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The Advisory Opinion

The long awaited ICJ Advisory opinion on states obligation on Climate Change is finally here! It says that government actions driving climate change are illegal, and states are legally bound to cut their emissions and compensate vulnerable nations for the harm they have caused. This implies that countries need to get serious about tackling climate change as soon as possible. This is huge. The ICJ is basically saying states must work together to cut emissions, honour global climate agreements, and protect vulnerable communities and ecosystems. The Court even declared that having a “clean, healthy, and sustainable environment” is a fundamental human right.

Augustine B Njamnshi

If countries fail to take action to protect the planet, it could constitute a violation of international law. Judge Yuji Iwasawa emphasised that “States must cooperate to achieve concrete emission reduction targets.” If countries fail to comply with the stringent obligations outlined in climate treaties, that constitutes a breach of international law. The Court also made it clear that countries are responsible for the actions of companies under their jurisdiction or control, which means they need to rein in fossil fuel production.

Background To the Advisory Opinion

This initiative’s roots go back to a 2019 grassroots movement spearheaded by Pacific Island youth – the Pacific Islands Students Fighting Climate Change (PISFCC). These young leaders, who are on the frontlines of the climate crisis, showed determination and vision. In March 2019, they took action, writing to all Pacific governments to seek support for their proposal for an ICJ advisory opinion. Their efforts paid off, gaining backing from regional leaders and, crucially, Vanuatu’s Foreign Minister who with others, would champion the course to secure the UNGA resolution for this.

In 2023, the UN General Assembly, under Article 96 of the Charter of the United Nations, decided to request the International Court of Justice, pursuant to Article 65 of the Statute of the Court, to render an advisory opinion on the following question:

“Having particular regard to the Charter of the United Nations, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the United Nations Framework Convention on Climate Change, the Paris Agreement, the United Nations Convention on the Law of the Sea, the duty of due diligence, the rights recognized in the Universal Declaration of Human Rights, the principle of prevention of significant harm to the environment and the duty to protect and preserve the marine environment,

(a) 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?

(b) 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?

(ii) Peoples and individuals of the present and future generations affected by the adverse effects of climate change?”

The decision to request this Advisory Opinion was taken as the UNGA noted with utmost concern the scientific consensus, expressed, inter alia, in the reports of the Intergovernmental Panel on Climate Change, including that anthropogenic emissions of greenhouses gases are unequivocally the dominant cause of the global warming observed since the mid-20th century, that human-induced climate change, including more frequent and intense extreme events, has caused widespread adverse impacts and related losses and damages to nature and people, beyond natural climate variability, and that across sectors and regions the most vulnerable people and systems are observed to be disproportionately affected.

As the opinion was awaited UNGA continued emphasising the urgency of scaling up action and support, including finance, capacity-building and technology transfer, to enhance adaptive capacity and to implement collaborative approaches for effectively responding to the adverse effects of climate change, as well as for averting, minimizing and addressing loss and damage associated with those effects in developing countries that are particularly vulnerable to these effects.

Provision of climate finance has always been an emotive issue that has perpetually widened the North-South divide over who has the obligation to provide climate finance and on what terms. In recent years, this scenario has characterised climate negotiations, leaving developing countries with the impression that developed countries keep making climate finance discussions a “red flag” as though developing countries are just begging or are simply money minded. This could even be seen during this ICJ process when many developed country states raised the lex specialis argument, which suggests that the specific treaty regimes related to climate change – such as the UNFCCC and the Paris Agreement – should be considered as the primary or only source of law for determining states’ obligations in relation to climate change.

This is threat to climate justice and now that this lex specialis argument was rejected by the Court and with the unequivocal Advisory Opinion of the ICJ stating that states are legally bound to cut their emissions and compensate vulnerable nations for the harm they have caused, there is a need to look at Climate Change and Climate Finance (especially adaptation finance) negotiations from a Transitional Justice perspective.

The Urgent Need for A Transitional Justice Approach to Climate (Adaptation) Finance

Historical Responsibility: Developed countries have contributed significantly more to greenhouse gas emissions historically. A transitional justice approach acknowledges this responsibility and aims to correct historical injustices by ensuring these countries contribute more to climate finance. It is true, we all have to “clean the climate mess,” but in doing so, we should not forget who created the mess and continued to do so, who benefited from the mess and continued to do so, who can stop the mess and has the capacity to do so.

