A bouquet and a brickbat: The contrasting measures by the International Court of Justice (groundbreaking and positive) and the New Zealand government (myopic and miserly) to address climate change
New Zealand Climate Crisis: Blog 8
[4200 words - a 20 minute read, (Summary 400 words - a 2 minute read)]
Summary:
In the war of words and ideologies that is taking place, in communities and countries around the world, (to ensure that the impacts of the climate change process that we humans have set running are adequately addressed) those of us who believe that more must be done as a matter of urgency, that the harms done must be recognised - and those harmed be adequately compensated - had a rare but potentially very significant win recently.
A recent decision, in the form of an Advisory Opinion by the United Nations top Court - the International Court of Justice (ICJ) - was a cause for celebration both for the students (and the Vanuatu government that backed them) who took the case to the Court and for the wider cause of climate justice.
The Court found that countries can be held legally responsible for their greenhouse gas emissions with the consequences including that developing nations have a right to seek damages for the impacts of climate change and that governments are responsible for the climate impact of companies operating in their countries.
While the Opinion is not legally binding – and the extent to which the ICJ ruling will be respected in different countries remains to be determined - it is, nevertheless, a landmark decision and a huge win for those who until now, have been on the sharp (i.e. receiving) end of climate change impacts caused by other countries, and it will very likely support any actions taken to obtain redress in future.
In contrast, back in “NZ” and in contrast to the uplifting ICJ “climate win,” a Climate Change Commission report, looking at the current Government’s progress against the 2050 net zero target, emissions budgets and emissions reduction plans, brought an unwelcome but necessary dash of reality to my climate change world.
It pointed out the challenges New Zealand faces in achieving our already unambitious (to put it politely) emission reduction targets under the policies and measures introduced by the current, coalition government – including a continued over-reliance on forestry to reduce gross emissions instead of introducing measures to reduce emissions at source.
The blog concludes by presenting some information from a recent article that identifies some of the many areas of climate change action that have been “delayed, defunded or discontinued” by the people New Zealand has elected to govern our country.
Introduction
Writing about climate change can be dispiriting. It is true that, as reiterated by the UN Climate Change Secretariat’ [Simon Stiell], this week,“that UN-convened cooperation and the national actions taken in response are delivering real progress; without it, humanity would be headed for up to 5°C of global heating and an unlivable planet. We are currently headed for around 3°C, which underscores how far we have collectively come …”[1]
It is however also true, as Simon’s letter goes on to state “… and how far we still have to go, to limit global heating to 1.5°C – as science demands, and to protect 8 billion people”[2]
This, current, position is a consequence of the reality of GHG emission reduction profiles in many countries failing to match the rhetoric of their ambitions and the commitments they have made.
The failure to rein in increasing levels of fossil fuel combustion and other GHG sources over recent years has resulted in a situation where we now have, at most, 10 years, to realise the goal of the Paris Agreement; to hold the average global temperature increase to well below 2C compared to pre-industrial levels.
Note: The UN's 2023 Global Stocktake[3] found global emissions are currently off-track from the pathways needed to meet the 1.5C target. Meeting this (1.5C) target would require immediate and significant changes across all sectors, including widespread use of renewables, increased energy efficiency, and changes in food systems, changes that show no sign of happening at the necessary pace.
I have written before about the factors that impede action to address climate change but, in New Zealand, the failure of successive governments over the last five years or so, to provide the necessary climate leadership (with the first term of the Adern Labour Government and the efforts of Hon James Shaw in particular, an honourable exception) on this issue beggars belief.
Governments are happy to lead on issues that suit them (e.g. roading and other infrastructure, the RMA, local government) and which they see as being politically popular but strangely silent on other issues that are hugely important to the future of New Zealand and the functioning and well- bring of our communities, such as climate change.
Which brings me to the topic of this blog. It is written primarily to celebrate the recent ground-breaking Advisory Opinion of the United Nations International Court of Justice the ramifications of which, over time, may be massive for those countries on the receiving end of the climate justice system.
