International Court of Justice paves the way for climate 'reparations'

The UN's highest court, headquartered in The Hague, unanimously established in this opinion, initially requested by students on the Vanuatu archipelago, a legal interpretation of international climate law. Legislators, lawyers, and judges around the world can now use it to change laws or sue states for their inaction.

"This is a victory for our planet, for climate justice, and for the power of young people to make a difference," UN Secretary-General Antonio Guterres said in a statement.

A beaming Vanuatu Climate Minister, Ralph Regenvanu, told AFP he was surprised to see "so many unexpected things" in the judges' conclusions. "We will obviously use these arguments in our discussions with the countries that emit the most" greenhouse gases, he warned.

Vanuatu island chief George Bumseng said he was "very impressed" by the ICJ's opinion. "We have been waiting for this decision for a long time, as we have been victims of climate change for the past 20 years," he explained.

France hailed a "historic decision" and a "victory for the climate," through its Minister for Ecological Transition, Agnès Pannier-Runacher. Among the major greenhouse gas emitting countries, the United States was the first to react, in an admittedly terse statement. "The United States will review the Court's advisory opinion in the coming days and weeks," the State Department told AFP.

Climate change caused by greenhouse gas emissions is an "urgent and existential threat," said Presiding Judge Yuji Iwasawa during a formal two-hour reading of the verdict, which was greeted by applause from activists who watched the hearing on a giant screen outside the Peace Palace.

The Court rejected the idea put forward by major polluting countries that existing climate treaties - and in particular the annual COP negotiation process - were sufficient.

States have "strict obligations to protect the climate system," the judges argued. Agreeing with the small island states, the ICJ confirmed that the climate must be "protected for present and future generations"—while polluting countries absolutely refused to recognize the rights of individuals not yet born.

The most substantial part of the opinion, which will provoke the most resistance from rich countries, stems from these obligations: compensation owed to countries ravaged by the climate.

"The legal consequences resulting from the commission of an internationally wrongful act may include (...) full reparation for the damage suffered by injured States in the form of restitution, compensation and satisfaction," the 15 judges of the tribunal consider.

But the Court sets the bar high: a direct and certain causal link must be established "between the unlawful act and the damage," which is certainly difficult to establish but "not impossible" nonetheless, they write.

This is the fifth unanimous opinion from the Court in 80 years, according to the UN. The UN General Assembly had voted to request it. For the Fijian student who has led the campaign since 2019, the day will remain memorable.

"What a perfect ending to a campaign that began in a classroom," Vishal Prasad, who was in The Hague, told AFP. "We now have a very, very powerful tool to hold leaders accountable."

It will take days for legal experts to digest the 140-page opinion, and even longer to see how the courts take it up. But already, many experts and activists interviewed by AFP are rejoicing.

The Court's interpretation of state obligations "will be a catalyst for accelerating climate action," responded former UN Special Rapporteur on Human Rights and the Environment David Boyd. Climate scientists most disappointed by global political action agree.

"This is a major decision," Johan Rockström, director of one of Europe's most renowned climate institutes, the Potsdam Institute for Climate Impact Research, told AFP. Every country can be held accountable in court, even if it is not a signatory to the UN treaties, he added.

Joe Biden's former climate envoy, John Kerry, laments that it takes "the weight of international law to incentivize countries to do what is deeply in their economic interest."

While it's unlikely the United States will change course on oil and fossil fuels, the ICJ's opinion will certainly be "tested" in the country's courts, predicts Vermont Law School professor Pat Parenteau. "It won't succeed with the current Supreme Court, but it's not permanent."

Vanuatu, moreover, is already planning the next step: asking the UN General Assembly to implement the Court's opinion.