Printed August 6, 2025
By Andrés Del Castillo, Senior Lawyer, Helionor de Anzizu, Senior Lawyer, Joie Chowdhury, Senior Lawyer, Dharmesh Shah, Consulting Senior Campaigner (Plastics Treaty), and Cate Bonacini, Senior Communications Marketing campaign Specialist on the Heart for Worldwide Environmental Legislation, Semee Rhee, World Coverage Advisor, Break Free from Plastic, and with the help of Alexandra Harrington, Chair, IUCN WCEL Settlement on Plastic Air pollution Process Power
When the Worldwide Court docket of Justice (ICJ) issued its landmark local weather ruling in July, it didn’t simply reaffirm that States have a binding authorized obligation to stop local weather hurt and defend human rights from the impacts of local weather change. The opinion additionally represents a significant milestone for local weather motion — it offers governments new authorized leverage to handle certainly one of in the present day’s fastest-growing environmental threats: the total life cycle of plastics.
Now, as UN Member States collect in Geneva, Switzerland for the resumed fifth session of the intergovernmental negotiating committee to advance a plastics treaty (INC-5.2), consideration is popping to how this current ICJ ruling can — and will — encourage higher ambition and accountability in crafting the world’s first treaty to deal with plastic air pollution throughout its complete life cycle.
The ICJ ruling adopted a unprecedented collaborative effort by youth campaigners from the Pacific and past, Vanuatu, the Pacific Islands, and climate-affected nations demanding authorized readability on States’ local weather obligations. Whereas the ruling made headlines all over the world, a key query stays: What affect does an Advisory Opinion even have? As delegates convene for the primary environmental treaty negotiation for the reason that ICJ Advisory Opinion was issued, negotiators and observers alike are asking how this historic authorized precedent may assist form — and strengthen — the trail towards a legally binding settlement on plastic air pollution.
The Affect of Advisory Opinions on Negotiating Fora
One doesn’t have to look lengthy or onerous to seek out examples of ICJ opinions that went on to affect treaty negotiations. There are examples of ICJ Advisory Opinions that had been issued earlier than or throughout treaty negotiations and went on to affect these processes. The 1996 ICJ Advisory Opinion on the Legality of the Risk or Use of Nuclear Weapons was issued virtually a decade earlier than the Treaty on the Prohibition of Nuclear Weapons. In that Advisory Opinion, two key elements emerged:
A have to make clear authorized facets that the Court docket didn’t totally resolve, particularly using nuclear weapons below all circumstances.
A strong dissenting opinion from Decide Christopher Gregory Weeramantry asserted the illegality of nuclear weapons below worldwide regulation.
Collectively, these items helped form the discourse across the want for a treaty, contributing to the momentum pushing for negotiations and finally, the treaty’s content material.
The Fossil Gasoline-Plastics Connection
Throughout the first spherical of the Plastics Treaty negotiations, the UN Secretary-Common set the tone by affirming, in political phrases, what science has lengthy made clear and what international locations have to confront head-on throughout the negotiations: “Plastics are fossil fuels in one other kind.” Certainly, 99 p.c of plastics are created from fossil fuels, the main reason behind local weather change and the dominant supply of world greenhouse fuel (GHG) emissions. It has been clear from the start that to handle the primary drivers of plastic air pollution, international locations want to chop plastic manufacturing.
It’s attainable to contextualize arguments from the ICJ Advisory Opinion and apply them to the Plastics Treaty area relating to current obligations. Some specialists have already began to try this, and within the days that adopted the Advisory Opinion, over 47 UN impartial human rights specialists wrote to induce international locations to implement the Advisory Opinion throughout INC-5.2.
There’s a wealth of proof linking local weather change and plastics. A current stock confirmed greater than 6,400 peer-reviewed scientific articles on matters starting from plastics and emissions to carbon sequestration and the Earth’s radiation price range. One research demonstrates that below a business-as-usual state of affairs, plastic manufacturing may account for as much as 31 p.c of the worldwide carbon price range by 2050.
When the ICJ Advisory Opinion clearly states that “… failure of a State to take acceptable motion to guard the local weather system from GHG emissions — together with by means of fossil gasoline manufacturing, fossil gasoline consumption, the granting of fossil gasoline exploration licences or the availability of fossil gasoline subsidies — could represent an internationally wrongful act attributable to that State,” it strengthens the authorized foundation for formidable States to argue that unchecked plastic manufacturing is incompatible with worldwide local weather obligations. This express recognition of the necessity to tackle emissions from each plastic manufacturing and plastic consumption supplies a robust authorized basis for international locations to pursue each approaches throughout the framework of the Plastics Treaty.
Paving the Approach for the Plastics Treaty
For the reason that Plastics Treaty negotiations started in 2022, a string of selections from main worldwide courts and tribunals has laid the inspiration for States taking formidable motion in opposition to plastic air pollution.
