Why the International Court of Justice’s Advisory Opinion on Climate Change is Crucial for Island Nations

By Jessielyn Ho*

 1. Introduction

         In March 2023, the United Nations General Assembly made history by adopting a resolution “request[ing] the [International Court of Justice] to render an opinion on the obligations of States under international law to ensure the protection of the climate system from anthropogenic emissions of greenhouse gases.”[1] This marked the first time such a request had been made by consensus, signaling the emergence of the long-awaited discussion around climate reparations and the responsibility of States to address the disproportionate harms suffered by vulnerable populations.[2] The Court’s opinion holds the potential to clarify States’ existing international legal obligations, guide stronger climate action, and influence how governments uphold climate justice in foreign relations as well as toward their own citizens. For island nations on the frontlines of climate change, the opinion could serve as a foundational step toward accountability for long-overdue redress.

         Rooted firmly at the forefront stands Vanuatu—the small island nation that launched the initiative to transmit the resolution to the ICJ.[3] This blog post explores the significance of the ICJ opinion by highlighting Vanuatu’s leadership, the legal framework asserted in its arguments, and the transformative impact climate reparations can have on Indigenous self-determination for island nations.

2. Vanuatu Leads the Charge

         Vanuatu’s legal counsel, opened their oral arguments on 2nd December 2024 and sent a clear message to the Court, thereby setting a tone for the entirety of the oral hearings:

“[A]t the heart of the request submitted by the UN General Assembly to the Court in Resolution 77/276 is a simple but fundamental question: whether a certain conduct of States – the “Relevant Conduct” – which has caused both significant harm to the environment, particularly to and through the climate system, and indeed catastrophic harm in the form of climate change and its adverse effects, is consistent, as a matter of principle, with international law.”[4]

In its submissions to the Court, Vanuatu reaffirmed its position that the relevant conduct breaches “several rules of treaty and customary international law,” thereby invoking the legal consequences of each treaty and law.[5]

ARSIWA: The Governing International Law and the Consequences of Breach

Specifically, Vanuatu contended that the anthropogenic emissions of greenhouse gases are, in principle, inconsistent with the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA).[6] ARSIWA comprises the general rules for State responsibility under customary international law, requiring States to cease unlawful behavior and make reparations for harm already done.[7]

Under ARSIWA, unlawful behavior may include any acts that cause significant harm beyond a State’s borders. In the context of climate change, the persistent and large-scale emissions of greenhouse gases by high-emitting States aggregate in such a way as to constitute a breach of these States’ duties under several sources of international law, including, but not limited to, its international duties to protect the right to a healthy environment, human rights, and transboundary principles.[8] By invoking ARSIWA, Vanuatu reinforces the notion that climate inaction or insufficient mitigation of greenhouse gases is not only a domestic political failure, but also a violation of binding international legal obligations, which incurs international responsibility.

The envisioned legal consequences under ARSIWA are cessation and non-repetition (Article 30) and reparation (Article 31). Cessation, which is forward-looking, demands that the State immediately cease the wrongful act, and non-repetition demands that the State offer sufficient guarantees of non-repetition.[9] Reparations, on the other hand, are backward-looking and provide an honest accounting for damage already done. Multiple forms of reparations exist, including restitution, compensation, rehabilitation, and satisfaction.[10]

3. Reparations as a Tool for Climate Justice, Self-Determination, and Dignity

Restitution is often considered the primary form and ultimate goal of reparations. It is an attempt to restore the situation as it was up until the breach occurred. On the other hand, compensation applies where restitution is materially impossible or disproportionate and the harms are mended instead through financial means.

For island nations like Vanuatu, reparations can provide concrete pathways to correcting the harms caused by climate change. For example, climate change has led to extreme sea level rise and landslides that destroyed arable land in villages like Yakel.[11] In addition to the loss of food security, the Yakel tribe is unable to cultivate critical crops like yam that hold cultural and religious significance. Thus, with the loss of land comes the loss of identity, religion, community coherence, and the ability to transmit the same culture to future generations—all of which are clear violations of human rights.[12]

Through reparations, these communities could regain that which was lost through climate change caused by no action of their own; or, at the very least, receive compensation for loss and damage suffered.[13] When lands cannot be restored or lives are disrupted beyond return, compensation becomes a tangible form of justice, enabling vulnerable communities to invest in healthcare, education, and infrastructure. In Yakel, for instance, climate change has displaced farms, meaning villagers must now travel treacherous distances to garden, often resulting in physical harm such as heat strokes.[14] Targeted forms of compensation could fund localized health services to care for stroke survivors and prevent further injury, or support the development of agricultural lands in areas that are closer to residences.

4. Conclusion

The ICJ’s advisory opinion may not be legally binding by itself, but its moral and political weight has the potential to be transformative on an international level. By affirming that States have legal duties under international law to reduce emissions and make reparations for harm, the Court could catalyze stronger climate action and provide the legal foundation for island nations and other vulnerable communities to seek redress.

In a world where the people least responsible for climate change are bearing its heaviest burdens, this opinion represents more than legal clarity—it represents hope, justice, and the possibility of a livable future rooted in equality and international solidarity.