This is what the Principle of Common but Differentiated Responsibility according to Respective Capabilities (CBDR), which is a cornerstone of the Framework Convention on Climate Change, is all about. Again, remember, the impacts of climate change are already there and are increasing daily. The Paris agreement is very clear about who should provide the money, for whom and for what purposes. Article 9, paragraphs 1 and 2 state that:

1) Developed country Parties shall provide financial resources to assist developing country Parties for both mitigation and adaptation in continuation of their existing obligations under the Convention.

2) Other Parties are encouraged to provide or continue to provide such support voluntarily.

If everyone must put their hands on deck to stop and clean the climate mess, money is needed, and therefore, developed countries are obliged to provide the money for developing countries to do so. Other parties (non-developed countries) are encouraged (not obliged) to provide or (for those who have already been doing so) continue to provide such support voluntarily.

Vulnerable Populations and Equitable Distribution: Climate change disproportionately affects vulnerable populations in developing countries, who often lack the resources to adapt. Transitional justice ensures that these communities receive the necessary support to cope with climate impacts. The provision of climate Finance should be anchored on the felt needs (not quick fixing) of developing countries. Transitional justice promotes the equitable distribution of climate finance, ensuring that funds are allocated based on need and vulnerability rather than political or economic influence.

For this reason Article 9.3 states that 🙁As part of a global effort, developed country Parties should continue to take the lead in mobilising climate finance from a wide variety of sources, instruments and channels, noting the significant role of public funds, through a variety of actions, including supporting country-driven strategies, and taking into account the needs and priorities of developing country Parties. Such mobilisation of climate finance should represent a progression beyond previous efforts.

What, therefore, are the felt needs and priorities of developing countries? In general, the priority needs of developing countries, especially Africa, are adapting to the present and future impacts of climate change, poverty eradication, sustainable development, and finally mitigation. It means developed countries should provide money mostly in the form of grants to help them cope with the impacts of climate change that they never caused in the first place.

Grants, not loans, because “you cannot set fire on someone’s house and sell them the fire extinguisher or, worse still, loan them money to rebuild it.” Article 9.4 provides that: “The provision of scaled-up financial resources should aim to achieve a balance between adaptation and mitigation, taking into account country-driven strategies, and the priorities and needs of developing country Parties, especially those that are particularly vulnerable to the adverse effects of climate change and have significant capacity constraints, such as the least developed countries and small island developing States, considering the need for public and grant-based resources for adaptation.”

Reparations and Redress: By framing climate finance through a transitional justice lens, there is a focus on reparations and redress for communities that have suffered losses and damages due to climate change, promoting healing and reconciliation. The past decades have shown us that “political feel-good announcements” that developed countries make on the stage each time we have a big meeting have not helped. We have heard this so many times! We have had experiences where developed countries turn around and baptize anything as climate finance.

Attempts to count activities such as efforts to stop illegal immigration from Africa to Europe and space research as climate finance are just a few of them. Predictability, therefore, remains key, and for that reason, the 5th paragraph of Article 9 provides that “Developed country Parties shall biennially communicate indicative quantitative and qualitative information related to paragraphs 1 and 3 of this Article, as applicable, including, as available, projected levels of public financial resources to be provided to developing country Parties. Other Parties providing resources are encouraged to communicate biennially such information on a voluntary basis.”

Participation, Inclusion and Trust Building: A transitional justice approach ensures that affected communities are actively involved in climate finance decision-making processes, promoting transparency, accountability, and inclusivity. Moreover, incorporating principles of transitional justice can build trust between developed and developing countries, fostering better cooperation and more effective climate action.

In providing this financial support to developing countries, developed countries have to show utmost transparency by providing timely and useful information about it. Article 9.7 provides thus: “Developed country Parties shall provide transparent and consistent information on support for developing country Parties provided and mobilised through public interventions biennially in accordance with the modalities, procedures and guidelines to be adopted by the Conference of the Parties serving as the meeting of the Parties to this Agreement, at its first session, as stipulated in Article 13, paragraph 13. Other Parties are encouraged to do so.”

Conclusion: The ICJ’s Advisory Opinion on climate change presents an opportunity to re-think climate adaptation finance negotiations because it clarifies states’ obligations under international law and strengthens the legal basis for climate action, potentially leading to increased financial support for vulnerable nations. By clarifying these obligations, the opinion will help unlock stalled negotiations, strengthen demands for climate finance, and reinforce the need for action rooted in science. By rejecting the lex specialis argument, the ICJ affirms that obligations related to climate change extend beyond the UNFCCC and Paris Agreement, applying even to states not party to those treaties.

