Within a single month, two groundbreaking advisory opinions on climate change have been issued, fundamentally shaking the field of international environmental and human rights law: the Inter-American Court of Human Rights (IACtHR) Advisory Opinion OC-32/25 on the “Climate Emergency and Human Rights” and the International Court of Justice’s (ICJ’s) Advisory Opinion on “Obligations of States in Respect of Climate Change”. Many commentators have hailed these decisions as “historic” and “landmark,” characterizing them as transformative moments in global climate jurisprudence. Legal scholars and practitioners have quickly engaged with various dimensions of the ICJ’s advisory opinion, dissecting issues ranging from the relationship between treaty and customary law to the right to a clean, healthy and sustainable environment. However, another topic– one that strikes at the heart of climate change’s impact on the most vulnerable populations – has unfortunately garnered little attention: climate-induced displacement. The ICJ dedicates just one single, 105-word paragraph to this pressing issue (para. 378).

Still, this one seemingly modest paragraph may have profound implications for millions of people fleeing across borders due to climate change, potentially reshaping the legal landscape for those seeking protection and at least offering minimum guarantees against their removal to a place where they would be at risk. At the same time, however, there is much to be said about what the ICJ conspicuously fails to address or addresses with too much caution, a reticence that has drawn criticism in several separate opinions and declarations, most prominently from Judge Aurescu in his separate opinion (paras. 25-26).

Without diminishing the broader significance of the ICJ’s decision, this blog post examines the ICJ’s treatment of displacement within its broader context, including the Human Rights Committee’s Teitiota decision that the Court prominently cited. It explores what the opinion could have been, particularly compared to the Inter-American Court of Human Rights’ far more comprehensive Advisory Opinion OC-32/25, delivered just one month earlier. The contrast between these advisory opinions reveals different judicial philosophies and divergent approaches to one of the twenty-first century’s most pressing humanitarian challenges.

What the ICJ Said: Recognizing Climate Displacement under Non-Refoulement

In its single paragraph addressing climate change-induced displacement (para. 378), the ICJ emphasized that environmental conditions caused by climate change may endanger lives and force individuals to seek refuge in other countries or prevent their return home. The ICJ held that, under the principle of non-refoulement, states have an obligation not to return individuals to situations where there are substantial grounds to believe there is a real risk of irreparable harm to their right to life, as protected by Article 6 of the International Covenant on Civil and Political Rights. In doing so, the ICJ referenced the Human Rights Committee’s (HRC) landmark 2013 decision in Teitiota v. New Zealand–the key case affirming that climate change may put people’s lives at risk or expose them to cruel, inhuman or degrading treatment, thus triggering states’ obligations not to return them. 

The ICJ’s explicit recognition of the principle of non-refoulement in the context of climate change-induced displacement is therefore both notable and important. Its reliance on Teitiota v. New Zealand, a widely discussed and celebrated decision, signals an emerging convergence between international judicial bodies on the legal consequences of climate-driven harm. As legal scholars Michelle Foster and Jane McAdam have emphasized, Teitiota is “significant for the signal it sends to lawyers, decision-makers and policymakers considering how to respond to displacement in the context of climate change” (see here, at p. 976). By adopting the HRC’s approach, the ICJ affirmed that climate change can create conditions giving rise to non-return obligations under international law – a finding of great relevance for those displaced due to climate change directly or indirectly. 

This acknowledgment, while limited in scope compared to providing refugee protection, offers a meaningful entry point for the strengthening of legal protections for those displaced by climate impacts. It also reinforces growing trends in domestic case law, where courts have increasingly relied on this approach to address climate-related protection claims. The ICJ’s reference, therefore, should not be understated. It ensures that people facing life-threatening climate conditions are at least not returned to dangerous conditions in the sense of non-refoulement.

The ICJ’s articulation of non-refoulement obligations is also significant because it helps resolve long-standing ambiguity surrounding the threshold for protection in climate-related displacement cases – specifically, whether the harm must be imminent to trigger such obligations. The ICJ found that states must not return individuals where there are “substantial grounds for believing that there is a real risk of irreparable harm” to the right to life under Article 6 of the International Covenant on Civil and Political Rights. This phrasing, closely mirroring the HRC’s language in Teitiota (para. 4.5), avoids reference to the imminence of the harm, which has generated confusion in the legal community. 

As Foster and McAdam emphasize, the correct legal standard in human rights and refugee law is not imminence, but rather a real risk or foreseeable harm. By adopting the real-risk standard without reference to imminence, the ICJ reinforces the forward-looking, risk-based logic underpinning international protection. This clarification is crucial: misunderstanding the threshold as requiring imminence has already led to erroneous interpretations in legal manuals and decisions, potentially narrowing the scope for protection and dampening strategic litigation. The ICJ’s more precise framing thus helps to correct the record and offers clearer guidance for future decision-making.

What the ICJ Didn’t Say: Missed Opportunities for Comprehensive Protection

Climate-induced displacement was explicitly recognized in the General Assembly resolution requesting the advisory opinion (Resolution 77/276, preambular para. 8), which noted that climate change effects are “leading to displacement of affected persons.” Despite this, the ICJ devoted little attention to displacement in its advisory opinion. This judicial neglect attracted pointed criticism from Judge Charlesworth on displacement and disability vulnerability (para. 22), and Judge Aurescu on the lack of detail regarding state obligations under the non-refoulement principle in climate contexts (paras. 25-26).

