Cautious Commitment – A Critical Analysis of Germany’s Submissions to the ICJ Climate Change Advisory Proceedings
By Miriam Klüner*
Introduction
On March 29 2023, UN General Assembly Resolution 77/276 was adopted, requesting the International Court of Justice (ICJ) to deliver an Advisory Opinion on States’ international legal obligations with regard to climate change (AO). The ICJ is poised to deliver its answer within the course of the present year. The Advisory Opinion will present the Court’s consideration of applicable law and, while advisory opinions are not formally legally binding, as the principal judicial organ of the UN, the ICJ’s advisory opinions are one of the most authoritative interpretations of existing and binding legal obligations.
Much is expected from this Advisory Opinion, which is only one of three such proceedings concerning climate change before international courts to date. Previous proceedings were held before the International Tribunal for the Law of the Sea (ITLOS) and the Inter-American Court of Human Rights (IACtHR) and an additional request is currently pending to be accepted before the African Court of Human and Peoples’ Rights (AfCHPR). Compared to these bodies, however, the ICJ holds a broader mandate as the primary judicial organ of the UN, enabling it to interpret matters of international law in a more holistic and comprehensive manner.
While the final delivery may still demand a little bit of patience, it is valuable to already have a look at States’ individual submissions to the ICJ to clarify their position and role within these historic proceedings. This blog post will, therefore, examine and critically analyze Germany’s written and oral submissions to the ICJ proceedings as well as its answers to questions posed by the Judges. It will reveal a markedly cautious stance, in which Germany seemingly tries to avoid any formal responsibility and binding legal obligations in favor of ‘soft’ political commitments, while maintaining a purported progressive image. This approach can only be declared as hypocritical and a substantial let down for Germany’s youth and future generations, not to mention others already at present bearing the brunt of climate change consequences, chief among them Small Island Developing States (SIDS).
Climate Change in Germany - Floods, Fridays for Future and a Lack of Political Follow-Through
Germany currently is, and historically has been, a high emitter of greenhouse gases (GHG). While it is certainly not at the forefront of climate harms in global comparison, Germany is also not immune to climate change induced crises and extreme weather events, exemplified by the Ahrtal flood in 2021. Not only such distinct but increasingly frequent extreme weather events pose a problem to the country and its inhabitants, but also the steady increase in temperature records. Germany’s infrastructure and especially its cities are built for a commonly mild, rainy climate and do not easily adapt to prolonged heat waves. Too much concrete trapping heat and a vulnerable aging population is not a promising mix when temperatures rise over 30°C for weeks instead of only days, leading to ca. 3.000 heat-related deaths in Germany in 2023 and 2024 each. If Germany continues to follow a high emission path, by 2050, it is projected to experience a 466% increase in the population vulnerable to floods and 80% increase in heatwave frequency, also causing droughts. These extremes will lead to an even higher death toll in the years to come and have devastating impacts on agriculture, fisheries and the overall livelihoods and food security of Germany’s population, which, on top of the mentioned social impacts, will also cost Germany €98 billion by 2100. Additionally, Germany might face an even more drastic change in temperature toward the opposite extreme, if melting sea ice leads to a collapse of the Atlantic Meridional Overturning Circulation (AMOC), considered one of the ‘climate tipping points’. Such a collapse may lead to a mean temperature drop of up to 15°C in Europe, which would inevitably bring new and unforeseen challenges of adaptation for Germany through introduced cold spells and even further exacerbating existing climate change impacts such as extreme weather events.
Germany’s youth seems to have understood that these issues will not be solved through inaction and have responded by demanding strong climate action through environmental movements and civil-society organizations, most prominently among them Fridays for Future. Politics on the other hand has not yet caught up. While representatives outwardly insistently portray Germany as a leader at the forefront of climate concerns, this image only rarely translates into concrete action. Shy of costly obligations and much too deep into an economy reliant on coal and combustion-engine cars, it frequently keeps putting short term economic and political gain (catering toward governing parties’ aging voter clientele) over long-term prosperity and the demands of large parts of Germany’s youth.
Germany’s position before the ICJ
The analysis of Germany’s submissions to the ICJ advisory proceedings reveals a similarly bleak reality. The views advanced by participating States expose four major points of contention that will be highlighted in this blog post. With further examination, it will become apparent that Germany’s submissions fall flat on all of them.
