For the second time in a month, one of the world’s highest judicial authorities has issued an advisory opinion on the climate crisis that highlights the importance of the human right to a clean, healthy and sustainable environment. Echoing the Inter-American Court of Human Rights in its Advisory Opinion 32/25, on July 23, the International Court of Justice (ICJ) unanimously held that this right constitutes a binding norm of international law. Both Courts also described the climate crisis as an existential threat to humanity and all forms of life on Earth (para. 456 of the ICJ AO, para. 302 of AO 32/25).
These advisory opinions cap a remarkable four-year run of advances for the right to a healthy environment, beginning with its recognition in Resolution 48/13 of the United Nations (UN) Human Rights Council in October 2021. The UN General Assembly (UNGA) followed suit in July 2022 with Resolution 76/300, which was supported by 164 States and opposed by none, with seven abstentions.
Because the ICJ is widely regarded as the leading global authority on the interpretation of international law, its endorsement of the right to a healthy environment should put an end to the longstanding debate about whether this right is part of the pantheon of universally recognized human rights. Although the advisory opinion offers scant guidance on the content of the right to a healthy environment, the ICJ is clear that protecting this right is an essential prerequisite for the enjoyment of all human rights (para 393). In combination with other aspects of the advisory opinion, the recognition of the importance of the right to a healthy environment should serve as a catalyst for accelerated climate action, and enhance accountability for ongoing State failures to tackle the climate crisis.
UN Resolutions Spark Further Developments for Right to a Healthy Environment
The right to a healthy environment was incorporated in a series of key international instruments including the Kunming-Montreal Global Biodiversity Framework, key outcome documents from the 27th and 28th Conferences of the Parties to the United Nations Framework Convention on Climate Change (UNFCCC) (the Sharm El-Sheikh Implementation Plan and the first Global Stocktake) and the Bonn Declaration for a Planet Free of Harm from Chemicals and Waste (2023).
At least ten States have legally recognized the right for the first time since the UNGA’s resolution in 2022, through constitutional amendments (Micronesia, Pakistan), legislation (Canada), and the ratification of treaties (here and here), including the right (Antigua and Barbuda, Bahamas, Belize, Dominica, Grenada, Oman, Saint Lucia). These actions brought the number of States that recognize the right to a healthy environment in law to 165, or more than 85 percent of UN Member States.
Courts around the world have embraced these developments, including the Constitutional Chamber of the Supreme Court of Costa Rica, the Supreme Court of Brazil, the Supreme Court of India, the Supreme Court of Mexico, the Supreme Court of Panama and other courts from South Africa to Norway.
Seeking Climate Justice at the ICJ
Sparked by visionary university students in the South Pacific, Vanuatu led an extraordinary diplomatic campaign resulting in a UNGA resolution posing two basic questions to the ICJ. First, what are States’ obligations, under international law, to protect the climate system for present and future generations? Second, what are the legal consequences of causing harm to the climate system by failing to fulfil those obligations?
Reflecting the global interest in this issue, the ICJ recorded an unprecedented level of participation in the advisory opinion process, receiving submissions from 99 States and 13 international organizations. The participants were divided into two opposing camps.
A small group of States, composed mainly of the world’s dominant fossil fuel producers and consumers, argued that the only applicable international law was the three climate treaties – the UNFCCC, the Kyoto Protocol, and the Paris Agreement. In their view, international human rights law and customary international law were displaced by this specialized legal regime (lex specialis). These States argued that the climate treaties required them to submit Nationally Determined Contributions, but any other climate actions could be considered discretionary or voluntary.
In contrast, the vast majority of States and international organizations participating in the ICJ proceeding took a much broader view, arguing that the entire corpus of international law was relevant, including other environmental treaties, customary international law, and, of primary relevance for this blog, international human rights law.
Interestingly, at the conclusion of the oral hearings before the ICJ in December, four judges asked participants to file written replies to questions. Judge Aurescu asked about the status of the right to a clean, healthy and sustainable environment under international law, the content of the right, and its relationship to other human rights. Fifty-four participants submitted replies to Judge Aurescu’s question, with the vast majority concluding that the right to a healthy environment is a critically important part of international law.
