The world’s highest court bolstered the fight for climate reparations todayheadline

As global inaction over the climate crisis has mounted and Pacific islands nations have watched in frustration as their calls for decisive action have gone unheeded, a growing number of them, led by Vanuatu, have turned to the courts. If policymakers won’t act, they hoped, perhaps the courts would. 

And so island nations in the South Pacific region of Melanesia, where Indigenous communities have had to flee their traditional lands due to landslides and rising seas, filed a case that was ultimately joined by more than 130 countries. Together, they urged the International Court of Justice to decide whether nation-states have a legal obligation to address climate change, and whether those harmed by a warming world have a right to reparations. 

Justices considered testimony in Indigenous Pacific languages, heard arguments from Indigenous attorneys, and learned how Indigenous traditions are being harmed by the typhoons, rising seas, and other extreme weather events worsened by the burning of fossil fuels.

Last week, the court issued a landmark ruling that climate harm violates international law. The seismic decision, although advisory, opens the door for countries like Vanuatu to seek reparations from some of the world’s biggest polluters, and it is widely expected to shape current — and future — climate lawsuits as early as this week.

“What the court has done has come in and made it crystal clear that affected frontline nations and communities that have been devastated by climate harm — harm that can be traced to the conduct of specific countries and corporations — those communities, those nations, they absolutely have the right to redress and reparations,” said Joie Chowdhury, a senior attorney at the Center for International Environmental Law. 

The court’s decision, handed down Wednesday, said that all nations have a legal obligation to limit greenhouse gas emissions and failing to do so, through the support of fossil fuel production, could violate international law. The justices didn’t disclose how much major polluters might owe, and said the level of reparations would be determined on a case-by-case basis. But Chowdhury said she expects the ruling to immediately influence ongoing climate litigation worldwide, and prompt new lawsuits. “There are litigators all over the world that are looking to this case and will absolutely bring it into the courtroom,” she said.

Kelly Matheson, deputy director of global strategy for Our Children’s Trust, a nonprofit law firm representing youth in climate litigation, said the organization is already incorporating the language of the advisory opinion into an amicus brief that it plans to file in a case in Latin America this fall. She also expects the ruling to feature heavily in La Rose v. His Majesty the King, a Canadian climate case youth plaintiffs brought against the Canadian government scheduled for trial next year, as well as a climate case pending before the African Court of Human and Peoples’ Rights. 

Government attorneys also are studying the decision to determine whether their countries can sue. Malik Amin Aslam Khan, former minister of the environment in Pakistan, said the ruling “opens up a legally grounded pathway for claiming climate damages and demanding reparations for countries like Pakistan, which has continuously been one of the world’s worst climate sufferers and has credibly recorded climate damage costs crossing $40 billion in the past decade alone.”

Ralph Regenvanu, Vanuatu’s minister of climate change, said Vanuatu plans to immediately push for a resolution at the United Nations General Assembly to implement the advisory opinion. The government also plans to use the ruling to advocate for better climate financing for the Pacific and better regional and domestic policies to address the climate crisis.

“For the first time in history, the ICJ has spoken directly about the biggest threat facing humanity, which is climate change,” Regenvanu said during a press conference at The Hague last week. ”It’s very important now, as the world goes forward, that we make sure our actions align with what was decided or what came out today from the court.”

The ruling builds upon a growing consensus in international law that states have a legal obligation to limit greenhouse gas emissions. Last year, the International Tribunal for the Law of the Sea ruled that the 169 countries that have signed the U.N. Convention on the Law of the Sea — a list that includes China and India, but not the U.S. — must reduce emissions. It was another victory led by Pacific island nations as well as island nations in the Caribbean and West Indies.

Earlier this month, the Inter-American Court of Human Rights, a regional court for Latin and South America, ruled that a healthy climate is a human right and governments should limit emissions. The court also said they should prevent harm to marginalized communities such as Indigenous peoples and emphasized their role in combating climate change.

“Indigenous peoples play an essential role in the preservation and sustainable management of these ecosystems because their ancestral knowledge and their close relationship with nature proved essential for the conservation of biodiversity and the mitigation of climate change,” the court wrote. “Therefore, states should listen to them and facilitate their continuing participation in decision-making.”  