In mournful counterpoint, some information from a recent Climate Change Commission ( CCC) report, coincidently published at almost the same time – and looking at the current Government’s progress against the 2050 net zero target, emissions budgets, and emissions reduction plans - is presented.
These two significant, but hugely contrasting reports were published, internationally and in New Zealand respectively, about climate change in late July.
The first was the publication, on 23 July, by the United Nations International Court of Justice, of an Advisory Opinion on the “Obligations of States in Respect of Climate Change”[4] that is a groundbreaking in terms of its impact on the legal landscape relating to climate change.
The second was the He Pou a Rangi - Climate Change Commission (CCC) publication, on 26 July of their “Annual Emissions Monitoring Report (2025)”[5] which assesses the Government’s progress against the 2050 net zero target, emissions budgets, and emissions reduction plans.
From the perspective of addressing the climate crisis that humans have set running, the first was wonderful and provides a huge cause for celebration with the landmark legal decision that states have obligations to address the harms that are caused by climate change. In contrast, the second was woeful, as might be expected, based on their performance to date in this area, of our current coalition Government.
FIRSTLY, The International Court of Justice Advisory Opinion on the “Obligations of States in Respect of Climate Change”
The ICJ is the principal judicial body of the United Nations. It settles disputes between countries and (as in the case discussed here) provides advisory opinions on legal questions. It does not however have universal jurisdiction over all international legal matters[6].
What is the background and context to the ICJ case?
The climate crisis that the world is facing is a consequence of increased atmospheric levels of greenhouse gases [GHG] such as carbon dioxide and methane when compared to the start of the industrial revolution more than 250 years ago.
The extremely high – and continuing to increase - levels of GHG are a result of burning fossil fuels in car and other engines, industrial-scale farming and land use change and other human activities.
It is widely recognised that these increased emissions will, over the coming decades and longer, increasingly cause a wide variety of harms to our environment. What is increasingly developing though is, morally and environmentally, a deeply inequitable global situation:
On the one hand, we have a large group of industrially more developed countries, including New Zealand, that are primarily responsible for increased GHG concentrations. These countries have benefited hugely, and continue to benefit, economically from this advantage despite the global environmental damage their actions have caused.
On the other hand, there are many more, other countries that will be affected by the climate crisis problem, many of which will have contributed truly little, if anything, to its cause. Examples of this unfolding tragedy are that the increased global temperatures that we are already experiencing will see some countries rendered uninhabitable in future including in Africa (from heat and drought) and in our Pacific backyard (from sea level rise). To compound the problem many of the worst affected countries are also the least equipped to deal with a problem of this magnitude and have neither the infrastructure (e. g. the health system) nor the financial resources to manage the problem.
To add insult to injury, the concept of obtaining redress (often in financial terms) for damage or loss suffered is hard-wired into the legal systems in many of the countries in the first category above. Despite this, many of these countries are less than wholeheartedly in favour of paying other countries adequate recompense to remedy the substantial on-going and future (but known) climate change related damages to the people and environment in other poorer countries they – the industrialised countries - have caused.
That this situation has arisen is because the major GHG “polluters” certainly the major emitters since the magnitude of the “global warming” issue has been recognised (and the solutions identified), have been the largest economies and the most militarily powerful, providing support for the saying, often attributable to Napoleon but predating him [Comte de Bussy-Rabutin (1618-1693)] that “God is on the side of the big battalions”.
To be fair, to address what can be seen as a form of social justice – the climate crisis disproportionately impacts vulnerable communities most of whom have contributed the least to the problem – developed countries have agreed, under the UNFCCC to transfer funds (“climate finance”) to less developed countries to help address the problem.
A detailed discussion is outside the scope of this discussion, other than to note that, at the 29th UN Climate Change Conference- held in Azerbaijan in November 2024 (COP29),a new climate finance goal – the collective quantified goal, or NCQG- of US$300 billion by 2035 was agreed upon with a larger goal of mobilizing $1.3 trillion in international climate finance over the same timeframe [7].
