ICJ advisory opinion: A victory for the planet?

Recently, most of us have seen the news popping up on our social media screens, that the International Court of Justice (ICJ), which is also popularly known as the “World Court” has given an extraordinary judgment in favor of environmental protection.

In a landmark advisory opinion published on the 23 July 2025, ICJ gave a very powerful message to the world that all the states must prevent harm to the climate system and other environmental elements, and failing to do so could result in them having to pay compensation and make other forms of restitution.

Undoubtedly it is great news, especially for the developing nations who are the historical victims of the environmental crisis. Sounds like a huge victory to the environmental justice seekers, right? Indeed it is! But before celebrating the judgment, we must scrutinise the judgment thoroughly and to do that we must go back to the beginning!

The story begins in 2019 when some young climate activists from University of South Pacific, Fiji started a campaign to protect the climate and hold the states obligated for their failure to protect the environment under international legal regime. But this campaign did not avail a fruitful outcome.

This campaign gained momentum in 2021, when a nation from the pacific ocean, Vanuatu, took another initiative. They demanded an advisory opinion from the ICJ, which is the key concern of this article. In their (Vanuatu) efforts, they started influencing other nations to come up with a general assembly resolution. Their efforts paid off and most of the nations supported Vanuatu.

Now the question comes, what were the facts or concerns that were raised by Vanuatu before the court for opinion. The first question was, what are the obligations of the state parties to protect the climate and other parts of the environment from emission of greenhouse gases? And the Second one was, what are the legal consequences of these obligations?

Confronted with these two questions, the court was proposed to consider the whole situation from the perspective of the vulnerable states in accordance with the principle of generational justice. Before delving into the details, it is important to acknowledge that there is a longstanding tension between the developing and the developed nations in the environmental legal regime.

While the developing nations have always argued that they should take less responsibility for environmental degradation and get reparation for their historic loss On the other hand, the developed nations have persistently resisted this burden.

But the recent judgment by the World Court is somehow a bit leaning towards the developing states because still now developed states like China and USA are the biggest emitters of Green House Gases!

The court addressed the questions in its advisory opinion as follows: First, the state parties have obligations under the international legal regime like the Paris Agreement, Kyoto Protocol, Biodiversity Convention etc. In addition to that, they are also liable under the Human Rights concerns.

In short they also have liability under Human Rights related legal instruments such as Universal Declaration of Human Rights (UDHR), as without a good environment, many of the human rights cannot be fully realized. Thus the states are bound to protect the environment as a Human Rights obligation as well!

Secondly regarding the consequence of such obligation, the court noted that the states might face reparation or compensation in case of failure to comply with these obligations.

Let us now consider some key points to be kept in mind while celebrating the judgment! First, it is an advisory opinion by the ICJ. We have to remember that these advisory opinions by ICJ are not legally binding for any state parties. However, the opinions can be cited in any future judgments by national or international courts.

Second, this is not the first time when the ICJ has addressed any environmental issue in an advisory opinion. Before this judgment, in 1996 the court was asked to assess the legality of using nuclear weapons by the state parties, where the court opined that the nuclear weapons should not be considered lawful and gave several justifications in this regard, one of which was protection of the environment.

Third, the court stated that states will be held responsible for climate and other environmental degradation caused by human activities. However the challenge is, environmental changes are very complex in nature and do not solely occur due to human activities. It is one of the very important “global geophysical events" that can happen even without human interruption. While it is undeniable that in today's world, human activities are among the most influential causes contributing to environmental degradation yet it is very difficult to distinguish between the human caused and nature caused environmental degradation.

Turning our attention to the responses particularly that the court provided. First, the court stated that the state parties are under obligation to protect the environment and can be held liable for their actions causing environmental degradation by using fossil fuel and emitting greenhouse gases.

The court reasoned that this accountability may arise from the international environmental legal instruments such as the Paris Agreement as well as the human rights mechanisms such as “Universal Declaration of Human Rights (UDHR)”.

Now let's focus on the matter of how these legal instruments are implemented at the national level. In the “Monist” countries, the international instruments can directly be implemented into the national level. But in the “Dualist” countries like Bangladesh, these international legal instruments can not be directly enforced without legislative decision.

The constitution of Bangladesh directly protects human rights in chapter II and chapter III. For years, in Bangladesh, environmental protection has been a key concern before the Supreme Court of Bangladesh in light of Article 32 of the Constitution of Bangladesh which guarantees “Right to Life”.

One notable case is, Dr Mohiuddin Farooque v. Bangladesh & Others (Writ Petition No. 891 of 1994). This case addressed industrial pollution particularly from the hundreds of industries including the Hazaribagh tanneries which were polluting air, water, and soil across Bangladesh. The petitioner argued for environmental safety under the mandate of Article 32.

In a similar case in India, Subhash Kumar v. State of Bihar (1991), the court said that the “right to life includes the right to enjoyment of pollution-free water and air.” The point is that the discourse of environmental protection under the umbrella of Human Rights is also not a new approach.

The second point worth noticing in this regard is that by focusing on the Human Rights aspect, which is inherently an “Anthropocentric” one, the court overlooked the “Ecocentric” approach of environmental protection which emphasizes the intrinsic value of the environment itself.

Let’s take a look at the second response by the court. The court stated that the legal consequences of state liabilities might be “Reparation”. It is undoubtedly a commendable approach, however this course of action is also not a novel one!

Long before this, the “Permanent Court of Justice (PCIJ)”, the predecessor to the ICJ, in the case of Germany vs Poland established that the states might be required to provide  reparation for environmental damage!