What a historic finding from the world’s highest court means for UK oil and gas

The International Court of Justice (ICJ) has found that States must protect us from the climate emergency. The UK government must now decide whether to follow the advisory opinion (AO) or face significant legal risk.

Last month, the International Court of Justice (ICJ) unanimously held that fossil fuel expansion risks violating international law, and can trigger full legal consequences for States when they fall short. This AO is the latest in a string of recent climate justice cases about whether our governments are taking the climate crisis — and their obligation to protect us from its worst impacts — seriously. 

The proceedings before the ICJ have long been called a historic turning point. Born out of the vision of students in the South Pacific, they turned into the unprecedented journey of a coalition of 132 nations, led by the State of Vanuatu, enabling the ICJ to interpret existing international treaties and customs in the context of States’ obligations in the climate crisis. With the highest number of participants in the ICJ’s history during the written and oral proceedings, including from the UK government, this AO has set a groundbreaking precedent with real implications for governments.

While the UK has taken steps towards aligning new oil and gas production in the North Sea with climate limits, this opinion provides the government with the opportunity and rationale to act with even more certainty towards a rapid and fair phase-out of oil and gas. 

There are five key takeaways from the ICJ’s opinion for the future of oil and gas policy in the UK.‍

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(1) It’s time for the UK to show climate leadership on oil and gas phase out 

The ICJ acknowledged that fossil fuels — namely oil, gas and coal — are the main drivers of the climate crisis. It did so by relying on the Intergovernmental Panel on Climate Change (IPPC) reports, which constitute the best available science on the causes, nature and consequences of climate change. 

Further, the ICJ recognised the responsibility of industrialised States to implement wide-ranging emissions reductions, considering their historically higher contribution to greenhouse gas (GHG) emissions. This would include the UK, given it is in the top 10 historical emitters. The Court’s reasoning was based on the principle of equity and common but differentiated responsibilities and respective capabilities (i.e. working together to tackle the climate crisis while acknowledging each State’s unique abilities and responsibilities).

As the second-largest oil and gas producer in Europe, having drilled in the North Sea for over 50 years, and with a developed and highly diversified economy with diminishing economic returns from oil and gas, the UK can and must rapidly and fairly transition away from oil and gas production. By sending this clear signal, it would encourage other countries to go further and faster in tackling the crisis, including on oil and gas phase-out.

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(2) Fossil fuel expansion may violate international law 

Climate harm caused by fossil fuels is now recognised by the ICJ as legally attributable to States. It is considered the State’s responsibility to protect the climate system from GHG emissions, and failing to do so (i.e. through fossil fuel exploration, production, consumption, or subsidies) may constitute an internationally wrongful act.¹

The UK can therefore be held accountable — by other States or by individuals — if its oil and gas activities violate international obligations laid out in climate, environmental, and human rights treaties, among others. This includes supply-side policies that promote or enable new oil and gas production.

The ICJ also confirmed that the cumulative nature of GHG emissions and their climate impacts do not excuse legal liability. While the global nature of climate change might increase the difficulty of determining to what extent a single actor harmed the climate system, “it is scientifically possible to determine each State’s total contribution to global emissions, taking into account both historical and current emissions”.²

Renewable energy is our best shot for clean, secure and affordable energy with good jobs for the long term, and this opinion now adds significant legal risk for governments who continue to back fossil fuels.

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(3) The UK has a duty to regulate the oil and gas industry to limit emissions 

The ICJ confirmed that States also have obligations to regulate the activities of private actors to limit GHG emissions, including with regulatory and legislative measures.

In line with this, the UK government must rebuild the North Sea in the public interest to ensure it takes a climate science-aligned approach to future oil and gas production. The current governance of the North Sea is misaligned with the government’s clean energy, just transition and climate objectives — and now arguably with the ICJ’s findings.

The UK has made some progress, publishing new guidance that requires developers to report on the full climate impact of offshore oil and gas projects, including the emissions from burning the oil and gas extracted. The ICJ opinion, however, goes a step further and shines the spotlight on the need to limit emissions, not just assess them. 

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(4) The UK must align its decisions and policies with 1.5°C 

With every increment of global warming, climate impacts escalate. As a result, the ICJ confirmed that the 1.5°C threshold is the primary temperature goal under the Paris Agreement — not 2°C.

In terms of concrete measures to reduce GHGs, the ICJ reaffirmed that mitigation includes transitioning away from fossil fuels and improving energy efficiency. Further, the ICJ made clear that each country’s NDC (or Nationally Determined Contribution under the Paris Agreement) must be based on stringent due diligence and must fulfil each country’s Paris Agreement obligations. This means that NDCs, when taken together, must be capable of achieving the 1.5°C temperature goal. 

According to the Climate Change Committee and the Climate Action Tracker, the UK’s 2035 NDC is aligned with 1.5°C — the first time for an industrialised State’s NDC. In the ICJ’s words, “every party has to do its utmost to ensure that the NDCs it puts forward represent its highest possible ambition”.³ Ambition must be paired with action, however, requiring NDCs to be backed up with credible policies including supply-side policies as an incentive to leave fossil fuels in the ground. The UK government must act swiftly to turn its ambitions into reality with well-designed policies.

One thing that is clear is that, in a 1.5°C aligned world, there is simply no room for new oil and gas fields. A recent study found that any new North Sea oil and gas field is incompatible with achieving 1.5°C. If the UK was to approve Rosebank, the government would risk violating its international climate obligations and could, based on the ICJ’s opinion, be held accountable for crossing this legal line.

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(5) Real legal consequences for the UK government

Breaching obligations to protect the climate system from GHG emissions has consequences. According to the ICJ, “the entire panoply of legal consequences” can apply.⁴ These consequences could include the duty to reduce GHG emissions, the duty to make reparations, and the duty to continue performing international legal obligations even when they have been breached. If a State sets an NDC which is inadequate under the Paris Agreement, a court could order that State to adopt a new NDC which is consistent with the 1.5°C temperature goal.  

Suppose the UK fails to curb fossil fuel production and grants consent for a major new field like Rosebank. This decision could be an internationally wrongful act, and the UK may be required to revoke all administrative, legislative and other measures that constitute this act.

As the ICJ stated that the obligations to protect the climate system are the concern of all States, each State has a legal interest if other States fail to fulfil them. In practice, this means that any State could challenge UK oil and gas policies or decisions if they constitute a violation of their international climate obligations.

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Conclusion

This opinion from the ICJ is yet more proof that approving new oil and gas fields is at odds with a safe climate and endangers our human rights, our children, and generations to come. Undoubtedly, the ICJ’s AO represents an increased legal risk for any government considering further licensing or consenting to new fossil fuel projects. The ICJ’s findings strengthen legal arguments for both individuals and other States which can be referenced in pending or future climate cases. 

Fossil fuels are driving the climate crisis, and as long as companies are allowed to develop new oil and gas fields, we will see people — and potentially other States — asking the courts to intervene. While the impact of the opinion on domestic oil and gas policy and climate cases remains to be seen, the message for decision-makers is loud and clear: a failure to transition away from fossil fuels risks violating international law and triggering accountability. With every new oil and gas field, our prospects of a safe climate decrease and the government’s risk of liability increases. 

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Endnotes

1. ICJ AO, para 427.
2. ibid, para 429.
3. ibid, para 246.
4. ibid, para 445.

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