Author: Corina Heri

Associate professor, HYDR/Faculty of Law and Criminology, Vrije Universiteit Brussel (VUB)

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Does the ICJ Ignite States’ ‘Appetite’ for Climate Damages Claims?

Viktoriya Gurash, postdoctoral researcher at the University of Zurich

Introduction

In response to the International Court of Justice’s (ICJ) advisory opinion on the Obligations of States in Respect of Climate Change, the BBC summarized the opinion by stating that ‘a top UN court has cleared the way for countries to sue each other over climate change.’ Indeed, the opinion not only offers a comprehensive clarification of states’ substantive obligations regarding climate change but also engages with important aspects of State responsibility in view of the special features of climate change. The central challenge lies in the fact that numerous states both contribute to and suffer from climate change, albeit to varying degrees (see para. 421).

From the outset, the ICJ made it clear that its task was to identify, in general terms, the legal framework within which a State’s international responsibility may be invoked for an internationally wrongful act, as well as to outline the remedies available in the event of such a breach (see para. 406). Importantly, the opinion clarified that the well-established rules on State responsibility under customary international law – principally reflected in the International Law Commission’s Articles on State Responsibility (ARSIWA) – apply in the context of climate change (see para. 420). To this end the Court affirmed that mechanisms such as the Loss and Damage Fund and the non-compliance procedures established under climate treaties do not constitute a lex specialis to these rules (see paras. 413-419). In its examination of the law on State responsibility, the advisory opinion specifically engaged with the issues of attribution and causation. This blogpost analyses the ICJ’s interpretation of these key elements, which underpin the conditions for compensation of climate-related harm.

Attribution of International Responsibility

The ICJ emphasised that the internationally wrongful act is not the emission of greenhouse gases (GHGs) per se, but the breach of an international obligation (see para. 427). Since these obligations are characterized as obligations of conduct, a breach may be attributed to states that have not exercised due diligence in taking appropriate measures to protect the climate system from GHG emissions. Accordingly, establishing international responsibility requires the existence of an internationally wrongful act and its attribution to a state, regardless of whether the act results in actual harm (see para. 433). Therefore, according to the ICJ, the issue of causation is not essential for establishing a breach of an international climate obligation.

The ICJ’s interpretation of the attribution of internationally wrongful acts is closely tied to the nature of the underlying substantive climate obligations. The distinction between obligations of conduct and those of result is crucial to understanding the role of the causation in establishing international responsibility. In a case involving obligation of conduct, the question is not the extent of harm caused by the state, but rather whether the state has taken appropriate measure to prevent such a harm (see Nollkaemper, p. 38). Although obligations of conduct do not require examination that a specific event or harm materialized, the element of causation nevertheless retains its relevance. An assessment of due diligence depends on consideration of the nature of the risk and the state’s capacity to mitigate it. For example, the European Court of Human Rights (ECtHR) in the KlimaSeniorinnen case noted that ‘what is important, and sufficient to engage the responsibility of the State, is that reasonable measures which the domestic authorities failed to take could have had a real prospect of altering the outcome or mitigating the harm’ (see para. 444). With an obligation of conduct, the causal nexus between the foreseeable negative effects of climate change (general causation, see Nollkaemper, p. 40) and the State’s capacity to act should be analysed. In matters of general causation, the potential effects of climate change may be reliably established on the basis of IPCC reports and therefore do not present a significant evidentiary challenge.

Causation of Climate Harm

Causation plays a critical role in the assessment of reparation, especially with respect to claims for compensation arising from climate-related harm. The ICJ acknowledged that the existing legal standard for establishing causation, as developed in its own jurisprudence, is capable of being applied in the context of climate change (para. 436). The advisory opinion emphasized that causation requires establishing a causal link between the resulting climate-related harm and the conduct of a specific State or group of States. The ICJ observed that while the causal link may be ‘more tenuous than in the case of local sources of pollution’, its identification is not impossible and ‘must be established in each case through an in concreto assessment’ (see paras. 437-438).

The Court’s pronouncement offers limited guidance on resolving the issue of the allocation of compensation for climate-related harm between states (see Reetz, Paddeu and Jackson). Moreover, Judge Nolte elaborates on the challenges for contentious proceedings that were not addressed in the advisory opinion, in particular with respect to claims for climate damages. In his view, the Court should have highlighted those difficulties more openly, in order to avoid creating false hope that climate litigation could serve as a substitute for existing mechanisms of financial transfers and remedies addressing climate-related harm (see Declaration of Judge Nolte). The main difficulty, as emphasized by Judge Nolte, lies in determining a combination of wrongful acts sufficient to have caused harm to the climate system, along with the need for a normative assessment of whether a specific level of GHG emissions constitutes a breach of the obligation to exercise best efforts (Nolte, paras. 19-30).

The climate science (see the IPCC’s Sixth Assessment Report) is clear that not all climate-related harm can be prevented through mitigation measures alone. Arguably, an important frontier of climate justice is to provide redress when harm occurs (see Rocha, Tigre and Cohen). To date, no international court has definitively addressed the standard of causation required to determine compensation for climate-related harm. The International Tribunal for the Law of the Sea in its advisory opinion on Climate Change and International Law acknowledged that ‘given the diffused and cumulative causes and global effects of climate change, it would be difficult to specify how anthropogenic GHG emissions from activities under the jurisdiction or control of one State cause damage to other States’ (para. 252). Despite the Inter-American Court of Human Rights having recognised the need for ‘compensation measures based on appropriate methodologies to assess the losses suffered’ in its advisory opinion regarding the Climate Emergency and Human Rights (AO-32/35) (para. 558), it did not engage with the complexity of cumulative causation. Furthermore, since the ECtHR in the KlimaSeniorinnen case rejected victim status for individuals (paras. 527-535), and the applicant association (para. 647) did not submit a claim for damages, it remains unclear how the ECtHR will determine causation for the compensation purposes.

Inquiries into how the problem of cumulative causation should be addressed in the context of compensation for climate harm can be found in the literature. For example, Nollkaemper offers concrete proposals, presenting two main alternatives: first, an obligation to provide full reparation to individual states; and second, an apportionment of compensation based on each actor’s relative share of contribution (for more details see Nollkaemper, pp. 51-54). Overall, the author supports an approach that prioritizes fairness and climate justice over strict mathematical causation (p. 54). While the ICJ could have shed more light on resolving the complexities of cumulative causation, it nevertheless affirmed the role of litigation in compensation of climate damages (para. 438).

