ICJ Advisory Opinion on Climate Change: A Legal Perspective with Dr. Justin Sobion
On 11 December 2025, the WYCJ Bhutan Front with Dr. Justin Sobion organised a discussion on the International Court of Justice (ICJ) Advisory Opinion (AO) on Climate Change. The critical insights into the origins, implications, and future trajectory of international climate litigation were discussed during the session. The session also involved an exploration of how climate change, which was once seen as a purely political or moral concern, has firmly entered the domain of international law.
Origins of the ICJ Advisory Opinion on Climate Change
Dr. Sobion touched on the origins of the ICJ Advisory Opinion to 2019, when the State of Palau sought to present before the ICJ regarding climate change. This effort led to the emphasis of a fundamental restriction of international law, which is that individuals lack locus standi before the ICJ, signifying that only States can bring cases.
Vanuatu became the first state to formally take climate change to the ICJ, marking a historic moment indicating an overcoming of a significant challenge. Significantly, this marked the first instance of a student appearing before the ICJ, drawing attention to the ever expanding influence of youth-led climate advocacy in global legal frameworks.
A key question raised during the talk was: Why did states delay taking this path until 2019? Dr. Sobion attributed this delay to evolving global consciousness, youth movements like Greta Thunberg’s climate activism, and constitutional developments (highlighting Bhutan’s Constitution) featuring strong environmental protections, as a notable example.
What Is an ICJ Advisory Opinion?
An Advisory Opinion from the ICJ is an official legal interpretation given by the Court upon the request of the UN bodies or agencies. Although they are not legally binding, advisory opinions hold considerable legal weight and affect state actions, treaty interpretations, and future lawsuits.
Dr. Sobion highlighted that while states might assert they are not required to adhere to the AO, the international law interpreted by the ICJ such as commitments under the Paris Agreement, is binding.
Key Points of the ICJ Advisory Opinion
The Advisory Opinion contributed to the clarification of several crucial principles, such as:
States are legally required to protect the climate system.
The principle of “no harm” applies, including responsibility for transboundary environmental damage.
Based on the UN Charter, States have a duty to cooperate, as climate change is perceived as a risk to international peace and security, though the Charter does not explicitly mention the environment.
Climate change is not a matter of charity or moral goodwill, but a legal responsibility shared by all states.
Dr. Sobion emphasised that 2024 and 2025 signify a crucial period for climate law, with numerous significant environmental decisions being made worldwide. The ICJ AO is improbable to occur again in this precise form, making it a distinct legal moment.
Global Impact and Bhutan’s Position
The Advisory Opinion has global consequences, impacting nations like Bhutan. Bhutan was noted as a carbon-neutral state, alongside nations such as Costa Rica, playing a positive role in global emission reduction efforts. However, Bhutan did not participate in the ICJ Advisory Opinion process. Dr. Sobion suggested that this absence may be due to lack of awareness, rather than lack of commitment. Had Bhutan been aware, it would likely have participated actively. Significantly, Bhutan’s constitutional principle of trusteeship, which regards future generations as equal stakeholders, closely aligns with the ICJ’s rationale.
Future Generations and Climate Justice
A central theme of the discussion was intergenerational justice. What reasons exist for current states to bear responsibilities toward future generations? The argument of the Global South emphasised that future generations did not consent to the climate crisis, they will, however, disproportionately suffer the consequences. Placing excessive demands on them will continue to create significant ethical and legal issues.
Climate Change, Armed Conflict, and International Responsibility
Dr. Sobion talked about the significant connection between armed conflict and climate change. In their submissions, Palestine’s legal team highlighted how the conflict in Gaza leads to environmental damage. They emphasised that:
Arms production depends on industrial facilities, resource extraction, and frequently involves child labor.
Bombing contaminates air and soil, making land unproductive.
Conflict hastens environmental damage.
Notably, the ICJ AO indicated that nations must halt armed conflicts, as preventing climate change entails preventing warfare. In this regard, Bhutan is notable—not just carbon neutral, but also devoid of armed conflict.
Implementation Challenges: Awareness vs Capability
A primary issue brought up during the discussion was implementation. Although awareness is important, state capability matters equally. It was pointed out by Himanshu (LLM), a participant, that governments might grasp their responsibilities but may not possess the technical, financial, or institutional capability to meet them.
In spite of the AO, numerous states persist with “business as usual”, highlighting the necessity for ongoing advocacy and education.
Enforcement and Accountability
A vital question arose: Are there penalties for failing to comply with the ICJ AO?
The Advisory Opinion is not mandatory.
Nonetheless, countries might submit cases to the ICJ due to non-compliance in climate action efforts.
Certain states have publicly challenged the AO, claiming that it does not introduce any new responsibilities.
Nonetheless, the AO reinforces the legal basis for upcoming climate-related lawsuits.
Causation and Climate Litigation
A major challenge in climate lawsuits is establishing causation and connecting particular damage to specific entities or individuals.
Examples discussed included:
Pabai & Pabai v Australia, in which proving causation proved challenging even with close geographic distance.
Smith v Fonterra features Indigenous plaintiffs taking legal action against a New Zealand company.
A lawsuit initiated by Solomon Islands against Australia, which ultimately did not succeed due to a lack of evidence.
Dr. Sobion observed that scientific proof is becoming more crucial in addressing causation issues, and closeness between states might simplify claims though it was not assured.
The Road Ahead: What Do We Do Next?
The discussion ended with a future-oriented question: What’s next?
The answer lies in:
Raising awareness of the ICJ Advisory Opinion,
Reinforcing state cooperation,
Supporting scientific evidence-based litigation, and
Ensuring that climate justice remains central to the collective goals of global peace, security, and human rights.
The ICJ Advisory Opinion may not directly bind states, yet it has unquestionably altered the legal discourse surrounding climate change, reshaping it from a moral plea into a matter of legal obligation.