Climate Reparations and the Refusal to Be Invisibilised: International Court of Justice’s Advisory Opinion and its Implications

Introduction

That July afternoon unfolded as a quintessential Dutch summer day. The sun intermittently broke through the lofty white clouds drifting across an expansive blue sky, casting moments of brilliance despite the overcast. The interplay of light and shadow mirrored the mood of millions around the world who were watching with bated breath, both in front of the International Court of Justice (ICJ) in The Hague and online, awaiting the Court’s Advisory Opinion on the Obligations of States in respect of Climate Change (ICJ AO).

I was part of a small group who had gathered in person to attend the Solidarity Demonstration in front of the peace palace where the ICJ is located, to watch the AO live on the 23rd of July 2025. I caught up with a few colleagues I had met in December last year during the Oral Hearings for the AO. It was a dark, windy, and rainy December that they had to fight through after a grueling five years of campaigning to bring the “world’s biggest problem (climate change) to the world’s highest court (ICJ)”.

On that cloudy-sunny Dutch afternoon, most of us had arrived as strangers. But by the time the Advisory Opinion reached its final stretch, we were smiling at each other - quietly, brightly - bound by a collective sense of witnessing history in real time. As cheers rippled through the crowd outside the ICJ, we learned that they could hear us inside. The almost two-hour session ended, but no one moved. To my obvious query of how they are feeling, a youth leader said with a relieved, wide-eyed smile, “it will take a while for this to sink in.” We were embracing each other. Tears were rolling down that none of us attempted to hide or wipe away. We were no longer strangers.

‍

Reparations in the ICJ AO Submissions

The ICJ AO on Climate Responsibilities follows a tradition of previous AOs wherein reparations have been claimed in diverse contexts including World War II, enslavement, and colonialism. Article 31 of the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) establishes the principle that a state responsible for an internationally wrongful act is under an obligation to make full reparation for the injury caused. This obligation incorporates all forms of damages arising from the wrongful act, including both material and moral harm. The underlying objective of full reparation, therefore, is to re-establish, to the extent possible, the situation that would have prevailed had the wrongful act not been committed.

The current AO was conceived and led by the PISFCC. In 2019, Lecturer Justin Rose at the University of South Pacific (USP), Vanuatu campus, in 2019 challenged his students “to research the most progressive legal pathways to address climate change and to propose one at the 2019 Pacific Island Leaders Forum Meeting in Tuvalu” . Cynthia Honohui, one of those students and now the President of PISFCC, says that they “chose to agitate for an ICJ ruling because it was the most ambitious action” on their list of climate actions (because) “... in the face of an existential threat to our people, ambition is what we need”.

The journey for the PISFCC’s campaign has been nothing short of tedious. The group turned this audaciously ambitious project of a class assignment into a world event – of a youth movement for demanding climate justice; with steadfast support from their respective Pacific States and partners, such as the World Youth for Climate Justice (WYCJ). Vanuatu was the first one to believe in the audacious ambitions of the Pacific youth group, providing diplomatic support by endorsing the proposal and tabling it as a resolution for an ICJ AO at the United Nations General Assembly (UNGA).

In 2023, nearly five years after the start of the process, the UNGA organised voting on the ICJ AO Request submitted by Vanuatu. The request “was agreed by consensus, after considerable discussion amongst states, and with more than 130 co-sponsors representing every UN regional grouping”. It was passed near COP 28, a critical year for the establishment of the Fund for Responding to Loss and Damage, the UNGA passed a resolution to go ahead with the AO Request to the ICJ.

The AO was requested to make clear the obligations of States to protect people in the context of climate (including transboundary responsibilities), as per international laws. Two questions were posed to the ICJ in the request. The second question concerns the legal consequences for States that have caused harm to the climate system through acts or omissions. A central issue is whether traditional rules of State responsibility apply in the context of climate change. Reparations formed a major part of this second question.

The Court received 91 written statements and 62 written comments in the Registry by States and international organizations. It held public hearings in the proceedings from 2 to 13 December 2024, during which 96 States and 11 international organizations presented oral statements. The Court notes that, “this is the highest level of participation in a proceeding in both the history of this Court and that of its predecessor, the Permanent Court of International Justice.”

Out of the total oral and written submissions, 11 countries, 3 intercontinental groups, and multiple individual (legal and social) representatives alluded to (legal) reparations in their respective oral submissions. Among those who called for legal reparations were Fiji, Vanuatu, Antigua and Barbados, Bolivia, and Colombia, among others. Vanuatu and many other countries showed from their perspective of the violated or the “injured”, the case for the agent responsible and therefore accountable for climate harms has been made clear. Reparations for climate harms and injustices were also called for by the PISFCC Leadership at the Oral Hearings.

Interestingly, developed countries such as the U.S., Germany, and representative bodies such as the European Union, speaking on reparations, emphasized how they are not related to the question of historical responsibility - foundational to the idea of climate reparations. Such arguments were “forcefully countered by some of the world’s most climate-vulnerable nations, including Fiji and Costa Rica, who persuasively set forth the legal basis for climate reparations proportionate with climate harms”.