Conclusion

It is doubtful whether the Court’s role in issuing this advisory opinion should be understood as either encouraging or discouraging climate litigation. If litigation is expected to deliver global justice by allocation of responsibility to compensate for climate harm among all the states, it is doubtful that any court alone could fulfil such a task. Rather, the significance of the ICJ’s pronouncement lies in affirming that international climate litigation between states remains a potential avenue for seeking compensation for climate-related harm within the broader framework of international legal instruments.

Should claims for climate harm compensation come before international courts, causation will be a key issue. The way courts resolve it will significantly influence the effectiveness of litigation as a tool for providing redress. The ICJ has deferred this analysis to a future occasion, when it is presented with a concrete case featuring a claim for compensation and a claimant’s specific arguments concerning, for example, the role of historical emissions in determining causation. If a state brings a claim seeking redress for climate damages before the ICJ, provided the Court has jurisdiction and the claim is deemed admissible, it would be compelled to confront the causation puzzle. In this sense, the situation reflects the German saying, ‘was auf den Tisch kommt, wird gegessen’ – or, in other words, what is brought to the table must be dealt with.

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The ICJ’s Advisory Opinion on Climate Change: Treaty and Custom – A Marriage with a Complicated Matrimonial Regime

Violetta Sefkow-Werner, PhD candidate at the University of Zurich

On 24 July 2025, the ICJ issued its long-awaited Advisory Opinion on the Obligations of States in respect of Climate Change. This blog post comments on the Opinion with respect to the ICJ’s findings (or non-findings) on the interaction between treaty and customary law and the missed opportunity to include human rights law.

Important Clarifications on the Applicable Law

The ICJ first clarified that the relevant customary international law obligations are the duty to prevent significant harm to the environment and the duty to cooperate. These duties apply in the context of climate change. They are not limited to bilateral relations or to direct cross-border harm (para. 134) and they are not displaced by the climate change treaties via the lex specialis principle (para. 171). This resolves a long-standing point of contention concerning the applicability and scope of customary environmental law in the context of climate change. It also confirms that the harm prevention rule applies to the global commons – in this case the climate system – and is an obligation erga omnes (para. 440) although the exact implications of this remain to be explored (see, e.g., Pezzano, EJIL:Talk!, 8 August 2025, and the Interim Report by the Institut de Droit International).

Interaction Between Treaty and Customary Law: Nudging, Presumption and a Gordian Knot

The ICJ further explained that customary international law and treaty law inform each other. The climate treaties provide substance to the due diligence required under customary law and the customary obligations provide guidance for the interpretation of the climate treaties (paras. 311 ff., Article 31(3)(c) VCLT). The ICJ referred to its previous case-law as well as the ITLOS’ Advisory Opinion on Climate Change and held that:

“the climate change treaties establish standards that may enable or facilitate the identification and application of the diligence that is due in specific instances. The Court also considers that the obligations arising from the climate change treaties, as interpreted herein, and State practice in implementing them inform the general customary obligations, just as the general customary obligations provide guidance for the interpretation of the climate change treaties.” (para. 313)

Moreover, there is a presumption of compliance with customary obligations (prevention duty and cooperation) if treaty obligations are fulfilled. This presumption ultimately applies to all States, regardless of whether they are parties to the climate treaties or not:

“[At] the present stage, compliance in full and in good faith by a State with the climate change treaties, as interpreted by the Court (…), suggests that this State substantially complies with the general customary duties to prevent significant environmental harm and to co-operate.” (para. 314)

“[A] non-party State which co-operates with the community of States parties to the three climate change treaties in a way that is equivalent to that of a State party, may, in certain instances, be considered to fulfil its customary obligations through practice that comports with the required conduct of States under the climate change treaties. However, if a non-party State does not co-operate in such a way, it has the full burden of demonstrating that its policies and practices are in conformity with its customary obligations.” (para. 315)

This can be seen as a form of nudging by the ICJ, pushing States to act in line with the international climate treaties, and immunizes climate obligations from a State’s treaty exit. It also suggests that the treaty obligations are included in the customary obligations and that the latter go further. Namely, the ICJ clarified:

“This does not mean, however, that the customary obligations would be fulfilled simply by States complying with their obligations under the climate change treaties (…). While the treaties and customary international law inform each other, they establish independent obligations that do not necessarily overlap.” (para. 314)

This raises the question of what is or will be found in the catch-all called customary international law. Judge Nolte notes that the added value of the conceptualization of treaty and customary law is that it provides room for nuance and complexity (Declaration of Judge Nolte, para. 13). With regard to the duty to cooperate, the ICJ held that climate treaties only contain some means of cooperation (para. 314), i.e. other forms remain possible and further collective action may potentially be necessary (para. 307). Moreover, States do not discharge their duty to cooperate by concluding and fulfilling treaties (para. 314). Consequently, there may be additional obligations under customary law, i.e. obligations that go beyond that required by the climate treaties (see also Joint Declaration of Judges Charlesworth, Brant, Cleveland and Aurescu, paras 5 and 9 f.).

What is more, a closer look at the specific obligations under treaty and customary law may reveal small discrepancies. For example, in the realm of customary law, the ICJ considers the different capabilities of States not according to their status as developed or developing countries but based on an individual assessment (para. 292). This assessment might depart from the categorization under the UNFCCC (Annex I, II and Non-Annex Parties) which results in differing commitments.

Finally, the customary duty of due diligence provides a yardstick for compliance with treaty obligations, although applying that yardstick might prove tricky. For instance, with regard to the assessment whether a State has acted with the required diligence when discharging its obligation under Article 3 of the Paris Agreement, there are in fact multiple offers for what diligence means: (1) the “stringent” standard as formulated by the ICJ in para. 138 and elaborated in paras. 246 f.; (2) the customary standard established in paras. 136 and 280 ff.; (3) the referral to Articles 4, 7, 9, 10, 11 and 13 of the Paris Agreement by Judge Xue in her Separate Opinion (paras. 48 f.). Thus, the ICJ’s pronouncements on the interplay between treaty and custom is only the neat-looking tip of a big and messy iceberg. Or, in more positive terms, a playground for academics and comfortably squishy interpretative gateway for judges.

