ICJ AO Litigation Notes Digest February 2026

The document analyzes how the 2025 ICJ Advisory Opinion (AO) establishes a 'stringent due diligence' standard for States to prevent significant harm to the climate system. It argues that regulatory rollbacks, such as easing emission standards or removing Environmental Impact Assessment (EIA) requirements, may constitute internationally wrongful acts. The note provides specific legal excerpts from the AO and applies them to various categories of litigation, including challenges to diluted mitigation standards, weakened land-use protections, and procedural rollbacks. A detailed annex examines recent regulatory shifts in India—including thermal power emission norms, forest governance changes under the Forest (Conservation) Amendment Act 2023, and EIA exemptions—as examples of conduct that may breach the ICJ's established standards.

• The ICJ AO establishes that States have a customary international law duty to prevent significant harm to the environment and the climate system, requiring a standard of 'stringent due diligence'. This standard is context-dependent and becomes more demanding as the probability and seriousness of potential harm increase.
• Due diligence in the context of climate change requires more than just adopting rules; it necessitates active vigilance in enforcement and administrative control. A State may commit an internationally wrongful act by failing to take necessary regulatory or legislative measures to limit emissions from private actors under its jurisdiction.
• The ICJ clarifies that the duty to prevent harm applies even when damage results from the cumulative effects of various acts by different States and private actors, meaning States must assess these cumulative interactions rather than viewing activities in isolation.
• Procedural obligations, specifically Environmental Impact Assessments (EIAs), are distinct from substantive measures but are essential to exercising due diligence. For activities significantly contributing to GHG emissions, EIAs must be based on the best available science and account for the specific character of the risk.
• Under the Paris Agreement, States are obligated to maintain and progressively strengthen their Nationally Determined Contributions (NDCs) to limit global warming to 1.5°C. The ICJ rules that the discretion States have in preparing NDCs is limited and must reflect their 'highest possible ambition'.
• States that commit internationally wrongful acts in the context of climate change may be required to cease that conduct, which specifically includes the revocation of any administrative, legislative, or other measures that constitute the breach.
• In India, recent regulatory changes are identified as potential breaches of the ICJ's stringent due diligence standard, including the July 2025 amendment to thermal power emission norms that shifted from mandatory Flue Gas Desulphurization (FGD) to 'dispersion via stack height' for approximately 78% of coal-fired capacity.
• The Forest (Conservation) Amendment Act 2023 in India is highlighted as a regulatory rollback that narrows the legal definition of 'forest', potentially accelerating deforestation and undermining the duty to protect carbon sinks.

APA

Center for International Environmental Law (2026). ICJ AO Litigation Notes Digest February 2026. https://www.ciel.org/wp-content/uploads/2026/03/ICJ_AO_Litigation-Note-on-Regulatory-Rollback_Feb2026.pdf

Chicago

Center for International Environmental Law. ICJ AO Litigation Notes Digest February 2026. 2026. https://www.ciel.org/wp-content/uploads/2026/03/ICJ_AO_Litigation-Note-on-Regulatory-Rollback_Feb2026.pdf.

Wikipedia

{{cite report |author=Center for International Environmental Law |title=ICJ AO Litigation Notes Digest February 2026 |date=February 2026 |url=https://www.ciel.org/wp-content/uploads/2026/03/ICJ_AO_Litigation-Note-on-Regulatory-Rollback_Feb2026.pdf |access-date=17 August 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{centerforinternationalenvironmentallaw2026icj, author = {{Center for International Environmental Law}}, title = {{ICJ AO Litigation Notes Digest February 2026}}, institution = {Center for International Environmental Law}, year = {2026}, month = feb, url = {https://www.ciel.org/wp-content/uploads/2026/03/ICJ_AO_Litigation-Note-on-Regulatory-Rollback_Feb2026.pdf}, urldate = {2026-08-17}, note = {Indexed by Climate Insights Directory} }