Australia could face international legal action over its fossil fuel production and failure to rapidly cut emissions, Vanuatu’s climate minister says, after a potentially watershed declaration by the world’s top court.
An International Court of Justice (ICJ) advisory opinion published in The Hague on Wednesday found countries had a legal obligation to take measures to prevent climate change and aim to limit global heating to 1.5C above preindustrial levels, and that high-emitting countries that failed to act could be liable to pay restitution to low-emitting countries.
The case was instigated by law students in Vanuatu and referred to the ICJ by a decision of the UN general assembly in 2023 by 130 countries, including Australia. The opinion was hailed as a historic moment by Pacific island representatives, climate campaigners and legal academics. Vanuatu said it planned to push for a UN resolution to support its implementation.
Australia had joined other significant emitters, including the US and China, in arguing in submissions to the court that countries’ obligations were limited to complying with the 2015 Paris climate agreement and the UN Framework Convention on Climate Change.
The ICJ, represented by a panel of 15 judges, disagreed. It found all countries had binding obligations to act, not just under UN climate agreements, but under international human rights law, the law of the sea and customary international law. It said countries could be found liable if they failed to address fossil fuel production, consumption, subsidies and exploration licences.
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Vanuatu’s climate change minister, Ralph Regenvanu, said it would give Pacific island nations “much greater leverage” at climate talks and in dealing with partner countries such as Australia. He told the ABC’s Radio National it would take time to fully examine the 500-page opinion, but it suggested litigation was “definitely” an option.
“According to the advisory the ICJ handed down today, Australia is committing internationally wrongful acts as it is sponsoring and subsidising fossil fuel production and excessive emissions,” Regenvanu said.
“Australia is one of the major contributors to fossil fuel production. It’s the third largest exporter of fossil fuels in the world. It’s a major contributor to emissions … It needs to align itself with the advisory opinion and cease this conduct that is contributing to emissions and start making reparations.”
Dean Bialek, an international lawyer and former lead climate negotiator for island nations, said the opinion was “unusually robust” and would have “hugely significant” ramifications for Australia.
Bialek said the court’s confirmation of the primacy of the goal of limiting heating to 1.5C above preindustrial levels meant Australia should be setting an emissions reduction target for 2035 in the “mid to high 70s” – that is, at least 75% below 2005 levels – when it made that decision later this year.
He said the opinion made it “inescapable” that the Albanese government needed to include a “climate trigger” as it reformed national environment laws, and was a further demonstration that it needed to “intensify its diplomatic legwork” to host the Cop31 UN climate summit in partnership with the Pacific next year.
Retta Berryman, a senior lawyer at Environmental Justice Australia, agreed the opinion would help measure whether the federal government’s upcoming climate commitments were ambitious enough, and said it was a “clear statement of the evolving legal standards around climate change”.
“We are likely to continue to see significant climate litigation in Australia against governments and companies,” she said.
Australian National University associate professor Siobhan McDonnell, a lawyer and climate adviser to Vanuatu, said the opinion was “historic”, stating as it did that “all states have international human rights obligations, including the rights to ensure life, health and the rights to a clean and safe environment”.
The Australian Greens leader, Larissa Waters, said the ruling made it clear that “every one of Labor’s new coal or gas approvals risks Australia being legally liable for the climate consequences”.
“This should be a turning point. Fossil fuel profits cannot override a climate safe future,” she said.
Wesley Morgan, a research associate with the Institute for Climate Risk & Response at the University of New South Wales, said Australia had dozens of coal and gas developments up for approval and the government must “heed the message from The Hague” when considering them. “The days of impunity for the fossil fuel industry are coming to an end,” he said.
A federal government spokesperson said Australia was proud to have joined the Pacific in co-sponsoring this Vanuatu-led initiative, and recognised that climate change was “one of the greatest existential threats to all humanity and that it’s having a significant effect on our region”. They noted that the Coalition was debating scrapping its commitment to reaching net zero emissions by 2050, but Labor was committed to working with the Pacific to “strengthen global climate action”.
“We will continue to turn around their decade of denial and delay on climate by embedding serious climate targets in law and making the changes necessary to achieve them,” the spokesperson said. “We will now carefully consider the court’s opinion.”