Widening the Circle of Customary Law: The Relevance of Non-binding Norms

The standard of due diligence is not only informed by treaty law but also by soft law. The ICJ held:

“Current standards may arise from binding and non-binding norms. Such standards may therefore not only be contained in treaties and in customary international law, but they may also be reflected in certain decisions of the COPs to the climate change treaties and in recommended technical norms and practices, as appropriate.” (para. 287)

This is a fairly open statement. First, the ICJ did not specify what other non-binding norms or standards could play a role and how or to what extent they are to be taken into account. For example, do they have less normative force than binding rules? Second, one may wonder whether this interpretative approach will lead to differences between customary and treaty law. In principle, systemic interpretation is possible both for treaty and customary international law (Fortuna, in: Fortuna et al (eds), Customary International Law and Its Interpretation by International Courts, CUP 2024, Ch. 11). Article 31(3) VCLT enlists not only “relevant rules” (lit. c, confined to binding rules) as relevant sources for interpretation but also subsequent “agreements” (lit. a) and subsequent “practice” (lit. b). Hence, the interpretative sources may vary, but whether this is also true for the result remains to be seen. Third, concerns might arise regarding the reliance on soft law to interpret climate-related obligations. The ECtHR has already received backlash for integrating the climate treaties into human rights obligations, as this was perceived to circumvent the exclusion of enforcement mechanisms by the parties to the climate law regime. The ICJ’s findings on the applicability of the law of State responsibility and its rejection of the lex specialis argument in that context (paras. 410 ff.) has taken the wind out of that criticism. If – hypothetically – soft law is used in such a way that the hard law obligation essentially mirrors the soft law standard, it is de facto upgraded to hard law while, formally, still being referred to as soft law. This might raise legitimacy concerns, although it may ultimately remain a theoretical rather than a practical problem.

The Downer: Scarce Integration of Human Rights

While the ICJ was quite integrative and explicit in establishing a close link between customary and treaty obligations with respect to climate change, it was less so with regard to the interplay between treaty- or custom-based climate law and human rights. In para. 402, it stated that the (territorial?) scope of customary international law and human rights are distinct. This might be an implicit rejection of the 2017 IACtHR’s Advisory Opinion where the IACtHR established an extraterritorial human rights-based duty not to cause harm to the environment of other States (cf. IACtHR, OC-23/17 of 15 November 2017, para. 101; Brunnée, Procedure and Substance in International Environmental Law, 2020, p. 145). Moreover, unlike the IACtHR, the ICJ did not integrate a mandatory comprehensive human rights perspective into the relevant legal framework relating to climate change (IACtHR, AO-32/25 of 29 May 2025, Part VI). Similar criticism has also been made with regard to the ITLOS Advisory Opinion on Climate Change (Desierto, EJIL:Talk!, 3 June 2024).

The suggested interaction between human rights law and climate law is only weak. According to the ICJ, States are obliged under human rights law to take the necessary measures to protect the climate system and other parts of the environment. These may include, inter alia, “mitigation and adaption measures, with due account given to the protection of human rights, the adoption of standards and legislation of the activities of private actors” (para. 403, emphasis added). This reads like reiteration of the treaty- and custom-based obligations with a pinch of human rights protection. Moreover, the part on customary international law obligations does not mention human rights at all. Thus, where the ICJ Opinion is strong in harmonizing the climate treaties with customary environmental law, it does not use the full potential of systemic integration with respect to human rights law. Maybe the ICJ wanted to leave the interpretation of human rights law to the specialized treaty bodies and regional courts (cf. the ICJ’s references to the case law and General Comments of the UN human rights organs and the Inter-American and European Court of Human Rights, paras. 372 ff., 385). What is more, bringing human rights law together with climate and environmental law might prove more difficult upon closer examination due to the structural differences between the respective regimes concerning the object of protection and holders and beneficiaries of the obligations.

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The ICJ’s Cautious Approach to Extraterritorial Human Rights Obligations in the Climate Context

By Ayyoub (Hazhar) Jamali, postdoctoral researcher at the University of Zurich 

1. What the Court Said

In its Advisory Opinion of 23 July 2025, the International Court of Justice (ICJ) addressed, among other matters, the scope of States’ obligations under international human rights law in relation to climate change. A central, though implicitly framed, issue was whether States bear extraterritorial human rights obligations for climate-related harms affecting individuals beyond their borders.

In the section titled “Territorial scope of human rights treaties” (paras. 394–402), the Court recalled its previous jurisprudence recognizing that human rights treaties may apply extraterritorially when a State exercises jurisdiction outside its own territory. The ICJ reaffirmed that this interpretation applies in the context of the ICCPR, referencing its 2004 Wall Advisory Opinion and its 2005 Judgment in Armed Activities on the Territory of the Congo, as well as its 2024 Advisory Opinion on the Occupied Palestinian Territory.

Quoting the Wall Opinion, the Court confirmed that Article 2(1) of the ICCPR may cover individuals outside a State’s territory but subject to its jurisdiction, based on the object and purpose of the Covenant and the drafters’ intention (travaux préparatoires) not to allow States to escape responsibility when exercising jurisdiction abroad.

The Court also reiterated prior interpretations of other treaties:

  1. The ICESCR, while lacking an express territorial clause, may apply both to sovereign territory and to territory under the State’s jurisdiction (para. 400).
  2. The Convention on the Rights of the Child applies to “each child within their jurisdiction”, and was held applicable in the “Occupied Palestinian Territory” (para. 401).

Despite this, the Court stopped short of determining under what conditions a State exercises jurisdiction extraterritorially, stating that such analysis must be treaty-specific. Importantly, it distinguished between treaty law and customary international law (para. 402), signaling that the two frameworks may diverge in how they address jurisdiction and obligations.

2. Gaps and Unresolved Questions

The Court’s treatment of whether, and under what conditions, States have extraterritorial human rights obligations for climate-related harm reveals several significant analytical and normative gaps.

