The ICJ Advisory Opinion - Obligations of States on Climate Change: Part Three - Implications for Malaysia

In part two, I presented a summary of the portion of the seminar dealing with the second question: What are the legal consequences, if any of breaching these obligations? In addition, I  contextualized the AO’s characterization of the application of lex specialis from the standpoint of developing countries’ negotiating positions and showed how the ICJ had, in effect, affirmed what developing countries have consistently maintained, that the principles of the Convention remain as part of the comprehensive basis for States Obligations.

In this third part, I shall discuss the findings of seminar with respect to the implications for Malaysia and the potential implications of the AO on the upcoming COP30 to be held in Belem, Brazil.

As mentioned in part one, this three-part series is based on the proceedings of a Seminar entitled: The ICJ Advisory Opinion on Climate Change and What it Means for Malaysia, organized and conducted by Environmental Lawyer, Mr. Kiu Jia Yaw and his team at Kiu&Co.

The Obligation of States

The ICJ, in its AO, found that States’ climate obligations arise from the climate change treaties AND customary international law, as both these sources of law coexist and inform each other. The Court’s choice of the holistic, broad-based perspective of State’s obligations is of great significance as it rejected the lex specialis argument by some Parties that obligations only arise under the climate change treaties. 

General obligations of mitigation and adaption

Regardless of Malaysia’s status as a Non-Annex I (developing country) Party under the Convention, and as a country vulnerable to the impacts of Climate Change, the AO finds that all parties (including Malaysia) have legally binding obligations to develop national inventories of emissions and formulate and implement policies for mitigation and adaptation under Art. 4, para. 1(a) and (b) of the UNFCCC. Under the Paris Agreement, Malaysia has the legally binding obligation to communicate its NDCs (Art. 4, para. 2, Paris Agreement), which must become more demanding over time (Art. 4, para. 3, Paris Agreement). This also means that Malaysia’s NDCs must be capable of making an adequate contribution to the achievement of the 1.5 C temperature goal. In this regard, Malaysia is obliged to exercise due diligence and ensure its NDCs fulfil its obligations under the Paris Agreement.

Malaysia’s Obligations with regard to Fossil Fuel Production and the Rationalization of Subsidies

One of the IJC’s most material findings in the Malaysian context concerns Malaysia’s role as an oil producing country. In effect, by continuing to produce fossil fuels, could Malaysia be said to be in breach of its mitigation obligations under the Paris Agreement, and failing to meet a stringent standard in the exercise of due diligence to prevent significant harm to the climate system under customary international law?

Although Malaysia could choose to invoke the principle of common but different responsibilities and respective capabilities and make the claim that the standard of due diligence to be applied on Malaysia must vary according to historical contributions to GHG emissions, Malaysia’s level of development, national circumstances and more, taking such a position should be carefully considered and approached with extreme caution as it would clearly not be consistent with the role of Malaysia as a progressive and committed regional climate leader, notably, as the current Chair of ASEAN. 

What might seem like a minutia, but is nevertheless worth emphasizing, is that the internationally wrongful act would not be the emission of GHGs per se, but the breach of customary obligations pertaining to the protection of the climate system from significant harm through the failure of Malaysia to take appropriate action to protect the climate system from GHG emissions, including through fossil fuel production, the granting of fossil fuel exploration licenses or the provision of fossil fuel subsidies.

Although not part of the AO, the supplementary Joint Declaration of Judges Bhandari and Cleveland is a very important reference. Both judges felt that “given the outsized influence of fossil fuels in the fight against anthropogenic emissions, the Court could have been more forceful in addressing” fossil fuel production, licensing and subsidies. In setting out how States ought to account for scope 3 emissions (emissions from the downstream burning of exported fossil fuels), the judges acknowledged that the principle of common but differentiated responsibilities and respective capabilities apply but stressed that it is not a “get-out-of-jail-card”. 