The first point of contention concerns the applicable law in matters involving climate change. Germany considers the United Nations Framework Convention on Climate Change (UNFCCC) and Paris Agreement to “constitute the central legal frameworks for combatting the effects of climate change” (written submission, para. 86). While careful not to use this specific term, Germany thereby essentially implies the treaties to be lex specialis in cases concerning climate change, thus setting the maximum bar for ambition in all other possible legal obligations, whether arising from other treaties, human rights, or customary law. This understanding would mean that, as long as States are in compliance with the Paris Agreement, no additional or further reaching obligations with regard to GHG emissions could arise and that all other sources of international law, including human rights treaties, would be interpreted by merely referring to the Paris Agreement.
Moreover, Germany also makes a crucial distinction between legally binding obligations and mere non-binding political commitments as well as obligations of conduct and result (written submission, paras. 26-34). Mentioning only the central goal of the Paris Agreement set out in its Article 2(1) to restrict global warming to below 2°C above pre-industrial levels as a binding obligation on all parties (written submission, para. 44) and this only as an obligation of conduct (written submission, para. 48), while denoting most other provisions as mere political commitments (written submission, para. 28), Germany tries to further narrow its obligations.
This consideration directly ties to the second point of contention within the proceedings, which is whether, and to what extent, climate change and its effects can trigger human rights obligations. Following the above logic, Germany recognizes the relevance of climate change for human rights such as the right to life, but at the same time basically denies any self-standing obligations under international human rights law with regard to GHG emissions and, most notably, dismisses a customary international human right to a healthy environment (written submission, para. 104). Germany further clarifies in its answer to a question posed by Judge Aurescu that it understands the right to a healthy environment even in treaties to only be a “specific manifestation of other previously established human rights” and not a self-standing right (p. 3). This understanding would essentially render its mention redundant since the right’s protective scope could not go further than other human rights and thus, at most, be of declaratory significance. For most observers, this comes as a surprise, since Germany has previously actively supported a human right to a healthy environment in resolutions by the Human Rights Council and UN General Assembly. Germany even addresses its support of these resolutions, all the while highlighting them to be of purely political significance (written submissions, para. 105), thereby once again reiterating their supposed political ambition, but reluctance to be subject to binding law. Germany also shares its view in the discussion on extraterritorial human rights jurisdiction based on effective control over a source of pollution, the effects of which manifest elsewhere. Again, Germany follows a politically safe, conservative stance in denying that this would amount to jurisdiction within the meaning of the relevant human rights instruments (written submission, paras. 93, 94).
The third point concerns the rights of future generations. This matter is of central concern to youth organizations around the world and supported by many States and legal scholars as a crucial step in support of robust climate obligations. Rights of future generations give a legal framework to the notion of intergenerational equity, which, among other things, posits that our planet Earth should be preserved to be inherited by future generations at least in the same condition as we, its current inhabitants, get to enjoy it. This maxim is underlined by the consideration that future generations did neither contribute nor consent to the harms of climate change, which will inevitably befall them and render their existence much more difficult than our current reality. Plainly speaking, they did nothing to deserve having to deal with our shortcomings and the impossible task of cleaning up the mess we made. The concept further supposes a virtuous cycle of an ‘attitude of gratitude’ to perpetuate this maxim onward to subsequent generations.
The concept of intergenerational equity has long been accepted by international courts and by ICJ Judge Cançado Trindade as early as early as 2010 in a separate opinion (paras. 114-131) to the ICJ’s Pulp Mills case. Germany even acknowledges as part of its submissions that rights of future generations have been considered by the German Constitutional Court as, although not directly recognized as individual rights, falling under an objective duty of protection arising out of the fundamental rights set out in Article 2(2) and 20a Grundgesetz (German Basic Law) (written submission, paras. 19, 20). However, Germany restricts its acceptance of these rights to the domestic realm and conversely denies any such rights to exist as a matter of customary international law (written submission paras 101, 102). Notwithstanding the high scientific certainty of projected climate harms and Germany’s Constitutional Court's acknowledgment of GHG emissions as an “irreversible risk to future freedom” (Neubauer et al. v Germany, BVerfG, Order of 24 March 2021, 1 BvR 2656/18, para. 186), Germany considers future generations in this regard to be mere “abstract entities”, facing “abstract risks” and therefore insufficiently distinct to be recognized as right-holders (oral submission, para. 26).