First, while the Court engaged with the treaty body jurisprudence, it refrained from offering judicial analysis or placing those views within a broader doctrinal framework. The ICJ’s passive approach left open the question of whether States accept these extraterritorial interpretations or whether they are mere soft law positions. In this context, it should be noted that the ICJ’s advisory function is not limited to summarizing existing legal positions; it carries a responsibility to offer authoritative guidance on unresolved or contested points of international law. In this case, where significant interpretive uncertainty surrounds the extraterritorial application of human rights obligations in the climate context, the Court had a rare opportunity to provide clarity. Instead, it recited existing jurisprudence without taking a clear position, leaving core questions — such as the legal status of treaty body interpretations or the threshold for extraterritorial jurisdiction — largely unaddressed.

Second, the Court made no attempt to tailor its discussion to the particularities of climate change, despite its inherently transboundary nature. It did not engage with concrete examples where extraterritorial obligations might arise. For instance, consider a scenario where State A, a major emitter of greenhouse gases, fails to regulate its fossil fuel industry. As a result, rising sea levels and intensified storms displace communities in State B, a low-lying island nation. Does State A have extraterritorial human rights obligations toward individuals in State B, given the foreseeable and science-based nature of the harm? This is precisely the kind of factual matrix where environmental law principles (such as the no-harm rule) might intersect with human rights obligations. Yet, the Court did not explore whether such functional or effects-based jurisdiction could be justified in the climate context.

Third, a notable omission in the ICJ’s Opinion is its failure to engage with relevant jurisprudence from regional human rights courts. Most significantly, the Court made no reference to the ECtHR’s 2024 Duarte Agostinho judgment, which directly addressed the question of extraterritorial human rights obligations in the context of climate change. In that case, the Strasbourg Court rejected an expansive reading of jurisdiction that would cover transboundary climate impacts. The ECtHR adhered to the traditional “control over the victim” model, expressing concern that adopting a “control over the source” approach would effectively turn the ECHR into a global climate change treaty.

In contrast, the ICJ remained silent. Given its universal mandate and its stated role in clarifying international law, even a brief engagement with Duarte Agostinho would have enriched the Opinion’s doctrinal relevance and provided a valuable comparative perspective. The omission may reflect institutional restraint: acknowledging a controversial regional judgment could be seen as implicitly endorsing—or rejecting—a contested interpretive move.

Fourth, in paragraph 402, the Court underscored a doctrinal distinction between treaty law and customary international law, stating that they must be analyzed separately. While the Court did not elaborate, this statement is more than a procedural clarification — it has important implications for the future development of extraterritorial obligations in the climate context.

Unlike treaties, which are based on explicit consent and often contain jurisdictional clauses (such as Article 2(1) of the ICCPR), customary international law is grounded in general practice accepted as law (opinio juris) and may evolve independently of treaty frameworks. By distinguishing the two, the Court subtly acknowledged that even if human rights treaties do not currently impose extraterritorial obligations in climate cases, customary law might still do so in the future — especially where transboundary harm is foreseeable and scientifically attributable (see para. 429).

This distinction could justify a different interpretive posture: the Court may be unwilling to extend extraterritoriality under treaty law due to concerns about textual fidelity and state consent, but customary law offers more normative flexibility. This is particularly relevant in the context of climate change, where global harm arises from cumulative emissions, not isolated acts, and where rigid territorial frameworks struggle to reflect real-world causal chains.

Moreover, the ICJ’s separation of treaty and customary law might also reflect institutional caution. Endorsing a customary rule allowing for extraterritorial environmental responsibility (without explicit treaty basis) could be seen as less politically provocative than redefining treaty obligations. Thus, the Court may be laying groundwork for future claims based on customary principles like the no-harm rule, the duty to cooperate, or emerging norms linking environmental harm to the enjoyment of human rights.

3. Conclusion

The ICJ’s restrained approach to extraterritoriality in the climate context is both telling and incomplete. Its silence reflects a delicate balancing act. While the Court reaffirmed universal obligations under customary international law (e.g., the duty to cooperate, the duty to prevent significant transboundary harm, and the erga omnes nature of climate obligations) it stopped short of clarifying whether these obligations entail extraterritorial jurisdiction in specific cases. In doing so, the Opinion preserves an appearance of judicial deference while simultaneously inviting further litigation and interpretation by regional courts and treaty bodies.

Nevertheless, the Opinion leaves room for legal development—whether through future litigation, the evolution of treaties, or the formation of customary law. The challenge now facing courts, States, and advocates is to ensure that this legal space does not remain undefined for too long.

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Adaptation France Private and family life

Urgence Maisons Fissurées Sarthe et al. v. France

Summary:
On 7 April 2025, a group of five individuals litigants and nine civil society organisations presented a request for adaptation measures to the French authorities. Building on GHG emissions reductions litigation, including the ECtHR’s 2024 KlimaSeniorinnen case, this legal action seeks adaptation measures by the French government. The litigants, who are supported by Oxfam France, Notre Affaire à Tous, and Greenpeace France, seek a revision of the third National Plan for Adaptation to Climate Change (PNACC 3) and, more broadly, the adoption of any useful measures to ensure or reinforce France’s adaptation to the effects of climate change. The action argues that the State has a general obligation to take adaptation measures, which must be aimed in particular at strengthening adaptive capacities, increasing resilience to climate change and reducing vulnerability to such change (I.A), and by sectoral and cross-cutting obligations (I.B).

This obligation, they argue, flows not only from domestic constitutional law, but is also clarified and reinforced by international and EU law (including the UNFCCC and the Paris Agreement) and by the law of the Council of Europe, specifically the European Convention on Human Rights. This instrument, they argue, drawing on the ECtHR’s recently climate case-law and its broader environmental jurisprudence and focusing particularly on the right to respect for private and family life (Art. 8 ECHR) and the right to life (Art. 2 ECHR), obliges the State to put in place an appropriate legislative and regulatory framework to effectively protect human life and health against the risks and consequences of climate change. It also requires the State to take preventive measures of a practical nature, in order to protect citizens whose lives may be at risk, and to mitigate the most serious consequences of climate change. And, finally, it requires the State to ensure the effective application of the framework and of the adaptation measures thus put in place, on the basis of the best available science. Reiterating long-standing case-law of the ECtHR, the litigants argue that the French state has an obligation to take all necessary measures to limit exposure to natural risks resulting from climate change, and to ensure that those affected are informed of the existence of such risks.

