The proceedings are the result of a United Nations vote last year, spearheaded by Vanuatu, calling on the world’s highest court to detail the obligations that nation-states must address the climate crisis and the legal consequences for significant harm to the climate.

Speaking ahead of the proceedings and reflecting on the looming advisory opinion to be delivered by the court, Greenpeace Australia Pacific general counsel Katrina Bullock (pictured) mused on Monday (2 December) that the ICJ’s determinations “could reshape the global understanding of human rights in the age of climate change”.

“Climate change isn’t just an environmental issue – it’s a direct threat to core human rights, including the rights to life, health, food, water, housing, culture and self-determination,” she said.

“The court’s opinion could be a turning point, clarifying how international law demands action, holding governments accountable, and setting powerful precedents.”

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“This moment is more than legal discourse; it’s a critical step towards ensuring that human rights are protected in the face of climate adversity and that justice keeps pace with our planet’s urgent needs.”

Australia is ‘resolutely committed’ to the cause, submission argues

Jesse Clarke – a general counsel in international law at the Attorney-General’s Department – told the court that Australia is “resolutely committed” to taking urgent action to address the effects of anthropogenic greenhouse gas emissions on the climate system and was proud to co-sponsor the UN resolution requesting an ICJ advisory opinion.

“Australia acknowledges the extent of the challenge posed by climate change and recognises that ambitious individual and collective action must be undertaken urgently. In this regard, the [United Nations Framework Convention on Climate Change] and the Paris Agreement are the central instruments that provide the framework for international co-operation and commitments to tackle the grave challenge of climate change,” Clarke said.

“Australia is resolutely committed to achieving the objective of the UNFCCC and the goals of the Paris Agreement, including by strengthening its emission-reduction targets, legislating a commitment to achieve net zero by 2050 and delivering on its climate finance commitments.”

Interpretation of the principle of prevention

Regarding the relationship between existing climate change treaties and other areas of law, Australia’s Solicitor-General, Stephen Donaghue KC, said that the ICJ should promote a harmonious interpretation of states’ obligations to protect the climate system from greenhouse gas emissions.

As such, he posited, “where other treaties and customary international law also impose obligations relevant to the protection of the climate system from climate change, those obligations must be interpreted consistently with those that have been carefully negotiated and agreed by the vast majority of states under the UNFCCC and the Paris Agreement”.

“The vast majority of participants, including Australia, recognise that the principle of prevention is a rule of customary international law that applies to significant transboundary harm. There is, however, divergence in relation to whether this principle applies to environmental harm caused by anthropogenic greenhouse gas emissions,” he said.

“… greenhouse gas emissions are materially different from the conventional case of transboundary harm. Yet, it is only in the context of those conventional cases that the court has applied the principle of prevention. Those conventional cases involve a direct and temporally proximate cause of environmental harm from an identifiable source spreading from one state to a neighbouring state,” Donaghue said.

“In Australia’s submission, the unique nature of the mechanism by which greenhouse gas emissions cause harm to the environment provides an important point of distinction from cases of ordinary transboundary harm.”

Secondly, Donaghue went on, “the principle of prevention does not apply to harm caused by greenhouse gas emissions is that there is no consistent or widespread state practice, or opinio juris, to confirm the existence and content of obligations deriving from the principle of prevention in that context”.

As such, he said, “to extend the principle of prevention to greenhouse gas emissions would not account for the unique features of the global challenge that such emissions pose. Such an extension would also be unsupported by the requisite state practice and opinio juris”.

If, contrary to Australia’s primary submission, the ICJ concludes that the substantive aspect of the principle of prevention does apply to greenhouse gas emissions, “compliance would be assessed against a standard of due diligence”, Donaghue noted.

“That being so, Australia’s view, which it shares with several participants in this proceeding, is that the UNFCCC and the Paris Agreement specify what that standard requires for states party to those treaties,” he said.

An undermining of regional states?

Commenting on the remarks made, Bullock said that representatives from the Australian government “stood before the world’s highest court in The Hague and made submissions that completely undermined its Pacific neighbours”.

“Australia argued that the UNFCCC and the Paris Agreement are the primary sources of international obligations to address greenhouse gas emissions. It submitted that government obligations under other treaties or customary laws should not extend beyond these frameworks,” she said.

“This position is fundamentally flawed.”

“It disregards decades of international human rights legal developments and directly contradicts the powerful legal submissions of Pacific, African, and Caribbean nations. It also discounts the fact that UNFCCC processes in the recent past have been heavily influenced by major polluters such as the fossil fuel industry.”

The UNFCCC and the Paris Agreement were created to protect people, she continued, “not to shield states like Australia from accountability”.

“Compliance with these treaties is necessary, but not sufficient to safeguard human rights and the environment. Australia’s proposed pathway forward would see fossil fuel emission reductions be wholly reliant on voluntary obligations and political negotiations,” she said.

“The global annual conference of the parties, COP, has shown us negotiation spaces where wealthy developed countries can call the shots have not led to the ambition we need to secure a safe climate for humanity.”

“Where political negotiations have failed, the court must not.”