The Absent-Present: What Paragraph 456 of the ICJ Advisory Opinion Reveals About International (Climate) Law

Since its release on 23 July 2025, the Advisory Opinion of the International Court of Justice on the Obligations of States in Respect of Climate Change (the Opinion) has generated extensive scholarly engagement. Commentators have characterized the Opinion as ‘the great reset’, analyzing how it purposively weaves together multiple sources of international law to identify applicable norms, clarify meaning, and set out consequences of their breach. Others have analysed what the Opinion signals for the international climate regime, its institutions and the Paris Agreement – the most recently concluded multilateral treaty on climate change. Still others have explored the potential impact of the Opinion on industry actors in the fossil fuel sector and discussed what it might mean for questions of statehood, historical responsibility, climate harms, and human rights. This list is necessarily incomplete. It begins to illustrate, however, the breadth and scale of scholarly interest in what the International Court of Justice had to say.

While existing commentary has, for the most part, concentrated on the content of the Opinion – the meaning of its 457 paragraphs spread across 133 pages, our intervention begins elsewhere. Rather than interrogating what the International Court of Justice had to say, we turn our attention to how the Court said what it had to say. In other words, we take the form of the Opinion as our analytical point of departure. In so doing, we follow the work of legal ethnographers and international lawyers who have explored the forms and technicalities, the rhetorical and literary genres, and the artistic and paratextual elements of international lawyering – the material, semiotic, epistemic, and aesthetic practices which render texts judicially meaningful and recognizable as law. Our aim in turning to the form of the Opinion as our analytical register is to show how it shapes the possibilities of international lawyering and what this reveals about the struggles of international (climate) law.

The Absent-Present: Paragraph 456

Shifting our focus from content to form, we zoom in on paragraph 456. This paragraph has rightly been identified as distinctive. Closing the substantive analysis, it emphasizes the urgency, complexity, and scale of climate change. It is here that the Court reaffirms the General Assembly’s questions as legal, explaining that it is for this reason, and in this register, that the Court has engaged with them. At the same time, however, the Court acknowledges that these questions ‘represent more than a legal problem’: ‘a lasting satisfactory solution requires human will and wisdom – at the individual, social and political levels’.

What emerges is that paragraph 456 appears as a balancing act: on the one hand, it asserts the relevance of international law in addressing climate change, on the other hand, it acknowledges the limits of international law and of the Court itself. What is more, paragraph 456 departs from the formalist legal language which makes up much of the Opinion, instead adopting a strikingly affective tone. It describes climate change as an ’existential problem of planetary proportions that imperils all forms of life and the health of our planet’. In many ways, we might say that paragraph 456 captures everything the Court did not, and perhaps could not, say elsewhere. It signals a moment, a brief aperture, in which the Court expressively gestures beyond the traditional confines of the legal form.

Given the idiosyncratic character of paragraph 456, it is curious that the table of contents omits it. Don’t believe it? Have a look at page iv of the Opinion. As readers, we can only speculate about whether this omission is coincidental or deliberate. It seems unlikely, though not impossible, that in a carefully crafted professional text of this significance the absence of paragraph 456 went unnoticed before publication. We refer to this curious state of affairs as the absence-presence of paragraph 456. It is not ‘there’ – the paragraph is clearly missing from the table of contents. Yet, its absence also signifies its presence which becomes visible in the jump from paragraph 455 (referencing section 3(c) of part C of the Opinion, entitled ‘Satisfaction’) to paragraph 457 (the Operative Clause). Simply put, the non-listing in the table of contents does not erase paragraph 456. Rather, its absence becomes a form of presence which, as we argue, is indicative of the struggles of international (climate) law more broadly.

The Making of Legal Form at the International Court of Justice

The Rules and the Resolution Concerning the Internal Judicial Practice of the Court indicate how each text, whether judgment or advisory opinion, proceeds through multiple rounds of revision. The iterative production of these texts involves different groups of staff at the Court, from judges and legal officers to, at a later stage, the Publication Division of the Registry. It is difficult to envision how, or to begin to explain why, the omission of paragraph 456 from the table of contents could escape the scrutiny of multiple professionally trained eyes. Could it just have been an oversight of the sort which might happen to any one of us when editing a lengthy text? A paragraph added at a later stage of revision, or following additional discussion, that simply did not make it into the already included table of contents? A mundane formatting issue after all?

Be that as it may, what we are interested in is how the absence-presence of paragraph 456 illustrates the multiple ways in which elements of legal texts (whether absent, present, or differently positioned) condition how international law operates. Have you, for instance, ever wondered about the star symbols which are included in the judgments and opinions of the International Court of Justice? Paragraph 456 itself is framed between a single star and the symbol of the three closing stars which usually introduces the operative clause. These stars, depending on their number and exact placement, operate as visual divides, announcing transitions within judicial texts – for example, between the parties or participants’ submissions and the facts, between the facts and the reasoning, or the commencement of the operative clause.