The action began as a request addressed to the state, which is a procedural requirement under French law before bringing a case to the Council of State (Conseil d’État). If the state responds in an unsatisfactory way or not at all, the case can be then be taken to the Council of State.

Last updated:
7 July 2025.

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Children and young people Children's rights/best interests Emissions reductions/mitigation Fossil fuel extraction Renewable energy Separation of powers United States of America

Lighthiser v. Trump

Summary:  
On 29 May 2025, a case was filed on behalf of 22 youth plaintiffs from five US states (Montana, Oregon, Hawai‘i, California, and Florida) before the US District Court in the District of Montana with the support of the NGO Our Children’s Trust and others. The plaintiffs in this case contested a series of climate-related executive orders issued by the Trump administration, arguing that these measures threaten their constitutional rights to life, health, and safety. This includes executive orders aimed at “unleashing” fossil fuels, anti-clean energy measures and those removing climate science-related information from federal websites.

The case has been brought against US President Donald Trump as well as various government agencies and offices including the Environmental Protection Agency (EPA), the Department of the Interior (DOI), the Department of Energy (DOE), the Department of Transportation (DOT), the US Army Corps of Engineers (USACE), the National Aeronautics and Space Administration (NASA), the Department of Commerce (DOC), the National Oceanic and Atmospheric Administration (NOAA), the National Science Foundation (NSF), the Department of Health and Human Services (HHS), the National Institutes of Health (NIH), and the United States of America itself.  

Measures challenged:
The lawsuit challenges three specific executive orders, as well as measures to delete climate science information from government websites. The contested executive orders are the following:

  • Executive Order 14154: “Unleashing American Energy” (which prioritizes oil, gas, and coal over renewable energy).  
  • Executive Order 14156: “Declaring a National Energy Emergency” (which directs federal agencies to invoke emergency powers to fast-track fossil fuel production).
  • Executive Order 14261: “Reinvigorating America’s Beautiful Clean Coal Industry” (designating coal as a “mineral” under federal policy, thereby granting it priority status for extraction and development on public lands). 

Claims made:
The youth plaintiffs argue that the Trump administration’s executive orders violate their constitutional right to life (under the fifth amendment to the US Constitution) by increasing climate pollution. They also argue that the measures are an act of executive overreach, or in other words an ultra vires act going beyond presidential powers, and that augmenting fossil fuel production, suppressing climate science, and blocking clean energy solutions is a violation of the ‘state-created danger doctrine’, which triggers a governmental duty to protect against government-induced harm.

Suggested citation:
US District Court of Montana, Lighthiser v. Trump, filed on 29 March 2025 (pending).

Last updated:
3 June 2026.

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2024 European Convention on Human Rights Norway Private and family life Right to life

Norwegian Air Shuttle ASA v. Norway

Summary:
In a case before the EFTA Court concerning the EU’s emissions trading scheme, referred by the Oslo District Court under Article 34 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice, the EFTA Court acknowledged the link between human rights and climate change. The case concerned the obligation to surrender greenhouse gas emissions allowances granted under the scheme in the context of a corporate restructuring, with the EFTA Court finding that EU law precludes national legislation from providing that the obligation to surrender emissions allowances may be settled by dividend in a compulsory debt settlement in connection with the restructuring of an insolvent company.

In doing so, the Court held in para. 35 of its ruling (issued in 9 August 2024) that:

[I]t must be recalled that combating climate change is an objective of fundamental importance given its adverse effects and the severity of its consequences, including the grave risk of their irreversibility and its impact on fundamental rights (compare the judgment of the European Court of Human Rights of 9 April 2024, Verein Klimaseniorinnen Schweiz and Others v Switzerland, CE:ECHR:2024:0409JUD005360020).

Suggested citation:
EFTA Court, Norwegian Air Shuttle ASA v. Norway, Case E-12/23, Judgment of 9 August 2024.

Last updated:
2 June 2025

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Domestic court Emissions reductions/mitigation European Convention on Human Rights Fair trial Farming Just transition litigation Paris Agreement Private and family life Right to development and work Right to health Right to life Right to property Separation of powers Standing/admissibility Switzerland Uncategorized Victim status Vulnerability

Uniterre et al. v. Swiss Department of the Environment (Swiss Farmers Case)

Summary:
On 5 March 2024, a group of nine individual Swiss farmers, along with 5 associations representing farming-related interests, submitted a request to the Swiss Department of Environment, Transport, Energy and Communication (DETEC), demanding enhanced governmental action to protect them against the impacts of climate change. Noting increasing summer drought periods that particularly impact their human and constitutional rights and livelihoods, they alleged inadequacies in the existing Swiss climate policy response. In doing so, they submitted that:

As farmers and as associations defending the interests of farmers, the Petitioners and Petitioner Associations are particularly affected by climate change, which infringes their fundamental rights. It affects their harvests and jeopardizes the viability of their farms. Climate disruption has been encouraged by the Authority’s climate inaction. This serious negligence on the part of the Authority now justifies the filing of the present petition (translated from the original French).

Response by DETEC:
On 20 September 2024, DETEC rejected the petitioners’ request, finding that the alleged omissions did not impact the individual petitioners more intensely than other segments of the population, meaning that they lacked an interest worthy of protection, as well as standing. The same result was reached concerning the five petitioning associations (which are Uniterre, Kleinbauern-Vereinigung, Biogenève, Schweizer Bergheimat and Les jardins de cocagne).

The request to DETEC was made pursuant to Art. 25a of the Swiss Federal Administrative Procedure Act (APA), requesting that the government (and more specifically DETEC) should refrain from the alleged unlawful acts impacting the petitioners’ human and constitutional rights and livelihoods. Art. 25a APA provides that:

In other words, Art. 25a APA allows persons whose rights or obligations are impacted by ‘real acts’ of the federal authorities to seek a (subsequently legally contestable) ruling concerning the situation. This approach has been used by climate litigants to contest policy lacunae given that constitutionality review of existing federal legislation is not possible under Swiss Constitutional law. A similar request was the starting point of the landmark KlimaSeniorinnen case that was ultimately decided upon by the European Court of Human Rights (ECtHR) in 2024.