As Judge Aurescu points out in his separate opinion, the ICJ’s treatment of non-refoulement is incomplete, particularly in the context of sea-level rise and the eventual uninhabitability of entire state territories. Judge Aurescu stresses the important point that non-refoulement entails not just passive obligations to refrain from return but also positive obligations under international human rights law. These include duties to admit persons at risk, to conduct individualized risk assessments, and to provide temporary residence permits, as well as to ensure protection from arbitrary detention and non-state violence that could result in indirect refoulement. By failing to engage with these topics, the ICJ missed an important opportunity to offer comprehensive legal guidance on how states must respond to displacement driven by climate change, not only in abstract but very concrete terms, especially for vulnerable populations. 

The ICJ could have drawn from the more advanced and concrete reasoning of the IACtHR in Advisory Opinion OC-32/23. There, in a development of unprecedented importance, the IACtHR became the first human rights court to explicitly require states to establish effective legal and administrative mechanisms for the protection of cross-border displaced persons due to climate change (para. 433). The ICJ, which does reference other regional human rights case law in its opinion, including OC-32/25 (see para. 385), could and arguably should have relied on or at least cited the IACtHR’s findings on climate displacement. Notably, the IACtHR adopted a differentiated and temporally sensitive approach to climate displacement, acknowledging the need for both short-term relief measures, such as humanitarian visas and temporary stays in response to sudden-onset disasters, and longer-term protection mechanisms (para. 433). This nuanced articulation of state obligations offers precisely the kind of legal clarity and practical guidance that the ICJ’s opinion lacks.

The ICJ’s failure to adopt a differentiated approach to vulnerabilities in climate-related displacement is particularly problematic given the clear precedents in international human rights law and the growing consensus on the need to address disproportionate vulnerabilities. The omission is striking considering the availability of authoritative sources that could have guided a more nuanced assessment. For instance, the Committee on the Rights of the Child’s General Comment No. 26 (2023) explicitly recognizes that environmental degradation and displacement place certain groups of children, such as those living in poverty or climate-vulnerable areas, at heightened risk of violence, exploitation, and rights violations. The Committee thus calls for a targeted and rights-based approach that accounts for intersecting vulnerabilities (para. 35). Given the ICJ’s broader reliance on international human rights instruments, it is regrettable that it chose to stop at the Teitiota decision of the HRC and not also engage with more recent and progressive normative developments that could have grounded its opinion in a more inclusive and protective legal framework.

How the ICJ Said It: Cautious Language in the Face of Scientific Certainty

The language used by the ICJ in its advisory opinion on the nexus between climate change and displacement is notably cautious and more reserved than both the General Assembly resolution that triggered the opinion and the scientific consensus reflected in Intergovernmental Panel on Climate Change (IPCC) findings, which serve as the basis for much of the Court’s reasoning. The ICJ stated that conditions “likely to endanger the lives of individuals may lead them to seek safety in another country or prevent them from returning to their own” (emphasis added). This could be read to mean that the ICJ views climate change-induced displacement as a potential outcome in the future rather than the present and ongoing reality it really is. 

The ICJ should have used unequivocal language acknowledging that, while climate change already triggers displacement in certain regions, it is not always the sole or direct cause of such displacement. Indeed, General Assembly Resolution 77/276 explicitly notes that least developed countries and small island developing states are already experiencing displacement due to a broad range of climate-related impacts, including drought, sea level rise, and coastal erosion (preamble). The IPCC in its 2023 Synthesis Report is even more direct, stating with high confidence that climate and weather extremes are increasingly driving displacement across multiple regions (p. 51), and highlighting the disproportionate impact on small island states. It is somewhat surprising, then, that the ICJ, which in many parts of its opinion extensively cites current scientific evidence and IPCC reports, adopts such cautious language in this context. This rhetorical restraint contrasts with the more assertive and empirically grounded language found in the sources it otherwise relies upon. 

Conclusion: A Foundation Built, Opportunities Missed

The ICJ’s treatment of climate-induced displacement, though confined to a single paragraph, represents both meaningful progress and missed opportunity in equal measure. The Court’s explicit recognition of non-refoulement obligations in climate contexts and its alignment with the HRC’s Teitiota jurisprudence represent a significant advancement in legal protection frameworks for climate-displaced populations. By rejecting imminence thresholds and reinforcing risk-based approaches to protection, the ICJ resolves a critical ambiguity that has long hindered both protection outcomes and strategic litigation efforts. This judicial convergence signals growing international recognition of climate displacement realities and establishes essential groundwork for more legal responses to be implemented on the regional and domestic level via political processes.

However, the ICJ’s achievements must be measured against the conspicuous limitations of its opinion. The narrow focus on non-refoulement leaves vast dimensions of climate-related mobility unexplored, including internal displacement, voluntary migration, planned relocation, and crucially, involuntary immobility, where populations cannot move despite facing existential risks. Moreover, the ICJ’s failure to adopt the differentiated vulnerability analysis evident in contemporary human rights jurisprudence, its cautious language that downplays ongoing displacement realities, and its failure to engage with the Inter-American Court’s far more comprehensive treatment in Advisory Opinion OC-32/25 all represent significant shortcomings.

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