In 2024, the Worldwide Tribunal of the Legislation of the Sea (ITLOS) issued an Advisory Opinion on Local weather Change. The Advisory Opinion makes the argument that anthropogenic GHG emissions fall throughout the scope of “air pollution of the marine atmosphere” as outlined below the United Nations Conference on the Legislation of the Sea (UNCLOS) and that States should take all obligatory measures to stop, scale back, and management marine air pollution by anthropogenic GHG emissions. The Tribunal additional specified that the present worldwide local weather authorized regime is relevant however not unique in establishing States’ authorized duties in relation to local weather change. Different sources of worldwide regulation are additionally related and relevant.
The ITLOS Advisory Opinion additionally acknowledges that whereas the present local weather treaty regime is critical, it’s inadequate to totally meet the climate-relevant obligations set out below UNCLOS, such because the obligations to guard and protect the marine atmosphere, in addition to to stop, scale back, and management air pollution of the marine atmosphere (UNCLOS Arts 192 and 194).
Earlier this 12 months, the Inter-American Court docket of Human Rights issued an Advisory Opinion on Local weather Emergency and Human Rights. It emphasizes that customary worldwide regulation stays central to the context, notably by means of obligations to stop transboundary hurt and to have interaction in good religion in worldwide cooperation. The obligation to cooperate ought to happen by means of monetary means, expertise switch, capability constructing, and the institution of worldwide boards and the formulation of collaborative worldwide insurance policies.
The ICJ Advisory Opinion builds upon each of those opinions by addressing quite a lot of points which might be additionally relevant to plastics, particularly, plastic manufacturing and plastic-related GHG emissions, whereas leaving some points unresolved and requiring States to barter acceptable options.
Given the far-reaching recognition of the appropriate to a clear, wholesome, and sustainable atmosphere (R2HE) in nationwide, regional, and worldwide devices, the Court docket critically acknowledged the appropriate as a binding norm of worldwide regulation and a precondition for the enjoyment of many different human rights. In different phrases, States can’t declare compliance with human rights treaties until additionally they guarantee environmental safety.
The ICJ local weather ruling additionally affirmed the long-recognized proper to well being (para. 379). It additional underscored the pressing want for States to take binding motion in opposition to local weather change, together with regulating personal emissions, and particularly highlighted that the conduct that results in emissions, resembling manufacturing or granting licenses or subsidies for fossil fuels manufacturing and consumption, could represent an internationally wrongful act. This will likely embody plastic manufacturing, the enlargement of plastic manufacturing capability, and associated licenses — throughout the total life cycle, together with the manufacturing of major, secondary, and ultimate manufactured plastic — and subsidies.
Recognizing the Root: Fossil Fuels and the Local weather Disaster
Whereas science has persistently identified that fossil fuels are the foundation reason behind local weather change, local weather treaties (e.g., the United Nations Framework Conference on Local weather Change [UNFCCC], the Paris Settlement, the Kyoto Protocol, and the Kigali Modification to the Montreal Protocol) have remained silent about them. This end result displays the affect of fossil fuel-producing States and their pursuits through the negotiation course of. Since then, Events have been working to proper this improper to make sure a coherent and international strategy to fossil fuels. Within the case of the UNFCCC, it took a long time for the Convention of the Events to explicitly point out fossil fuels.
Addressing plastic manufacturing is as mission-critical to the Plastics Treaty as mentioning fossil fuels is to local weather treaties. Member States should not repeat the missteps of previous agreements by omitting the foundation causes of the plastics disaster from the treaty’s scope and ambition.
Creating a Plastics Treaty with the ICJ Advisory Opinion in Thoughts
Whereas the 140-page ruling touches on many themes, six are particularly pertinent to the Plastics Treaty and that Member States ought to contemplate when negotiating it.
1. The Responsibility to Forestall Hurt
The ICJ affirmed that States have a binding authorized obligation to stop local weather hurt. We all know that 80 p.c of the GHG emissions throughout the life cycle of plastics occur throughout manufacturing. Subsequently, for international locations to keep away from obligation for conduct that contributes to carbon emissions, they should implement the ICJ’s ruling by addressing each plastic manufacturing and consumption.
Heading into INC-5.2, the working textual content (the Revised Chair’s Textual content) lacks any direct reference to the local weather system or GHG, regardless of the pressing have to explicitly tackle local weather points, together with emissions, throughout the future treaty. When creating a goal for decreasing plastic manufacturing, will probably be important to incorporate one which reduces virgin plastic manufacturing in keeping with the local weather aim of 1.5°C, as each science and regulation require.
2. Scientific Attribution
The ruling additionally endorses using scientific attribution and hurt/damage as intertwined components, underscoring that science is crucial in establishing injury within the context of local weather change.
The identical logic applies to the harms brought on by plastic air pollution. There’s a rising physique of scientific proof linking micro- and nanoplastics, chemical substances of concern, emissions, and releases to impacts on well being — together with, however not restricted to, most cancers and endocrine disruption, biodiversity loss, and local weather change.