However, and much like the KlimaSeniorinnen association and its members, the present petitioners did not succeed with their request to DETEC. On 20 September 2024, DETEC rejected their request. Uniterre, one of the petitioning associations, argued that DETEC had thereby ignored the ECtHR’s KlimaSeniorinnen judgment, which established that there were access to justice issues for climate applicants in Switzerland by finding a violation of the right to a fair trial (Art. 6 of the European Convention on Human Rights (ECHR)).

DETEC’s reasoning did note the KlimaSeniorinnen judgment. First, it argued that the ECtHR had not considered recent developments in Swiss climate policy, emphasizing that Switzerland had a “long history of climate policy” and had only “barely” missed its 2020 national emissions reductions target. DETEC also noted the domestic findings in the KlimaSeniorinnen case, where Swiss courts had left open the question of whether the applicant association in that case had standing. It did not, in doing so, mention the later ruling of the ECtHR, which found that the conduct of these domestic proceedings and particularly the domestic instances’ treatment of the association’s standing claim had violated fair trial rights. Instead, it relied only on the reasoning of the domestic instances in KlimaSeniorinnen to find that the plaintiffs in the present case did not have a sufficient interest to seek legal protection given that they had failed to demonstrate “how they are more affected by the material acts of which DETEC is accused than the rest of the agricultural world, or other economic sectors that may be impacted by global warming (forestry, fishing, etc.), or other groups of people (children, pregnant women, the elderly, etc.). Nor do the individual Claimants establish for each of them that a particular level and severity of damage is likely to be caused by climate change.” (translated from the original French). DETEC found that “what is at stake in the application is the protection of the community as a whole, and not just of individuals, so that it is akin to a form of actio popularis [meaning] that the individual applicants are pursuing public interests that cannot justify victim status.”

Concerning the standing of associations, DETEC noted that the Swiss federal executive had “rejected the extension of associations’ right of appeal to include climate issues, as set out by the European Court of Human Rights [in KlimaSeniorinnen]”. It also noted that the associations did not pursue the specific goal of defending the fundamental rights of their members or other affected individuals in Switzerland, and that alleging that they did do so would be impossible because the associations in question “were all created before the global awareness of the threat of anthropogenic global warming, and therefore before the adoption of the UNFCCC in 1992.”

Overall, DETEC found that while it could not rule out “that the State’s material acts (actions or omissions) in the field of climate change are in principle capable of producing sufficient effects on the Petitioners to affect the right to protection of private and family life, the right to protection of the home guaranteed by art. 13 para. 1 Cst. as well as the guarantee of property (art. 26 Cst.) and economic freedom (art. 27 Cst.) [and] that Switzerland can, in a global context, have an influence on global warming, the fact remains that it is too small to have a decisive influence in this area, in the sense that there is no direct causal link between the actions or omissions of Switzerland and the effects of global warming, the latter being marked above all by the major industrial powers” (translated from the original French). This meant that “Switzerland’s material actions, while morally and politically relevant, have only a marginal effect on global climate change”.

Case before the Swiss Federal Administrative Tribunal:
On 23 October 2024, the plaintiffs challenged the DETEC decision before the Swiss Federal Administrative Tribunal. They invoked four main grounds for appeal, namely that:

  • By ignoring the ECtHR’s KlimaSeniorinnen ruling, the decision violates federal law, the principle of the separation of powers and the binding force of judgments of the ECtHR (art. 46 ECHR). In particular, the applicants argue that the federal executive has undermined judicial oversight “by arrogating to itself the right to emancipate itself from judicial control”.
  • DETEC’s actions and omissions are contrary to law, as is clear from the KlimaSeniorinnen ruling.
  • The (individual) appellants have standing to bring an action, contesting DETEC’s arguments about the limited impact of Swiss emissions on a global scale and arguing that there is no right to “l’égalité dans l’illégalité”. They emphasized the economic losses and health impacts facing the appellants, with impacts on several fundamental rights, and argued that the refusal to recognize the affectedness of the applicants represented a denial of access to justice and a violation of the right to a fair trial as enshrined in domestic law and Article 6 ECHR.
  • The appellant associations have standing as parties, and DETEC’s refusal to follow the case-law of the European Court of Human Rights (KlimaSeniorinnen) in this regard had violated fair trial and access to justice entitlements enshrined, among others, in Art. 6 ECHR. The ECtHR had not required associations’ statutes to explicitly mention fundamental rights protection. Furthermore, the statutes and aims of the five associations all related to protecting smallholder, sustainable and/or biological farming, with one association (Uniterre) explicitly pursuing the protection of the human rights of peasants and other rural workers as recognized in the 2018 UN Declaration on the Rights of Peasants (UNDROP).

The plaintiffs sought orders to the effect that:

  • An expert study should be commissioned concerning the contribution of climate change to worsening drought in Switzerland and reducing agricultural productivity;
  • The government should be ordered to take every measure needed to avoid negative climate impacts and contribution to chronic drought on Swiss territory, abstain from actions causing corresponding impacts, and take every measure capable of reducing or eliminating the impacts of climate change, chronic drought, and the rights violations complained of.
  • A violation of the right to life (Art. 10 of the Swiss Constitution/Art. 2 ECHR), the right to private life (Art. 13 of the Swiss Constitution/Art. 8 ECHR), the right to property (Art. 26 of the Swiss Constitution, Switzerland not having ratified the first additional protocol to the ECHR that enshrines this right), and the right to economic liberty (Art. 27 of the Swiss Constitution) had taken place.
  • A violation of the climate objectives and environmental protection requirements enshrined in domestic legislation had taken place, insufficient measures had been taken to ensure respect for the Paris Agreement, and overall the sum of the action taken with a direct or indirect impact on the climate had been insufficient.

Status of the case:
Pending before the Swiss Federal Administrative Tribunal.

Case documents:
The full text of the initial request as submitted to the Swiss Department of the Environment, Transport, Energy and Communication (DETEC) is available below, as made available by Advocat.e.s pour le Climat (in French).

2024-03-05-Plainte-25a-PA-AvoC-caviardeeDownload

The DETEC decision is available below.

2024-09-24-DETEC-a-ANL-Decision-concernant-la-requete-du-5-mars-2024_caviardeeDownload

The full text of the appeal to the Federal Administrative Tribunal is available below.

2024-10-24-Recours-au-TAF_caviarde (1)Download

Further reading:

  • More information on the case is available via SwissInfo.
  • See also the comment by Charlotte E. Blattner, Robert Finger & Karin Ingold in Nature.

