{"id":29911,"date":"2026-10-12T13:00:24","date_gmt":"2026-10-12T11:00:24","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/?p=29911"},"modified":"2026-10-13T14:11:35","modified_gmt":"2026-10-13T12:11:35","slug":"protecting-states-not-people","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/protecting-states-not-people\/","title":{"rendered":"Protecting States, Not People"},"content":{"rendered":"

Like all \u201clandmark\u201d pieces of international jurisprudence, the closer one reads the International Court of Justice (ICJ)\u2019s\u00a0advisory opinion<\/u><\/a> on the Obligations of States in respect of Climate Change<\/em>\u00a0of July 2025, the more one finds things the Court might have done better. Among the areas that have attracted dissatisfaction<\/u><\/a>\u00a0is the brevity with which the Court treated\u00a0two closely interconnected questions: the continuity of statehood in the face of territorial loss\u00a0and the obligations of states towards people on the move because of climate change. The movement of people amid climate change, usually referred to as \u201cclimate mobility\u201d,\u00a0includes both internal and international migration, and spans from forced displacement to voluntary relocation or \u201cmanaged retreat\u201d.\u00a0As this post explains, the ICJ concentrated on the principle of non-refoulement, which only applies to those forcibly displaced across international borders.\u00a0This minimalism has attracted<\/u> some<\/u> criticism<\/u><\/a>, as some were hoping for a more substantial treatment\u00a0of climate mobility.\u00a0In this post, I look at what the states intervening in the proceedings had to say about state obligations\u00a0towards those on the move\u00a0because of climate change, to see if there is a difference between what we think the Court should<\/em> have said, what the Court actually could<\/em> have said,\u00a0and why it would<\/em> or wouldn\u2019t<\/em> do so.<\/p>\n

What the ICJ Said and What It Could Have Said<\/strong><\/p>\n

In a recent post on this blog<\/u><\/a>, Alex Green discussed how General Assembly Resolution 80\/263<\/u><\/a> expands upon what the ICJ said about state continuity in the face of the existential threat posed by rising sea levels. The ICJ had used deliberately cautious, possibilistic language, stating that \u201conce a State is established, the disappearance of one of its constituent elements would not necessarily entail the loss of its statehood\u201d (para 363). The General Assembly went further<\/u><\/a>, expressly \u201caffirm[ing] the continuity of statehood in the face of sea\u00a0level rise\u201d (para 7).\u00a0This is significant, as states appeared willing to stand behind fellow states whose territories face the consequences of climate change, and to affirm that the disappearance or transformation of territory does not put an end to their international legal personality. Yet they didn\u2019t demonstrate the same willingness when it came to the displacement of those states\u2019 populations. In relation to climate mobility, the General Assembly limited itself to reproducing verbatim<\/em>\u00a0(para 8) the ICJ\u2019s stance that:<\/p>\n

\u201cStates have obligations under the principle of non-refoulement where there are substantial grounds for believing that there is a real risk of irreparable harm to the right to life in breach of Article 6 of the ICCPR if individuals are returned to their country of origin\u201d (para 378.)<\/p>\n

Jane McAdam has\u00a0argued<\/u><\/a> that, despite its\u00a0limitations, the Court\u2019s engagement\u00a0with the topic\u00a0nevertheless provides a legal foundation on the link between climate impacts, threats to the right to life, and non-refoulement that can be operationalized in international protection claims. Others were more critical and saw the ICJ\u2019s\u00a0single paragraph<\/u><\/a>\u00a0as a missed opportunity<\/u><\/a> to expand more on state obligations regarding climate mobility.<\/p>\n

The ICJ\u2019s one-sentence formulation\u00a0is striking when compared to the Inter-American Court of Human Rights (IACtHR) which, only weeks earlier, addressed the human rights obligations of states on climate mobility in considerably greater detail in its Advisory Opinion OC-32\/25<\/u><\/a>.\u00a0On the one hand, the IACtHR\u00a0was specifically requested<\/u><\/a> to address\u00a0this aspect, among others, while\u00a0the General Assembly did not explicitly ask the same of the ICJ. On the other hand, the World Court\u2019s advisory jurisdiction is not confined to the literal wording of the questions it receives (Western Sahara<\/em><\/u><\/a>, para 19;\u00a0Kosovo<\/em><\/u><\/a>, paras 49\u201351), so it\u00a0could<\/em> have addressed climate mobility more extensively, especially since the request<\/u><\/a>\u2019s preamble expressly identified\u00a0displacement among the consequences of climate change (point 8).\u00a0In particular, Judge Aurescu described the treatment of non-refoulement as incomplete in his separate opinion<\/u><\/a>\u00a0and argued that the Court should have gone beyond the negative obligation not to return individuals to situations of serious risk. In his view, international human rights law could also entail positive obligations, including individualized risk assessments, admission, temporary residence permits, and measures protecting individuals against circumstances that could result in indirect refoulement.<\/p>\n