*Jessielyn Ho is a national of Hawaiʻi and student at the William S. Richardson School of Law, University of Hawaiʻi at Mānoa.

[1] Press Release, General Assembly, General Assembly Adopts Resolution Requesting International Court of Justice Provide Advisory Opinion on States’ Obligations Concerning Climate Change, U.N. Press Release GA/12497 (Mar. 29, 2023), https://press.un.org/en/2023/ga12497.doc.htm.

[2] Interview by Xiao Yi Zhao with Julian Aguon, Founding Attorney, Blue Ocean L., in Honolulu, Haw. (Jan. 17, 2025), https://law.hawaii.edu/25795/.

[3] G.A. Res. 77/276, Request for an advisory opinion on the obligations of States with respect to climate change (Mar. 29, 2023).

[4] Written Statement submitted by the Republic of Vanuatu, Obligations of States in respect of Climate Change (Request for advisory opinion), 21 March 2024.

[5] Id.

[6] Id. Vanuatu also pointed to applicable human rights that are violated by large-scale emissions of greenhouse gas emissions, as noted in a statement by five UN treaty bodies. Written Comments submitted by the Republic of Vanuatu, Obligations of States in respect of Climate Change (Request for advisory opinion), at 60, 15 August 2024. Specifically, the statement by the UN committees concluded, “Failure to take measures to prevent foreseeable harm to human rights caused by climate change, or to regulate activities contributing to such harm, could constitute a violation of States’ human rights obligations.” Id. (quoting Committee on the Elimination of Discrimination against Women, the Committee on Economic, Social and Cultural Rights, the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, the Committee on the Rights of the Child and the Committee on the Rights of Persons with Disabilities, Statement on human rights and climate change, HRI/2019/1 (14 May 2020), paras. 10-11.

[7] Int’l L. Comm’n, Rep. on the Responsibility of States for Internationally Wrongful Acts, U.N. Doc. A/56/10 (2001).

[8] Written Replies from the Republic of Vanuatu and the Melanesian Spearhead Group to the questions put by Judges Cleveland, Tladi, Aurescu and Charlesworth at the end of the public sitting of Friday 13 December in the oral proceedings concerning the request for an advisory opinion on the Obligations of States in respect of Climate Change, Obligations of States in respect of Climate Change (Request for advisory opinion), at 32, 20 December 2024, https://www.icj-cij.org/sites/default/files/case-related/187/187-20241220-oth-67-00-en.pdf; see also UN Human Rights Committee, Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 3624/2019: Daniel Billy et al. v. Australia, CCPR/C/135/D/3624/2019, 21 July 2022, paras. 7.6, 7.8 (rejecting the argument that “the State party cannot be held responsible – as a legal or practical matter – for the climate change impacts that the authors allege in their communication” based on inaction because “the information provided by both parties indicates that the State party is and has been in recent decades among the countries in which large amounts of greenhouse gas emissions have been produced”).

[9] Written Statements from the Republic of Vanuatu, Obligations of States in respect of Climate Change (Request for advisory opinion), at 289, 21 March 2024.

[10] See Int’l L. Comm’n, Rep. on the Responsibility of States for Internationally Wrongful Acts, U.N. Doc. A/56/10 (2001).

[11] Written Replies from the Republic of Vanuatu and the Melanesian Spearhead Group to the questions put by Judges Cleveland, Tladi, Aurescu and Charlesworth at the end of the public sitting of Friday 13 December in the oral proceedings concerning the request for an advisory opinion on the Obligations of States in respect of Climate Change, Obligations of States in respect of Climate Change (Request for advisory opinion), at 32, 20 December 2024.

[12] Id.; see also UN Human Rights Committee, Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 3624/2019: Daniel Billy et al. v. Australia, CCPR/C/135/D/3624/2019, 21 July 2022, para. 8.13 (“The Committee recalls that, in the case of indigenous peoples, the enjoyment of culture may relate to a way of life which is closely associated with territory and the use of its resources, including such traditional activities as fishing or hunting. Thus, the protection of this right is directed towards ensuring the survival and continued development of the cultural identity.”) (citations omitted).

[13] Written Statements from the Republic of Vanuatu, Obligations of States in respect of Climate Change (Request for advisory opinion), ¶ 594 at 296, 21 March 2024 (“It is incumbent upon the States engaging in the Relevant Conduct to provide vulnerable countries, as both reparation and compensation, with adequate climate finance, technology transfer and capacity-building to enable them to adapt to the adverse effects caused by the Relevant Conduct, and to avert, address and minimize loss and damage flowing from the Relevant Conduct.”).

[14] Written Replies from the Republic of Vanuatu and the Melanesian Spearhead Group to the questions put by Judges Cleveland, Tladi, Aurescu and Charlesworth at the end of the public sitting of Friday 13 December in the oral proceedings concerning the request for an advisory opinion on the Obligations of States in respect of Climate Change, Obligations of States in respect of Climate Change (Request for advisory opinion), at 29–36, December 2024.

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