Suggested citation:
Swiss Federal Administrative Court, Uniterre et al. v. Swiss Department of the Environment (Swiss Farmers Case), case filed 23 October 2024 (pending).

Last updated:
2 June 2025.

Categories
Adaptation African Court on Human and Peoples' Rights Business responsibility / corporate cases Children and young people Children's rights/best interests Climate activists and human rights defenders Climate-induced displacement Deforestation Disability and health-related inequality Elderly Emissions reductions/mitigation Environmental racism Evidence Extreme poverty Farming Gender / women-led Human dignity Indigenous peoples rights Indigenous peoples' rights Loss & damage Minority rights Non-discrimination Paris Agreement Participation rights Private and family life Prohibition of torture Renewable energy Right to a healthy environment Right to assembly and association Right to development and work Right to education Right to freedom of expression Right to health Right to housing Right to life Right to property Right to subsistence/food Rights of nature Sea-level rise Self-determination Standing/admissibility Victim status Vulnerability

African Court on Human and People’s Rights Climate Advisory Opinion

Summary:
On 2 May 2025, a request for an advisory opinion on climate change was submitted to the African Court on Human and People’s Rights. The request was submitted by the Pan African Lawyers Union (PALU), in collaboration with the African Climate Platform, and other African Civil society Organizations including the Environmental Lawyers Collective for Africa, Natural Justice and resilient40, and seeks clarification of States’ obligations in the context of climate change.

Submitted under article 4 of the Protocol to the African Charter on Human and People’s Rights on the establishment of an African Court on Human and People’s Rights and Rule 82(1) of the Rules of the African Court on Human and Peoples Rights, the request submits that “[a]cross the continent, Africans are suffering the consequences of climate change, whether from rising temperatures, unrelenting droughts, catastrophic floods, vanishing biodiversity, or threats to livelihoods. Climate change in Africa has had prior, current and will have future consequences that impact the enjoyment of numerous rights.”

The request sets out impacts, disaggregating them region-by-region and in terms of the groups of people most affected by climate change (mentioning women and girls, children, the elderly, Indigenous peoples, and environmental human rights defenders in particular).

The request then goes on to discuss several issues of law, beginning with issues of admissibility and jurisdiction and then relying on a wide range of rights and instruments, namely:

  • a) the Constitutive Act of the African Union
  • b) the African Charter for Human and Peoples Rights (‘Banjul Charter’), especially articles 2, 3, 4, 5, 8, 9, 10, 11, 12, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 60 and 61
  • c) African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention)
  • d) Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol)
  • e) The African Charter on the Rights and Welfare of the Child
  • f) The Revised African Convention on Conservation of Nature
  • g) Any other Relevant Instrument.

In doing so, PALU invites the Court to consider international climate change law, including the UNFCCC, the Kyoto Protocol and the Paris Agreement as well as the UN Conventions on Combatting Desertification and on Biological Diversity.

Rights invoked in more detail:
PALU submits that “a rights-based climate approach is needed to address the challenges posed by climate change” and that the human rights framework “provides a robust legal framework upon which the Court may rely to define States’ responsibilities and duties in the context of climate change […] because the Charter clearly provides for collective rights and the explicit protection of the right to a healthy environment.” PALU accordingly invites the Court to consider the following provisions of the Banjul Charter:

  • Articles 2 and 3 (equality and non-discrimination)
  • Article 4 (right to life and inviolability of the human person)
  • Article 5 (right to respect for dignity and prohibition of all forms of exploitation and degradation, including slavery and torture)
  • Article 8 (freedom of conscience and religion)
  • Article 9 (freedom of information and opinion)
  • Article 10 (freedom of association)
  • Article 11 (freedom of assembly)
  • Article 12 (freedom of movement, residence and asylum; prohibition of mass expulsion)
  • Article 14 (right to property)
  • Article 16 (right to health)
  • Article 17 (right to education)
  • Article 18 (protection of the family, prohibition of age and gender discrimination)
  • Article 19 (equality of peoples, prohibition of domination)
  • Article 20 (right of peoples to existence and self-determination)
  • Article 21 (right of peoples to freely dispose of their wealth and natural resources)
  • Article 22 (right of peoples to their economic, social and cultural development)
  • Article 23 (right of peoples to national and international peace and security)
  • Article 24 (right of all peoples to a general satisfactory environment favorable to their development)
  • The request also discusses the implied rights to food and shelter.

Issues for determination:
PALU submits the following issues for determination by the Court (paraphrased):

(a) Whether the Court can be seized with the question of obligations concerning climate change under the Banjul Charter and other relevant instruments?

(b) Whether the Court can interpret and lay down applicable custom and treaty law regarding States’ obligations and duties in the context of climate change?

If these questions are resolved in the affirmative, the Court is invited to further determine:

(a) What, if any, are States’ human and peoples’ rights obligations to protect and safeguard the rights of individuals and peoples of the past (ancestral rights), and present and future generations?

(b) Whether States have positive obligations to protect vulnerable populations including environmental human rights defenders, indigenous communities, women, children, youth, future generations, the current generation, past generations, the elderly and people with disabilities from the impact of climate change in line with the relevant treaties?

(c) What human rights obligations do States have to facilitate a just, transparent, equitable and accountable transition in the context of climate change in Africa?

(d) What are the obligations of African States in implementing adaptation, resilience and mitigation measures in response to climate change?

(e) What, if any, are applicable human rights obligations of States to compensate for loss, damage and reparations?

(f) What responsibilities, if any, do African States have in relation to third parties, including international monopolies, multinational corporations and non-state actors operating on the continent, to ensure that international and regional treaties and laws on climate change are respected, protected, promoted and implemented?

(g) What, if any, is the nature of the obligations on African States to cooperate with other states especially historical emitters to limit global warming to below the 1.5°C threshold, to avert an existential climate crisis for present and future generations on the continent?

Further reading:
For more information on the advisory opinion request, see this post by Yusra Suedi.

Suggested citation:
African Court on Human and Peoples’ Rights, Request for an advisory opinion on the human rights obligations of African states in addressing the climate crisis, filed 2 May 2025 (pending).

