ICJ Ruling on Climate Change Responsibility and First Nations Climate Litigation

Key Takeaways

  • The International Court of Justice (ICJ) has issued an advisory opinion confirming that states have legal obligations under international law to reduce greenhouse gas (GHG) emissions and protect the climate system.
  • States that fail to meet these obligations may face legal consequences, including restitution, compensation, and other forms of reparation.
  • Although not binding, the opinion will likely influence Australian climate litigation, particularly in how courts assess attribution, causation, and the public interest in fossil fuel projects.
  • The ruling is especially relevant for First Nations climate litigation, where communities are seeking recognition of the impacts of climate change on their lands, cultural practices, and human rights.
  • Recent Australian cases such as Pabai v Commonwealth (Torres Strait climate damages) and Gomeroi People v Santos (Narrabri Gas Project) point to the increasing relevance of international climate standards on domestic legal challenges.  
  • The opinion strengthens the legal and moral foundation for climate justice claims in Australia, especially those led by First Nations groups.

Background to the ICJ Advisory Opinion

On 24 July 2025, the International Court of Justice (ICJ) delivered its much-anticipated advisory opinion on state obligations in addressing climate change (Advisory Opinion). The United Nations General Assembly had referred the following two questions in 2023,[1] following a campaign led by Vanuatu and other small island states:

  1. What obligations do states have under international law to protect the climate and environment from anthropogenic GHG emissions for present and future generations?
  2. What are the legal consequences for states that, by act or omission, cause significant harm to the climate system or environment?

The ICJ’s Findings on State Obligations

The ICJ found that:

  1. Binding obligations exist under international treaties (including the United Nations Framework Convention on Climate Change, the Kyoto Protocol and the Paris Agreement), customary international law and international human rights law for states to take action to protect the climate from GHG emissions.
  2. States that breach these obligations may face “the entire panoply of legal consequences,” including restitution, compensation, and/or satisfaction.[2]

This advisory opinion establishes a higher standard of accountability for states in relation to climate change mitigation, adaptation, and protection of human rights.

What Does the ICJ Advisory Opinion Mean for Australia?

Although advisory opinions of the ICJ are not legally binding, they carry significant persuasive authority. Australian courts are likely to consider these principles when evaluating climate litigation, especially in cases involving:

  • Attribution and causation of climate harms,
  • The public interest test in project approvals, and
  • The recognition of international human rights law in environmental matters.

For Australia, a major exporter of fossil fuels, the ICJ’s opinion is especially relevant. The Court highlighted that state obligations extend to the full range of human activities contributing to climate change—both consumption and production.[3] The ICJ also underscored the duty of states to regulate private actors[4] and the fundamental link between the right to a healthy environment and the enjoyment of other human rights.[5]

First Nations Climate Litigation in Australia

The ICJ’s findings resonate strongly with ongoing climate change cases in Australia brought by First Nations peoples. These cases often seek protection for communities, country, cultural practices, and traditional rights impacted by climate change.

Torres Strait Climate Litigation – Pabai v Commonwealth of Australia (No 2)

In Pabai v Commonwealth of Australia (No 2) [2025] FCA 796, Torres Strait Islanders sought damages in negligence for the impacts of climate change on their low-lying islands and cultural practices known as Ailan Kastom.

While Justice Wigney acknowledged the real and serious impacts of climate change, including erosion of sacred sites and subsistence resources, the Court rejected the claim. His Honour did not recognise Ailan Kastom as giving rise to legally protectable rights under common law.[6]

This outcome stands in contrast to the ICJ Advisory Opinion, which affirms the right to a clean, healthy and sustainable environment and the potential liability of states for failing to protect against climate harms.

As at November 2025, this decision is the subject of an appeal. 

Gomeroi People and the Narrabri Gas Project

In Gomeroi People v Santos [2024] FCAFC 26, the Federal Court overturned an earlier National Native Title Tribunal (NNTT) decision approving petroleum leases for the Narrabri Gas Project,[7] partly due to the NNTT’s failure to consider the public interest in environmental impacts.[8]

On remittal, the NNTT in May 2025 again approved the project,[9] but only after imposing conditions, such as limiting gas extraction to domestic supply and funding a ranger program to manage ecological impacts.[10] The Gomeroi People have appealed this decision, continuing their efforts to resist the project on environmental and cultural grounds.

The Intersection of International and Domestic Climate Standards

It is likely courts will continue to resist making findings on issues of policy.[11] However, the ICJ’s Advisory Opinion adds weight to ongoing legal arguments in Australian courts about:

  • The role of Australia’s GHG emission targets under the Paris Agreement,
  • How government bodies assess the public interest in fossil fuel projects, and
  • The conditions and safeguards imposed on approvals to mitigate climate risks.

For First Nations communities, the Advisory Opinion provides moral and legal support in their climate justice campaigns, reinforcing claims that state and corporate actors must account for the impacts of climate change on country, culture, and livelihoods.

Conclusion

The ICJ Advisory Opinion is a landmark moment in the development of international climate law. While not binding, it establishes authoritative principles that will likely shape both global and domestic climate litigation.

For Australia, and especially for First Nations groups leading climate change cases, the ruling provides a powerful reference point. It underscores the growing recognition of climate change as a human rights issue and raises the standard of accountability for states in fulfilling their obligations under international law.

This is general commentary and is not legal advice. If you are unsure how this commentary may be relevant to you, seek legal advice. For more information, contact us.

[1] International Court of Justice, ‘Obligations of States in Respect of Climate Change’, advisory opinion (23 July 2023; Advisory Opinion) at [1].

[2] Advisory Opinion at [445].

[3] Advisory Opinion at [94]; importantly under the Paris Agreement to date state parties have been accounting for their emissions at point of consumption, as opposed to point of export.

[4] Advisory Opinion at [428].

[5] Advisory Opinion at [393].

[6] Pabai v Commonwealth of Australia (No 2) [2025] FCA 796 at [1131]-[1132].

[7] See MPS Law’s case note on the judgement here.

[8] Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26 at [212]. See Native Title Act 1993 (Cth), ss 39(1)(e) and 39(1)(f).

[9] Santos NSW Pty Ltd v Gomeroi People and ors [2025] NNTTA 12.

[10] Santos NSW Pty Ltd v Gomeroi People and ors [2025] NNTTA 12 at [409] & [417].

[11] For instance, in Pabai v Commonwealth of Australia (No 2) [2025] FCA 796 at [1154], the Wigney J found that it would be inappropriate and impractical for the Court to pass judgment in respect of the reasonableness of high-level policy choices and decisions in relation to appropriate adaptation measures in response to climate impacts.