Climate Litigation Can’t Fix the Past, but It Can Hinder the Future
Dealing with climate change requires technological innovation and economic growth, not legal warfare between nations.
The International Court of Justice’s advisory opinion purporting to establish legal grounds that would allow nations to sue one another over climate damages represents judicial overreach that ignores economic history and threatens global development. While the opinion was undeniably legally adventurous, the framework it envisages would be practically unworkable as well as economically destructive.
The ICJ’s ruling suggests countries can be held liable for historical emissions of planet-warming gases. That creates an accounting nightmare that no legal system can resolve. How does one calculate damages from coal burned in Manchester in 1825 versus emissions from a Beijing power plant in 2025? How does one stack up the harm caused by a warming world against the benefits of industrialization?
Britain began large-scale coal combustion during the Industrial Revolution, when atmospheric CO2 concentrations were 280 parts per million and climate science did not exist. Holding Britain liable for actions taken without knowledge of consequences violates basic principles of jurisprudence. The same applies to the United States, whose early industrialization occurred during an era when maximizing economic output was considered unambiguously beneficial to human welfare.
Critics of historical emissions ignore what those emissions purchased. British coal combustion powered textile mills that clothed much of the world, steam engines that revolutionized transportation, and factories that mass-produced goods previously available only to elites. American industrialization followed, creating assembly lines, electrical grids, and chemical processes that form the backbone of modern civilization.
These developments were not zero-sum exercises in resource extraction. They created knowledge, infrastructure, and institutions that benefited everyone. The steam engine led to internal combustion engines, which enabled mechanized agriculture that now feeds 8 billion people. Coal-powered steel production made possible skyscrapers, bridges, and the infrastructure that supports modern cities, where most humans now live longer, healthier lives than their ancestors.
The data on human welfare improvements since industrialization began are explicit. Global life expectancy increased from approximately 29 years in 1800 to 73 years today. Infant mortality rates fell from over 40 percent to under 3 percent. Extreme poverty, defined as living on less than $2.15 per day in purchasing power parity terms, declined from over 80 percent of the global population in 1800 to under 10 percent today.
Nutrition improved dramatically. Caloric availability per person has increased by roughly 40 percent since 1960 alone, while food prices relative to wages fell consistently. Height, a reliable indicator of childhood nutrition, increased significantly across all regions. Educational attainment expanded from literacy rates below 10 percent globally in 1800 to over 85 percent today.
These improvements correlate directly with energy consumption and industrial development. Countries that industrialized earliest experienced these welfare gains first, then transmitted the knowledge and technology globally. The antibiotics developed in American and European laboratories now save lives worldwide. The agricultural techniques pioneered in industrialized nations now feed populations that would otherwise face starvation.
The International Court of Justice’s liability framework threatens to undermine the very mechanisms that created these welfare improvements. Innovation requires investment, which requires confidence in property rights and legal stability. If successful economic development subjects countries to retroactive liability, the incentive structure tilts away from growth and toward stagnation.
Consider current developing nations. Under this legal framework, should India or Nigeria limit their industrial development to avoid future liability? Should they forgo the coal and natural gas that powered Western development? That creates a perverse situation where the legal system penalizes the exact processes that lifted billions from poverty.
The framework also ignores technological solutions. The same innovative capacity that created the Industrial Revolution is now producing renewable energy technologies, carbon capture systems, and efficiency improvements that address climate concerns without sacrificing development. Market incentives and technological progress offer more promise than legal blame assignment.
Which emissions count as legally actionable? All anthropogenic CO2 remains in the atmosphere for centuries, making every emission since 1750 potentially relevant. Should liability begin with James Watt’s steam engine improvements in 1769? With the first coal-fired power plant? With Henry Ford’s assembly line? The temporal boundaries are arbitrary and politically motivated rather than scientifically determined.
Similarly, which countries qualify as defendants? The largest current emitters include China and India, whose recent emissions dwarf historical American and British totals. China alone now produces more CO2 annually than the United States and Europe combined. Any coherent liability framework must address current emissions, not just historical ones.
And where would the money go? This aspect of the case was brought up by Vanuatu. If the island nation receives compensation from the UK and the US, should it not be obliged to pay the British and the Americans for a plethora of life-enhancing Western discoveries, including electricity, vaccines, the telephone, radio, aviation, internet, refrigeration, and navigation systems?
