Boosting Fossil Fuels May Violate International Law, World’s Top Court Rules
The International Court of Justice said countries supporting fossil fuel subsidies, exploration licenses, production and consumption could be committing internationally wrongful acts.
Credit: Backbone Campaign via Flickr, CC BY 2.0
Countries that fail to adequately regulate greenhouse gas (GHG) emissions from corporate polluters and that continue to prop up the fossil fuel industry through subsidies, granting of exploration licenses and facilitating expanded fossil fuel production and consumption may be violating international law.
That’s according to a historic advisory opinion on the climate crisis issued this week by the International Court of Justice, which is the principal judicial organ of the United Nations and is considered the world’s top court. The opinion, delivered on July 23, clarifies UN member states’ obligations under international law to protect the climate system from anthropogenic GHG emissions – which primarily stem from burning fossil fuels – as well as the legal consequences that may arise when states have caused significant climate harm. And while an advisory opinion itself is technically nonbinding, legal experts say it could have significant influence in informing political negotiations and further court decisions pertaining to climate change, thereby bolstering climate accountability.
“The court has provided critical guidance that is very helpful to those seeking climate justice,” said Margaretha Wewerinke-Singh, associate professor of sustainability law at the University of Amsterdam who served as co-counsel for the Republic of Vanuatu – a small islands state in the Pacific – in the ICJ climate change advisory proceedings. With the court’s unanimous opinion confirming that climate action is a legal duty under multiple sources of existing international law, she said we have now “entered an era of accountability.”
Lea Main-Klingst, a lawyer with the UK-based environmental law organization ClientEarth, hailed the court’s opinion as a “once-in-a-generation moment for all of us fighting for climate justice.”
“The world’s highest court has affirmed what millions of people all over the world have said time and time again: climate change threatens our very survival - and high-emitting states can and must be held accountable for the damage they’ve done,” Main-Klingst said. “The judges have also sent a clear message to corporate and financial giants: the age of producing and bankrolling fossil fuels with abandon is over.”
Indeed, in what was perhaps one of its hardest-hitting and most influential statements, the court said that supporting ongoing fossil fuel activities could be considered an “internationally wrongful act” attributable to specific countries. In other words, everything the US is currently doing under the Trump administration in terms of unleashing fossil fuel “dominance” is likely unlawful, at least in the context of international law.
Here is how the court worded it in its opinion:
“Failure of a State to take appropriate action to protect the climate system from greenhouse gas emissions — including through fossil fuel production, fossil fuel consumption, the granting of fossil fuel exploration licenses or the provision of fossil fuel subsidies — may constitute an internationally wrongful act which is attributable to that State.”
For nearly thirty years, the UN’s international climate negotiations and outcome documents such as the Paris Agreement have been silent when it comes to the biggest underlying driver of the climate emergency – fossil fuels. At COP28 in Dubai in 2023 there was finally a breakthrough agreement from countries that they would start transitioning away from fossil fuels, but without any enforcement mechanism such statements are essentially little more than empty promises.
Now, however, the world’s highest court has stated quite clearly that countries that are boosting fossil fuels could be acting unlawfully. That may be a game changer, opening up major polluters to potential liability, if other courts around the world accept the ICJ’s interpretation.
“The message of the court is clear: the production, consumption and granting of licenses and subsidies for fossil fuels could be breaches of international law. Polluters must stop emitting and must pay for the harms they have caused,” Danilo Garrido, legal counsel at Greenpeace International, said in a statement.
The ICJ opinion also stated that countries have legal obligations to regulate the activities and emissions of private actors. Failing to take the “necessary regulatory and legislative measures to limit the quantity of emissions caused by private actors” may render a country responsible for causing significant climate harm, the court found. The general rule of state responsibility under customary international law can be invoked in establishing legal accountability for climate change harms, and if a state is determined to be liable (i.e., through further litigation proceedings) it may have to provide reparations in the form of monetary compensation or halting the unlawful activity.
“The International Court of Justice has put corporations and the fossil fuel industry on notice,” said Harj Narulla, a climate lawyer with Doughty Street Chambers who helped represent the Solomon Islands in the ICJ proceedings. “States will have to drastically cut their emissions to comply with their obligations under international law, which can only happen if they regulate high emitting companies.”
“This ruling gives us a powerful new tool to hold polluters to account,” said Mary Robinson, first woman president of Ireland and former UN High Commissioner for Human Rights. “The era of impunity is ending. There can be no more hiding behind delay, denial, or inaction.”
Mary Robinson, former president of Ireland, speaks during the March to End Fossil Fuels in New York City in September 2023. Credit: Dana Drugmand
The ICJ’s opinion stems from a 2023 UN General Assembly resolution requesting that the court weigh in on questions of state obligations and legal consequences regarding climate change. Vanuatu led the charge to bring the resolution to the UN, though the initiative originated in a campaign started by Pacific Islands law students to “take the world’s biggest problem to the world’s highest court.” This proceeding marked the first time that the ICJ addressed climate change, and it saw the highest level of participation in the court’s history.
Vanuatu says that it plans to pursue another UN resolution to support implementation of the court’s landmark advisory opinion.
“We now need to make sure that all countries fulfill their legal obligations, as defined by the court,” said Ralph Regenvanu, climate change and environment minister for Vanuatu.
That may be especially difficult, however, when it comes to the US – the world’s biggest oil and gas producer and largest historical emitter of carbon pollution. The Trump administration is pursuing an isolationist foreign policy and is dismantling all domestic climate and environmental regulations while doubling down on fossil fuels. Under Trump, the US is once again exiting the Paris Climate Agreement, though (at least for now) it still remains a party to the UN Framework Convention on Climate Change – the overarching global climate change treaty governing the international response to this issue. That treaty, along with the Paris Agreement and the prior global climate accord known as the Kyoto Protocol, form part of countries’ legal obligations concerning climate change, the ICJ ruled. But other sources of law also apply, such as customary international law and human rights law. So even if a country is not formally party to a treaty, like the US abandoning the Paris Agreement, it still has legally binding duties under customary law, the ICJ determined.
“The US, as long as it is part of the UN, is supposed to follow this advice,” said Wewerinke-Singh. “It is as much bound by this decision as other states are.”
But there is really no international enforcement mechanism for this kind of advisory opinion. Lawsuits might be brought domestically in countries that are approving new fossil fuel projects. Contentious cases could also be brought before the ICJ, but in those cases both parties have to accept the court’s jurisdiction, and the US has never recognized the ICJ’s jurisdiction.
There is already a lawsuit underway in the US, brought by young people, challenging Trump’s fossil fuel agenda. Patrick Parenteau, emeritus professor of law at Vermont Law and Graduate School, told me he expects the ICJ opinion will be cited by the plaintiffs in that case.
Robert Percival, environmental law professor at the University of Maryland, said he thinks it is “extremely unlikely that a US court would feel bound” by the ICJ’s opinion, however. Especially when it comes to the current US Supreme Court, which has tended to disfavor environmental protection and has in some recent rulings given even more executive power to Trump.
In other countries, Percival said the outlook may be more promising. “This might give more handles for trying to get new fossil fuel extraction projects disapproved,” he told me. “There would certainly be a good argument that anything we do that increases long-term greenhouse gas emissions is certainly contrary to the spirit if not the letter of the ICJ opinion.”