UN vote confirms protecting the climate is a legal obligation, not a choice
Claire Snyder, Executive Director, Climate Integrity
In New York yesterday, Australia voted alongside 140 other countries in support of a resolution at the United Nations General Assembly, welcoming last year’s advisory opinion from the International Court of Justice (ICJ) on climate change – adopting its conclusions as a statement of Australia's international obligations.
If there are still any policy-makers or company directors in Australia who have not yet absorbed the significance of the ICJ Opinion on climate - now would be a good time.
Handed down in July 2025, The Advisory Opinion of the International Court of Justice on the Obligations of States in Respect of Climate Change was a unanimous decision by the 15-member court. While not legally binding, it is globally significant and is already influencing climate policy, regulation, and litigation in Australia.
The ICJ Opinion found that States are subject to a duty under customary international law to employ all means reasonably available to them to prevent significant transboundary harm to the climate system. The Opinion is expansive. It confirms that breaching these obligations constitutes an internationally wrongful act, and that responsible States may be required to cease that conduct, provide guarantees of non-repetition, and pay full reparation — including restitution and compensation — to injured States. Small island nations and least developed countries, which have contributed least to emissions but face the gravest consequences, now have a legal framework through which to pursue those claims. Vanuatu has already warned Australia that it could face legal action.
Crucially for Australia, the ICJ Opinion identifies fossil fuel production, fossil fuel consumption, the granting of fossil fuel exploration licences, and the provision of fossil fuel subsidies as conduct that may breach States' international law obligations and constitute an internationally wrongful act. Two judges — Bhandari and Cleveland — went further, considering it "unimaginable" that States could comply with their treaty and customary obligations without a rapid and drastic reduction in, and the phasing out of, fossil fuel production and dependency.
Australia is the third largest exporter of fossil fuels globally, and the second-largest exporter of fossil fuel emissions due to our pollutive coal exports.So what does this mean for Australia’s fossil fuel industry?
In the aftermath of the ICJ Opinion, Climate Integrity — the independent research and advocacy organisation I lead — commissioned a legal opinion from three eminent barristers, asking what, if any, implications the ICJ Opinion had for Australian companies and their directors.
This legal opinion was authored by Ruth Higgins SC (Banco Chambers), Zoe Bush (Banco Chambers), and Jennifer Robinson (Doughty Street Chambers, UK, who appeared for Vanuatu in the ICJ proceedings themselves). It is the first comprehensive legal opinion in the world to consider the implications of the ICJ Opinion for directors’ duties.
It found that the ICJ Opinion is already driving legal and regulatory developments that heighten climate-related risks for fossil fuel and other emissions-intensive companies in Australia - and that this may raise the standard of care expected of directors of those companies. The authors expressed the view that:
climate change poses foreseeable risks of harm to most, if not all, Australian corporations
the standard of care expected of directors under section 180(1) of the Corporations Act is not static, but rises with the complexity of the times
the ICJ Opinion is already generating legal and regulatory developments that amplify climate-related transition risks for Australian corporations, particularly those that derive revenue from fossil fuels, and will continue to do so
Directors of such companies are required to be across these developments, to consider the risks they pose, and to ensure those risks are accurately disclosed in mandatory sustainability reports — which directors must personally sign. Directors who fail to consider these risks at all, or who approve sustainability reports that omit them, are the most exposed to liability.
By voting to endorse the ICJ Opinion at the UNGA, the Australian government has welcomed a legal obligation to employ every reasonable measure available to stop harm to the climate system — specifically including harm arising from fossil fuel production, consumption, exploration licences, and subsidies. And this UNGA vote does not stand alone. It follows Australia's commitments at the COP28 Global Stocktake, and the Bélem Declaration on the Transition Away from Fossil Fuels — each of which articulate a commitment on fossil fuel phase out.
Of course, this doesn’t mean Australian governments are, across the board, acting in accordance with their international obligations: new fossil fuel projects are still being approved. But the direction of travel - for litigation in particular, but also policy and regulation - is becoming increasingly clear. Australia can't maintain policy and legal incoherence forever.
Directors of fossil fuel companies in Australia cannot claim ignorance of these developments, the AICD recently warned directors they can’t be “asleep at the wheel” on climate risk. The transition risks these developments represent are not speculative. Directors should now be modelling what full compliance with Australia's international obligations would look like in practice — and that scenario is clearly outlined in detail by the ICJ: no approval of new fossil fuel exploration, licensing, or projects; the phasing out of fossil fuel subsidies, including the diesel fuel tax credits that underwrite the economics of much of the sector; and, ultimately, legislative or regulatory action that ends production entirely.
Mandatory climate reporting obligations now require directors to clearly and accurately disclose their transition and physical risks. It is our view, the requisite standard of care is higher than that. Directors of fossil fuel companies must plan for an orderly phase-out of their operations in line with Australia's legal obligations — today’s vote makes this a foreseeable scenario that demands active governance.
The Australian fossil fuel industry’s push for endless expansion is exposing Australia to significant risk of claims for reparations from low-emitting states for climate harms. Australia is likely to take regulatory actions to reduce that risk. Where companies fail to act and to plan for the inevitable wind-down of the industry, they too will be exposed to liability. Communities are already paying the price for fossil fuel driven climate damage, at least a planned and managed fossil fuel phase out can ensure it’s not shareholders, workers and taxpayers who pay the price.
