The International Court of Justice (ICJ) released an significant advisory opinion on July 23, finding that the production and consumption of fossil fuels “may constitute an internationally wrongful act”, for which a nation state is responsible.
It is widely regarded as being as creating the possibility for “big emitters” to be “successfully sued”.
Meanwhile, the big emitters and their governments are fighting back. Democracy Now reported on August 1 that United States President Donald Trump is attempting to revoke the power of the US Environmental Protection Agency (EPA) to regulate greenhouse gas emissions from cars, power plants and other sources under the Clean Air Act.
These two developments illustrate the competing ways in which capitalist elites and their institutions are responding to the inevitable crises that accompany the climate emergency.
Some are attempting to find legal and institutional avenues to restrain, or manage, runaway carbon pollution. Others are waging a war against climate science and any restrictions, whatsoever, that may be placed on the profiteering of fossil fuel conglomerates.
But the ICJ ruling is important for the climate movement. Notably, it supported the premise of the Pacific Island Students Fighting Climate Change (PISFCC) which pushed for the decision.
As Cynthia Houniuhi of the PISFCC said: “This is a victory forged by Pacific youth but owned by all.” “We pushed the world’s highest court to listen and it did; now we move from legal words to living change. Young people will make sure this ruling cannot be shelved or spun.”
Also enthusiastic is Fenton Lutunatabua, from 350.org, who said “a line has been drawn, and high-emitting states now have the obligation to address their climate responsibilities head on”.
Pressure from the student movement pushed Pacific Island governments, led by Vanuatu, to take the case to the United Nations.
Vanuatu’s Climate Change Minister Ralph Regenvanu, who welcomed the ICJ’s decision, told a Magan-djin/Brisbane peace conference on August 2 that “climate change remains the single greatest threat to the livelihoods, security and well-being of the peoples of the Pacific”.
He described the ICJ decision as a “great victory for climate action” highlighting, in particular, the “legal obligation of states to reduce their greenhouse gas emissions immediately”.
The court found that governments have responsibilities under various climate treaties, such as the Kyoto Accord and the Paris climate agreement. However, beyond these treaties, it found “states have a duty to prevent significant harm to the environment”.
This means they must use “all means at their disposal” to prevent “significant harm” to the climate system.
Law professor Jorge Viñuales, who acted for Vanuatu at the ICJ hearings, told Carbon Brief that “perhaps the main take away from the opinion is that the court recognised the principle of liability for climate harm, as actionable under the existing rules”.
This means that countries could potentially face liability for loss and damage caused by their climate pollution.
Notwithstanding the groundbreaking features of the ICJ decision, it is important to note that, as an “advisory opinion”, the ruling is non-binding. This is in contrast to ICJ’s decisions in disputes between states which are, at least theoretically, binding.
However, as Israel’s refusal to comply with the ICJ’s binding “provisional measures” in South Africa’s genocide case against Israel — a dispute between states — shows up the limit of the court’s power to enforce its binding decisions.
This means that while the ICJ decision helps grassroots climate campaigners, it is not a means to stop climate pollution.
This year carbon dioxide concentrations in the atmosphere peaked above 430 parts per million for the first time — the “highest level ever directly measured” and “higher than humans have ever experienced”, according to the University of California San Diego.
Instead of treating this as the emergency it is, capitalist governments are heaping more fuel on the fire.
The International Monetary Fund, which tracks fossil fuel subsidies, found that global government hand-outs to polluting industries topped US$7 trillion in 2022 – a US$2 trillion rise since 2020. It predicted “subsidies are expected to decline in the near-term” but then “rise to $8.2 trillion by 2030”. It should be noted that subsidies for renewables only make up a tiny fraction.
The priorities of capitalist governments won’t be changed by any ICJ ruling; the Trump regime’s attacks on the US EPA are just one part of a concerted counter attack against climate science and climate action.
As Pallavi Sethi, from the Grantham Research Institute on Climate Change and the Environment, said: “As climate disasters intensify, the Trump administration is not just denying science, it is actively censoring it”, including erasing scientific data, slashing research funding, and removing terms like “climate change” from federal websites”.
Trump is planning major funding cuts for the National Oceanic and Atmospheric Administration (NOAA), which would threaten the reliability of Australian as well as other countries’ weather forecasts.
GetUp! claims the conservative group Advance plans to launch an “all-out push to stop climate action” and federal Labor’s weak commitment to achieve “net zero” by 2050.
Writing about what they call “end times fascism”, Naomi Klein and Astra Taylor argue: “We are not up against adversaries we have seen before”.
Unlike the far-right of the past, they argue the far right today is aware of the “genuine existential danger – from climate breakdown to nuclear war to sky-rocketing inequality and unregulated AI – but [they are] financially and ideologically committed to deepening those threats”. It means the far-right “lacks any credible vision for a hopeful future”.
While this is “terrifying in its wickedness”, Klein and Taylor argue, it also “opens up powerful possibilities for resistance”.
“We are convinced that the more people understand the extent to which the right has succumbed to the Armageddon complex, the more they will be willing to fight back, realising that absolutely everything is now on the line,” they argue.
Klein and Taylor argue that the far right “know full well that we are entering an age of emergency”, but “having bought into various apartheid fantasies of bunkered safety, they are choosing to let the Earth burn. Our task is to build a wide and deep movement, as spiritual as it is political, strong enough to stop these unhinged traitors.”
The ICJ ruling gives climate activists and social change activists arguments and leverage to build such a movement, but it is not a substitute for that.
[Alex Bainbridge is a climate activist and a member of Socialist Alliance.]