩︎
18. Paris Agreement to the United Nations Framework Convention on Climate Change, Dec. 2015, T.I.A.S. No 16-1104. ↩︎
19. Stockholm Env’t Inst. et al., The Production Gap: Phasing Down or Phasing Up? Top Fossil Fuel Producers Plan Even More Extraction Despite Climate Promises 4 (2023). ↩︎
20. Nate Perez & Rachel Waldholz, Trump is Withdrawing From the Paris Agreement (Again), Reversing U.S. Climate Policy, Nat’l Public Radio (Jan. 2025), npr.org/2025/01/21/nx-s1-5266207/trump-paris-agreement
    -biden-climate-change. ↩︎
21. Melina Walling, Here’s What to Know About the New Funding Deal That Countries Agreed to at UN Climate Talks, Associated Press (Nov. 2024), apnews.com/article/climate-cop29-finance-deal-explainer-
    52d39dd252ffcc4d4b8d1a9a68e375e4. ↩︎
22. Quell, supra note 6. ↩︎
23. Id. ↩︎
24. United Nations, supra note 2. ↩︎
25. Molly Quell, Now the Wait Begins For Verdict on Closely-Watched Climate Case at UN’s Top Court, Associated Press (Dec. 2024), apnews.com/article/world-court-climate-change-733baa2cfa306ac63db8eeed6cdf3783. ↩︎
26. Id. ↩︎

Featured image courtesy of: Nariman El-Mofty, Photograph of Members of Pacific Islands Students Fighting Climate Change at a protest, in Guardian, ‘Beginning of a new era’: Pacific islanders hail UN vote on climate justice (Mar. 2023), theguardian.com/world/2023/mar/30/un-vote-on-climate-justice-pacific-island-change-crisis-united-nations-vanuatu.