Countries are legally liable for climate inaction, International Court of Justice rules
In its unanimous advisory opinion the ICJ, the principal judicial organ of the United Nations, ruled that countries have an obligation to protect the environment from greenhouse gas emissions and to act with due diligence and co-operation to fulfill this obligation. This includes the obligation under the Paris Agreement to limit global warming to 1.5°C above pre-industrial levels.
The court ruled that if states breach these obligations, they incur legal responsibility and may be required to cease the wrongful conduct, offer guarantees of non-repetition and make full reparation, depending on the circumstances. To justify this decision, it used the commitments of member states to environmental and human rights treaties including the Kyoto Protocol, the Paris Agreement, the ozone layer treaties and the Biodiversity Convention.
The court, which was of the view that 'a clean, healthy and sustainable environment is a precondition for the enjoyment of many human rights', said the full enjoyment of human rights 'cannot be ensured without the protection of the climate system and other parts of the environment'.
To guarantee the effective enjoyment of human rights, countries must take measures to protect the climate system and other parts of the environment.
'These measures may include, inter alia, taking mitigation and adaptation measures, with due account given to the protection of human rights, the adoption of standards and legislation, and the regulation of the activities of private actors.'
International human rights law, climate change treaties and other relevant environmental treaties, as well as the relevant obligations under customary international law, inform each other.
'States must therefore take their obligations under international human rights law into account when implementing their obligations under the climate change treaties and other relevant environmental treaties and under customary international law, just as they must take their obligations under the climate change treaties and other relevant environmental treaties and under customary international law into account when implementing their human rights obligations,' the ICJ said.
It found that the 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 licences or the provision of fossil fuel subsidies — 'may constitute an internationally wrongful act, which is attributable to that state'.
The case was the largest ever seen by the ICJ, with the proceedings unprecedented in scale. There were 91 written statements filed by states and a further 62 comments submitted by states, international organisations and civil society groups. A record 97 states participated in the oral proceedings, which were held in the Hague in December.
The consequences of climate change are 'severe and far-reaching', affecting both natural ecosystems and human populations, the court said. Rising temperatures are causing the melting of ice sheets and glaciers, leading to sea level rise and threatening coastal communities with unprecedented flooding.
'Extreme weather events, such as hurricanes, droughts and heatwaves, are becoming more frequent and intense, devastating agriculture, displacing populations and exacerbating water shortages,' it said.
'Furthermore, the disruption of natural habitats is pushing certain species toward extinction and leading to irreversible loss of biodiversity. Human life and health are also at risk, with an increased incidence of heat-related illnesses and the spread of climate-related diseases. These consequences underscore the urgent and existential threat posed by climate change.'
In September 2021, the Pacific Island state of Vanuatu announced that it would seek an advisory opinion from the ICJ on climate change. This move was inspired by youth group
After Vanuatu lobbied other UN member states to support this initiative in the General Assembly, on 29 March 2023, it adopted a resolution requesting an advisory opinion from the court.
Two fundamental questions were posed before the court. What are states' obligations under international law to address climate change for present and future generations? What are the legal consequences under these obligations for states failing to do so?
Noting that these advisory proceedings were 'unlike any that have previously come before the court', the ICJ said the questions posed by the General Assembly represented more than a legal problem.
'They concern an existential problem of planetary proportions that imperils all forms of life and the very health of our planet,' the court said. 'International law, whose authority has been invoked by the General Assembly, has an important but ultimately limited role in resolving this problem.'
A complete solution to 'this daunting, and self-inflicted, problem' requires the contribution of all fields of human knowledge, whether law, science, economics or any other.
The ICJ emphasised that solving the climate crisis extends beyond law — collective human will and wisdom are vital 'at the individual, social and political levels'. This involves 'changing our habits, comforts and current way of life in order to secure a future for ourselves and those who are yet to come'.
While the court's advisory opinions are non-binding, they carry significant legal and moral authority, and help clarify and develop international law by defining the legal obligations of states.
The ICJ's opinion provides new avenues for litigation, advocacy, and international pressure, especially for vulnerable countries and communities harmed by major emitting states, said Nomasango Masiye-Moyo, the co-ordinator of Natural Justice's environmental lawyers collective.
For Africa, the statements by the ICJ on reparations mean that vulnerable citizens can seek remedy for 'ecological destruction, illegal eviction,
While reparations have long been considered customary international law, the court's statements 'sketch a judicially acknowledged pathway for compensation, rehabilitation and restitution'.
'We hope that the court's findings will embolden many African communities and lawyers around the continent, to fiercely seek accountability and justice for harms done in their communities, historically and in the future.'
