Commissioned by
Joint Opinion
Implications of the International Court of Justice’s Advisory Opinion on the Obligations of States in Respect to Climate Change for directors’ duties in relation to climate-related risks
About the Opinion
The ICJ Directors Duties Joint Opinion is the first comprehensive legal opinion in the world to consider the implications of the historic International Court of Justice’s Advisory Opinion on the Obligations of States in respect of Climate Change (ICJ Opinion) for directors’ duties.
Authored 26 March 2026, by Ruth Higgins SC (Banco Chambers), Zoe Bush (Banco Chambers), and Jennifer Robinson (Doughty Street Chambers, UK), the latter appearing for Vanuatu in the ICJ proceedings.
It was commissioned by the not-for-profit research and advocacy organisation, Climate Integrity. Counsel were instructed by Jennifer Balding, Principal, Viridis Legal and Chair of Climate Integrity.
The opinion concludes that the ICJ Opinion is already driving legal and regulatory developments that heighten climate-related risks for fossil fuel and other emissions-intensive companies in Australia, which may raise the standard of care expected of directors of those companies.
The bar for how directors manage these risks is rising - even before taking into consideration the ICJ Opinion. This is particularly true for directors of companies subject to Australia’s mandatory climate reporting regime, which commenced in 2025.
There is no one-size-fits-all approach for how directors should discharge their duty of care in relation to climate-related risks. However, a director can take steps to minimise the risk of being found liable for breaching their duty of care.
Authors
Ruth Higgins SC
Banco Chambers-
Ruth Higgins SC is a barrister practicing nationally, from Banco Chambers in Sydney.
Jennifer Robinson
Doughty Street Chambers-
Jennifer Robinson is an award-winning barrister at Doughty Street Chambers in London. Jen has acted in key international law, human rights, climate change and media freedom cases in domestic and international courts. In the recent Chambers and Partners guide, Jen was described as “the leading human rights lawyer of her generation."
Her work on climate-related cases includes successfully challenging anti-protest injunctions, successfully challenging the UK’s fracking policy on climate grounds and acting for Vanuatu and the Marshall Islands in the International Court of Justice advisory opinion proceedings on climate change. She was a member of the expert counsel team for Vanuatu, advising on the initiative to bring the matter before the International Court since its outset, and appeared for Vanuatu and Marshall Islands in the oral proceedings.
She sits on the boards of the Grata Fund, the European Centre for Constitutional and Human Rights and the Bonavero Institute of Human Rights at Oxford University. She is the recipient of numerous awards, including International Pro Bono Barrister of the Year in 2019 and the 2024 Marie Claire Powerhouse of Year Award, which she shared with the Governor-General of Australia, Samantha Mostyn.
Zoe Bush
Banco Chambers-
Zoe Bush is a barrister at Banco Chambers. Prior to coming to the Bar, Zoe appeared as a solicitor advocate and was lead instructing solicitor in contested matters before the High Court, Federal Court, Supreme Court of Western Australia and lower courts. She has experience across a broad range of proceedings, including corporate and consumer law, public law, and regulatory prosecutions. She has particular expertise in climate change and environmental law.
Zoe holds a Master of Laws from Columbia Law School, where she studied on a General Sir John Monash Scholarship. She graduated from the University of Western Australia with a Bachelor of Law (Hons I) and Arts, where she is an Adjunct Senior Lecturer. She has won numerous academic awards and prizes, including placing first in climate change law at Columbia.
In her time as a solicitor, Zoe was awarded 30 under 30 Pro Bono/Community Lawyer of the Year and Junior Woman Lawyer of the Year.
About the ICJ Advisory Opinion on the Obligations of States in respect of Climate Change
Delivered in 2025 as a unanimous decision of a 15-member Court, the ICJ Climate Opinion said that States have a duty to prevent significant harm to the climate system.
This requires States to regulate the conduct of private operators within a State’s jurisdiction or control so as to “achieve deep, rapid, and sustained reductions of GHG emissions.”
The ICJ expressed the view that a breach of the obligation to protect the climate system constitutes an internationally wrongful act, giving rise to State responsibility, which could attract consequences such as an obligation to pay financial compensation to another State for the damage caused by climate change.
The ICJ emphasised fossil fuel production and consumption, the granting of fossil fuel exploration licences, and the provision of fossil fuel subsidies as conduct that may breach those obligations.
Key findings
Selected passages from the ICJ Directors Duties Joint Opinion
Directors of companies in the fossil fuel sector are perhaps the most exposed:
“Corporations in the fossil fuel sector are perhaps most exposed to the potential for the Opinion to drive regulatory developments adverse to their interests, given that the ICJ emphasises fossil fuel production, fossil fuel consumption, the granting of fossil fuel exploration licences, and the provision of fossil fuel subsidies as conduct that may constitute an internationally wrongful act.” (par 77)
“A corporation that generates revenue from the production and/or supply of fossil fuels is exposed to the risk that those profit-generating activities may be limited, prohibited or rendered financially unviable. A corporation with assets associated with fossil fuel extraction, production and/or supply is exposed to the risk that those assets will become stranded and give rise to significant decommissioning liabilities. In our view, directors of such corporations would be required in their decision-making processes to at least consider such risks.” (par 83)
Directors must weigh not just financial impacts but all corporate interests: “... the balancing exercise is not necessarily confined to commercial considerations or to a comparison of monetary consequences. It extends to considering all the interests of the corporation, including its reputation and interest in pursuing lawful activity. That is significant in the context of climate-related risks. Even if a corporation’s contributions to climate change do not pose foreseeable risks of harm to the corporation’s financial interests, they may pose risks of harm to its other interests, particularly as the regulation of emissions-intensive activities tighten and societal and market expectations evolve.” (par 29)
The standard for directors’ duties on climate-risk is not static, and is likely to increase over time:
“The Opinion has already precipitated legal and regulatory developments that create or amplify climate-related transition risks to which some Australian corporations, particularly those that derive revenue from fossil fuels or other emissions-intensive activities, are exposed … As the magnitude of those risks or the probability of their occurrence rises, so too may the standard of care expected of directors of those corporations. (par 120)
The Opinion may inform litigation against companies, particularly greenwashing claims”
“The Opinion may also provoke direct litigation against companies. For example, claimants may allege that a corporation contravenes statutory prohibitions on misleading or deceptive conduct if it describes its business activities and/or emissions reductions targets as “Paris aligned”, despite increasing its production of fossil fuels or not otherwise aligning its activities and/or targets with the 1.5℃ temperature goal.” (par 108)
“More significantly, claimants may rely on the Opinion to support claims that corporate emitters are tortiously liable for climate-related harms. The potential for such liability is already crystallising in foreign jurisdictions…” (par 109)