Australia faces ‘inescapable’ legal risk after historic climate ruling

Countries besieged by the effects of climate change can legally pursue their neighbours for reparations if they fail to uphold their obligations to curb global emissions, in a ruling that could have far-reaching implications for fossil fuel-exporting nations such as Australia.

The International Court of Justice handed down the historic advisory ruling, paving the way for massive compensation claims in a case brought by a group of law students from Vanuatu.

In a win for low-lying Pacific nations, the International Court of Justice found countries are obligated to act on climate change.Credit: Getty Images

In a case that drew unprecedented international involvement, including from 96 states and 11 international organisations, The Hague-based court’s advisory opinion found countries were bound to uphold international treaties such as the Paris Agreement, a commitment to prevent global temperatures from rising 1.5 degrees above pre-industrial levels.

“Failure of a State to take appropriate action to protect the climate system from greenhouse gas emissions – including through fossil fuel production, fossil fuel consumption, the granting of fossil fuel exploration licences or the provision of fossil fuel subsidies – may constitute an internationally wrongful act which is attributable to that State,” the ruling said.

Any breach of its obligations meant the country could be liable to pay “full reparation to injured States in the form of restitution, compensation and satisfaction”.

The Australian government was among several countries that argued that complying with climate treaties such as the Paris Agreement was all that international law required and there were no relevant obligations when it came to fossil fuel exports.

Vishal Prasad, campaign director for the Pacific Islands Students Fighting Climate Change (centre), said the ruling made countries’ global responsibilities plain.Credit: AP

The court found “the argument according to which the climate change treaties constitute the only relevant applicable law cannot be upheld”. Relevant international laws included a “customary duty to prevent significant harm to the environment and the duty to co-operate for the protection of the environment, and international human rights law”.

Australian Conservation Foundation general counsel Adam Beeson said this meant the Australian government would need to properly assess the consequences of exporting fossil fuels.

“The world court says fossil fuel-supplying nations like Australia can’t export their climate responsibilities,” Beeson said.

Dr Dean Bialek, a leading international lawyer and former climate diplomat who worked for nearly 10 years as a lead negotiator with the world’s island nations on the Paris Agreement, said the ruling should inform Australia’s new emissions target for 2035 and its promised overhaul of federal environmental laws.

“To me, this makes inescapable the need to embed a climate trigger within efforts to reform Australia’s environmental laws,” Bialek said.

A spokesperson for Climate Change Minister Chris Bowen said Australia was proud to join the Pacific in co-sponsoring Vanuatu’s court case, and to participate last year.

“Unlike the Coalition, who are preparing to scrap net zero, we remain steadfast in our commitment to working together with the Pacific to strengthen global climate action,” the spokesperson said.

Some countries argued before the court that the conduct of “private actors” could not be attributed to them, but the court found nations were liable for the pollution emitted by industries by their failure to properly regulate. Furthermore, it found the direct cause of environmental damage did not necessarily have to be proved for a country to be liable.

Reading out the decision, Judge Iwasawa Yuji underscored the need for a collective response. “Greenhouse gas emissions are unequivocally caused by human activities which are not territorially limited,” he said.

While the ICJ cannot enforce the ruling, the UN General Assembly asked the court in 2023 for its advisory opinion, in turn amping up pressure on treaty signatories to adhere to their obligations.

The decision, celebrated by environmental groups, comes at a precarious time for global climate action, with the Trump administration withdrawing one of the world’s biggest emitters from the Paris Agreement.

The Nationals have also signalled their intention to ditch a commitment to reach net zero emissions by 2050, destabilising the federal opposition’s climate policy.

The ICJ decision comes on the heels of a Federal Court ruling that dismissed a high-profile case in which Torres Strait Islands traditional owners had argued the Commonwealth breached a duty of care to protect their islands from harm caused by climate change.

Vishal Prasad, director of the Pacific Islands Students Fighting Climate Change, said the ICJ’s decision “brings us closer to a world where governments can no longer turn a blind eye to their legal responsibilities”.

“It affirms a simple truth of climate justice: those who did the least to fuel this crisis deserve protection, reparations and a future,” Prasad said.

Vanuatu’s Minister for Climate Change Adaptation, Ralph Regenvanu, called the deliberation a “very important course correction in this critically important time”.

“For the first time in history, the ICJ has spoken directly about the biggest threat facing humanity,” he said at The Hague.

Australia has created a new permanent visa lottery for Pacific Islanders in recognition of the impacts of climate change on the region. On Thursday, the Department of Home Affairs revealed that 8750 citizens of Tuvalu – more than 80 per cent of the population – had applied for the visa under a country-specific stream created under the Falepili Union Treaty.

With AAP, Reuters

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