Yet, the task of the ICJ in an advisory opinion is to ascertain and clarify existing international law, not to create new legal obligations, and the Court had limited evidence to work with. On the one hand, there is some evidence that a practice\u00a0of applying non-refoulement to people displaced by climate change is developing. The most prominent point of reference is the 2019 Teitiota<\/em><\/u> v New Zealand<\/em><\/u> decision<\/u><\/a>, in which Human Rights Committee accepted in principle that environmental degradation and climate change could, in sufficiently serious circumstances, trigger non-refoulement obligations where return would expose an individual to a real risk of irreparable harm to the right to life. The ICJ expressly relied on Teitiota<\/em> in formulating its own conclusion. Some states\u2019 courts (but not governments) have also started to recognize climate and environmental factors in their jurisprudence<\/u><\/a> on international protection and non-refoulement. The IACtHR\u2019s advisory opinion has clearly derived several state obligations regarding climate mobility, including the prohibition of refoulement, from the Pact of San Jos\u00e9<\/u><\/a>, and there are substantial expectations<\/u><\/a> that the African Court of Human and Peoples\u2019 Rights will expand on climate displacement obligations in its own forthcoming advisory opinion<\/u><\/a>.<\/p>\n

What <\/strong>S<\/strong>tates <\/strong>D<\/strong>id<\/strong>\u00a0<\/strong>and <\/strong>D<\/strong>id <\/strong>N<\/strong>ot<\/strong>\u00a0<\/strong>A<\/strong>sk the Court to <\/strong>D<\/strong>o<\/strong><\/p>\n

It would be difficult to claim, however, that these\u00a0steps\u00a0are enough\u00a0to prove that a customary rule governing climate mobility or the application of non-refoulement along the lines of what Judge Arescu\u00a0suggested had already crystallized. And, crucially, nearly no states (and no international organizations) participating in the ICJ proceedings made such a claim.\u00a0Climate mobility appeared frequently in the written and oral submissions, with one third of submitting states describing displacement as one of the negative impacts they face; but very few went on to elaborate on the obligations that international law imposes\u00a0towards climate-displaced people, including non-refoulement.\u00a0States, including in the Global Majority, appeared keener on discussing how\u00a0they are affected by climate change than taking up new responsibilities.<\/p>\n

A prominent exception was the Solomon Islands, whose submissions<\/u><\/a> devoted significant attention to climate mobility and non-refoulement obligations. At the same time, these submissions themselves characterized the relevant protection frameworks as \u201cevolving\u201d norms (para 23).\u00a0Since states themselves have stopped short of asking the Court to declare a settled customary rule of climate non-refoulement, there was less room for the Court to present a duty not to return \u2013 let alone to admit \u2013 as existing law.\u00a0The Court is not bound by states\u2019 explicit submissions in its determination whether a rule constitutes a customary norm, and it may rely<\/u><\/a>\u00a0on\u00a0the implicit practice of a \u201csignificant majority\u201d\u00a0of states even when others\u00a0have explicitly opposed it. But this does\u00a0not seem to be the case here, as\u00a0the limited steps described above do not appear sufficient to constitute a consistent practice or opinio<\/em> juris<\/em> on non-refoulement, let alone other obligations regarding climate mobility. This helps to explain, at least in part, the Court\u2019s caution in expanding its formulation of the prohibition of refoulement in the context of climate change beyond the position of\u00a0the Human Rights Committee in Teitiota<\/em> or\u00a0elaborating on further obligations.<\/p>\n

Climate <\/strong>M<\/strong>obility<\/strong>, <\/strong>C<\/strong>ooperation,<\/strong> and <\/strong>R<\/strong>esponsibility-Sharing<\/strong><\/p>\n

