The Advisory Opinion on Climate Protection and the “Global North-South Divide”

On 23 July 2025, the International Court of Justice (ICJ or Court) gave an Advisory Opinion on the Obligations of States in respect of Climate Change. While I share the optimism about the ICJ’s potential contribution to the future of international law and climate governance (e.g. here, here, and here), this piece highlights the challenges and limitations of international law and the ICJ in addressing the historical and current power asymmetries underlying the so-called “Global North–South Divide” to achieve climate justice. The use of the term ‘Global South’ is often based on geographical location, socio-economic considerations, political or strategic reasons, or shared historical experiences of colonialism and neocolonialism. These factors have contributed to or exacerbated the vulnerability of these countries to the adverse impacts of climate change, and therefore influenced their demands for climate justice. 

Climate Justice and Equity

Climate justice is at the heart of the request for an Advisory Opinion from the ICJ. The very idea of seeking this Advisory Opinion is traceable to an extracurricular task of promoting climate justice given to a group of law students at the University of the South Pacific in Fiji. Further, achieving climate justice was an important objective of the core group of States’ initiative to seek an Advisory Opinion (Draft resolution A/77/L.58). Although the Court “ignores or circumvents” this focus [Separate Opinion of Vice President Sebutinde, paras 5 & 9], Judge Xue deals with climate justice in her Separate Opinion. She emphasizes the historical roots of the climate change issue [para 72] and the need to consider the transfer of GHG emissions, for example, due to the relocation of carbon-intensive production, from developed to developing countries in conformity with the principle of equity [para 74]. 

The Court does recognize the principle of equity and its relationship with justice generally [para 152]. The principles of common but differentiated responsibilities and respective capabilities (CBDR-RC) and intergenerational equity are identified as manifestations of equity [paras 151 and 157 respectively]. However, the Court is silent about the principle of intragenerational equity, which refers to equity among members of a generation. Judge Xue explicitly mentions this principle and identifies the underlying issue of the persistent gap between developed and developing countries as the reason why developed countries are asked to take the lead in combating climate change and its adverse effects [Separate Opinion, para 28]. According to the Court, CBDR-RC reflects the need for equitable distribution of the burdens of obligations [para 148], which captures some elements of the principle of intragenerational equity. However, the principle of intragenerational equity is broader; it also seeks to address the disparities between states, for instance, through financial and technical support (Redgwell 2016). 

The Court refers to the obligations, in the Paris Agreement, for developed States to provide support to developing States with respect to their mitigation and adaptation responsibilities as forming part of the duty of cooperation [para 227]. Developed States are to implement these obligations “at a level that allows for the achievement of the objectives listed in Article 2”, and the evaluating factors include “the capacity of developed States and the needs of developing States” [para 265]. The inclusion of the capacity of developed States may increase their level of support to developing States. Conversely, the former’s capacity may be considered before the latter’s needs. In fact, the Court notes that the duty of cooperation requires “more than the transfer of finance or technology, in particular efforts by States to continuously develop, maintain and implement a collective climate policy…” [para 306]. This should not lead to an inequitable distribution of the burdens of obligations between developed and developing countries. 

The Developed-Developing Countries Distinction

The United Nations Framework Convention on Climate Change (UNFCCC), the Kyoto Protocol and the Paris Agreement distinguish between ‘developed’ and ‘developing countries’ based on their level of development, as defined by the United Nations. According to Judge Xue, this distinction is “not just about a criterion but a crucial factor for States to participate in a meaningful way in the global response to climate change” [Separate Opinion, para 3]. However, the Court attempts to redefine this distinction by placing the most developed States, States that have undergone considerable development since the UNFCCC and the least developed States on a spectrum [para 150]. According to the criteria of the International Monetary Fund and the World Bank, this spectrum corresponds to 40 most developed States, 110 developing States in the middle and 44 least developed States [Separate Opinion of Judge Xue, para 64]. 

The Court goes on to recognise the significant contribution of the most developed States “to the overall amount of GHG emissions since the Industrial Revolution” and the minimal contribution of the least developed States. However, it does not refer to the minimal contribution to historical emissions of the States in the middle [see also Separate Opinion of Judge Yusuf, section III]. In respect of present emissions, the Court notes that the least developed States “have only a limited capacity to transform their economies” while the States in the middle “have progressed considerably in their development since the conclusion of the UNFCCC…, and some of which now contribute significantly to global GHG emissions” [para 150]. However, the per capita GHG emissions of most of the developing States in the middle “remain relatively low” [Separate Opinion of Judge Xue referring to the IPCC reports, para 15]. Further, Judge Xue notes: “Without any specific and credible criteria, this new division of the developing countries has no legal basis in the treaties, which may be perceived as a deviation from the current burden sharing of obligations between developed and developing countries…” [Separate Opinion, para 64].

