Chile’s Perspective on the ICJ Advisory Opinion on Climate Change: Implications for Domestic and Regional Climate Justice
Members of the Delegation of Chile Photograph: UN Photo/ICJ-CIJ/Jeroen Jumelet. Courtesy of the ICJ.
On 29 March 2023, the United Nations General Assembly (UNGA) adopted Resolution 77/276, requesting an advisory opinion from the International Court of Justice (ICJ) on the obligations of States regarding climate change. Chile, a strong advocate for international climate governance, submitted a detailed legal position supporting the ICJ’s jurisdiction and emphasising States’ obligations to reduce greenhouse gas (GHG) emissions under customary international law, the law of the sea, human rights law, and the climate change regime.
Chile’s submission reflects the growing role of the judiciary in climate governance, both internationally and domestically. This blog explores Chile’s arguments before the ICJ, their significance for Chilean courts, and the broader implications for regional climate litigation, particularly in light of the pending advisory opinion before the Inter-American Court of Human Rights (IACtHR).
“Wildfires about 33 kilometers SSE of San Fernando, Chile – January 23rd, 2021 (50883872103)” by Pierre Markuse from Hamm, Germany is licensed under CC BY 2.0.
Chile’s Legal Position Before the ICJ
Chile’s written submission before the ICJ supports the request for an advisory opinion, arguing that the ICJ has jurisdiction and that States have binding legal obligations to prevent harm to the climate system. The submission is built on four main legal foundations.
Customary International Law: The No-Harm Principle
Chile highlights that States have a customary duty under Principle 21 of the Stockholm Declaration (1972) to ensure activities within their jurisdiction do not harm other States or areas beyond national jurisdiction. This obligation, recognised in the ICJ’s Nuclear Weapons Advisory Opinion (1996) and Pulp Mills Case (2010), establishes a due diligence standard requiring States to take all necessary measures to reduce emissions and prevent environmental harm.
“Wildfires about 33 kilometers SSE of San Fernando, Chile – January 23rd, 2021 (50883872103)” by Pierre Markuse from Hamm, Germany is licensed under CC BY 2.0.
Law of the Sea and Climate Obligations
Chile emphasises that the United Nations Convention on the Law of the Sea (UNCLOS) imposes obligations to protect the marine environment, which is increasingly threatened by ocean acidification and warming due to CO2 emissions. Under Articles 192 and 194 of UNCLOS, States must prevent pollution—including from land-based sources—which strengthens the argument that GHG emissions fall within the scope of international legal obligations.
Human Rights and Climate Change
Chile invokes human rights law, noting that climate change disproportionately affects vulnerable communities. The submission aligns with regional and international human rights decisions, including the UN Human Rights Committee’s ruling in the Torres Strait Islanders Case (2022), which found that States failing to protect their populations from climate harm may violate human rights.
Climate Change Regime and State Responsibility
Chile argues that the UNFCCC, Kyoto Protocol, and Paris Agreement do not replace or weaken the customary duty not to cause harm but rather complement it. While the Paris Agreement sets collective reduction goals, individual State responsibility remains under customary international law and general State responsibility rules. The submission stresses that compliance with the Paris Agreement does not absolve States of liability if their emissions cause significant harm.
HE Ms Ximena Fuentes, Ambassador of the Republic of Chile to the United Kingdom of Great Britain and Northern Ireland (Chile) Photograph: UN Photo/ICJ-CIJ/Jeroen Jumelet. Courtesy of the ICJ.
Implications for Chilean Courts and Domestic Climate Litigation
Chile’s advocacy at the ICJ aligns with an emerging trend of domestic climate litigation in Latin America, where courts are increasingly recognising climate obligations based on international law and human rights principles.
While Chile has yet to develop a robust climate litigation framework, the country has seen a growing number of legal challenges related to climate change, particularly in cases addressing environmental protection, land use, and corporate accountability. According to the Sabin Center for Climate Change Law, Chile currently has 12 documented climate cases, but this figure does not capture the full extent of litigation where climate concerns arise as a secondary issue within broader environmental disputes. Many cases addressing deforestation, water management, and extractive industries involve implicit climate considerations, even if climate change is not explicitly mentioned in the legal arguments.
Strengthening Domestic Legal Arguments
If the ICJ confirms that States have binding obligations to reduce emissions and prevent climate harm, this could reinforce judicial decisions in Chile, holding the government accountable for climate inaction. Chilean courts have already begun incorporating international climate and environmental principles into their rulings, and an ICJ opinion would provide further legal clarity.
Expanding the Justiciability of Climate Rights
Chile has recognised the right to a healthy environment in its constitutional framework, and litigation invoking climate rights is increasing. If the ICJ advisory opinion affirms that climate change affects fundamental human rights, Chilean courts could expand judicial oversight over government climate policies.
Strengthening Obligations for Private Entities
A clear ICJ ruling could also influence Chilean jurisprudence on corporate accountability for climate change. Courts might apply due diligence and no-harm principles not only to the government but also to private polluters, potentially leading to increased climate-related liability for corporations.
The Inter-American Court’s Parallel Advisory Opinion on Climate Change
Chile’s legal position before the ICJ must also be viewed in light of the ongoing request for an advisory opinion from the Inter-American Court of Human Rights (IACtHR), submitted by Chile and Colombia in January 2023.
The IACtHR’s Role in Climate Justice
The Inter-American Court has a strong record of linking environmental protection with human rights. In its 2017 Advisory Opinion on Environment and Human Rights, the Court held that States have extraterritorial obligations to prevent environmental harm that affects human rights.
Complementarity with the ICJ Advisory Opinion
The ICJ and IACtHR opinions could reinforce each other:
The ICJ opinion would clarify State obligations under general international law, including customary law and treaty obligations.
The IACtHR opinion would explicitly frame these obligations in human rights terms, emphasising how climate inaction violates the fundamental rights of affected communities, particularly Indigenous peoples and small island developing States (SIDS).
Chile’s dual engagement with the ICJ and IACtHR highlights its commitment to using international legal mechanisms to advance climate justice. A strong ruling from both courts could push domestic courts across Latin America—including in Chile—to expand climate litigation pathways.
Ms Valeria Chiappini, Legal Adviser, International Law, Treaties and Legislative Affairs Division, Ministry of Foreign Affairs (Chile) Photograph: UN Photo/ICJ-CIJ/Jeroen Jumelet. Courtesy of the ICJ.
Conclusion: A Defining Moment for Climate Law in Chile and Beyond
Chile’s submission to the ICJ is a strategic step in shaping international climate law and reinforcing domestic and regional climate litigation. As Chilean courts increasingly adjudicate climate disputes, an ICJ advisory opinion could serve as a key reference in future cases, strengthening domestic enforcement of climate obligations.
Additionally, Chile’s leadership in seeking an IACtHR advisory opinion underscores the importance of integrating environmental and human rights law. If both the ICJ and IACtHR confirm that States have binding obligations to prevent climate harm, this could transform climate governance in Latin America and beyond, empowering courts to hold both governments and corporations accountable for climate inaction.
