Australia on notice as top UN court finds governments can be sued for failing to act on climate change

Governments that fail to phase out oil, gas and coal to prevent climate harms could be ordered to pay reparations under international law, the United Nations’ top court has found.

The International Court of Justice (ICJ) delivered the landmark advisory opinion in The Hague on Wednesday night in Australia, where it found that countries had an obligation under existing international law to take more than voluntary action to address climate change.

The case began as a campaign in 2019 by law students from the University of South Pacific who, working with the government of Vanuatu and civil society, secured a unanimous vote at the United Nations to request the opinion.

Vanuatu led the matter that was brought alongside several Pacific nations including Fiji, Papua New Guinea and Solomon Islands.

Judge Yuji Iwasawa delivered the unanimous 133-page decision where the court rejected arguments made by countries such as Australia that complying with the Paris Climate Agreement was all that was required to meet their obligations under international law.

In making its decision the court found that governments are obligated to act to address climate change, that inaction amounted to a human rights violation and that it was open in international law for governments to sue other governments for reparations where they fail to act.

“Failure of the state to take appropriate action to protect the climate system from GHG 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,” he said.

The court added that a “sufficient direct and certain causal nexus” could be established to “address the challenges arising in respect of the phenomenon of climate change” but flagged that this may be hard to prove as any case would still need to show a country’s historical emissions were responsible for specific climate harms.

Australia was among the first countries to make statements to the ICJ, where it argued it was “resolutely committed” to the UN Framework Convention on Climate Change (UNFCCC) and the Paris Agreement but argued these international agreements were the primary vehicle to address climate change.

Though the opinion is non-binding, the conclusions drawn by the court will inform climate litigation and international climate negotiations going forward.

Speaking outside from the court steps, Vanuatu’s minister for climate change, Ralph Regenvanu, said the decision was a “very important course correction at this time” that found “climate science is at the heart of climate law and the compass for climate justice.”

“So today’s ruling is a landmark moment, and it’s confirmed what we vulnerable nations have been saying and have known for so long that states do have legal obligations to act on climate change,” Regenvanu said.

“And these obligations are grounded in international law, they’re grounded in human rights law and they’re grounded in the duty to protect the environment, which he heard the court refer to so much.

“And these aren’t aspirational ideas as someone would have it. The advisory opinion has clarified the legal consequences for states which fail to discharge these obligations.”

Climate scientist Bill Hare, CEO of Climate Analytics, said the decision reaffirmed that the decision made clear it was not possible for countries to do the bare minimum on climate change.

“The ICJ finds that the Paris Agreement’s 1.5°C limit is the primary goal because of the urgent and existential threat of climate change and that this requires all countries to work together towards the highest possible ambition to limit warming to this level,” he said.

“States have a responsibility to regulate private activity within their jurisdictions and they have a responsibility to all other states for the consequences of actions taken, and this together means that countries have an obligation to limit, reduce and ultimately eliminate fossil fuel production.

“All countries have an obligation to put forward the highest possible ambition in their Nationally Determined Contributions (NDCs) that represent a progression over previous NDCs – it is not acceptable to put forward a weak NDC that does not align with 1.5°C.”

There is precedent for payments for environmental damage following decisions by the ICJ. Australia has previously settled a dispute with Nauru involving a claim for damages over environmental pollution caused by phosphate mining.

States could potentially seek financial damages, debt forgiveness deals or court orders to stop fossil fuel subsidies or fossil fuel exploration.

Australia, which vies with the US and Qatar for top spot as Australia’s largest LNG exporter and operates the world’s largest coal export port in Newcastle, has increasingly found itself at odds with its Pacific neighbours over its continued extraction of fossil fuels.

The decision comes a week after a Federal Court judge dismissed a lawsuit by Torres Strait Islanders attempting to sue the Australian government in negligence for a failure to protect their islands by failing to act on climate change.

The government was found to have failed to take into account the science of climate change when setting emissions targets in three years, 2015, 2020 and 2021, but the judge in that decision found that Australian law offered no recourse to the applicants. The decision is expected to be appealed.

It also comes as Australia has continued to approve new gas and coal developments, including critical approvals needed for Woodside’s $16.5bn Scarborough gas field off the northern Western Australian coast and Santos’ $5.6bn Barossa gas development off the coast of the Northern Territory.

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