The New Zealand government’s decision this week to reject all of the Climate Change Commission’s emission target recommendations was just the latest in a string of policy statements that weaken the country’s action on climate.
Collectively, the current climate policy settings raise three important (and not hypothetical) questions.
Does weakening domestic action on climate change risk New Zealand being found in breach of international law? Yes.
Could other states take legal action against New Zealand for failing to comply with its international obligations? Yes.
Does a failure to comply with those obligations undermine New Zealand’s commitment to the international rules-based order? Yes.
At the centre of this sits the landmark advisory opinion issued by the International Court of Justice In July. This set out clearly and authoritatively the obligations on states to address climate change, and the rights of other states to take legal action against those that don’t live up to their commitments.
While the opinion is not itself legally binding, the legal obligations identified by the court are – on all states, including New Zealand.
Climate climb-downs
As well as the most recent decision to reject the Climate Change Commission’s emissions target recommendations, the government has also:
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reversed the offshore oil and gas exploration ban in June
reduced the target for methane emissions in October (earning New Zealand a “Fossil of the Day” award at the COP30 climate summit in November, the fourth such award in five years)
minimally increased the emissions reduction target in New Zealand’s second “Nationally Determined Contribution” (NDC), formally submitted at COP30 (aiming for a 51-55% reduction on 2005 levels by 2035, rather than a 50% reduction by 2030 as set out in its first NDC)
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removed the requirement for Emissions Trading Scheme settings to accord with its commitments under the 2015 Paris Agreement.
What international law says
While the International Court of Justice’s advisory opinion is complex, five legal findings are particularly significant.
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New Zealand must contribute to efforts to limit global temperature rise to no more than 1.5°C above pre-industrial levels. This replaces the target of “below 2°C” as set out in the Paris Agreement, and reflects science-based consensus and subsequent practice and decisions since 2015.
New Zealand’s Nationally Determined Contribution emissions target is legally binding. It must reflect the “highest possible ambition” and be developed to “achieve the object and purposes” of the Paris Agreement and the 1992 United Nations Framework Convention on Climate Change (UNFCCC). It must be prepared with “stringent due diligence”. New Zealand has an “active obligation” to pursue scientific information; the more certain the information is, the more stringent the level of obligation.
New Zealand’s domestic measures to implement its NDC target can be independently assessed on the basis of its “stringent due diligence” obligation. Those measures must address production and consumption activities (including fossil fuel production) and apply to private actors under the jurisdiction or control of New Zealand.
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As well as its commitments under the UNFCCC regime, New Zealand has obligations to address climate change under the law of the sea, biodiversity law, human rights law and customary international law (legal principles derived from state practice). Even if New Zealand takes action to comply with its obligations under the Paris Agreement, this may not be enough to comply with its customary duty to prevent significant harm to the environment or to cooperate to address climate change.
Any state may bring legal proceedings against New Zealand for failing to comply with climate change obligations under the general rules of “state re
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