Last updated:
23 May 2025

Categories
Biodiversity Business responsibility / corporate cases Chile Domestic court Loss & damage Paris Agreement Right to a healthy environment Uncategorized

State Defense Council vs. Quiborax S.A.

Summary:
On 2 July 2024, a complaint was filed by the public prosecutor of Antofagasta, representing the State of Chile, against Quiborax S.A., a limited liability company in the mining, agrochemical and energy sectors that produces and exports boric acid. The case concerns ulexite mining in the surface salt deposits in the Salar de Surire, located in the commune of Putre, Region of Arica and Parinacota (the ‘Salar’), and related environmental damage. This includes permanent damage to the Salar itself, alterations of runoff and flooding patterns, a loss of supporting, regulating and cultural ecosystem services, serious habitat alterations and losses, and biodiversity and environmental impacts. This resulted in continuous, cumulative, permanent and irreparable environmental damage to an iconic national and international protected area. The State sought compensation, mitigation and risk reduction measures. In doing so, it relied on Section 19 Nº 8 of the Chilean Constitution, which recognizes the right to live in an environment free of pollution, mandating the State to ensure that this right ‘is not affected and to protect the preservation of nature’, while its subsection 2° confers power to the legislator to ‘establish specific restrictions to the exercise of certain rights or freedoms to protect the environment’.

In doing so, the State cited principles of conservation and sustainable development, and Chile’s international obligations including the Convention for the Protection of the Flora, Fauna and Natural Scenic Beauty of the countries of the Americas (Washington Convention); the Convention on Biological Diversity; the Convention on Biological Diversity; the Convention on Wetlands of International Importance (RAMSAR Convention); the Convention on the Conservation of Migratory Species of Wild Fauna; the Convention on the Protection of World Cultural and Natural Heritage; the Convention on the Conservation of Migratory Species of Wild Fauna; and the Convention on the Protection of World Cultural and Natural Heritage, the UNFCCC, and the Paris Agreement as well as Chile’s Nationally Determined Contribution under that framework.

The State also invoked:

the multiplier effect of climate change and the need to consider this liability for environmental damage, as it constitutes an unavoidable context that must be taken into account, given its capacity to enhance and reinforce the short, medium and long term effects of impairments, deterioration or losses inflicted on environmental components. In this sense, climate change multiplies the effect of impairments, deterioration or losses affecting the regulation or support services provided by abiotic components, such as soil or water or ecosystems themselves, especially threatening unique or singular ecosystems, valuable for their expression of biodiversity. This is precisely what the sixth report of the United Nations Intergovernmental Panel on Climate Change (from now on ‘the IPCC’) on the physical basis of climate change, published in August 2021, has revealed in relation to the environment and sustainable development. It is therefore urgent, on the one hand, to determine the exact influence of climate change on this degraded ecosystem as the amount of rainwater from the summer rains increases, and, on the other hand, to strive to conserve a climatic refuge such as Surire, which sustains the biodiversity not only of the region and the country, but also of the entire world.

Status of the case:
Pending

Last updated:
12 February 2025

Categories
Brazil Class action Deforestation Domestic court Environmental racism Indigenous peoples rights Indigenous peoples' rights Just transition litigation Minority rights Non-discrimination Rights of nature

São Paulo State Public Defender’s Office v. São Paulo State Land Institute Foundation (ITESP) et al.

Summary:
On 31 March 2014, the São Paulo State Public Defender’s Office brought a “Public Civil Action” against the São Paulo State Land Institute Foundation (ITESP), the São Paulo State Foundation for Forest Conservation and Production (Fundação Florestal), and the State of São Paulo. The case sought annulment of the decision to protect biodiversity by creating a new State Park, the Alto Ribeira Tourist State Park (PETAR), despite the fact that the area in question overlapped with a traditional Quilombola territory, or a territory settled by Afro-Brazilian descendants of escaped slaves. The ruling highlights environmental racism as causing the marginalization of this community. The plaintiffs argued that the Quilombola are protectors of nature and have a relationship of mutual dependence with it and requested territorial recognition.

Ruling of 29 December 2023:
On 29 December 2023, a ruling was issued upholding the claim of the Quilombola community of Bombas and invalidating the decision to create the State Park to the extent that it overlapped with the Quilombola territory. The court established that it could review the conformity of domestic law against international human rights norms, finding also that ILO Convention 169 was hierarchically superior to domestic constitutional law. It also highlighted the difficulty of balancing the interests of the Quilombola community and PETAR, noting that both concerned internationally recognised human rights – the Quilombola community given its traditional customs, connection to nature and unique culture, and PETAR as a World Heritage Site at the heart of the Atlantic Rainforest that was home to a number of rare species of flora and fauna.

Exploring the issue of environmental racism, the court found that:

The Socio-Environmental Institute (ISA) recently produced a series of reports recognising that the Bombas community is subject to environmental racism. The issue is linked in the sense that despite the abstraction and supposed generality of the law, when it is applied to a specific case in environmental terms, because it disregards original realities (the way of life of the traditional community from the way of life of the urbanised community), it imposes burdens that make survival almost unbearable, because it creates prohibitions that affect the subsistence of groups that feed themselves, sustain themselves, produce minimal income and extract essential elements for their maintenance from the environment. Not that this isn’t also the case in urbanised society, after all, there’s no denying that all consumer goods originate from materials that are exploited on a large scale in world production and that originate from nature, such as oil.

To say that there is a precise separation between humans and the environment, as well as that there is real protection, is in itself a huge contradiction. After all, we are all on a planet and making use of its resources (…).

Ultimately, the court found the decision establishing the Park to be incompatible with Article 68 of the Transitional Constitutional Provisions Act (ADCT) and ILO Convention 169. Although the decision noted the problem of environmental racism, it found that the marginalization at stake stemmed from combined social, environmental, historical, and legal factors. It affirmed the relationship between traditional communities and the environment and the need to halt human impacts on natural ecosystems.

As noted by Climatecasechart, the original claim did not reference climate change; this connection was introduced judicially in the ruling of 2023.

On 5 March 2024, the São Paulo State Attorney General’s Office appealed. In doing so, it highlighted the threat of climate change and the importance of carbon sinks, such as the State Park in question.

Further information:
To read the full judgment in the case (in Portuguese), click here.

Last updated:
12 February 2025.