Non-Determination of Specific Legal Consequences 

The Advisory Opinion was requested concerning the legal consequences of obligations for States where they, by their acts or omissions, have caused significant harm to the climate system and other parts of the environment, with respect to (a) States, including, in particular, small island developing States, which due to their geographical circumstances and level of development, are injured or specially affected by or are particularly vulnerable to the adverse effects of climate change; and (b) peoples and individuals of the present and future generations affected by the adverse effects of climate change. The Global South is home to a majority of these States as well as peoples and individuals.

In response to (a), the Court acknowledges that certain states have faced and are likely to face greater levels of climate change-related harm owing to their geographical circumstances and level of development [para 110]. However, it reframes the first part of the question from where States ‘have’ caused to ‘may have’ caused [para 108; see also Separate Opinion of Judge Yusuf, para 4], and decides not to determine any specific legal consequences [para 109]. 

The Court’s response to (b) focuses almost exclusively on the entitlement of “individuals” to bring claims against States [para 111] and does not engage with “peoples” reflecting the general reluctance in international law to engage with peoples’ rights outside specific treaty contexts. Vice-President Sebutinde, in her Separate Opinion, goes beyond the Court to offer a definition of “peoples” that attempts to engage with State responsibility. She notes: “[t]he phrase “peoples” refers to distinct ethnic groups, nations or communities whose habitat and way of life is adversely affected by the effects of climate change. These include, for example, the indigenous peoples of many small island States whose very existence and way of life is threatened by rising sea levels and disappearing territory” [para 6]. However, the Court recognises that individuals and peoples are right-holders under international human rights law [para 371]. It mentions specific right-holder groups included in the preamble of the Paris Agreement [paras 374 & 382], and considers that climate change may impair the enjoyment of human rights of groups such as women, children and indigenous peoples drawing on the work of UN bodies and the IPCC [paras 382-84]. This is not a giant leap but it represents a promising tentative step for international law. 

Future of Climate Litigation

The Advisory Opinion is not legally binding but it has “the potential to open a new front in climate litigation” (Viñuales 2025). At the same time, the Declaration of Judge Nolte provides several cautionary notes about the Advisory Opinion’s influence on the behaviour of countries. 

1. The “general manner” in which the Court responds to the questions concerning the law of State responsibility and its application may encourage States “to pursue litigation which, if successful at all, may entail only symbolic legal consequences” [para 31]. 
2. The Advisory Opinion may raise “false hopes that climate litigation can supplement the mechanisms of financial transfers and the remedies for loss and damage contained in the climate change treaties” [ibid]. 
3. Litigation may lead to “counterproductive effect on the political processes within the framework of the Paris Agreement and beyond” [ibid]. “States may in the future shy away from accepting new treaty obligations or maintaining procedures that could subject them to unpredictable legal consequences” [para 32]. 
4. States may challenge “the distributive implications of court decisions which, in their view, unjustifiably isolate parts of the problem from the whole” and “the very legitimacy of courts, particularly international courts, when these appear to unduly limit the exercise of States’ political and administrative discretion” [ibid].

The impact of the Advisory Opinion also needs to be considered in light of the growing complexity of domestic and regional climate litigation, which may be used to challenge climate injustice or to deny climate justice. Scholars have highlighted the different understandings of climate litigation in the Global South including the strategic decision not to use climate change language,  mitigation, adaptation or loss and damage focus, vulnerabilities of specific individuals, groups and peoples, and use of rights-based approaches etc. (Murcott and Tigre 2024). The general understanding of the Advisory Opinion will further influence the nature and scope of future climate litigation and its contribution to achieving climate justice in and for the Global South.

Conclusion

The Global South origin of the Advisory Opinion highlights the uneven nature and scale of the vulnerability of countries to the adverse effects of climate change. The Global North-South Divide frames the obligations of developed countries in respect of historical GHG emissions and support for adaptation measures in the Global South as well as a context-driven understanding of the mitigation and adaptation obligations of all countries. The equitable distribution of the burden of these obligations is key to climate justice and the future of peoples and our planet. For this reason, while we must pursue the opportunities offered by the Court, we must also continue to challenge the limits of international law and seek solutions to this planetary crisis beyond international law.