The ICJ process[8]
The legal process was initiated by a group of Pacific Island law students (Pacific Islands Students Fighting Climate Change (PISFCC) in 2019, who were determined that effective social justice action to address climate change and its impacts would begin in their lifetime. They wrote to their governments seeking support to obtain an Advisory Opinion and received support from the Vanuatu government.
The government put the PISFCC proposal to the Pacific Islands Forum (PIF) in 2019 - in the context of ‘recognising the need to formally secure the future of our people in the face of climate change and its impacts’ - and again in 2022.
At this time, the PIF Leaders endorsed the proposal and a campaign for support from all UN Member States was started. The draft Resolution to the UN underwent several rounds of consultations and engagements with other States, that saw over one hundred countries co-sponsoring it (including New Zealand[9])
In April 2023, the UN General Assembly requested [Resolution 77/276] requested the ICJ to render an Advisory Opinion on the matter.
The ICJ held two weeks of public hearings in December 2024 at which a large number of countries and international organisations presented.
What did the ICJ consider[10]:
The court was asked to provide an opinion on two questions (my emphasis):
§ (a) What are the obligations of States under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases for States and for present and future generations? and
§ (b) What are the legal consequences under these obligations for States where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect to:
o (i) States, including, in particular, small island developing States, which due to their geographical circumstances and level of development, are injured or specially affected by or are particularly vulnerable to the adverse effects of climate change?
o (ii) Peoples and individuals of the present and future generations affected by the adverse effects of climate change?’”
What did the court decide[11]
The unanimous decision of the Court was.
As regards question (a):
A. Climate change treaties set forth binding obligations[12] for States parties to ensure the protection of the climate system and other parts of the environment from anthropogenic greenhouse gas emissions [pp 130 - 131].
B. Customary international law sets forth obligations[13] for States to ensure the protection of the climate system and other parts of the environment from anthropogenic greenhouse gas emissions. [Page 131]
C. States parties to the Vienna Convention for the Protection of the Ozone Layer and to the Montreal Protocol on Substances that Deplete the Ozone Layer and its Kigali Amendment, the Convention on Biological Diversity and the United Nations Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, particularly in Africa, have obligations under these treaties to ensure the protection of the climate system. [Page 131]
D. States parties to the United Nations Convention on the Law of the Sea have an obligation to adopt measures to protect and preserve the marine environment, including from the adverse effects of climate change and to co-operate in good faith [Page 131].
E. States have obligations under international human rights law to respect and ensure the effective enjoyment of human rights by taking necessary measures to protect the climate system and other parts of the environment [Page 131]
As regards question (b):
“A breach by a State of any obligations identified in response to question (a) constitutes an internationally wrongful act entailing the responsibility of that State. The responsible State is under a continuing duty to perform the obligation breached. The legal consequences resulting from the commission of an internationally wrongful act may obligations[14] “[Page 132]
What are the likely impacts of the ICJ Advisory Opinion?
The Advisory Opinion is not legally binding, but is certainly a rejection of the arguments, used by some developed countries in the case – including New Zealand[15] - ,that existing climate agreements are sufficient and no further legal obligations should be imposed.
Though the impact may be limited – for example, the Advisory Opinion is “ … not directly concerned with the availability of remedies for individuals suffering the effects of climate change under international law …”[16], to me, it at a minimum, sets climate change goal posts in place, something that will help stop developed countries moving them at will [We are trying hard and doing our best … “Oh dear. How sad. Never mind[17]”]
To continue the sporting analogy, it also defines climate change “foul play” and states that such activities should be and can be penalised, removing the moral and legal decisions in this area from the “referee” who – as the source of needed climate finance – will often be from a developed country
It remains to be seen how the impact will play out but, as stated in a RNZ Pacific item:
“Individuals and groups could bring lawsuits against their own countries for failing to comply with the court's opinion, and states could also return to the International Court of Justice to hold each other to account.