Ultimately, Germany argues in line with the previous points, that it should bear no and, especially, no financial responsibility for its substantial contributions to anthropogenic climate change. Special attention is paid to the denial of any and all historic responsibility vis-à-vis individuals or developing States. Germany supports this claim by pointing to the fact that the Paris Agreement (which it deems to be the only body of law of concern), provides no clause for climate related loss and damage compensation (written submission, paras. 62, 63) and in any case, knowledge about climate change effects to only have become available as early as the 1990s, following the first Intergovernmental Panel on Climate Change (IPCC) report. Germany argues that, therefore, no customary obligations could have emerged before that point in time and further rules out any retroactive application of current obligations (written submission, paras. 39, 40).
Reflection
Following this argumentation, Germany takes extraordinary care to deny almost all possible legal obligations with regard to climate change. Insisting instead on voluntary political commitments, which can conveniently be abandoned without any major pesky consequences, this might be a smart move to maintain its political maneuverability. To many however, it rather seems like a hypocritical and frankly unconvincing effort to reject any real responsibility while still purporting the positive image of ‘climate leader’.
At this point in time, and until the ICJ’s advisory opinion is issued, there continues to be a high amount of legal uncertainty surrounding climate-related obligations and rights, which opens pathways for States to forward arguments with the aim of escaping their liability. In light of this, Germany’s submissions overall might, for the time being, be legally defensible, but certainly rank among the conservative views expressed during the proceedings and are frankly a considerable let down for its present and future youth. This is especially regretful seeing neighboring countries, such as the Netherlands as well as the EU, taking a considerably stronger stance compared to Germany.
It might also be questionable whether Germany can credibly maintain this stance given recent climate litigation, especially looking at the decision rendered on May 28th 2025 by the Higher Regional Court (Oberlandesgericht) in Hamm in the case of Saúl Lliuya v. RWE. While this is a civil case and, therefore, not directly transferable to public legal issues such as State responsibility and human rights obligations, its underlying reasoning might still play a role. The German Court considered the impacts of GHG emissions to be foreseeable since at least 1958, thereby directly contradicting Germany’s argument that scientific knowledge about adverse climate change effects became available at the earliest in the 1990s (written submission, para. 40). It further established that State issued permits could not serve as a carte blanche for polluting corporations. These findings might offer a line of argumentation to be applied in future cases to establish Germany’s state responsibility for failing to regulate or even actively encouraging private corporations to pollute. Even failing such an application, they, at minimum, directly counteract the reasoning advanced by Germany in its submissions to the ICJ.
Conclusion
Germany’s submissions altogether arguably fall in line with the reasoning advanced by other major polluters like the USA, China, Russia, and Japan. Given Germany’s political climate compared to these States, however, its conservative stance caught many off guard, not least those among its youth actively following the proceedings and speaking out for climate justice. Frankly, many expected Germany to do better and are only left to hope that the ICJ will be persuaded by genuine climate leaders to clarify that all States have binding international and human rights-based obligations to stop GHG emissions and preserve and protect the environment for current and future generations. Climate change is a collective planetary crisis, meaning we can no longer support individual States to act selfishly and in the interest of short-term economic or political gain. Rather, actions for the collective benefit of our planet and all its inhabitants are needed. Germany must recognise and accord its actions to the severity and urgency of the climate crisis. It has long enough chosen to let individuals fend for themselves and thereby failed to fulfil its clear legal obligations toward its own present and future population and toward the population of other states, to stop further GHG emissions and mitigate adverse climate effects. If no action is taken today, climate harm and its consequences will be irreversible and it will be up to the least responsible to survive in a world fundamentally harsher than the one we take for granted today. These are the pivotal moments. It would be a shame to see them wasted by further inaction.
*Miriam Klüner is a German national and currently a Master of Laws (LL.M.) Candidate in Human Rights Law at the University of Maastricht (Netherlands). She has previously completed the First German State Examination together with a Master Iuris (M. Iur.) at the University of Münster (Germany). Her main interests lie in public international law, human rights law, environmental law and the law of the sea. She is a member of WYCJ’s Legal Advocacy Taskforce.
DISCLAIMER: The views expressed in the symposium’s blog posts are those of the author and do not represent the views of WYCJ. Furthermore, university chapters were prepared, edited, and approved by the respective universities; WYCJ cannot guarantee the level of scientific and legal inquiry, nor the content of blog posts.