Climate adaptation and mitigation require technological innovation and economic growth, not legal warfare between nations. The countries that industrialized first possess the technological capacity and institutional knowledge to develop solutions to today’s problems. Channeling resources toward litigation rather than innovation represents a misallocation that benefits lawyers while harming global welfare.
The ICJ opinion reflects wishful thinking rather than practical policy. Legal frameworks cannot repeal economic reality or reverse the historical processes that created modern prosperity. Instead of seeking retroactive justice for emissions that enabled human flourishing, policymakers should focus on technologies and institutions that sustain development while addressing environmental concerns. The alternative is a world where legal systems punish success and innovation while offering nothing constructive in return.
The original version of this article was published in National Review on 8/12/2025.
Of course, the ultimate goal here has nothing to do with climate!! It is all about employing more lawyers. Of that, there is no doubt.
MARIAN TUPY , YOU SAY "Dealing with climate change requires technological innovation and economic growth, not legal warfare between nations."
I agree entirely and I think that Bjorn Lomborg, known for his more skeptical and economically-focused views on climate action, author of books like The Skeptical Environmentalist and False Alarm , would also agree with you.[ He has suggested that MOST MONEY is futilely wasted in pursuing these "ideological fantasies" and that the BENEFITS of the extra CO2 and a bit more warmth has been greatly underestimated and under-appreciated ! ]
Plants utilize carbon dioxide (CO₂) for photosynthesis to produce food, and anthropogenic, or human-emitted, CO₂ contributes to this process. This phenomenon, known as the "CO₂ fertilization effect," increases the growth rate and productivity of many plant species, including major food crops like wheat, rice, and soybeans. Perhaps "we" could retaliate and PROVE WITH STATISTICS that , far from harming anybody , "we" have been helping them with "free fertiliser"
for a couple of hundred years .....and that THEY really should REIMBURSE US for "our" contribution towards their constant welfare ?!??
I also think that it is time for MOST WESTERN CIVILISED COUNTRIES to withdraw from the UN and cease funding it entirely ! They are now a useless organisation which has devolved into a socialist ideological-morass delivering anti-western-propaganda and now seems intent on ATTACKING and DAMAGING all the countries which set it up and financed it for all these years !
The IJC [ International Court of Justice ] is one such appendage of the UN arrogance and hubris !
The "entire World has benefited greatly from the WEST'S contributions over many years" both financially and from the technological inventions and innovations .........mostly provided free !
Since they are "no longer as poor as they once were , or living in poverty" then it's time they learned to "stand on their own feet" ! The colonialisation and subsequent civilising-influence and the imposition of education and better-living-conditions and industries creating wealth are a major reason that their lives are so much improved and their life-expectancy has lifted !
This was done very largely from the "charitable point of view " that was driven by Christian missionaries and that has almost all been replaced by secular organisations , financed by the taxpayers now , not the churches ! Unfortunately , "we" have created the "welfare mentality" amongst them as well as our own , and they seem to think they are "entitled to welfare" forever from THE WEST'S BOTTOMLESS MONEY-PIT ! I think it's time to reacquaint them with REALITY !
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Developing countries SHOULD UTILISE ALL THEIR SOURCES OF ENERGY to create industries and advanced and wealthy societies......just as "we" have done ........and not be inhibited , penalised and constrained by stupid "green nonsense" .
As for ISLANDS SINKING : The available evidence shows that SOME atolls are re-arranging themselves occasionally , but MOST are accreting sediment and GROWING LARGER !
."While many Pacific islands are indeed growing or stable, not sinking, as stated in a 2010 study, this growth doesn't negate the dangers of climate change, particularly rising sea levels and coastal erosion in some areas. The islands' ability to grow, by accumulating sediment from storms and healthy coral reefs, challenges the idea of widespread drowning, but this natural process is hindered by human infrastructure, making adaptation and protection crucial for island communities."........YEAH ! ADAPTATION ! FORGET THE EMOTIVE CASH-HAND-OUTS !!!
Like The Netherlands : About one third of the Netherlands lies below sea level, with the lowest point being 22 feet (6.7 meters) below sea level. Meanwhile, the highest point is about a thousand feet above sea level. THE HAGUE is about 1 metre BELOW sea level ....but the IJC is in NO IMMEDIATE DANGER yet either ! [ But hopefully it WILL BE when the WESTERN countries they are continually attacking WITHDRAW THEIR FUNDING from the diabolical UN ! ].
It's time that AUSTRALIA sorted out it's own DOMESTIC PROBLEMS , many of which are FINANCIAL , and CULTURAL , and left the rest of the World to rely on it's own resources !