International Human Rights

The linkage of State obligations with human rights also exposes Malaysia to claims for human rights infringement – namely in the adverse effects of climate change on the enjoyment of human rights, and the right to a clean, healthy and sustainable environment. Such claims are unlikely to be the subject matter of the ICJ, but this AO may provide the legal foundation for human rights claims in other appropriate tribunals.

The Threat of International and Domestic Litigation

Malaysia’s mitigation obligations above are of an erga omnes character, meaning that they are obligations owed to everyone. As such, it is very possible that a breach of its obligation to mitigate (for instance, in the form of an inadequate NDC) may attract international litigation. The Court has opined that the continued granting of licenses for fossil fuel exploration and the provision of fossil fuel subsidies may constitute an internationally wrongful act which is attributable to Malaysia. Litigation could present in the form of a case before the ICJ initiated by vulnerable States against Malaysia specifically or Malaysia as part of a group of oil producing States. If so, the relief sought could range from an order for cessation (e.g. to cease fossil fuel production) and/or (if a causal link between Malaysia’s wrongful act and the particular damage suffered by the injured State can be established), a full reparation. 

Malaysian citizens, likewise, may bring a legal challenge to the Malaysian courts, perhaps by way of a judicial review, where they believe the Malaysian government has fallen short on discharging this obligation. Such challenges may seek a declaration that existing action by the executive (one of the three arms of government) is inadequate in fulfilling Malaysia’s obligations under the climate change treaties and/or customary international law, and/or, in protecting the interests and wellbeing of the citizens and country.

Alternatively, climate-related claims framed as human rights infringements or issues could be filed with the Human Rights Commission of Malaysia, SUHAKAM. Where appropriate, SUHAKAM may initiate an inquiry into the complaint, summoning relevant witnesses and experts as may be necessary, and deliver its finding and recommendations.

In the case of breach of obligations by a private sector party, the Court has also addressed the attribution of the conduct of private actors to States, by stating clearly that States have the obligation to regulate the activities of private actors as a matter of due diligence, i.e. a duty to exercise regulatory due diligence by taking the necessary regulatory and legislative measures to limit emissions caused by private actors under its jurisdiction.

Implications for COP 30 in Belem, Brazil

While Advisory Opinions are not legally binding, this one in particular sends a vital message ahead of COP 30 to strengthen climate action, as it is firmly based in international law. It provides legal arguments that back up demands that have been debated in the policy realm for years. Von Maren Solmecke and Sönke Kredt report in Junge Wissenschaft that the opinion has the potential to elevate climate action and especially influence negotiations under the United Nations Framework Convention on Climate Change (UNFCCC) with its 30th Conference of the Parties (COP) coming up in November in Brazil. 

This involves plans for a global fossil fuel phase-out, more ambitious national climate programs in the form of Nationally Determined Contributions (NDCs) and the expansion of climate finance. For Loss and Damage – the negative impacts of climate change – the opinion provides an unprecedented basis for accountability and an affirmation of the rights of those most affected by climate change. As Brazil’s environment minister recently suggested, COP 30 could deliver a “roadmap to end fossil fuels”. The ICJ opinion has the potential to fortify this demand as it explicitly mentions obligations States have regarding their national fossil fuel industry.

Additionally, COP 30 is anticipated to deliver enhanced climate plans – the NDCs 3.0. While 90% of the Parties to the Paris Agreement failed to submit their revised NDCs by the original deadline in February, the opinion observes that States bear an obligation of result to prepare, communicate, and maintain successive NDCs. This clarification sets a new standard of accountability regarding the delivery of NDCs that should be clearly in line with, not the 2 °C, but rather, the 1.5 °C temperature goal.

This concludes the three-part series on the the ICJs landmark advisory opinion on “the obligations of states with respect to climate change”. I would like to acknowledge the efforts and contribution of Mr. Kiu Jia Yaw and his excellent team at Kiu&Co for convening the Seminar entitled: The ICJ Advisory Opinion on Climate Change and What it Means for Malaysia, held at the Asian Institute of Chartered Bankers (AICB) on the 19 of August, 2025, on which this three-part series is based.