The opinion would also be a powerful precedent for legislators and judges to call on as they tackle questions related to the climate crisis and give small countries greater weight in negotiations over future COP agreements and other climate mechanisms.”[18]
The ICJ advisory opinion will soon go back to the UN General Assembly, which will vote on adopting it as a resolution — a step that would further solidify the ruling as a legal precedent and add to pressure on big emitters.
SECONDLY, The New Zealand Government and its progress towards meeting Aotearoa New Zealand’s upcoming emissions budgets and the 2050 target- as recently assessed by He Pou a Rangi – the Climate Change Commission
The responsibilities of Climate Change Commission[19] include regularly monitoring and reporting on progress towards meeting emissions budgets and the overarching 2050 target.
The monitoring covers reductions in gross emissions, and removals of greenhouse gases, to report against the country’s net emissions target. [This report covers government policy and action in the 12 months up to 1 April 2025[20].]
The focus of the Commission’s second and latest (July 2025) Monitoring Report[21] is progress towards the achievement of:
The first emissions budget (EB1, 2022–2025)
The second budget (EB2,
2026–2030)
The third budget (EB3, 2031–2035) and
The New Zealand 2050 target
It also assesses the adequacy of both the first (ERP1, 2022 – 25) and – published since the last CCC report - second (ERP2, 2026 – 30) emissions reduction plans, and progress towards their implementation.
Chapter 2 of the Commission‘s Report[22] asks – and answers - four key questions:
“Q1: What progress have we seen in emissions reduction to date?”
New Zealand’s gross greenhouse gas [GHG]emissions have declined over the 2019 – 2023 period, with the 2023 figure (76.4 MtCO2e) the lowest since 1999.
Gross emissions declined in all sectors between 2023 and 2024, except in energy (owing to a rise in emissions from electricity generation
Net emissions (under target accounting rules) also continue to decrease - a 2% reduction over the latest year.
“Q2: How is the country tracking towards meeting the first (2022 – 2025) Emissions Budget?”
The first emissions budget is likely to be met due to a combination of emissions reductions and changes to accounting methods (the latter resulting in a 7 MtCO2e saving from improvements to the GHG Inventory).
This is welcome news but as we are two thirds of the way through 2025, it merely means that we are meeting the very low initial emission reductions planned for and it is the reductions required over the coming 25 years - and the next 10 years in particular (i.e. 2026 -35) - that are the much more important issue.
“Q3: How is the country tracking towards meeting the second emissions budget (2026–2030), the third emissions budget (2031–2035) … under current emissions reduction policies and plans?”
The Commission notes (p32) that the “Government’s projections for the second emissions budget show that budget of 305 MtCO2 e would be achieved by 2030 by a narrow margin “. However, they also note that “… improvements to how emissions are measured, and higher rates of forest planting, meant the current budget levels no longer represented the reduction of actual emissions intended when they were set. If the Government amends the budgets to bring them back into line with the intent” – what can be described as a best endeavours approach – “when they were set, an additional 15 MtCO2 e of reductions would be required in the second emissions budget period”.
Of more concern (also p32), “the (government) projections for the third budget show emissions in 2035 would exceed that budget of 240 MtCO2 e. The central projection of 249.2 MtCO2 e is 9 MtCO2 e over the budget” as with the EB2 period the Commission believes that the EB3 budget should be revised down to 222 MtCO2 e.
The Commission also continues to point out the flaws in the government’s continued reliance on forestry to deliver a large portion of our net GHG reduction.
“Q4: What is needed for Aotearoa New Zealand to be on track for future emissions budgets and the 2050 target?”
The Commission notes (p.35) “It is possible to meet the third emissions budget and the 2050 target, and also to reduce risk for the second emissions budget”, but that “… this will require action before the next emissions reduction plan”.
