The Law Has Spoken: Climate Injustice is Now a Legal Liability
- Botswana Climate Change Network (BCCN)
- 1 hour ago
- 4 min read
In a momentous judgment that could redefine the future of climate governance, the International Court of Justice (ICJ) ruled on 23 July 2025 that states have a legal obligation under international law to prevent significant harm to the climate system. The advisory opinion, requested by the UN General Assembly and delivered by the court unanimously, confirms what many climate justice advocates have long argued: failure to act decisively on climate change is now a breach of legal obligations, not merely a political or moral failing.
This is a turning point for the global climate movement , and for countries like Botswana, which are both vulnerable to climate impacts and seeking to navigate the complex legal, economic, and ethical terrain of the energy transition.
Requested by the UN General Assembly, the Court examined two questions:
What are states’ legal obligations to protect the climate system and environment from greenhouse gas (GHG) emissions?
What are the legal consequences when states fail to meet these obligations, particularly for vulnerable nations, peoples, and future generations?
The Legal Foundations of the ICJ Ruling
The ICJ rooted its ruling in multiple sources of law:
Customary international law: especially the duty to prevent significant harm to the environment and the duty to cooperate globally.
Climate treaties: the UNFCCC, Kyoto Protocol, and Paris Agreement, particularly the 1.5°C temperature goal and obligations to prepare and implement NDCs.
Human rights law: notably, the Court affirmed the right to a clean, healthy, and sustainable environment as part of international law. This right underpins the enjoyment of life, health, food, and water.
The Court made clear: obligations apply to all states , whether or not they are party to climate treaties, because they arise also from customary international law. And the principle of common but differentiated responsibilities recognizes that countries like Botswana, with lower historical emissions, have different capacities but still share responsibility.
The ICJ’s advisory opinion reaffirms long-standing principles in international environmental law, notably the ‘no harm’ principle and the duty of ‘due diligence’ and applies them squarely to the climate crisis. In essence, states can no longer hide behind the ‘soft’ language of the Paris Agreement. They are bound by existing customary law and treaty obligations to act — urgently, equitably, and effectively.
(L) Philémon Yang, 79th President of the UN General Assembly, (R) CJ President Judge Yuji Iwasawa, Japan, delivering the advisory opinion (attribution: UN Photo/ICJ-CIJ/Frank van Beek. Courtesy of the ICJ)
Key Outcomes of the ICJ Advisory Opinion
Clear legal obligations for all states
The ICJ concluded that States have a duty under customary international law to prevent significant harm to the environment, including the climate system and that duties apply to all countries, regardless of whether they are parties to specific treaties like the Paris Agreement, which is crucial considering the U.S withdrawal from the Agreement early this year.
The Court clarified that when a State does not take adequate measures to safeguard the climate system from greenhouse gas emissions, such as by allowing fossil fuel production and consumption, approving exploration permits, or maintaining subsidies for fossil fuels, this inaction could amount to an internationally wrongful act directly linked to that State. The Court also affirmed that a State can be held accountable for failing to adopt appropriate laws and regulations to curb emissions generated by private actors within its territory.
Treaty-based commitments reaffirmed
The ICJ reaffirmed key obligations under climate treaties. Under the UNFCCC and Paris Agreement, states must:
Prepare, communicate and maintain nationally determined contributions (NDCs)
Implement domestic measures to reduce emissions and adapt to climate impacts
Cooperate through finance, technology transfer, and capacity-building, especially to support vulnerable states.
Legal consequences for inaction
When states fail to fulfil these obligations, the ICJ confirmed the following:
They face state responsibility under international law, including the duty to stop wrongful acts and prevent repetition, as well as the obligation to make reparations, which may include compensation for climate-related harm.
Even if harm results from cumulative emissions from many states, responsibility can still be shared among them.
For Botswana, which is vulnerable to drought, desertification and climate-related health risks, this opens potential avenues for seeking accountability or support if other states’ actions worsen local climate impacts.
Why This Is a Game-Changer
For the first time, a top global court has ruled that climate inaction is not only a moral failure, but a potential breach of international law. Governments , especially high-emitting ones , now face the real risk of being sued by vulnerable nations, Indigenous communities, island states, and even individuals.
Litigation is expected to rise sharply. Courts across the world will take note. And unlike diplomatic forums, the courtroom is governed by precedent, legal reasoning, and enforceable rulings.
It’s no longer enough for states to claim they are 'doing their best.' The question now is: are they doing enough to prevent foreseeable, significant climate harm?
Implications for Botswana and the Global South
Botswana, as a semi-arid country already facing the impacts of drought, desertification, and water stress, can take this ruling as a powerful lever for climate advocacy.
The legal recognition of climate harm opens doors to:
Pressing for climate finance and loss-and-damage payments from major emitters.
Challenging unfair fossil fuel expansion projects that threaten local and regional ecosystems.
Demanding stronger enforcement of international pledges under the Paris Agreement and beyond.
It also means Botswana must ensure its own climate actions are credible and transparent. NDCs must not be tokenistic. Climate resilience, decarbonisation, and inclusive development must be pursued not only as policy, but as legal responsibility.
The Role of Civil Society and Legal Action
For civil society, this ruling is a call to action. It provides a powerful legal basis to advocate for stronger national policies and monitor government compliance, opens the door to support climate litigation on behalf of affected communities, and encourages us to build legal capacities and climate litigation frameworks to advance climate justice across all sectors.
We are no longer just persuading policymakers. We are preparing legal arguments. We are no longer just raising awareness. We are raising legal standards.
We have been building programming that centers a human-rights based approach, and have been exploring climate litigation as an avenue for advancing climate action locally. We invite partners in the human rights and legal fraternities to join hands with us in this work.
As the ICJ emphasized, protecting the climate is now a shared legal duty and civil society’s role is to demand that this duty is met.
PULA!