Hashtags
Try Our AI Features
Explore what Daily8 AI can do for you:
Comments
No comments yet...
Related Articles
eNCA
6 hours ago
- eNCA
'How much worse could it get?' Gazans fear full occupation
DEIR EL-BALAH - "When will this nightmare end?" wonders Amal Hamada, a 20-year-old displaced woman who, like most Gazans, feels powerless before the threat of full Israeli occupation after 22 months of war. Rumours that the Israeli government might decide on a full occupation of the Palestinian territory spread from Israel to war-torn Gaza before any official announcement, sowing fear and despair. Like nearly all Gazans, Hamada has been displaced several times by the war, and ended up in Deir el-Balah in central Gaza, where the Israeli military carried out operations last month for the first time in the war. "We've lived through many wars before, but nothing like this one. This war is long and exhausting, from one displacement to another. We are worn out," the woman told AFP. Like her, Ahmad Salem, 45, wonders how things can get worse in a territory that already faces chronic food shortages, mass displacement and daily air strikes. "We already live each day in anxiety and fear of the unknown. Talk of an expansion of Israeli ground operations means more destruction and more death," Salem told AFP. AFP | - "There is no safe space in Gaza. If Israel expands its ground operations again, we'll be the first victims," he said from a camp west of Gaza City where he had found shelter. Israeli Prime Minister Benjamin Netanyahu was to chair a meeting of his security cabinet later on Thursday to seek approval to expand military operations in Gaza, including in densely populated areas. - 'Just animals' - 'We read and hear everything in the news... and none of it is in our favour," said 40-year-old Sanaa Abdullah from Gaza City. "Israel doesn't want to stop. The bombardment continues, the number of martyrs and wounded keeps rising, famine and malnutrition are getting worse, and people are dying of hunger", she said. "What more could possibly happen to us?" Precisely 22 months into the devastating war sparked by Hamas's October 2023 attack, Gaza is on the verge of "generalised famine", the United Nations has said. Its 2.4 million residents are fully dependent on humanitarian aid, and live under the daily threat of air strikes. AFP | - The Israeli army announced in mid-July that it controlled 75 percent of Gaza, including a broad strip the whole length of the Israeli border and three main military corridors that cut across the territory from east to west. The UN Office for the Coordination of Humanitarian Affairs (OCHA) says that more than 87 percent of the Gaza Strip is under unrevoked evacuation orders or designated as an Israeli military zone. The remaining areas are the most densely populated. The city of Khan Yunis in the south, Gaza City in the north, and Deir el-Balah and its adjacent refugee camps in the centre. "Now they speak of plans to expand their operations as if we are not even human, just animals or numbers," Abdullah laments. "A new ground invasion means new displacement, new fear and we won't even find a place to hide", she told AFP. "What will happen if they start another ground operation? Only God is with us." AFP | Eyad BABA A widening of the war "would risk catastrophic consequences for millions of Palestinians and could further endanger the lives of the remaining hostages in Gaza", senior UN official Miroslav Jenca told the Security Council on Tuesday. The October 2023 attack that sparked the war resulted in the deaths of 1,219 people, the majority of them civilians, according to an AFP tally based on official figures. Israel's retaliatory offensive has killed at least 61,258 people in Gaza, mostly civilians, according to figures from the Gaza health ministry which the United Nations considers reliable.
