State Responsibility for Climate Change under International Law after the ICJ Advisory Opinion

Abstract

This article delves into how the notion of state responsibility for climate change has developed under international law following the recent Advisory Opinion of the International Court of Justice (ICJ) concerning the Obligations of States in respect of Climate Change. The Advisory Opinion is an important development towards the duty of States to prevent, limit and remediate the negative impacts of climate change. It seeks to reinforce the notion that states have not only treaty obligations, including the Paris Agreement, but also obligations under custom international law, human rights law and environmental protection principles. The article explains how the Advisory Opinion provides the strongest possible legal ground to hold states responsible for failing to act on climate change under their specific obligations, such as exercising due diligence, avoiding significant environmental harm, collaboration with other States, guaranteeing respect for human rights, and providing remedies including reparation. It also looks at the present debates concerning the notion of State responsibility in the climate change context. They involve issues of causation and linkage between emissions and particular impacts, multiple state and non-state responsibility, proof of harm, collective responsibility and working out the obligations for effective implementation. An examination of the ICJ Advisory Opinion, existing legal instruments and legal scholarship in light of this document offers a detailed portrait of the ability of international law to direct the behaviour of states in their efforts to deal with the challenge of climate change and promote accountability. The discussion also highlights the potential role of the Advisory Opinion in supporting climate litigation and shaping future policy development.