3. Authorized Attribution
GHG emissions, resembling plastic air pollution, are a transboundary drawback that usually includes a number of States. Right here, the ruling states, “the principles on State duty are able to addressing conditions the place injury is brought on by a number of States participating in wrongful conduct, and that the duty of a single State for injury could also be invoked with out invoking the duty of all States which may be accountable.” (para. 430) Below this rule, a single State, amongst a number of States and actors inflicting hurt, can nonetheless be held accountable for breaching its obligation and for contributing to the collective damage brought on.
This ruling is especially important for transboundary environmental considerations resembling plastic air pollution that contain a number of States inflicting international environmental hurt, the place shrouded obligations and evaded obligations make it troublesome to attribute hurt. Nonetheless, with this ruling, the Court docket additional emphasizes the final regulation of State duty and due to this fact supplies a clearer authorized pathway to carry States to account.
4. Non-public Actors
Relating to personal actors, the Court docket has highlighted that States should regulate personal emissions. States are below a authorized obligation to manage GHG emissions — together with from personal corporations and traders from all sectors, notably the petrochemical sector: “[a] State could also be accountable the place, for instance, it has didn’t train due diligence by not taking the required regulatory and legislative measures to restrict the amount of emissions brought on by personal actors below its jurisdiction.” (para. 428). This ruling will undoubtedly have an effect on company actors within the petrochemical trade, as petrochemicals are derived from fossil fuels.
Crucially, even the place a State has beforehand granted licenses or in any other case didn’t act, the authorized obligation to scale back emissions and transition away from fossil fuels persists: “The breach by a State of its worldwide obligations doesn’t extinguish its underlying obligation of efficiency.” (para. 446).
5. Concrete Targets and Measures
To satisfy obligations below worldwide regulation, together with the local weather and human rights regimes, in addition to below UNCLOS, it’s important for States to undertake concrete measures and goals. Within the context of world targets, the ICJ affirmed that the 1.5°C goal is the first temperature aim agreed by Events below Article 2 of the Paris Settlement, recognizing it because the benchmark for limiting international warming. It pressured the urgency of motion, the hole between present commitments and the 1.5°C aim, and the obligation of States to behave with due diligence to satisfy this goal.
Concrete targets and measures established below the Plastics Treaty wouldn’t solely fulfill these obligations but in addition present the required authorized framework and readability — particularly for the personal sector — in our interconnected world.
Moreover, a worldwide major plastic manufacturing goal would assist outline and quantify States’ obligations below UNFCCC and UNCLOS, whereas ideally aligning with the Paris Settlement’s temperature aim. To implement it successfully, international locations would want to undertake nationwide targets that contribute to a worldwide cap, permitting for a level of flexibility primarily based on nationwide circumstances.
6. Reparation
One of many ruling’s clearest affirmations is that historic emissions matter, and people affected by the impacts of local weather devastation have a proper to treatment and reparation. Most of the communities most impacted by local weather change dwell in international locations that bear much less historic duty for GHG emissions. When contemplating cures or reparations, it’s important to have a look at these international locations which might be the best historic emitters.
Redress below the regulation of State duty entails halting dangerous conduct, giving assurances of non-repetition, and offering full reparation, together with restitution or restoring the state of affairs previous to the violation of worldwide regulation; monetary compensation as related; and satisfaction, which can take the type of formal apologies or schooling of society about local weather change. As a result of local weather obligations are owed to all different States (“erga omnes partes”), any State could demand cessation, ensures, or reparation, even when it’s not straight injured.
Once more, there’s appreciable thematic overlap with plastic air pollution. Ninety p.c of all of the plastic that was ever made nonetheless exists. This legacy plastic is a significant drawback that Member States should deal with within the treaty. Like with GHG emissions, some international locations bear extra historic duty than others. To deal with this, the Plastics Treaty will want a devoted article that addresses historic plastic air pollution. AOSIS and different international locations have additionally expressed the need to ascertain a devoted fund or subfund to help remediation efforts.
Conclusion
The ICJ ruling delivers a transparent, brave, and unambiguous opinion on a politically delicate difficulty. Because the first-ever mandate to craft a legally-binding instrument that addresses the total life cycle of plastic, the upcoming Plastics Treaty negotiations are a important take a look at of how the ruling shall be utilized in apply. However the opinion won’t be sufficient.
To this point, the Plastics Treaty negotiations have relied on consensus decision-making, permitting anybody nation veto energy. With Member States which have a vested curiosity in persevering with petrochemical manufacturing within the room, consensus necessitates reducing selections to the bottom frequent denominator. Reaching for a Plastics Treaty that’s in keeping with the ruling would require States to rise above obstructionism and deploy all the instruments that multilateralism provides, together with voting. Doing so would require authorized readability and political braveness — simply because the Court docket has demonstrated.
“the questions posed by the Common Meeting symbolize greater than a authorized drawback: they concern an existential drawback of planetary proportions that imperils all types of life and the very well being of our planet. Worldwide regulation, whose authority has been invoked by the Common Meeting, has an essential however in the end restricted position in resolving this drawback. A whole resolution to this daunting, and self-inflicted, drawback requires the contribution of all fields of human data, whether or not regulation, science, economics or some other.” ICJ, par. 456.