The Citizen
15 hours ago
- The Citizen
Pretoria at a crossroads with the US
US tariffs and summit snubs mark a turning point for Pretoria, testing its sovereignty and foreign policy independence. Relations between Pretoria and Washington have once again plunged into a new historic low following a series of moves by US President Donald Trump. In a single sweep, Washington has imposed punitive 30% tariffs on South African steel, citrus and automotive exports. These duties take effect from tomorrow after the US failed to respond to South Africa's trade proposals. The tariff blow has escalated diplomatic tension, with the US expressing disdain for South Africa's broad-based black economic empowerment and land reform policies. In addition, Trump announced a boycott of the G20 Summit in Johannesburg in November and there has been an intensified criticism of Pretoria's legal action against Israel at the International Court of Justice (ICJ), accusing the country of 'supporting genocide denial'. At the heart of this diplomatic crisis, it must be admitted that US reaction is motivated by South Africa's growing leadership within the Brics bloc – now expanded to include Iran, Ethiopia and Egypt – and its outspoken support for Palestine, including its ICJ case accusing Israel of genocide in Gaza. ALSO READ: US tariff an existential threat for a third of metals and engineering sector These positions have drawn fierce condemnation from the Trump administration and triggered a dramatic shift in US policy toward Pretoria. As much as the Trump administration seeks to shield American industries, these protectionist tariffs smell of political motivation and economic recklessness. They could cost thousands of South African jobs, disrupt key industrial supply chains and severely undermine efforts toward African industrialisation. With such consequences, it leaves one to believe that South Africa is being punished for its exercise of sovereign foreign policy. South Africa's foreign policy shift has been years in the making. There have been talks for de-dollarisation, reform of global institutions and solidarity among developing nations in an attempt to challenge this entrenched Western-led domination of the world. ALSO READ: As if US tariff is not enough, more bad news for South African exporters Therefore, it ought not to be surprising that its firm stance on Palestine, including the closure of its embassy in Israel and calls for sanctions, has drawn civil society praise and Western disapproval. Both Brics activism and pro-Palestinian diplomacy have made South Africa a target for ideological pressure from Washington. And not only is this diplomatic row having grave consequences on paper, but the 30% tariffs which affect over R50 billion in annual exports, also threatens Pretoria's continued participation in the African Growth and Opportunity Act – a US trade preference programme that has historically boosted African economies. This moment signifies more than a breakdown in bilateral relations. It exposes the balance of forces in global governance where rising powers challenge the hegemonic influence of the West. With Trump absent from the G20, the summit now ought to become a platform for global south leaders to resist US bullying and advocate for alternative visions of a new world order. ALSO READ: Beyond Trump's pointless pause As for Washington, the path of coercion is now proving unsustainable. Because by alienating democratic partners like South Africa, it undermines its long-term influence in Africa, especially taking the rise of Chinese and Russian engagements into consideration. However, Pretoria must not give up on engaging the US because, economically, a lot is at stake. But if South Africa is expected to forfeit its sovereignty, then this is the moment the country needs to look for other avenues that can ensure its survival without the US. This diplomatic standoff is not simply about trade disputes or summit politics. It raises deeper questions about sovereignty, justice and the rules-based system that will define international relations in the 21st century. A return to dialogue, mutual respect and principled engagement is not just desirable, it is imperative.
Mail & Guardian
a day ago
- Mail & Guardian
Trump's tariffs are illegal under international trade law
US President Donald Trump. Photo: Supplied The Trump administration's trade tariffs are illegal and fall outside the legal framework of international trade law. South Africa should call out the US government for violating basic principles of international law South Africa is subject to a 30% US tariff rate, announced during the so-called liberation day tariffs declaration on 2 April, and will take effect from 1 August. The South African economy is likely to be significantly affected by these tariffs, particularly the agricultural sector and vehicle industries. The specific regions that will be affected are the Eastern Cape vehicle corridor and citrus fruit small towns in the Western cape. The tariffs are eroding the rule-based international trade order by unilaterally imposing tariffs to balance American trade deficit with its trading partners. The United States, being one of the chief architects of the international trade system is now questioning the benefits of the rule based global trade order. The first assault of the global trade order was in 2017, when the US, under Trump, started blocking all new appointments to the World Trade Organisation (WTO) appellate body as the terms of its Judges were expiring. Trump started his trade war with China in early 2018, when he started setting tariffs and other trade barriers against China. Breach of the WTO rules Trade within the auspices of the WTO is rules-based and has been a source of international economic stability and success in many of the world's economies. Established through the General Agreement on Tariffs and Trade (GATT) of 1948 and subsequently the WTO in 1994, the rules-based international trade law has been founded on what is known as diffuse reciprocity. Diffuse reciprocity essentially negates formal numerical equality in tariffs within the context of the global trade system. This is because reciprocal tariffs are a fundamental rejection of the WTO rules. Throughout the years, the international trade system has been based on the principle of non-discrimination amongst the member countries of the WTO. Non-discrimination principle promotes universal equal treatment between the WTO member countries. This trade without discrimination is known as the Most Favoured Nation (MFN) Treatment. The MFN is the first article of the GATT agreement, which regulates trade in goods. It requires a nation providing a trade concession to one trading partner to extend the same treatment to all. Therefore, countries cannot discriminate between their trading partners. For example, if country A offers a lower custom duty rate to country