ICJ AO and The Ease and Unease for Claiming (Meaningful) Reparations

The AO delivered by the ICJ on the 23^rd of July 2025 squarely and unequivocally places climate rights at the heart of human rights and historical responsibility – thereby paving the path for and enabling countries and people injured by anthropogenic climate change – to claim reparations. The Opinion underlines in no uncertain terms of the possibility for “full reparations” in the context of climate injustices: “Breaches of States’ Obligations” can lead to legal consequences provided for under the law of State responsibility. The Court notes, that, these include “obligations of cessation and non-repetition, which are consequences that apply irrespective of the existence of harm, as well as the consequences requiring full reparation, including restitution, compensation and/or satisfaction”. This statement makes it amply clear that the ICJ recognises and creates the space for the call for legal reparations demanded by many States in their submissions to the AO, as I showed above. The Opinion notes that in cases where there may be difficulty in deciding “the appropriate nature and quantum of reparations”, a list of possible actions may be referred including restitution; while simultaneously observing that “material reparations” may not be possible in many cases wherein the “responsible States have an obligation to compensate.” (p 25).

The limitations of the practicalities of operationalizing reparations have been noted in the separate opinions provided by a few of the 15 judges of the AO. Judge Bhandari notes that the Court could have recommended “the establishment of mechanisms such as claims commissions to systematically address the potentially vast number of claims (for reparations)”. Judge Yusuf of the bench found the AO “excessively formalistic” in its approach and called strongly for a distinction to be made between perpetrators of harm and those harmed in order to make a distinction in climate responsibilities: “The legal avenues for those who have suffered most should have been analysed — They are not nameless — The possibility for SIDS, LDCs and other injured States to invoke Article 42 of the ILC Articles on State Responsibility should have been addressed” which “has undermined the practical relevance of the Advisory Opinion”. A critical opinion was that the AO “failed to take into account the legal consequences of injuries arising out of conduct not prohibited by international law”. This observation sharply points to the limitation of the AO on the protection of people impacted by climate injustices within national borders – where only nationally applicable laws for environmental (in)justices guide everyday lives of climate-vulnerable communities.

In this light, I had approached a legal representative of Vanuatu in the ICJ AO following a Post-AO Event in The Hague with a query. My question was the practical implications of the AO in States where populist climate-regimes are being increasingly used to prioritise the interests of the private sector leading to more climate harm than climate action. Calling for legal reparations by environmental activist and legal groups, in such political-economically volatile contexts where there is “persistence of neoliberalism”, may call for their incarceration to say the least. In answering my query, the legal scholar, while leaving the venue in exhausted but utterly exuberant feet, noted that, such complex aspects of the applicability of the AO require time to be thought through. From an anthropological perspective, I could not agree more. A collective and longitudinal approach to the AO’s plausible political implications and sustained economic resources to collectively organize, represent, and make information accessible to affected communities in such contexts, are what is required of us to untangle such questions.

Finally, the road to the tangibility of what can material reparation and more so, moral reparation may look like in contexts where legal reparations can be called for, is a longer way ahead. The operationalization of the ICJ AO will also depend on the social and political context of a nation and the socio-economic resources including the information available to the diverse affected communities across the globe. Even for the Pacific, Dr Coral Pasisi, the Pacific Community’s Director of climate change noted in a post-ICJ AO event in The Hague, that, the translation of intangible losses and damages to tangible forms of repair and economic compensation remains utterly complex. Which is why it is critical that there is intergenerational dialoguing among a respective community’s elderly and the youth.

Legal scholars and climate justice advocates who find the AO outcome unsurprising, given its foundation in well-established principles of international law, however, contend that the AO is likely to exert significant long-term influence on the trajectory of international climate negotiations and climate politics, particularly in relation to the contested terrain of climate responsibility. We are starting to see this already. Many climate networks such as the Fill The Fund (for Loss and Damage) Campaign are already organizing around the AO to “demand that the Fund's Resource Mobilization Strategy be rooted in the legal liability of developed countries and corporate polluters”; particularly to “challenge any attempt to substitute grant-based reparations with burdensome loans.” Intercontinental groups such as the Alliance of Small Island Developing States (AOSIS) announced that it is now prepared to “carry” the AO “into every negotiation, every courtroom, and every call for justice”.

‍

Conclusion: Climate Reparations and the Refusal to Be Invisibilised

Calling the AO “A Historic Legal Breakthrough”, the PISFCC notes in a celebratory manner that the “Court delivered a clear roadmap to hold polluters accountable under multiple sources of international law, extending beyond the climate treaties and secure the right to remedy and reparation.” The case of the possibility of a concrete framework for full legal reparations, therefore, has been made; via the clear linkages made between climate rights and human rights, between climate injustices and reparations, and between those who owe historical responsibilities and those who are ecologically and historically vulnerable.

For now, the ICJ AO, the outcome and significance of which cannot be overstated for millions of climate-injured, vulnerable, and displaced communities across the planer, has done three things. First, it has brought the “next generation into the heart of climate discourse”. Second, it has reestablished the force of the what the Human Rights Lawyer from Guam, Julian Aguan, calls as an Anthem of his people - “to hell with drowning” - showing the rest of us that “a future rooted in respect for possibility” is possible after all. Third and finally, it demonstrated that a call for Reparations has the power to be transformative in today’s time when our planet and its inhabitants are going through multiple kinds of crises, genocide, and loss of homes and heart for humanity.

The transformative power is evidence in the real possibility for claiming legal reparations by those least responsible and most violated by anthropogenic climate change, however challenging the path may be; it is in the process of the AO campaign led by an almost impossible dream to be heard and acknowledged; and, it is the collective movement - led by climate-vulnerable and historically violated communities - for care and outright refusal to be invisibilised.