Can the ICJ ruling force rich nations to pay for historical emissions?

What are your thoughts on the ICJ’s ruling?

Ted Nordhaus: There are a set of problems here. If you’re saying international law could eventually impose obligations or criminal proceedings against nations responsible for emissions and resulting climate impacts… sure, in theory. But for that to materialise, we would need clear impacts — driven not just by climate variability but by climate change. You would have to detect trends in underlying physical phenomena and attribute those specifically to climate change. But with global warming around 1-1.5°C, we don’t yet have strong anthropogenic signals in most events. Yes, the planet has warmed, but it is amplifying existing phenomena, not creating entirely new ones.

Then there is the question of consequences — how many people are in harm’s way? Populations are moving into coastal zones for economic opportunity, not away from them. All this makes adjudicating these cases difficult. I’m sceptical that this will result in compelling or actionable international legal findings.

Anand Grover: The ICJ opinion is a legal statement, not an enforceable judgment. It doesn’t allow states or individuals to easily show causality between a state’s inaction and specific harm. That linkage is hard to prove. Say you want to show that a state failed to act and that caused a temperature rise of 1.5°C — how do you prove that link? And as Ted mentioned, these events would likely have occurred regardless, though climate change may exacerbate them.

Also, the structural problems in the international legal system remain. The U.S., a major emitter, backed out of the Paris Agreement and continues to subsidise fossil fuels. If you can’t hold such states accountable, how will you hold anyone else? Even if the ICJ issued an enforceable order — unlikely — the UN Security Council could block enforcement. As we have seen in other cases such as Gaza, enforcement is political. That said, there is a positive: the ruling provides legal grounding for domestic courts. Countries that have ratified and incorporated treaties can now use this to hold their own governments accountable. That is useful, particularly for vulnerable island nations. But attributing harm to specific countries remains difficult.

Anand, the court reaffirmed the 1.5°C threshold from the Paris Agreement, but we are likely to cross that soon. Should the court have gone further in addressing that?

Anand Grover: I don’t think so. The court can’t invent scientific facts. It must rely on established findings from the IPCC (Intergovernmental Panel on Climate Change) or other expert bodies. It can only say that there is a duty to reduce emissions to stay below 1.5°C, based on those findings. But it cannot prescribe emission limits or action plans. That is not its mandate. Also, as we know, targets have never really been met. The U.S. has withdrawn (from the Paris Agreement); others aren’t cooperating.

Ted, U.S. President Donald Trump has announced a rollback of Obama-era regulations meant to curb carbon emissions that were undergirded by the Endangerment Finding. How do you see the ICJ’s references to historical responsibility in this context?

Ted Nordhaus: This all comes back to sovereignty. No sovereign nation will dismantle its energy system because a court tells them to — not the U.S., not India, not China. That is the reality. The U.S. Environmental Protection Agency’s ‘endangerment finding’ never really had teeth. The Biden administration tried to use it to phase out combustion engines by 2032, but it became a political liability.

There is this idea that international courts or legal mechanisms will force painful transitions onto reluctant countries. That is just not going to happen. The ICJ ruling doesn’t change that. The politics aren’t there. You won’t get international legal action to translate into significant domestic shifts in major economies.

Would the Loss and Damage Fund may be more effective than the ICJ ruling?

Ted Nordhaus: That is a false choice. Neither the ICJ ruling nor the fund is likely to push wealthy nations to provide substantial compensation. History shows they have not been serious about it. What little has come through is mostly rebranded development aid. If developing nations are waiting for climate reparations to finance development, they will be waiting a long time. Worse, the idea of reparations and legal redress has kept many of these countries tethered to frameworks that often restrict their access to energy. That is a poor trade-off.

These mechanisms were created by Western environmentalists. Trying to co-opt them to advance equity has failed. Developing countries should focus on their own development using whatever resources they can muster.

Anand Grover: I agree in part. Many international conventions were created to hold developing countries accountable. They were not applied equally to the West. For instance, human rights standards were used against countries in the Global South, but the West ignores them at home — take U.S. immigration policy, for example. Now, the West is in economic decline. Mr. Trump wants manufacturing back in the U.S. because wages are high and companies moved to China. To do that, he is relaxing environmental regulations. Yet he won’t be held accountable. If the U.S. can ignore global norms, how can we expect compliance from others?

Still, I believe domestic courts can use the ICJ ruling effectively. Environmental groups can argue that governments failed to act. That is more feasible locally. But even this is getting harder. Courts in India, like in the U.S., are increasingly weak and politicised. Ten years ago, we couldn’t imagine the Indian Supreme Court functioning as it does now. Just as in the U.S., we would not have expected the Supreme Court to undo affirmative action 10 years ago.

Would you agree with Ted that developing nations should not rely on reparations?

Anand Grover: Yes, we shouldn’t. But that doesn’t mean we abdicate responsibility. India’s emissions impact Indians. Look at Delhi’s air — every winter the city becomes unlivable. We must reduce emissions for our own sake. Technology can help, and if we develop it, we can even lead globally. But governments are beholden to corporate interests. During COVID-19, pharmaceutical companies dictated policy. The same is happening with energy. They resist upgrades because it cuts into profits. So we must act on our own, not wait for compensation.

Ted, your advocacy of ecomodernism hinges on technological solutions. But if these technologies don’t reach developing countries, won’t that hinder decarbonisation?

Ted Nordhaus: The idea that the West develops tech and hands it off is outdated. China now leads in clean tech and exports to both the West and developing countries. India may follow. Technology flows aren’t unidirectional any more. The 1990s framework of common but differentiated responsibilities and tech transfer is no longer valid. Yet the ICJ ruling still operates on that model. It doesn’t reflect today’s reality where clean tech flows in many directions. If we were crafting a framework today, we wouldn’t do it the way the UNFCCC (United Nations Framework Convention on Climate Change) did in 1990.

Ted, do you see any positives in this ruling?

Ted Nordhaus: Honestly, no. It feels like a zombie ruling — left over from a framework that has lost relevance. With the collapse of the post-Cold War order, this is just another effort to keep old institutions looking relevant.

Anand Grover: It still has value domestically. Activists and lawyers can use it to push their governments to act. But internationally, prospects are bleak.

The U.K.’s Shadow Energy Secretary claims that the ruling will trigger a wave of litigation against developed nations. Do you agree?

Anand Grover: No, that is alarmist. The ruling is vague on obligations and proof standards. Internationally, it won’t result in litigation. Domestically, it can be used to argue that governments have failed to act. That is where the real potential lies.