B, it has to extend the same treatment to others. Similarly, if a country imposes additional restrictions on the WTO member nation, it must do the same to all the other trading partners. A Generalised System of Preferences (GSP), Free Trade Agreements and Customs Union are some carve outs and exceptions to the MFN principle. For instance, the African Growth and Opportunity Act (Agoa) is an exception to the MFN rule under the WTO legal Framework. But it should be noted that although South Africa's membership in Agoa gives preferential access to the US market, economists have said that only 20% of our exports constitute the Agoa export. Therefore, most of the country's exports are not under the Agoa preferential access. Beginning on 1 August 2025, the US will continue to violate Article I of the GATT by unilaterally imposing 30% reciprocal tariffs on the South African government. For example, while the Indian exporters will now face 20% US tariffs, South Africa's exporters will face 30% tariffs on the same products. The US is also in breach of its commitment under Article II of the WTO's GATT agreement, which deals primarily with the schedule of concessions. This provision details the tariffs commitments the WTO member states have made to other countries. It mandates the WTO member countries to provide treatment not less favourable than the one provided under its schedule of concessions, including adhering to bound tariffs that a country has committed itself to. By unilaterally imposing reciprocal tariffs that are not agreed to by other member states of the WTO, the US violates its legal commitment that it has made under Article II of the WTO's GATT agreement. While the US is permitted under Article XX VIII of the GATT to unilaterally modify its tariff commitment under international trade law, this approach requires a negotiated compensation with the affected member states. The Trump administration has not adopted this approach. Furthermore, the reciprocal actions also undermine the WTO law principle of special and differential treatment accorded to least developed and developing countries, to which South Africa is one of them. The rationale behind the special and differential treatment principle is to allow least developed countries and developing countries to provide less than full reciprocity in their tariff obligations to developed countries. Criticism of the US reciprocal tariffs Many countries have criticised the US reciprocal tariffs for violating basic principles of international trade. China has openly criticised the US government saying that the US move disregards the balance of interest reached in multilateral trade negotiations over the years and the fact that it has long benefited greatly from international trade. China has instituted a WTO case against the US for breaching of its WTO obligations. The second critic of Trump is the Singaporean government. The country's prime minister recently remarked that the US appears to be withdrawing from the global leadership to a less predictable international trade system and the messier world. He said the era of rule- based globalisation and free trade is over. He has labelled the US new tariff regime as a repudiation of the MFN principle. Likewise, the Canadian government has challenged the legality of the US tariffs. It has retaliated to the US tariffs by imposing 25% tariffs on $30 billion of US imports and has plans to expand to $155 billion after consultation. In addition to this, Canada has filed a legal claim against the US by requesting WTO dispute consultations with the US concerning the imposition by the US of import duties on certain steel and aluminium products from Canada. The initiation of this dispute has been circulated to all the WTO member countries. The actions by these countries are justified. The US government should be held accountable for its erosion of international trade rules. The South African government has not condemned the Trump administration for its violation of international law; it has instead insisted on one-sided attempts to negotiate trade deals with the US government. South Africa's position therefore does not explicitly express its discontent with the US illegal tariffs, but it is hoping that its negotiation will yield some trade deals with the US. One wonders if the results of that trade deal itself will be compliant with the WTO trade rules, but this will be seen once the US tariffs decision on South Africa has taken effect. The South African strategy On 7 July, the South African president issued a statement attempting to push back on Trump's imposition of 30% tariffs, saying that they are an inaccurate view of US-South Africa's trade relations. He has argued that these tariffs are not an accurate representation of available trade data. But this is not enough. South Africa appears to be hesitant to publicly call out the illegal tariffs of the US government, possibly because such public condemnation of Trump tariffs would not be in the interests of South Africa. According to the joint statement by the ministers of international relations and trade, industry and competition, South Africa is seeking to secure favourable quota agreements and additional exemptions by ensuring that its industries still maintain access to the US market including sectoral cooperation. The joint statement has reiterated that the country is committed to the mutual beneficial trade relationship between the US and South Africa. Instead of calling the tariffs illegal and against international trade law, the joint statement expresses concerns over shared prosperity between the two nations and it acknowledges these tariffs as constituting barriers to trade. Other countries have continued to negotiate with the US government on this tariff issue while taking it to the WTO dispute settlement system. If South Africa were to take a similar approach, it would continue to negotiate with the US government while reminding it of its commitment to the global trade rules. Perhaps the South African government might argue that this will not yield any results, given that the WTO settlement body is dysfunctional. The other impediment is that the appellate body of the WTO is not currently functional, because the US has blocked the appointment and reappointment of its judges. But China and Canada have continued to file legal claims against the US government. They understand the use of the global trade rules to enforce their claims against the violator of the trade system. As it did with the International Court of Justice case against Israel, history should remember South Africa as a country that fought for the stability of the multilateral trade system, a fair system of international trade and revitalisation of the WTO dispute settlement system. Mmiselo Freedom Qumba is a lecturer at the University of Pretoria and an admitted attorney of the High Court of South Africa.