Matheson said that when Sheila Watt-Cloutier, an Indigenous Inuk woman who then chaired the Inuit Circumpolar Conference, brought a climate case to the Inter-American Commission on Human Rights wo decades ago, it dismissed her claims within two pages. Several years later, Palau brought a similar case before the ICJ to no avail. 

“For the law to be moving at this speed —  to go from dismissals and no consideration of the impact that climate change has on human rights 20 years ago, when the first case was filed, to now you have opinions from all but one of the highest courts in the world — is amazing,” she said, noting that an African court is expected to weigh in soon. 

While the ICJ ruling did not expound on the rights of Indigenous peoples and focused on the responsibilities of nation-states, it did clarify a question that has long troubled leaders of countries like Tuvalu and Kiribati that are losing land to rising seas: What happens to their borders if their islands disappear? On that note, the ICJ said any recognized borders should remain unchanged, which is important to ensure they continue to have a political voice on the international stage and control over their waters. “That presumption of statehood and sovereignty is a critical bit,” said Johanna Gusman, a senior attorney for the Center for International Environmental Law. 

The case was initiated six years ago by a group of law students in Vanuatu and led by the government of Vanuatu and the Melanesian Spearhead Group, which represents several nations in that region of the Pacific and the Indigenous people of New Caledonia.

“By affirming the science, the ICJ has mandated countries to urgently phase out fossil fuels because they are no longer tenable for small island state communities in the Pacific, and for young people and for future generations,” Vishal Prasad, director of Pacific Islands, Students Fighting Climate Change, said during a press conference at The Hague. “This opinion is a lifeline and an opportunity to protect all that we hold dear, and all that we love.”

The United Nations established the International Court of Justice in the wake of World War II to help the global community address conflicts and concerns peacefully and judicially. It has heard cases on issues ranging from nuclear testing to fishing rights to the status of entire territories, such as Western Sahara. While not binding, its decisions are significant because they interpret international law and clarify states’ legal responsibilities. In this case, the court reviewed several treaties, including the 2015 Paris Agreement climate accord, and concluded that under those treaties and under customary international law, all nations have a legal obligation to limit emissions and may owe compensation to countries that are harmed. 

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There are limits to who can bring cases before the ICJ, which only hears cases brought by nation-states and not, for example, Indigenous political entities such as First Nations in Canada. Gusman said that Indigenous peoples may instead use the language of the cases in domestic disputes or through other U.N. venues. For example, “Indigenous nations and First Nations within Canada now have stronger legal backbones to take cases against Canada,” she said.

The court’s ruling will also be dulled somewhat in the United States, which has long rejected the ICJ’s authority and under President Donald J. Trump has been retreating even further from climate action. The U.S. and China are two major polluters whose rejection of the ICJ’s jurisdiction could prevent a country like Vanuatu from suing them directly over their emissions. 

Korey Silverman-Roati, a senior fellow at the Sabin Center for Climate Change Law, said the ruling is a seminal moment for climate litigation but that the effects in the U.S. will be muted because U.S. courts don’t traditionally recognize the ICJ’s authority. “I don’t think we can expect that the direct language of the ruling will impact cases in the U.S.,” he said. He thinks the advisory opinion will likely instead influence other countries whose judicial systems give more weight to the ICJ, and influence the U.S. through the ruling’s use in international negotiations. 

Already, the ruling is expected to figure heavily at this year’s Conference of the Parties, or COP, in November in Brazil. Last year, negotiations fell apart in the waning minute to the disappointment of Pacific island nations and many climate advocates who criticized the amount of money pledged by U.N. member states as woefully insufficient. 

“The advisory opinion will be an essential tool that we in the Global South will use at the next meeting of the United Nations General Assembly, the U.N.’s climate change and biodiversity conferences, and everywhere to advocate for climate justice,” said Ilan Kiloe, acting director general of the Melanesian Spearhead Group. He said Pacific peoples have already suffered forced relocations due to climate change. “We have already lost much of what defines us as Pacific Islanders.”

Tik Root contributed reporting to this story.