In its Advisory Opinion issued last week, the ICJ sided unanimously with the majority on the question of relevant sources of international law, and rejected the lex specialis argument (paras. 162-171). This determination by the ICJ opened the door to consideration of the role and importance of international human rights law in defining states’ obligations with respect to climate change, and in particular the right to a healthy environment.
Determining the Status and Relevance of the Right to a Healthy Environment at the ICJ
During the ICJ’s advisory opinion process, 92 participants (84 States and eight international organizations) made written and/or oral submissions about the right to a clean, healthy and sustainable environment. The vast majority of participants (80) advanced arguments supporting the status of the right to a healthy environment as a binding norm of international law. Some States identified the right as part of customary international law (i.e., Kiribati, written comment, para. 42; Uruguay, Written Comment, para. 106; and Namibia, Reply to Judge Aurescu, para. 2), others as a general principle of international law (General principle—Slovenia, Oral Statement, Verbatim Record 50, pp. 23-25, paras. 7-10), and some went so far as to assert that the right is a peremptory norm of international law (similar to prohibitions on slavery, genocide and torture, which permit no derogations; Melanesian Spearhead Group and Vanuatu, Written Reply to Judges Cleveland, Tladi, Aurescu, & Charlesworth, para 7-8).
The small minority of States (12) that sought to confine their obligations to the climate treaties denied the existence of the right to a healthy environment, claimed its content was unknown, and dismissed its relevance for the advisory opinion.
Again, in its Advisory Opinion, the ICJ sided with the majority of States. First, the ICJ summarized the international developments with respect to the right to a healthy environment, from the Stockholm Declaration in 1972, which vaguely alluded to the right, to the Human Rights Council and UNGA resolutions in 2021 and 2022, which clearly and overwhelmingly recognized it (para. 388, 392). The ICJ also identified regional treaties in Africa, Latin America and the Middle East that include the right, highlighted the widespread recognition of the right at the national level in constitutions and legislation, and mentioned the reporting on implementation of the right at the universal periodic review process overseen by the Human Rights Council.
Then came the ICJ’s unanimous endorsement of the right to a healthy environment as a binding norm of international law. Paragraph 393 of the advisory opinion is worth citing in its entirety:
Based on all of the above, the Court is of the view that a clean, healthy and sustainable environment is a precondition for the enjoyment of many human rights, such as the right to life, the right to health and the right to an adequate standard of living, including access to water, food and housing. The right to a clean, healthy and sustainable environment results from the interdependence between human rights and the protection of the environment. Consequently, in so far as States parties to human rights treaties are required to guarantee the effective enjoyment of such rights, it is difficult to see how these obligations can be fulfilled without at the same time ensuring the protection of the right to a clean, healthy and sustainable environment as a human right. The human right to a clean, healthy and sustainable environment is therefore inherent in the enjoyment of other human rights. The Court thus concludes that, under international law, the human right to a clean, healthy and sustainable environment is essential for the enjoyment of other human rights.
This extraordinary conclusion reflects a remarkably rapid evolution in the development of the right to a clean, healthy and sustainable environment over the past four years. In fact, Judges Aurescu, Charlesworth and Tladi issued separate opinions lamenting that the ICJ did not go further in articulating the right. Judges Aurescu (para. 46), Bhandari (para. 3), and Tladi (para. 31) called for the specific recognition of the right as customary international law. Judge Tladi noted that “[i]n this particular instance, the evidence that has been put forward to support the right to a clean, healthy and sustainable environment is much more than what has been presented in many cases where the Court found the existence of a rule of customary international law.” Judge Charlesworth articulated the content of the right, describing the procedural rights of access to information, public participation in decision-making and access to justice as well as clean air, safe and sufficient water, adequate sanitation, healthy and sustainably produced food, a nontoxic environment, healthy ecosystems and biodiversity and a safe climate, echoing Special Rapporteurs, United Nations agencies, and recent legislation in Australia.
