South African Perspectives regarding the Advisory Opinions at the ICJ on Climate Change
Members of the Delegation of South Africa. Photograph: UN Photo/ICJ-CIJ/Frank van Beek. Courtesy of the ICJ.
Introduction
In 2023, the United Nations General Assembly (UNGA) adopted resolution A/RES77/276, requesting the International Court of Justice (ICJ) to render an Advisory Opinion on the obligations of States under international law to ensure the protection of the climate from anthropogenic greenhouse gas (GHG) emissions for States and for present and future generations. The ICJ was asked further to address the legal consequences under these obligations for States whose acts and omissions have caused significant harm to the climate, affecting States, including Small Island Developing States (SIDS) and peoples and individuals of the present and future generations adversely.
With potentially huge repercussions, this Advisory Opinion, expected in 2025, is set to shape international climate law and governance and delineate global responsibilities of States. Key reasons for its significant role include, first, the setting of legal precedent for State responsibility under international law in relation to climate change by clarifying the required action needed by States, as based on existing international legal frameworks and domestic commitments, to mitigate and adapt in the face of anthropogenic GHG emissions and dangerous climate change.
Secondly, the clarification of human rights implications, particularly as phrased in the second question, can potentially harmonise duties of protection by States as is required by law and science. Following the landmark Dutch Urgenda decision in December 2019 where the Netherlands Supreme Court established a legal duty of a State to increase its climate ambition and protect against dangerous climate change because of human rights implications, 2024 has seen the spread of human rights based climate litigation to global South jurisdictions such as India and to international courts, with the Inter-American Court of Human Rights holding hearings for its Advisory Opinion on the climate emergency and human rights in April 2024. Also in April 2024, the European Court of Human Rights adjudicated its very first human rights climate cases, followed by the International Tribunal for the Law of the Sea declaring that ‘climate change represents an existential threat and raises human rights concerns,’ in May 2024.
Thirdly, the impact of the ICJ lending its voice to the climate crisis will be felt not only on the countries directly involved, but will also influence all States, underscoring the global nature of climate change and setting a global precedent encouraging consistent application of climate policies for use in future climate litigation. This could potentially open the door for transnational climate litigation, especially in matters of the sea and trade, and for corporate climate cases.
Fourthly, it has served as a powerful tool for leveraging by youth, NGOs, civil society and other stakeholders pushing for stronger climate actions both at national and international levels. Lastly, this Advisory Opinion could highlight the disproportionate impact of climate change on developing countries and SIDS. In summary, an ICJ climate Advisory Opinion is significant because it could establish a solid legal framework for addressing climate change, clarify States' obligations under international law, and promote greater accountability in global climate governance.
Whilst this Advisory Opinion is historic and concerns all UN Member States, this blog focuses on South Africa and what this could herald for the African region, from which nine African States submitted written statements.
HE Mr Vusimuzi Madonsela, Ambassador of the Republic of South Africa to the Kingdom of the Netherlands (South Africa). Photograph: UN Photo/ICJ-CIJ/Frank van Beek. Courtesy of the ICJ.
South African Perspective
The Government of the Republic of South Africa submitted its written statement addressing jurisdiction, statements of law, obligations for States under the climate change regime and the legal consequences of not complying with these obligations.
Jurisdiction
Whilst South Africa did not contest the jurisdiction of the ICJ, it critically engaged with the framing of the questions in Resolution 77/276, contending that the questions were too broad and failed to reflect the complexity of climate-related issues. It asserted African vulnerabilities and advocated for a more inclusive approach in international climate discussions. South Africa emphasised that whilst maintaining and highlighting the plights of SIDS, the questions ought not to overlook the vulnerability and specific climate challenges of Africa. South Africa amplified African inequities from the impacts of climate change and called for legal outcomes that are globally relevant and not just tailored to a subset of vulnerable nations.
South Africa further advocated for legal completeness by highlighting that, despite its legal relevance and continued applicability, the omission of the Kyoto Protocol, with near-universal ratification, is a red flag signalling that the legal framing might be incomplete or biased and that all relevant climate treaties should be considered for the Advisory Opinion. This would ensure the protection of obligations under international climate law.
By pointing out the lack of focus on adaptation, South Africa promoted adaptation as equal to mitigation, saying that developing countries require resources to adapt to climate change. The questions failed to address States’ obligations on adaptation, which is central to international climate policy and that adaptation requires resource allocation that affects mitigation efforts. This strengthens the call for equity and differentiated responsibilities and serves as a reminder that legal questions in international climate law should reflect the reality on the ground and not just abstract emission targets.
South Africa warned against legal fragmentation and called for judicial consistency to ensure that international law remains united and credible. With multiple courts handling similar issues, the possibility of conflicting opinions is rife, which could weaken global climate law coherence and open the door to forum shopping by different States.
