On March 29, 2023, the United Nations ("UN") General Assembly adopted a resolution requesting the International Court of Justice ("ICJ") to issue an advisory opinion on States' obligations regarding climate change under international law, including the United Nations Framework Convention on Climate Change and the Paris Agreement. This resolution was put forward by the Republic of Vanuatu and adopted with more than 120 States as co-sponsors. 

In light of its exposure to the potential consequences of climate change as a low-lying atoll State, Vanuatu has been increasingly involved in the climate justice movement over the last decades. As part of its action, Vanuatu officially announced its intention to submit a UN resolution in September 2021 and prepared a draft resolution aimed at establishing the legal avenues for climate justice, with the contribution of 17 other States, including Germany, Mozambique, Portugal, as well as a number of small island states. A similar initiative had been introduced in 2011 by Palau and the Marshall Islands, but failed to succeed.

This resolution, which is the first successful request for an opinion of the ICJ regarding climate change, requested an answer to the following questions:

• What are the obligations of States under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases for States and for present and future generations?
• What are the legal consequences under these obligations for States where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect to: (i) States, including, in particular, small island developing States, which due to their geographical circumstances and level of development, are injured or specially affected by or are particularly vulnerable to the adverse effects of climate change?; and (ii) Peoples and individuals of the present and future generations affected by the adverse effects of climate change?

In order to provide an opinion on these questions, the ICJ will have to analyze all international agreements and principles to determine the obligations of States regarding climate change.

The ICJ already set some procedural deadlines in this matter. States and international organizations, if authorized by the ICJ, will have until October 20, 2023, to submit written statements and then until January 22, 2024, to respond to statements of others. Then public hearings will be held. The proceedings may take up to 18 months before the ICJ issues its opinion.

Although the ICJ advisory opinions are nonbinding, and therefore do not have any direct legal consequences, the opinion that will be issued on these questions could influence future climate policies and litigation worldwide. Depending on its content, this advisory opinion could indeed guide States' and the UN's actions on climate change and, as a consequence, have an indirect impact on business in light of additional regulations that may be adopted. It could also be used by claimants (citizens, NGOs) and courts in the increasing number of climate lawsuits against States.