In July 2025, the Worldwide Court docket of Justice issued its landmark advisory opinion on local weather change that’s ground-breaking in lots of respects. Amongst them is the Court docket’s affirmation that environmental safety is a situation for the enjoyment of human rights and its recognition of the best to a clear, wholesome and sustainable setting (for simplicity, “proper to a wholesome setting”). But, when addressing the “authorized penalties […] with respect to […] peoples and people of the current and future generations”, the Court docket largely confines itself to locus standi, leaving under-explored the prior query as to whom the related human rights obligations are owed.
This weblog put up addresses that hole and is split into two elements. First, we argue that the Court docket ought to have acknowledged “peoples and people” – to borrow the language from the query earlier than the Court docket within the advisory opinion on local weather change – as obligees of these human rights obligations of States underneath worldwide regulation (1), which has “authorized penalties” with respect to them, even when they lack standing to invoke State duty (2). We then increase a number of questions particularly on the potential “erga omnes” dimension of such human rights obligations, particularly whether or not these human rights obligations are owed erga omnes (3), whether or not all peoples and people themselves might be included as obligees (4), and whether or not any particular authorized penalties with respect to all peoples and people may come up in consequence (5).
1. The climate-related human rights obligations owed to peoples and people
The Court docket didn’t make clear the query of whether or not peoples and people are direct obligees of States’ human rights obligations. The Court docket merely noticed, regarding the “authorized penalties … with respect to peoples and people”, that “whether or not people are entitled to invoke a State’s duty […] relies upon not on the final guidelines on State duty, however on the precise treaties and different authorized devices that create procedural and substantive rights between the States and people involved” (para. 111).
As a preliminary remark, we word that the Court docket has conspicuously sidestepped the standing of peoples, though they’re holders of the collective proper to a wholesome setting. Certainly, the Court docket itself quoted the African Constitution on Human and Peoples’ Rights, which characterised that as a folks’s proper (para. 190). The Inter-American Court docket of Human Rights’ advisory opinion delivered earlier than the ICJ’s additionally explicitly distinguished the “collective dimension” of the best.
Extra essentially, nevertheless, the Court docket conflated two separate points: particularly, (a) the existence of a authorized proper or curiosity of peoples/people, and (b) its train or safety. Earlier than analysing the authorized penalties with respect to peoples/people (which embrace the problem of their locus standi, as we’ll focus on shortly), one should first confirm whether or not they’re the obligees – versus mere beneficiaries or “objects” – of the related worldwide authorized obligation.
In our view, it’s because obligees, as such, have authorized pursuits within the compliance of these obligations. That is so even when the authorized system limits their means to guard their curiosity, or to invoke the obligor’s duty.
On this regard, as Decide Sebutinde famous, the Court docket’s discovering in para. 111 “fails to acknowledge that […] the authorized obligations owed by polluting States are owed not solely to ‘different States’ but additionally in the direction of ‘[p]eoples and people of the current and future generations’” (para. 6). Additional, by focusing solely on the procedural standing of people, the Court docket ignored the associated query of whether or not these people (in addition to peoples) maintain the substantive rights in query.
Whereas the Court docket might need merely discovered them self-evident, you will need to depart little question that peoples and people are (i) right-holders and (ii) obligees as a matter of worldwide regulation. Usually, because the Commentary to the ILC Draft Articles on State Accountability acknowledges, an obligation may be owed “to a person or group, or to the worldwide group as an entire” (para. 5). That is notably so in worldwide human rights regulation, the place the baseline is a direct vertical relationship between States and the peoples and people to whom these human rights immediately connect. Thus, core devices and corresponding customary norms body rights as belonging to “everybody”/“each individual,” figuring out peoples/people as right-holders. For instance, the Human Rights Committee’s Basic Remark No. 31 (The character of the final authorized obligation imposed on States Events to the Covenant) characterizes the prohibition towards discrimination within the ICCPR as “obligations of States Events in the direction of people because the right-holders underneath the Covenant” and even additional clarifies that, on this context, the “obligations are binding on States [Parties] and don’t, as such, have direct horizontal impact as a matter of worldwide regulation.” We argue that this holds true whether or not the human proper is standard or customary underneath worldwide regulation. To carry in any other case can be conceptually incoherent, and disconnected from the protecting goal of human rights.
