A historic international court ruling could open the door to Australia being sued by its Pacific neighbours over inaction on climate change.
The International Court of Justice at The Hague in the Netherlands has stated countries have an obligation to prevent climate change harm and redress damage caused by greenhouse gas emissions.
The non-binding advisory opinion has significant ramifications for Australia, Climate Council CEO Amanda McKenzie said.
“The decision will reverberate across the world and around Australia – in courtrooms, boardrooms, parliaments and international negotiations,” she said.
“The court makes it crystal clear that all countries have significant legal responsibilities to prevent further climate harm by slashing their climate pollution rapidly and deeply.”
The international court’s opinion was unprecedented in breadth and future precedent, Australian National University international law expert Donald Rothwell said.
“The court’s opinion will pave the way for political and diplomatic exchanges between climate change-impacted states and large polluting states over reparations,” Prof Rothwell said.
“If settlements are not reached there is now a clearer pathway forward for international climate litigation by the specially impacted states.”
Importantly, all states – not just signatories to the Climate Change Convention, the Kyoto Protocol and the Paris Agreement – would face obligations under the court’s advice.
While no judgment had been issued, advisory opinions could still be very influential in the interpretation and development of international law.
“In this way, the ICJ advisory opinion does not only clarify existing rules, it creates legal momentum,” said Sebastien Duyck, senior attorney at the Center For International Environmental Law
“It reshapes what is now considered legally possible, actionable, and ultimately enforceable.”
ActionAid Australia executive director Michelle Higelin said the ruling was clear.
“Australia must do all it can to keep global heating to 1.5 degrees,” she said
“This is not a choice, this is an obligation to take stronger and more urgent action.”
ActionAid wants the government to “urgently” transition away from fossil fuels and increase funding to low-income countries, including those in the Pacific, to support climate adaptation efforts.
Oxfam climate change policy lead Nafkote Dabi agreed.
“Rich countries have to increase their financing to Global South countries to help them reduce emissions and protect their people from past and future harm,” Ms Dabi said.
“This is not a wish-list – it is international law.”
Global science and policy institute, Climate Analytics, which has an Australia-Pacific region office, said the finding foreshadowed potentially serious legal penalties.
Action could be taken under customary international law if countries climate targets undershoot the Paris Agreement to limit global warming to 1.5C above pre-industrial levels.
Australia’s current commitment to the Agreement includes reducing greenhouse gas emissions by 43 per cent below 2005 levels by 2030 and achieving net-zero emissions by 2050.
The court’s finding came after a campaign spearheaded by Vanuatu University law students and backed by Vanuatu’s government, arguing Pacific island countries unjustly bore the brunt of climate change compared to high-emitting economies.
“The degradation of the climate system and of other parts of the environment impairs the enjoyment of a range of rights protected by human rights law,” presiding judge Yuji Iwasawa said, handing down the court’s opinion.
The court decision “confirms that states’ obligations to protect human rights require taking measures to protect the climate system … including mitigation and adaptation measures,” Judge Hilary Charlesworth, an Australian member of the court, said in a separate opinion.
A response is being sought from the federal government.
Vanuatu Minister for Climate Change Adaptation Ralph Regenvanu described the court’s opinion as a “very important course correction in this critically important time”.
“For the first time in history, the ICJ has spoken directly about the biggest threat facing humanity,” he said at The Hague.
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