They recommend the Government strengthens the New Zealand Emissions Trading Scheme (NZ ETS) to ensure it can be effective as a key policy tool for reducing emissions and implements additional targeted policies to complement the NZ ETS, focused on renewable energy, transport and agriculture.
Areas for attention – by sector - are discussed (pp 37-39).
Lastly - but strongly related to the lack of commitment shown by the current New Zealand Government to address climate change with the degree of urgency necessary - is a recent commentary on what has been described as the hollowing out of the Zero Carbon Act to the point where it is “little more than a husk”.
This article provides, in what should be a shocking analysis but, unfortunately, won’t come as a surprise to anyone familiar with what could, optimistically, be called a lack of ambition in this area, a detailed list of more than twenty-five measures that have been “delayed, defunded or discontinued” by the current coalition government since coming to power in 2023[23].
Highlights – the term is used advisedly – include[24]:
Discontinuing the Climate Emergency Response Fund (CERF), with an estimated loss of 11-24 million tonnes CO2e of abatement over the 2022 – 2035 (EB 1 – EB 3) period.
Reversing the oil and gas exploration ban reversed, estimated to lead to an extra 14.2 million tonnes of emissions to 2035, and 51.5 million tonnes of CO2 emissions up to 2050.
Continuing to provide subsidies to large carbon polluters, rejecting advice from Inland Revenue and Treasury to review hundreds of millions of dollars in climate grants to major emitters like NZ Steel, Methanex, Rio Tinto, and Fletcher Building.
Reducing Pacific climate finance from $250m to $100m this (2025/26)year.
Ending transport initiatives designed to reduce vehicle kilometres travelled by passenger cars through providing alternatives like public and active transport.
Also cutting an initiative to increase the uptake of e-bikes, ending some public transport subsidies, removing equity measures to help low-income households access low-emissions cars, and defunding a $56 million fund specifically for electric buses.
A commitment to set a high threshold for investing in new roads was also discontinued. The current government is instead prioritising motorway funding and increasing speed limits.
FOOTNOTES:
[1] Simon Stiell, Executive Secretary, UN Climate Change Secretariat, “MESSAGE TO PARTIES AND OBSERVER STATES Submission of Nationally Determined Contributions”, 3 September 2025, https://unfccc.int/sites/default/files/resource/message_to_parties_and_observer_states_submission_of_ndcs.pdf
[2] Op. cit.
[3] United Nations Climate Change, “Global Stocktake reports highlight urgent need for accelerated action to reach climate goals”, October 2023, https://www.un.org/en/climatechange/global-stocktake-reports-highlight-urgent-need-for-accelerated-action-to-reach-climate-goals
[4] United Nations International Court of Justice, “Obligations of States in Respect of Climate Change” ,23 July 2025 https://www.icj-cij.org/sites/default/files/case-related/187/187-20250723-adv-01-00-en.pdf
[5] He Pou a Rangi - Climate Change Commission, ”Monitoring Report: Emissions Reduction (2025)”, 26 July 2025, https://www.climatecommission.govt.nz/our-work/monitoring/emissions-reduction-monitoring/erm-2025
[6] Other international bodies, such as the International Criminal Court and various specialized tribunals, also play crucial roles in international law.
[7] World Resources Institute “A High-Level Expert Group on Climate Finance (IHLEG) estimates developing countries (excluding China) need to spend $2.7 trillion annually by 2030 to meet climate and nature-related goals. $1.4 trillion of this would come from domestic sources and $1.3 trillion from abroad”. https://www.wri.org/insights/ncqg-climate-finance-goals-explained#:~:text=How%20to%20Reach%20%24300%20Billion,the%20New%20Climate%20Finance%20Goal&text=Nations%20set%20a%20new%20climate,lead%20in%20meeting%20this%20target.
