The intensification of the effects of climate change has required increasingly structured responses from the international community. Recently, the International Court of Justice (ICJ) issued an advisory opinion that consolidated the legal obligations of States in addressing the climate crisis, paving the way for accountability and reparations in case of non-compliance. The opinion, requested by the United Nations General Assembly, provenances from the initiative of Vanuatu, an island country whose vulnerability to sea level rise exemplifies the real risks faced by several nations.

The ICJ was urged to clarify the legal obligations of States in relation to the protection of the climate system against anthropogenic greenhouse gas (GHG) emissions – those generated by human action – as well as the legal consequences arising from the violation of these obligations.

The legal basis for the opinion was based on Article 38 of the ICJ Statute,[1] which establishes the sources of international law, including treaties, international customs, and general principles of law. Instruments such as the United Nations Framework Convention on Climate Change (UNFCCC), the Kyoto Protocol and the Paris Agreement were considered, like others international human rights conventions.

The Court recognized that States have binding legal obligations to protect the climate system, including:

  • the duty to reduce GHG emissions;
  • adopt effective measures based on scientific evidence;
  • cooperate on a worldwide basis; and
  • ensure the actual enjoyment of human rights in the face of the climate crisis.

These obligations have been qualified as erga omnes duties, that is, obligations owed to the international community as each such, including future generations. The statement that these commitments are not just political goals, but legal obligations, reinforces the need for accountability in case of non-compliance.

The opinion establishes that the violation of climate obligations may constitute an unlawful worldwide basis on a act and lead to the accountability of the violator country – which may embrace the obligation to provide reparations, provided that the causal link between the unlawful act and the damage suffered is proven.

Despite its advisory nature, the legal and political weight of this opinion is great, and it can influence judicial decisions in national and international courts, guide public policies and to shore up multilateral negotiations, such as those that will take place at COP 30 – to be hosted by Brazil, in November in Belém, Pará.

In the Brazilian context, the opinion reinforces commitments already made by the country under the Paris Agreement, to which Brazil has been a signatory since 2016. In November 2024, during COP 29, Brazil presented its new Nationally Determined Contribution (NDC acronym),[2] setting the goal of reducing net GHG emissions by __% on inflow 2035 by 59% to 67%, compared to 2005 levels.

This commitment reflects a paradigm change in the national development model, with focus in the decarbonization of the economy, forest restoration and the promotion of climate justice, by replacing the traditional logic of growth based solely on the intensive exploitation of natural resources with an approach that integrates environmental sustainability, intergenerational responsibility and social equity as central pillars of public policies and economic strategies.

The ICJ's opinion may directly bias state public policies, judicial decisions and administrative actions, especially in relation to liability for environmental damage and the demand for higher climate ambition by States and private parties.

Companies, as economic and social agents, have direct liability in mitigating environmental impacts and promoting sustainable practices. The adoption of climate commitments, responsibility in managing environmental risks, and compliance with international standards must be part of the corporate strategy, reflecting the commitment jointly with sustainability and the protection of human rights.

Legal action is essential for mapping climate risks, defining preventive strategies, and preparing reparatory measures. In this sense, a specialized legal counsel becomes a valuable asset, to guide companies and public institutions in complying with international obligations, in managing environmental liabilities and in implementation of internal policies aligned with the principles of climate governance. This support not only contributes to regulatory compliance, but also strengthens social and environmental responsibility in the corporate environment.

For companies, to curtail environmental impacts and ensure compliance with international regulatory frameworks are crucial elements that must integrate legal and institutional planning. In addition to reducing risk, this approach enhances corporate standing and promotes a sustainable value chain. Preventive action is as relevant as litigation, as it allows you to avoid crises or, at least, mitigate their consequences.

Given the current scenario, it is imperative that companies are prepared to navigate the complexities of climate obligations and secure their position, rank, status, standing in the market, aligning with social and regulatory expectations. Proactivity in climate risk tenure is not just a legal responsibility, but a strategic opportunity to shore up sustainability and organizational resilience.

 

[1] 1. The Court, whose function it is to come to a decision regarding the controversies submitted in accordance with international law, shall apply; 2. international conventions, whether general or particular, which lay down rules expressly recognized by the States advocating the dispute; 3. international custom as evidence of a practice generally accepted as law; 4. the general principles of law recognized by civilized nations; 5. judicial decisions and the doctrines of advertisers under the higher competence of the various nations, as a means ancillary for the resolve of the de jure rules, without prejudice to the provisions of Article 59. 6. This provision does not restrict the Court's power to come to a decision regarding a litigation ex aequo et bono, if it suits the parties.

[2]The Nationally Determined Contribution (NDC) is the main instrument through which countries that are signatories to the Paris Agreement express their climate commitments. It is a national plan that establishes specific goals for decrease, reduction of greenhouse gas emissions, fitness to climate change and promotion of sustainable development, acknowledged and agreed to the capabilities and circumstances of each country.