2. Authorized penalties with respect to peoples and people as obligees
Whereas others, together with Wewerinke-Singh and Viñuales, consider the Court docket’s discovering “extends the Opinion’s attain past the inter‑State aircraft” and “offers a far-reaching foundation for […] worldwide litigation by people, peoples and their representatives”, in our view, the Opinion is unduly conservative by partaking with authorized penalties for peoples/people solely by mentioning the problem of their standing, or lack thereof.
As alluded to above, (1) whether or not people (and peoples) can invoke a State’s duty is just one side of (2) the authorized penalties for that State with respect to them, which was the (second) query earlier than the Court docket. For instance, whether or not or not peoples/people have standing to make a declare towards a State, that State should owe obligations in the direction of the peoples/people; by that, we don’t imply solely (a) the “major” obligations (e.g., to respect a folks’s and/or a person’s proper to a wholesome setting), however importantly additionally (b) the “secondary” obligations arising as a authorized consequence of the State’s breach of these major obligations (e.g., cessation and reparation).
Furthermore, there are authorized implications arising from the authorized curiosity of peoples and people underneath worldwide regulation.
Firstly, the normative character of human rights obligations is clarified. Even with out speedy procedural penalties, recognizing peoples and people as obligees and rights-holders informs how these obligations are understood, interpreted, and justified; particularly, not merely as horizontal duties between States, but additionally vertical obligations in the direction of concrete topics of worldwide regulation. Breaches are thus wrongs not solely on the inter-State aircraft however vis-à-vis the very bearer of the rights. This reinforces States’ obligations to guard rights of peoples and people, together with the best to a wholesome setting by, for instance, due diligence, requirements of conduct, and reparations.
Second is the associated matter of interpretative weight. The place rights are clearly vested in recognized holders, courts, treaty our bodies, and different worldwide mechanisms are inclined to construe the corresponding obligations in order to safe the sensible and efficient safety of these right-holders. This interpretative posture has concrete penalties for climate-related duties. It favours readings that (i) acknowledge optimistic obligations of due diligence and prevention; (ii) connect procedural duties which are essential to make the best efficient, e.g., influence evaluation, disclosure, participation, and entry to treatments; (iii) make use of precaution and reasonableness the place scientific uncertainty and critical threat coincide; and (iv) keep away from safety gaps by resisting overly slim views of jurisdiction, causation, or “sufferer” standing that will strip recognized right-holders of significant safety. Briefly, vesting the best in peoples and people doesn’t change who might deliver a declare, however it might form how the regulation is learn and utilized, pushing interpretation towards the sensible safeguarding of these individuals the duty is designed to guard.
Lastly, this recognition lays the groundwork for the doctrinal improvement of worldwide regulation in the direction of direct invocation of State duty by peoples and people for human rights obligations. Whereas the ILC Draft Articles on State Accountability don’t regulate non-State invocation of duty, the commentaries to Article 33(2) does acknowledge the potential for such invocation. On this regard, recognition offers a foundation for future procedural innovation – whether or not by means of additional advisory opinions, new treaty-based compliance mechanisms (together with collective or consultant procedures), or an evolution of guidelines of worldwide regulation that will, in time, enable right-holders to behave extra immediately. Such improvement would shut the normative hole that persists between the substantive recognition of the authorized pursuits of peoples and people – the last word obligees of human rights obligations – and the absence of a correlative procedural capability to implement it.
In sum, we argue that States owe their human rights obligations not solely to States, however to peoples and people, who – as obligees – have a authorized curiosity within the efficiency of the duty, even when they lack locus standi typically underneath lex lata. Within the the rest of this text, we flip to discover whether or not States owe these human rights obligations to all peoples and people collectively.