[8] Webb S et aI DLA PIPER, “Countdown to the ICJ’s landmark Climate Change Advisory Opinion: A recap of key arguments Part1” 17 July 2025 https://www.dlapiper.com/en/insights/publications/2025/07/countdown-to-the-icjs-landmark-climate-change-advisory-opinion
[9] MfAT, Ministry Statements & Speeches, 30 March 2023, Statement delivered by Chargé d’Affaires., Mr. Justin Fepuleai “United Nations General Assembly: Request for an advisory opinion of the International Court of Justice on the obligations of States in respect of climate change” https://www.mfat.govt.nz/en/media-and-resources/united-nations-general-assembly-request-for-an-advisory-opinion-of-the-international-court-of-justice-on-obligations-of-states-in-respect-of-climate-change#:~:text=Utilising%20the%20advisory%20jurisdiction%20of,Thank%20you
[10] #1, pp 8 – 9, International Court of Justice “OBLIGATIONS OF STATES IN RESPECT OF CLIMATE CHANGE, ADVISORY OPINION”, 23 July 2025,133 pp https://www.icj-cij.org/sites/default/files/case-related/187/187-20250723-adv-01-00-en.pdf
[11] Op cit, #457 pp 131 - 132
[12] The specific treaties referred to (e.g. the UNFCC and the Kyoto Protocol) and the obligations they entail are identified in clauses (a) - (h)
[13] To prevent harm States must (a) act with due diligence and to use all means at their disposal to prevent activities carried out within their jurisdiction or control and (b) co-operate with each other in good faith to prevent significant harm
[14] Including “(a) cessation of the wrongful actions or omissions, if they are continuing; (b) providing assurances and guarantees of non-repetition of wrongful actions or omissions, if circumstances so require; and (c) full reparation to injured States in the form of restitution, compensation and satisfaction, provided that the general conditions of the law of State responsibility are met, including that a sufficiently direct and certain causal nexus can be shown between the wrongful act and injury.”
[15] Marc Daalder Newsroom 16 December 2024 “NZ swims against Pacific currents at global climate case” https://newsroom.co.nz/2024/12/16/nz-swims-against-pacific-currents-at-global-climate-case/
[16] Pressman A and Folger P, DLAPIPER, 13 August 2025, “ICJ Releases Advisory Opinion on Obligations Of States in Respect of Climate Change” ICJ releases Advisory Opinion on Obligations of States in Respect of Climate Change | DLA Piper
[17] A well-known catchphrase from the British sitcom It Ain't Half Hot Mum, specifically delivered by the character Battery Sergeant Major Williams (played by Windsor Davies). Often used as a … dismissive way to acknowledge something unfortunate but not requiring significant action or worry.
[18] Jamie Tahana, RNZ Pacific, 24 July, 2025, “UN's highest court finds countries can be held legally responsible for emissions”, https://www.rnz.co.nz/international/pacific-news/567833/un-s-highest-court-finds-countries-can-be-held-legally-responsible-for-emissions
[19] Under Sections 5Z, 5ZJ and 5ZK of the Climate Change Response Act 2002
[20] Significant developments since this date include Budget 2025 funding changes, Government decisions on the New Zealand Emissions Trading Scheme (NZ ETS), and new public information around carbon capture, utilisation and storage. These developments do not form a core part of our assessment but are noted where relevant.
[21] Page 13 in Climate Change Commission, “Monitoring report: Emissions reduction Assessing progress towards meeting Aotearoa New Zealand’s emissions budgets and the 2050 target. 2025 Annual Monitoring Report” July 2025, ISSN: 3021-2669 (Online) https://www.climatecommission.govt.nz/our-work/monitoring/emissions-reduction-monitoring/erm-2025
[22] Chapter 2 “Our Findings” ,pp 21 – 39. Op. cit
[23] Kirsty Johnston, “How Jacinda Ardern’s ‘groundbreaking’ climate law has become ‘a shell’”, Radion New Zealand News 19 August 2025, How Jacinda Ardern’s ‘groundbreaking’ climate law has become ‘a shell’ | RNZ News
[24] Op Cit