Rather, several submissions emphasized the need for an international cooperative response. This was an attractive position, since climate mobility is not the product of a single event, nor it is attributable to a single state. Its causes, consequences, and the capacity to respond are all distributed unequally. However, state submissions did\u00a0not specify the form and legal content of such a duty of \u201ccooperation\u201d.\u00a0\u00a0The ICJ ultimately did recognize a general duty to cooperate in addressing climate change, but it did not articulate a distinct duty of international cooperation specifically in relation to climate displacement. Going much further would have required the Court to determine the precise content of obligations \u2013 such as admission, temporary residence, procedural safeguards, and responsibility-sharing \u2013 which states did not elaborate in their submissions. The General Assembly\u2019s subsequent resolution likewise retained the general language of cooperation rather than developing a specific framework for responsibility-sharing in relation to mobility.<\/p>\n

This was also echoed in the recent UN Declaration on Sea Level Rise<\/u><\/a> (focused specifically on the implications of sea-level rise for statehood rather than climate change more generally), in\u00a0which states again endorsed the continuity of statehood, but made no reference to non-refoulement. The Declaration addresses mobility only by emphasizing \u201cthe importance of supporting voluntary choices for communities affected by sea level rise and mobility with dignity\u201d, where international movement is involved, \u201cin agreement with relevant States\u201d and consistently with international law (point 15). In both interventions, states were prepared to articulate a clearer collective position on the continuity of states threatened by sea-level rise but not one on the obligations owed to the people fleeing those states.<\/p>\n

The normative foundations for a stronger duty to cooperate in the context of climate mobility are increasingly being explored in scholarship. In her recent article<\/u><\/a>, Samantha Velluti advocates for understanding climate mobility as a \u201ccommon concern of humankind\u201d requiring cooperation and solidarity-based responses rather than leaving protection entirely to unilateral state discretion. Elizabeth Mavropoulou\u2019s work on responsibility-sharing in refugee law<\/u><\/a> has explored how the principle of \u201ccommon but differentiated responsibilities\u201d (CBDR), developed within international climate law, might provide a normative basis for distributing migration-management and refugee-protection responsibilities according to states\u2019 different capacities and contributions. I and others have argued elsewhere<\/u><\/a>, building on Mavropoulou\u2019s analysis, that if CBDR can inform responsibility-sharing in migration governance generally, it applies a fortiori<\/em> to the context of climate mobility.<\/p>\n

The ICJ and Its <\/strong>S<\/strong>tate-Centred <\/strong>W<\/strong>orld <\/strong><\/p>\n

This is an argument about the direction in which the law could develop, while there remains a substantial, political gap between recognizing climate mobility\u00a0as a common international problem and agreeing to share the responsibilities that follow from that recognition. The global political environment is one of human rights regression, hardened borders, externalization, anti-migration discourses, xenophobia, and nationalism. Against this background, expecting states to accept a new category of internationally protected migrants, or to assume more substantial responsibility for people displaced from other countries, is apparently politically more difficult than affirming the continued existence of those countries themselves.\u00a0Seen in this light, the Court\u2019s caution, as disappointing as it may be,\u00a0is\u00a0far from surprising.\u00a0This is not intended to be apologetic or exculpatory of the ICJ\u2019s restraint<\/u><\/a>; rather, it is a realist recognition that international law is made by states, and states and their political leadership are, at best, highly cautious and, at worst, openly opposed to assuming any further responsibility towards migrants and displaced \u2018aliens\u2019.\u00a0The ICJ is the jurisdictional expression of this state-centric international legal infrastructure we live in; and the master\u2019s tool won\u2019t build a house the master does not want to take care of.<\/p>\n","protected":false},"excerpt":{"rendered":"

Like all \u201clandmark\u201d pieces of international jurisprudence, the closer one reads the International Court of Justice (ICJ)\u2019s\u00a0advisory opinion on the Obligations of States in respect of Climate Change\u00a0of July 2025, the more one finds things the Court might have done better. Among the areas that have attracted dissatisfaction\u00a0is the brevity with which the Court treated\u00a0two […]<\/p>\n","protected":false},"author":39,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[3792,3934,3743],"article-categories":[6000],"authors":[7200],"doi":[],"class_list":["post-29911","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-climate-change","tag-displacement","tag-icj","article-categories-article","authors-andrea-maria-pelliconi"],"acf":{"subline":"What the ICJ Advisory Opinion on Climate Change Couldn\u2019t Say About Climate Displacement and Mobility"},"meta_box":{"doi":"10.17176\/20261012-142620-0"},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/29911","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/39"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=29911"}],"version-history":[{"count":4,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/29911\/revisions"}],"predecessor-version":[{"id":29916,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/29911\/revisions\/29916"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=29911"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=29911"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=29911"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=29911"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=29911"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=29911"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}