Ultimately, South Africa positioned itself as a responsible and engaged member of the international community advocating for fairness, inclusivity and a comprehensive legal framing, seeking to protect African and Global South interests in the climate law landscape whilst shaping the Advisory Opinion to be broader and more reflective of the realities faced by developing countries.
Statement of Law
South Africa argued that international climate law forms a specialised legal regime (lex specialis), which is distinct from general international law. It thus urged the ICJ to apply distinct rules of interpretation, for example, that a special law repeals general law, to understand unique obligations in international climate law, reinforcing the need for climate-specific legal analysis as opposed to general environmental or human rights frameworks alone.
South Africa stressed that the triad of treaties, the United Nations Framework Convention on Climate Change (UNFCCC), the Kyoto Protocol, and the Paris Agreement, are binding and must be applied together, emphasising that the Paris Agreement does not replace the UNFCCC or the Kyoto Protocol. The omission of the Kyoto Protocol is a serious gap which South Africa wants answered.
South Africa further asserted that legal obligations must be interpreted contextually and on a case-by-case basis, given that there are varied national circumstances, nuanced legal obligations and differentiated responsibilities. South Africa invoked the principles of equity, common but differentiated responsibilities and respective capabilities, sustainable development and just transitions to guide interpretation and shape the Advisory Opinion.
Noting that despite contributing only 7% of global emissions, Africa is one of the most vulnerable regions, and that developing countries in Africa are forced to spend significant budgets on adaptation, often without adequate international support. In contrast, developed countries have historically emitted the highest emissions, while having industrialised early and thus benefited economically. Developed countries must take action and provide financial assistance and support for technology transfer to developing countries.
Obligations for States under the climate change regime
Noting that climate obligations are tiered by development status, South Africa enumerated the clear legal distinction between developing and developed countries, with developed countries bearing greater responsibility due to their historical emissions as well as the fact they have more resources with which to address climate change and thus face stricter obligations under the UNFCCC, the Kyoto Protocol and the Paris Agreement.
South Africa thus holds that climate obligations are legally complex and layered, that equity and justice are central and that developed countries must lead, and support mitigation and adaptation finance. This is not optional but a critical legal imperative, upon which the NDCs hinge.
Legal Consequences
South Africa reiterated its cautious and principled approach, stressing that the ICJ should interpret and address State obligations under the international climate regime and that climate obligations must be interpreted through key principles of equity, common but differentiated responsibilities and respective capabilities and sustainable development.
Furthermore, South Africa holds that legal obligations are not uniform across States and that a one-size-fits-all approach would be inconsistent with factual reality. Legal consequences must be context-specific, and the determination of whether a legal obligation has been breached must be done on a case-by-case basis.
Ms Romi Brammer, Principal State Law Adviser, International Law, Department of International Relations and Cooperation (South Africa). Photograph: UN Photo/ICJ-CIJ/Frank van Beek.
Implications for the African Region
Four critical perspectives were raised by South Africa. First, it supports the ICJ process but demands fairness in that the Court's legal interpretation must be grounded in climate-specific law, considering all climate treaties and reflective of real-world capabilities and responsibilities.
Secondly, in emphasising the asymmetry of climate responsibilities, South Africa underscored that developed countries have historically caused the climate problem, have more resources and thus must lead in mitigation, adaptation finance and technology transfer. Developing countries like South Africa have obligations of conduct, and their ability to act depends on support. South Africa is pushing back on any suggestion that all countries share equal blame or legal burden.
Thirdly, South Africa insists that adaptation is just as critical as mitigation, especially for vulnerable States already facing severe climate impacts. It wants the ICJ to affirm that support for adaptation is a legal obligation.
Fourth, it warns against abstract or rigid legal interpretations by the ICJ, fearing that this could undermine climate plans, lead to climate uncertainty and trigger a wave of climate litigation.
There are several implications for the African region arising from here, including championing Africa’s vulnerability and voice. South Africa positions itself as a spokesperson for African and other Global South nations who contribute the least to climate change yet suffer the most from its harmful effects and lack the responses to respond.
Significant is the push for climate financing as a legal obligation. Highlighting legal duties across all climate treaties, South Africa is advocating for binding funding commitments from developed countries to share the burden of a global problem. This could support African countries in holding richer nations accountable in future climate negotiations.
It also implies that South Africa is defending the right to develop sustainably, without being punished for emissions it has not caused, setting the tone for African climate growth and resilience. This encourages policy alignment within the region, potentially leading to greater regional coordination on adaptation planning, just transitions and preparation for climate litigation.
Conclusion
South Africa urges the Court to recognise the differentiated and context-dependent nature of climate obligations, and to respect the integrity of the specialised legal framework and compliance mechanisms painstakingly developed by the international community, reminding the Court that this Advisory Opinion will significantly contribute to the landscape of international climate law.