3. Are the human rights obligations erga omnes (partes)?
As a preliminary query, are States’ human rights obligations – notably the best to a wholesome setting – erga omnes partes, and even erga omnes? Regardless of its historic holding that “States’ obligations pertaining to the safety of the local weather system and different elements of the setting” are obligations erga omnes and that obligations underneath the UNFCCC and Paris Settlement are erga omnes partes (para. 440), the Court docket didn’t explicitly reply that query.
As Pezzano has noticed, the Court docket started its evaluation on erga omnes by referring to the individuals’ arguments that the Court docket had discovered “sure worldwide human rights obligations” (para. 439) to be erga omnes in character – these “sure obligations” being a coded reference to self-determination and proper to life, amongst others, as his earlier put up summarized. This implicit framing makes the Court docket’s silence on the problem much more conspicuous. As seen in para. 440, the Court docket first held that “States’ obligations pertaining to the safety of the local weather system and different elements of the setting from anthropogenic GHG emissions to be erga omnes, particularly the duty to stop important transboundary hurt underneath customary worldwide regulation”. Then, referring to the UNFCCC and the Paris Settlement, the Court docket held that States’ obligations “underneath these treaties are obligations erga omnes partes”.
The Court docket’s omission is comprehensible. Whether or not the human rights obligations are erga omnes (partes) in nature would, partly, rely upon whether or not they pertain to the “primary rights of the human individual” (Barcelona Traction). This may open a can of worms, particularly proper after the IACtHR’s Advisory Opinion had unequivocally discovered the best to a wholesome setting to be jus cogens. Unsurprisingly, the Court docket prevented this sizzling potato and, as an alternative, grounded its erga omnes analyses upon the safer terrain of States’ “widespread curiosity within the safety of worldwide environmental commons” (relating to the erga omnes obligation underneath the no-harm precept) and the “important curiosity of all States within the safeguarding of the local weather system” (relating to the erga omnes partes obligations underneath the local weather treaties).
However whereas such language is likely to be a crucial compromise, we remorse the dearth of authorized readability that resulted. Are these human rights obligations erga omnes in character, even when these human rights will not be (but) peremptory in nature? To what extent is the Court docket’s reasoning relevant to customary and standard human rights obligations, notably the best to a wholesome setting?
However, it seems to us that, upon a good-faith interpretation of the Court docket’s Opinion, such obligations must be presumed as erga omnes. Given the Court docket’s earlier evaluation on relevant regulation (paras 143–145, 287-393), worldwide human rights obligations, together with these referring to the best to a wholesome setting, evidently kind a part of “States’ obligations pertaining to the safety of the local weather system and different elements of the setting” (para. 440). Furthermore, as Decide Tladi and others have rightly noticed, the Court docket has implicitly held that the best to a wholesome setting isn’t solely standard however customary and self-standing in nature. Thus, these customary worldwide human rights obligations are presumably erga omnes, too.
4. Are the human rights obligations erga omnes additionally owed to all peoples and people?
If these human rights obligations are erga omnes, as soon as once more, who’re the obligees: do “omnes” additionally embrace all peoples and people themselves?
That query, too, would require greater than a weblog put up. That mentioned, it seems debatable that, on the presumption (as defined above) that (1) all States have a authorized curiosity in one another’s compliance with their human rights obligations (together with the best to a wholesome setting), and on condition that (2) peoples and people are, individually, right-holders and obligees, (3) all peoples and people are, collectively, right-holders and obligees – i.e., a part of the “omnes” or worldwide group to whom States owe these obligations. As obligees, all of the non-injured peoples and people would have an curiosity arising underneath worldwide regulation in guaranteeing a State’s compliance. (Whether or not that curiosity, in such context, may be characterised as a authorized “proper” is a separate inquiry.)