The use of stars enframing paragraph 456, however, puts a twist on the habitual practices of making legal form at the International Court of Justice. In this case, the stars almost seem to isolate the paragraph from the remainder of the text, making it stand out by singling it out. We might interpret the placement of stars before and after paragraph 456 as symbolizing ambivalence about how this piece of text fits with the remainder of the Opinion. Alternatively, or additionally, we may take the stars to indicate the salience which the Court might have wished to accord to paragraph 456. In either case, the stars operate to select paragraph 456 as one particular textual element of the Opinion, marking it, even visually, as distinct and significant.

On Absence-Presences in International (Climate) Law

The phrase ‘form follows function’ is a well-known design principle. Often associated with modern architecture, it articulates the idea that buildings, objects, things look the way they do because they function in a certain way. Applying this argument to law, we might say that the content of normative articulations shapes legal texts, processes, and institutions. This is true. But it only reflects one side of the coin, because forms themselves do governing work. They determine, in material, aesthetic, and epistemic ways, how law is articulated, practiced, applied, interpreted, and what, ultimately, is recognized as law. In other words, the legal form is how law operates, how it exercises authority, and how it produces meaning. Ultimately, legal form and function are inseparable.

Acknowledging the co-constitution of form and function, we can begin to think about what the absence-presence of paragraph 456 reveals about the possibilities of international lawyering and international (climate) law. For one, the absence-presence of paragraph 456 is deeply symbolic. It illustrates how, from the perspective of the International Court of Justice, its decisions and opinions have to retain an apolitical air of technical neutrality. While legal questions about climate change are arguably inherently political, judges have tended to show respect for democratic decision-making. Yes, the legal machinery is to set out obligations on who is to do what and determine the consequences of their breach; but no, courts are not to engage with political questions. The political, in other words, is to be bracketed from the operation of the international legal machinery. Creating distance between the political and the legal allows the law to be law, the International Court of Justice to be a court. Just like paragraph 456, the political, then, can be understood as an absence-presence in international (climate) law. It is not there, it is excluded and thus seemingly missing from the operation of the international legal machinery. Yet, the political is clearly present in the structures of legal responses to climate change.

Arguably, too-proximate a relationship between the politics involved in responding to climate change and the Opinion would have risked the Court opening itself up to criticism for overstepping its mandate, in particular from those countries who would have preferred a significantly more restrictive interpretation of the Opinion’s scope (including China, Germany, Russia, Saudi Arabia, the United Kingdom, and the United States, amongst others). Moreover, by separating law from politics, paragraph 456 reflects the Court’s intention to reaffirm both its role and its limits. In this sense, paragraph 456 can be read as a statement of institutional positioning. As a self-assertion, it signals the possibilities and limits which the Court imposes upon itself; and as a meditation on the role of law and legal institutions, paragraph 456 insists on the relevance of political process in addressing climate change.

Beyond its legal form, these tensions resurface in the conceptual repertoire invoked by paragraph 456. By describing climate change as a ‘problem of planetary proportions that imperils all forms of life and the health of our planet’, the International Court of Justice echoed scientific understandings of climate change as a problem of accumulating greenhouse gases that push planet Earth to its limits. Clearly, this planetary conception of climate change is both evocative and scientifically grounded. It theorizes the scope of human-inflicted harm and promises to galvanize urgently needed political action. Yet, the notion of ‘the planet’ also tends to render the political as an absence–presence, this time in a dual sense.

First, although planetary thinking has figured prominently in decolonial critiques and indigenous epistemologies, the version which dominates legal and policy discourse has been shaped by Western paradigms that exclude alternative modes of knowing, valuing, and being. These exclusions are traces of how the political is conceptually rendered as an absence-presence: it becomes visible precisely through it being artificially edited out. In a second sense, planetary thinking is haunted by a dissonance: between conceiving of climate change as an Earth-encompassing phenomenon, on the one hand, and legal geographies of climate change, on the other. While the former conceptualizes the planet as one integrated whole, the latter remains anchored in the grounded logic of borders and territories. In this second sense, planetary thinking conjures an epistemic object that, within law’s territorial grammar, remains absent as a politically actionable space. We might say, then, that the planet is an absence-presence in international (climate) law: it inhabits judicial reasoning, but cannot be fully grasped, leaving the political as a trace that signals its absence as a presence.

Staying With What Does (Not) Appear

As a figure of absence-presences, paragraph 456 points to the unacknowledged, the deferred, yet operative forces that give form to international law. Its omission from the table of contents of the Opinion points to a dimension of international lawyering which tends to be taken for granted – that international law is not only constituted by what it (re)presents in terms of its normative substance, but also by what it renders as absent through its form. The absent – that what is not codified, named, or explicitly listed – haunts what is legally encoded, shaping interpretation and meaning. For those studying international (climate) law, this points to a methodology of staying with what does not appear, tracing presences and absences in material, semiotic, epistemic, and aesthetic practices that are constitutive of law.