The brevity of the ICJ’s comments on the right to a healthy environment does seem like a missed opportunity, particularly in light of the widespread agreement among participants in the ICJ process about the procedural and substantive elements of the right. But the bottom line is that the ICJ rejected the arguments made by the US, the UK, and a few other States that the right did not constitute part of international law. To the contrary, it is now part of the tapestry of international law that determines State obligations to address the “existential problem of planetary proportions that threatens all forms of life and the very health of our planet” (para 456). The advantage of the ICJ’s framing is that all States have binding obligations to respect, protect and fulfil human rights, and this includes the right to a healthy environment, both on its own and as a prerequisite for the enjoyment of all human rights.
Moving Forward: Implications for the Future
While there is much to parse and debate in the ICJ’s advisory opinion, there is no doubt that it advances the status and stature of the right to a healthy environment under international law. The arguments of States that raised doubts about the right at the Human Rights Council, the UNGA, the ICJ, and other international fora have been conclusively refuted.
The Council of Europe must now move forward with the long-delayed development of an additional protocol to the European Convention on Human Rights, recognizing the right to a clean, healthy and sustainable environment (here and here). This is the only regional human rights system in the world that does not yet incorporate this right.
The ICJ’s advisory opinion should encourage States in Africa and Southeast Asia to move forward with regional instruments to advance the implementation of the right to a healthy environment (similar to the Aarhus Convention and the Escazu Agreement). The ICJ’s ruling should also compel the 28 UN Member States that have not yet incorporated this right into their domestic legal systems to do so as a matter of urgency (Afghanistan, Andorra, Australia, Barbados, Brunei Darussalam, Cambodia, China, Democratic People’s Republic of Korea, Israel, Japan, Kiribati, Laos, Liechtenstein, Marshall Islands, Myanmar, Nauru, New Zealand, Papua New Guinea, Samoa, San Marino, Singapore, Solomon Islands, Tonga, Trinidad and Tobago, Tuvalu, the United Kingdom, the United States, and Vanuatu).
More importantly, all States, especially large current and historical greenhouse gas emitters, must strengthen their Nationally Determined Contributions ahead of COP 30 later this year to include significantly more ambitious targets and effective measures to achieve those targets. The failure to do so would contravene their obligations under international law, as articulated so forcefully by the ICJ, and would constitute a prima facie violation of the right to a clean, healthy and sustainable environment.
It is obvious that ongoing or new fossil fuel subsidies are impossible to reconcile with the human rights obligations of States in the face of a climate emergency. Authorizations for additional fossil fuel exploration and infrastructure also face unprecedented legal obstacles, particularly in wealthy nations that are mandated to take the lead in reducing emissions. One of the sentences (para. 427) in the Advisory Opinion most likely to be widely quoted targets fossil fuels directly, echoing a report from the UN Special Rapporteur on human rights and the environment (paras. 77-78):
Failure of a 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 licences or the provision of fossil fuel subsidies — may constitute an internationally wrongful act which is attributable to that State.
Wealthy States must also mobilize climate finance on a scale and at a speed comparable to the Marshall Plan implemented in the aftermath of World War II, fulfilling their legal duties to assist less wealthy States in shifting to clean energy and adapting to climate impacts and to compensate climate vulnerable States for the immense damages already inflicted by the disruption of the climate system.
While one can hope that governments around the world will implement the major legislative, regulatory and budgetary changes needed to comply with their clarified legal obligations to address the climate crisis, some will inevitably ignore the ICJ advisory opinion, drag their heels, and continue capitulating to the insidious influence of the oil, gas and coal industries. These States’ failures, now understood as internationally wrongful acts and violations of human rights, will rightfully be targeted by litigation. Courts across the world will continue to play a key role, even an enhanced role, in holding governments accountable for their climate, environmental and human rights commitments.
The advisory opinion of the ICJ provides an inspiring high-water mark for the legal recognition of the right to a healthy environment. The debates about the right’s existence, its relevance, and its importance are over. The right to a healthy environment has moved from lex ferenda to lex lata and, as multiple courts have recognized, is foundational to humanity’s existence and the future of life on Earth. Implementing bold, urgent and rights-based climate action now must be a paramount priority for all States.
David R. Boyd
David R. Boyd is a Professor at the University of British Columbia and the former UN Special Rapporteur on the human right to a clean, healthy and sustainable environment
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