This view additionally finds some assist within the Court docket’s jurisprudence. The ICJ’s Barcelona Traction dictum expressly hyperlinks erga omnes norms to the “primary rights of the human individual.” In East Timor the Court docket characterised self-determination as “rights erga omnes,” versus “obligations erga omnes.” Whereas the Court docket has not absolutely clarified this terminology, the thought of rights erga omnes, notably in relation to a proper that’s inherently owed to peoples, helps that erga omnes obligations are owed to all peoples and people. On this regard, the Worldwide Regulation Fee’s syllabus on erga omnes additionally mentions that the holders of rights comparable to erga omnes obligations “will not be essentially restricted to States” (though it proposes to restrict its examine to the inter-State dimension).
5. Are there authorized penalties arising from human rights obligations erga omnes owed to all peoples/people?
Aside from the apparent authorized penalties on the inter-State aircraft (e.g., each injured and non-injured States have standing to sue a wrongdoing State for its human rights violations), are there any authorized penalties of human rights obligations erga omnes owed to all peoples and people?
On the one hand, because the regulation at the moment stands, it would look as if it issues little even when the human rights obligations are erga omnes and owed to all peoples/people. As acknowledged beforehand, except particularly enabled by a treaty, the only real recourse for peoples and people stays for a State to espouse the declare on its nationwide’s behalf. The erga omnes standing of an obligation doesn’t alter this lex lata. Furthermore, even the human rights courts and treaty mechanisms the place peoples and people have loci standi invariably require the claimant to be a sufferer. Regional human rights courts have made clear that public curiosity litigation, or actio popularis, is barred, albeit that is considerably softened by the breadth of the ‘personally and immediately affected’ criterion. Below Article 34 of the European Conference on Human Rights, the European Court docket of Human Rights will entertain a criticism solely from individuals who’re “personally and immediately affected”. Its local weather change trilogy of judgments final 12 months additional reiterated that the Conference doesn’t admit normal public-interest complaints (see KlimaSeniorinnen; Carême v. France; Duarte Agostinho v. Portugal). The Inter-American Fee applies the identical rule: petitions on behalf of “summary victims” are inadmissible as a result of the American Conference on Human Rights offers no standing for actio popularis (see 2020 Digest, para. 50). Thus, in contrast to States, “non-injured peoples or people” – to borrow the language of State duty – can’t invoke duty for breaches of human rights obligations erga omnes.
Alternatively, it will be untimely to dismiss all authorized significance altogether. For one, recognition of the authorized curiosity of all (together with non-injured) peoples and people might result in revisions of the foundations of the fora, each worldwide and home, the place peoples and people have already got standing. For instance, mirroring the inter-State aircraft, they may enable “non-victims” to assert cessation, non-repetition, and reparation for the injured peoples/people. Even within the programs requiring “sufferer” standing, they might present larger entry and even acknowledge the best for the non-victims to take part within the proceedings. In need of such institutional reform, the truth that a human rights obligation is owed to all peoples/people might information home and worldwide courts and human rights our bodies on the interpretation and utility of the related devices, for instance by studying “sufferer” and “potential sufferer” extra capaciously with out erasing the sufferer necessities.
Our declare is easy however foundational: worldwide regulation ought to acknowledge peoples and people as right-holders and obligees of human rights obligations, with a authorized curiosity of their fulfilment. This fashion, the Court docket’s evaluation of authorized penalties needn’t – and shouldn’t – hinge solely on locus standi. This acknowledgement additionally helps clarify why breaches of human rights obligations have authorized penalties with respect to peoples and people of the current and future generations, even when procedural avenues to invoke State duty stay contingent on particular devices. The additional query we increase of whether or not these human rights obligations are owed erga omnes – and whether or not “all peoples and people” may be counted among the many obligees in that sense – belongs, not less than for now, to the realm of lex ferenda. Even so, the questions might present a conceptual context that frames the subsequent chapter of human rights local weather litigation, with solutions to be resolved by the courts.
Panpailin Jantarasombat was a part of the delegation representing Thailand. Icarus Chan was a part of the delegations representing Thailand, Kenya, and Namibia. The views expressed on this put up are ours and don’t symbolize the views of these States.
