20 August 2025 – by Yumna Kamel
The climate justice movement has scored several landmark legal milestones. From the Hague to San José to Cairns, courts and communities are staking claims about what states owe their people in a rapidly warming world. Though each case speaks in the language of law, the underlying question is both human and existential: what duties do states owe to those whose lives and futures are being destabilised by climate change? How might law – imperfect as it is – serve the aspirations of communities facing not just loss but the reality of being forced to move?
Three recent legal moments in particular stand out for what they offer, and what they fail to deliver: the Inter-American Court of Human Rights’ (IACHR) recent advisory opinion on the climate emergency, the International Court of Justice’s (ICJ) advisory opinion on climate change, and the Federal Court of Australia’s judgment in the case brought by Torres Strait Islander leaders Uncle Paul Kabai and Uncle Pabai Pabai.
Together, these decisions reveal a landscape of emerging legal principles, institutional conservatism, and the limits of legal doctrine (that is, rules that guide the interpretation of the law) when confronted with the moral urgency of climate (im)mobility. Climate mobility is the notion of those who have or will move, in whole or in part due to climate factors, while climate immobility considers the circumstances of those who cannot (or will not) move due to climate factors.
The Inter-American Court of Human Rights’ advisory opinion
The IACHR’s advisory opinion, handed down on 3 July 2025, is perhaps the most robust articulation to date of climate obligations under human rights law. Requested by Chile and Colombia, the opinion affirms that the right to a healthy environment encompasses the right to a stable climate – but the Court takes it further. It acknowledges climate change as a human rights emergency that threatens not only the rights to life, health, water and food, but also cultural integrity and self-determination. Particularly striking is the Court’s emphasis on differentiated impacts and responsibilities. It recognises that Indigenous peoples, Afro-descendant communities, and small island populations face disproportionate risks, and that states must take affirmative steps to protect these communities through both mitigation and adaptation.
Perhaps most significantly, the Court situates its reasoning within a framework of interdependence and intergenerational equity, making clear that climate protection is not merely a matter of domestic policy but a collective human obligation. It calls on states to regulate private actors – including major emitters – and to ensure that climate actions are informed by Indigenous knowledge and community participation. In this way, the advisory opinion provides a powerful normative (meaning standard-setting) resource for rights-based climate litigation and advocacy, especially in the Americas.
Still, its legal authority is limited. As an advisory opinion, it lacks direct enforcement mechanisms. While it references the rights of cross-border climate-displaced persons, it stops short of setting out a framework for how states should concretely respond to the realities of climate-induced migration. The omission is notable. As coastal and low-lying communities in Central America and the Caribbean face rising seas and intensifying storms, the need for proactive mobility frameworks has never been greater.
International Court of Justice’s advisory opinion on climate change
The ICJ’s opinion, released just weeks later, similarly affirms that states have legal obligations to address climate change. Framed as a question of international law rather than human rights per se, the opinion draws on the UN Charter, customary international law, and the Paris Agreement. Contextually radical, it confirms that states have a duty to prevent significant environmental harm and to protect the rights of present and future generations.
However, where the IACHR’s opinion is sweeping and specific, the ICJ’s is more cautious and general. While it underscores that states can be held accountable for inadequate climate action, it avoids adjudicating responsibility in relation to specific harms or state actors. Nor does it meaningfully engage with the lived experience of climate-displaced people, despite calls from Pacific Island nations to recognise the ongoing threat to their sovereignty and survival.
The ICJ’s opinion may carry more universal legal weight, but its abstract nature does render it less accessible to those seeking immediate relief or recognition. In other words, it signifies an overarching cultural shift, but it is not an immediately accessible tool or solution for those living the realities of climate displacement today.
Pabai Pabai v Commonwealth of Australia
If the advisory opinions offer aspirational statements of principle, the decision of the Federal Court of Australia in the Pabai case lays bare the current distance between moral responsibility and legal redress. Filed by two community leaders from the Torres Strait Islands – and following a scathing, non-binding decision from the UN Human Rights Committee in Daniel Billy et al v Australia – the case sought to establish that the Australian government owed a duty of care to protect their homelands from the impacts of climate change. The evidence was clear: rising sea levels are already eroding ancestral lands, contaminating freshwater supplies, and threatening cultural continuity.
Yet the court declined to recognise a novel duty of care, reasoning that such matters were questions of high government policy unsuited to judicial determination. In doing so, the judgment reaffirmed the longstanding unwillingness of common law courts to intervene in politically sensitive arenas, even where the stakes are existential. The decision acknowledged the scientific basis of the plaintiffs’ claims and the seriousness of the threat they face, but ultimately found that tort law was not the avenue through which climate justice would be achieved for this community.
This outcome is devastating, if unsurprising. Like the Sharma case before it, Pabai reveals the structural limitations of tort-based climate litigation in jurisdictions where courts are reluctant to impose duties on the state. Yet, like the beginnings of the ICJ Advisory Opinion instigated by the Pacific Islands Students Fighting Climate Change (PISFCC), it highlights the resilience and innovation of Indigenous legal strategies.
The plaintiffs have already indicated that they will appeal, and their broader campaign continues to push for legislative and political recognition of climate harm as a matter of Indigenous justice and sovereignty.
What do these decisions, taken together, mean for climate (im)mobility?
Taken together, these three legal developments offer a snapshot of a global legal order in flux. Advisory opinions like those from the ICJ and IACtHR may lack coercive force, but they reshape the rights-based terrain, providing tools and language for communities and advocates to press their claims. Domestic judgments, even adverse ones, can catalyse political organising and public awareness.
As always, the law alone is not enough. It must be accompanied by a willingness to reimagine legal contemplations and redress in ways that centre the voices and knowledge of those most affected.
For climate-affected communities, particularly Indigenous peoples whose ties to land and culture are not easily transplanted, the challenge is not only to secure recognition, but to ensure that any mobility is just, dignified, and community-led. That requires legal initiatives and frameworks that are capable of grappling with displacement, not as an unfortunate side effect, but as a central justice concern.
As these cases show, we are not there yet. But the path is being cleared, one legal claim at a time.
