The International Court of Justice Climate Liability Ruling Sets a Worrying Precedent for Pandemics and Public Health

These new 'legally binding' duties are quickly going to multiply

Secretary of State Marco Rubio has said that the US will dismantle the International Criminal Court and restore the rights of “sovereign states over globalism”. The think tank Policy Exchange, in a new report that contradicts much of its earlier approach to climate policy, warns that a 2025 International Court of Justice (ICJ) ruling requires the UK to “arrest” the “trend of abuse of the ICJ’s advisory jurisdiction”.

Unfortunately, that ruling can easily be extrapolated to the domain of global health. Yet, resources devoted to flagship green causes and to pandemic preparedness alike would save more lives if redirected to basic health, nutrition and economic development.

In response to a 2023 UN General Assembly request, the court published its Advisory Opinion a year ago. It concluded that states have legally binding duties to prevent significant environmental harm. Failure to do so leaves a country exposed to claims for restitution from those who have been harmed.

In many countries the Covid response mimicked the climate change playbook. The catastrophism of both agendas was based on models. Claims of scientific authority and existential crisis escalated the agendas into moral crusades and people were asked to bear sacrifices for the good of the collective humanity and the planet.

State power expanded under that rubric to replace people’s and business’s freedom of choice with policy diktats. The same moralism and risks were used to launch personal attacks on critics and ridicule and censor dissenting opinions, even from experts in the field, by claiming a monopoly on truth and the best policies to manage the crises. The costs of the policies, risks of collateral harms and resulting need for policy trade-offs were dismissed.

Against this backdrop, my co-authors and I argue in ‘The Right to Health Sovereignty’, a recent report by the International Health Reform Panel, the world court’s climate liability opinion intersects with the issue of health sovereignty on multiple points.

First, falling trust in the competence, integrity and truthfulness of public institutions and media following the Covid experience has had a flow-on effect in a new willingness to question other policy domains, including climate change and Net Zero. This has also triggered a growth in support for centre-Right parties fighting against the growing erosion of sovereignty by globalist institutions.

Second, to ensure compliance with official policy, governments engage in narrative management whereby a false impression is deliberately fostered of scientific consensus, the policy option is said to be based in that settled science and efforts are mounted to censor dissenting opinions as misinformation. On May 15th 2025, Elisa Morgera, UN Special Rapporteur on the Promotion and Protection of Human Rights in the Context of Climate Change, submitted a report that warned of the need to “defossilise” information systems and called for criminal penalties on those peddling misinformation and disinformation.

Third, the ICJ justified its conclusion on the reasoning that the “adverse effects of climate change” “may significantly impair the enjoyment of certain human rights”, including “the right to health”. The “obligation to prevent significant harm to the climate system… applies to all states, including those that are not parties to one or more of the climate change treaties” (my emphasis). This sets an obvious precedent for the same argument to be repeated in a future pandemic contingency, even for states that may have opted out of the WHO pandemic accords comprising amended International Health Regulations and a new HO treaty.

Fourth, the opinion is not binding but will shape climate governance around the world in myriad ways in the years to come in academia, courts, bureaucracies and civil society. Vanuatu’s special envoy on climate change, Ralph Regenvanu, holds that the ICJ opinion will shift discussions from one of ‘voluntary commitments’ to reduce emissions, to one about binding obligations under international law. It will embolden activist courts and judges around the world who are committed to the climate crusade.

The logic underpinning the advisory opinion prepares the ground for individual liability, speech restrictions and legal intimidation. The exact same argument applies with respect to the compliance pull of the pandemic accords. Of course, just like an ICJ advisory opinion, WHO recommendations are not legally binding obligations on treaty signatories. However, nothing in the Covid experience inspires confidence about the willingness and capacity of political leaders to resist WHO recommendations. If by some mistake they should do so, public health activists could seek an advisory opinion from the ICJ that the health of no country’s citizens is safe unless that of the citizens of all countries is safe, and therefore every state, including non-signatories of the pandemic accords, incurs a legal responsibility of compliance. Failure to do so will leave a country exposed to claims for restitution from those who may have been harmed.

Ramesh Thakur is Emeritus Professor in the Crawford School of Public Policy, Australian National University, and a former United Nations assistant secretary-general.