Not too early: Human rights law and the obligation to phase out fossil fuels

Abstract

This commentary engages with Harro van Asselt and Tejas Rao's analysis of the implications of the ICJ's Advisory Opinion on Climate Change for fossil fuel‐producing States. The Court affirmed that States are subject to a ‘stringent’ due diligence obligation to prevent harm to the climate system and other parts of the environment, proportionate to the risk of irreversible harm. I examine the content and ‘stringency’ of this standard through a systemic interpretation of inter‐State and international human rights law, arguing that it entails a duty to phase out fossil fuels. This duty operates both as a forward‐looking mitigation obligation, differentiated according to historical responsibility and respective capabilities, and as a secondary obligation of cessation where the primary obligation has already been breached. On this basis, I respectfully reject van Asselt and Rao's conclusion that ‘it may be too early to declare that international law requires the phase‐out of fossil fuels’.