From Political Negotiation to Litigious Precision: The Duties of States Made Clear

A Historic Step toward Enshrining the Protection of Communities Affected by Climate Change

On 23 July 2025, the International Court of Justice marked a pivotal moment in the history of international law when it unanimously issued an advisory opinion clarifying states` obligations in addressing the climate crisis. Climate change is no longer merely a moral or political issue; it has become a legal issue par excellence, with direct consequences for emitting states and providing the most affected communities with new tools to claim their rights.

Since Vanuatu and the Alliance of Small Island States (AOSIS) spearheaded the initiative, supported by the voices of students and youth movements from the Pacific, the battle for climate justice has been present in the halls of the highest international court. The Court rejected attempts by major polluting states to limit obligations to the Paris Agreement alone, affirming that customary international law, human rights law, the law of the sea, and environmental protection treaties (biodiversity, combating desertification, and the ozone layer) all impose parallel obligations on states. It`s a clear message: no state can hide behind legal loopholes to justify inaction.

One of the major achievements of the opinion is its explicit recognition that fossil fuels—production, support, and consumption—are at the root of the crisis, and that continued subsidies or delays in phasing them out may constitute an internationally wrongful act. For the first time, international jurisprudence links energy policies with the rule of law, affirming that compensation, ensuring non-recurrence, and halting harm are legal obligations in the event of states failing to fulfill their duties.

The court also reaffirmed the principle of preventing transboundary harm: emissions know no boundaries, and state responsibility is not negated by the pretext that the harm is collective or dispersed. The court thus put an end to arguments that the climate principle does not apply to this principle.

On the legal front, the court`s opinion did not come out of nowhere. In recent years, the Human Rights Council in 2021 formally recognized the “right to a clean, healthy, and sustainable environment,” followed by a UN General Assembly resolution in 2022 that included it among the set of internationally recognized rights. However, these decisions did not translate into direct legal obligations for states, making them more of a political declaration. What the ICJ`s opinion did was fill this gap: it deemed this right legally binding and interconnected with other fundamental rights such as the rights to life, health, water, food, and housing. The advisory opinion, thus, established a solid basis for holding states accountable for any failure to comply with these rights, emphasizing that obligations are not limited to the geographical boundaries of states but extend to the transboundary impact of their activities.

Just weeks before the ICJ`s opinion, the Inter-American Court of Human Rights had declared the climate crisis a human rights emergency on 3 July 2025, affirming that states and corporations bear common but differentiated obligations to address it, and that the rights of present and future generations, nature itself, and environmental defenders must be at the heart of any effective response. This accumulation of advisory opinions across regional and international courts reflects a paradigm shift: from general policy recommendations to justiciable legal obligations.

From the perspective of intergenerational justice, the Court emphasized that states are not owners of natural resources, but rather custodians obligated to transfer them in a manner that preserves the conditions for a decent life for future generations. This reshapes the relationship between development and climate policy, and provides young people and local communities with an additional tool to enforce obligations on decision makers.

In terms of practical outcomes, the opinion established that any state that fails to reduce emissions or regulate the activities of companies under its jurisdiction is internationally responsible, obligated to halt the damage and compensate for it, materially or morally. This opens the door to a new wave of lawsuits against governments and companies, and strengthens civil society`s advocacy and influence tools.

For developing countries, the opinion represents a strategic gain, as it enshrines the principle of common but differentiated responsibilities and affirms the duty of developed countries to provide funding and technical support. It also gives vulnerable countries a stronger legal basis to claim compensation for losses and damages resulting from floods, desertification, sea level rise, or air pollution.

Beyond the historical value of the advisory opinion, its true significance lies in paving the way for litigation. After decades of relying solely on political negotiations and non-binding declarations, climate commitments can now be translated into lawsuits before national, regional, and international courts. The International Court of Justice has given communities and victims new legal tools, making climate change no longer merely a matter of negotiation between governments, but rather a basis for judicial accountability.

The shift to litigation means that states that fail to reduce emissions, or that continue to support fossil fuel industries, may face international lawsuits demanding that they halt or compensate for the harm caused. It also opens the way for affected individuals and communities to bring cases against governments and polluting corporations based on human rights and environmental obligations. In this way, the law itself becomes a tool for popular struggle, strengthening the position of social movements in the face of dominant economic and political forces.

For Habitat International Coalition and its civil society Members, this shift represents an opportunity to strengthen communities` capacity to use the judiciary as a space to claim the rights to adequate housing, land, and water, as rights intertwined with climate justice. Rising to the level of litigation means not only pursuing accountability, but also creating legal precedents that encourage national systems to adjust their policies and legislation in line with their international obligations.

The ICJ Advisory Opinion is not just a legal document; it is a historic declaration that reinforces the centrality of climate action as a legal obligation.

By Hala Murad

Photo: Vanuatu’s Environment Minister Ralph Regenvanu speaking in front of the Peace Palace after the International Court of Justice decision. Source: Islands Business.