A Transitional Justice approach in climate adaptation finance negotiations will therefore help in addressing past injustices and ensuring fair treatment of all parties lays a foundation for long-term sustainability and resilience, creating a more just and equitable global response to climate change. Overall, integrating transitional justice into climate finance negotiations can help rectify historical wrongs, ensure fair distribution of resources, and support vulnerable populations in adapting to and mitigating the impacts of climate change.

By Augustine B Njamnshi, lawyer, Co-Founder and Chair of Political and Technical Affairs of the Pan African Climate Justice Alliance (PACJA). He is also the Executive Director of the African Coalition for Sustainable Energy and Access (ACSEA)

Dar es Salaam. The Minister of State in Vice President’s Office (Union and Environment), Dr Selemani Jafo, has revealed the national slogan that will echo through the corridors of the upcoming conference of parties (COP28) in Dubai later this month.

The slogan, “Strengthening Sustainable Agriculture and the Blue Economy in Combating Climate Change,” encapsulates the nation’s commitment to addressing environmental challenges and fostering sustainable practices.

The annual global United Nations Climate Conference taking place November 30 – December 12, this year will bring together heads of state and government officials, international agencies, corporations, civil society, and young people to negotiate and coordinate global climate actions.

Hosted by the United Arab Emirates, this year’s conference takes place amidst a growing sense of urgency regarding the impact climate change already has on people and the planet.

Speaking over the weekend the Minister said, “One notable feature at the conference will be Tanzania’s dedicated pavilion, designed not only to disseminate knowledge but also to spotlight the diverse opportunities the country offers,”

“The pavilion will serve as a hub for training sessions and discussions on Tanzania’s involvement in the fight against climate change, coupled with its wealth of tourism possibilities,” said Dr Jafo.

According to the minister last year’s COP27 which was held in Eqypt laid the groundwork for Tanzania’s active participation in global efforts against climate change. T

“The country secured over $18 million, a significant portion of which was directed towards bolstering the energy sector,” he said.

President Samia Suluhu Hassan is set to participate in side events and bilateral meetings aimed at promoting Tanzania on the global stage.

Dr Jafo said these engagements are not only about showcasing the nation’s commitment to environmental causes but also about seeking collaborative opportunities with international partners.

The Minister emphasized the importance of leveraging the respect Tanzania holds to construct a prominent pavilion.

He urged stakeholders to use this opportunity to showcase the nation’s achievements and to demonstrate the strides made in environmental sustainability.

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As the 20th African Ministerial Conference on the Environment (AMCEN20) comes to an end , climate justice groups and movements are celebrating African governments continued leadership in rejecting dangerous solar geoengineering technologies.

African ministers

These schemes are being pushed on the African continent and globally- but African Ministers sent a powerful message to the world at AMCEN20 that solar geoengineering has no place as a climate solution and must be rejected permanently. The decision on Africa’s Engagement in the 7th UN Environment Assembly (UNEA-7) states:

“We reiterate our position that such technologies pose significant and uncertain environmental, ethical and geopolitical risks, and must not be considered as viable options within the multilateral environmental agenda.”

AMCEN20 decisions highlighted the inherent risks Solar Geoengineering poses to the environment and peoples, and explicitly calls for “the establishment of a solar geoengineering non-use agreement ”, which would ban any efforts to normalise these technologies. The decision states:

:We would like to reaffirm our full rejection of any attempt to promote Stratospheric Aerosol Injection (SAl) or other forms of solar geoengineering Technology as a climate change mitigation solution.”

The African countries also called for a United Nations General Assembly resolution to advance this further. These positions are articulated in the Tripoli Declaration and Decision 9 on Engagement of Africa in UNEA7. These decisions build on AMCEN19/5 where African Ministers collectively called for a global governance mechanism for the non-use of solar radiation modification, and follows strong leadership from the African group at UNEA-6 in preventing a resolution going forward that could have legitimised these dangerous technologies.

The decisions at AMCEN20 are hugely significant, sending a clear signal to the international community towards rejection of solar geoengineering and exposing the forces that are trying to make these dangerous technologies appear like an option.

Across the continent, African communities are already advancing real climate solutions rooted in climate justice – from agroecology and renewable energy to ecosystem restoration and community-led adaptation.

Barbara Ntambirweki, Researcher & Senior Campaigner, ETC Group, said: “This is a major victory for Africa! We commend AMCEN for its courageous and decisive stance in rejecting solar geoengineering as a climate solution. This achievement marks an important milestone in tackling the climate crisis without turning to risky and unproven technologies. Real solutions are grounded in ecosystem restoration and community-led adaptation efforts. AMCEN decision sends a clear message to the world: our continent is not a testing ground for dangerous, untested technological experiments.”

Kenneth Nana Amoateng, Executive Director, AbibiNsroma Foundation, Ghana, said: “Just transitions need to ensure no dangerous technologies are advanced and deployed in the name of climate action. This includes geoengineering, and particularly solar radiation modification (SRM). We recognise the inherent and existential risks of SRM, and the impossibility to govern deployment of the technology in a fair and lasting manner. We hence strongly support the call for a global governance mechanism for non-use of solar radiation modification by all African Ministers at the African Ministerial Conference on the Environment (AMCEN) 2023 and expect further African leadership towards the establishment of such an International Solar Geoengineering Non-Use Agreement.”

Amos Nkpeebo, FIDEP Foundation, Ghana, said: “As African youth, we stand firmly behind AMCEN’s call for a global non-use agreement on solar geoengineering. Our futures must not be further endangered by more pollution. African youth, from Ghana to South Africa, are rising together to say we will use this AMCEN@40 decision to demand accelerated investment in real, proven solutions. We call on African leaders to scale up community-owned solar power, agroecology and community-driven resilience strategies that protect our future.”

Dr. Mfoniso Xael, Programmes Manager, Health of Mother Earth Foundation, Nigeria, said: “We applaud AMCEN for taking a bold and unwavering stand against geoengineering at its 20th ordinary session. By rejecting dangerous schemes like Solar Radiation Modification (SRM) and Stratospheric Aerosol Injection (SAI), African environment ministers are defending the continent’s people, ecosystems, and future from risky, unproven climate manipulation.

“This is a clear message: Africa will not be a testing ground for high-stakes technological gambles pushed by powerful interests. This leadership is not just for Africa, it’s a global wake-up call. AMCEN is drawing a red line where others hesitate, reminding the world that real climate action means cutting emissions, not playing god with the sky. Africa is standing up for climate justice, and the world should follow.:

Josué Arun, Executive Director of Congo Basin Conservation Society CBCS-Network DRC, said: “African civil society expresses its gratitude to our African governments for their collaboration and for listening to the voices of the oppressed people by colonialists on the current and future threats linked to the use of dangerous technologies to fight climate change such as geoengineering. African civil society remains convinced that the only real way to combat climate change is to provide financial support for the protection and restoration of forests through community-based solutions such as agroecology.

“The funding mechanism must be flexible and accessible to civil society and indigenous peoples and must coincide with national and local priorities and not be based on the transfer of dangerous technologies such as Solar Radiation Management (SRM). Rich countries must support this funding mechanism, which can most effectively benefit forests and forest communities, in particular indigenous peoples and local communities (IPLCs), the local scientific community and other stakeholders on the ground, whose commitment is essential for effective forest protection and climate actions. We will continue to fight until the use of these dangerous technologies is completely cancelled in Africa.”

Kwami Kpondzo, Director Centre pour la Justice Environnementale, Togo, said: “The climate crisis continues to open our eyes on the importance of our choices in terms of solutions. People centred solutions with the respect of human rights and people’s dignity need to continue prevailing. Geoengineering is a false solution! The outcome of AMCEN on the Non Use Agreement is reassuring us that peoples before profit is the way to go amidst climate change.”

Gideon Akoto, Project Coordinator, Friends of the Earth Ghana /FoE Africa, said: “We commend African ministers at AMCEN20 for taking a bold and united stance in rejecting solar geoengineering and Stratospheric Aerosol Injection (SAI). These false solutions are a dangerous distraction from the urgent need to phase out fossil fuels, support community-led adaptation, and promote just and equitable climate solutions. Africa must not become a testing ground for risky technologies that threaten our ecosystems, sovereignty, and future. We reaffirm our call for a global non-use agreement and echo the ministers’ demand for a UN resolution to protect Africa and the world from the harms of geoengineering.”

Dean Bhekumuzi, Just Transitions Lead at Power Shift Africa, noted: “Solar Radiation is a dangerous and short-sighted ambition. African Ministers have exposed a critical misalignment between geoengineering and the real needs of climate vulnerable nations. This decision is not just a refusal of false solutions but should serve as a signal to other global leaders, that the path forward is not in atmospheric manipulation, but in confronting the root causes of the climate collapse and investing in equitable, lasting solutions. Africa is showing that principled leadership is possible and necessary in the face of the ongoing climate crisis.”