Interview by Director of the Legal Department of the Russian Foreign Ministry Maxim Musikhin with the TASS news agency, October 18, 2025
18 October 2025 11:17
1728-18-10-2025
Question: Good afternoon, Mr Musikhin. The International Court of Justice has recently issued an advisory opinion clarifying countries' obligations regarding climate change. It was the first time the climate "case" has been considered by such a high court, which attracted considerable attention of the global community. You were involved in those proceedings as a Russia representative during the hearings. Allow me to ask you a few questions regarding the process and the outcome of the case.
Maxim Musikhin: Good afternoon. Indeed, the advisory opinion issued in July may be considered a certain milestone in international environmental law. We were actively involved in the process and presented our in-depth position to the court in writing and verbally. This position was developed in cooperation with other Russian ministries and agencies, as well as our competent experts.
The court's opinion received a wide public response. It is extensive and requires serious analysis that we are currently conducting. There are aspects on which I can already comment at this point.
Question: To begin with, who initiated the request for an advisory opinion and why?
Maxim Musikhin: It was the initiative of the Government of Vanuatu that formed a coalition with 18 other small island states in the Pacific Ocean to submit the matter to the UN General Assembly. Consequently, on March 29, 2023, the Assembly unanimously adopted Resolution 77/276 requesting an advisory opinion from the International Court of Justice concerning climate change.
The trial set a record for the number of participants in the history of the ICJ. The adverse effects of climate change observed by all states and populations to various extents indicate the urgency of this matter. First of all, these adverse effects include extreme weather conditions such as storms, hurricanes, droughts, floods, etc. Rising sea levels is the biggest challenge for small island states that is fraught with territory loss and ultimately complete submergence. For many countries, it is a matter of survival and preserving their statehoods. These phenomena entail various socioeconomic ramifications. In view of this overarching nature of the problem, climate change concerns all countries one way or another, hence the extensive participation in the hearings. Global challenges call for global efforts. Of course, we cannot stand by.
Question: The UN General Assembly has raised a number of questions with the Court. Could you briefly highlight Russia's position on them?
Maxim Musikhin: The first question was what international legal obligations of States are there to protect the climate system and other components of the environment from human-caused greenhouse gas emissions; the second concerned the legal consequences for the States which, through their action or omission, have caused significant damage to the climate system and other components of the environment.
First of all, we believe that the Court's Advisory Opinion should not have created new obligations for States or led to a revision of the decisions of the Conference of the Parties to the United Nations Framework Convention on Climate Change (UNFCCC), and put pressure on the current negotiating track within the framework of the UNFCCC Conference of the Parties.
The main point of the Russian position was that the States' obligations with regard to climate change are the subject of specialised treaties of the UNFCCC system (in addition to the Framework Convention itself, these are also the Kyoto Protocol and the Paris Agreement). In addition, the customary legal obligation to prevent significant trans-border damage to the environment may apply.
We have also argued that the 1982 United Nations Convention on the Law of the Sea does not provide for independent obligations regarding climate change, and combatting the negative effects does not fall within its scope.
As I have already mentioned, global challenges require global efforts, thus the significance of international cooperation in combatting climate change was emphasised. In addition to the global mechanisms (UNFCCC), they underscored the role of regional cooperation in climate, in particular, they gave positive examples of cooperation within the framework of the EAEU, SCO and the CIS.
In the context of the obligation to cooperate, we drew the Court's attention to the problem of illegal unilateral coercive measures (sanctions). We noted that such measures do not allow the world community to effectively respond to the challenges associated with adverse effects of climate changes. Unilateral coercive measures not only fail to contribute to the achievement of the UNFCCC and the Paris Agreement goals, but also, in fact, cause damage to the environment, as well as violate the very obligation to cooperate, for which the States introducing them must bear responsibility under international law.
As for the second question raised in the UNGA resolution on the legal consequences of damage to the climate system, we proceeded from the applicability of general rules of international responsibility without distinction in their application to certain categories of states, be they developed or developing, particularly vulnerable or some other kind.
Question: What positions did other states have? What were the contradictions?
Maxim Musikhin: I would conditionally identify three groups of states based on their similar positions: developed countries, large industrial developing countries, small island States and other most vulnerable States.
Developed countries, for the most part, adhered to conservative positions, limiting "climate" obligations to the framework of the relevant agreements of the UNFCCC system. They were skeptical about expanding the scope of customary legal standards and the emergence of new obligations that were not explicitly stated in the climate treaties. In the latter, they distinguished between legal and political obligations. It was pointed out that the treaties of the UNFCCC system do not provide for mechanisms to bring States to legal responsibility.
Large industrial developing countries also assumed that the "climate" obligations stem only from the UNFCCC system. They were also cautious about expanding the scope of international law and lent weight to the principles of climate treaties, such as the principle of "common but differentiated responsibilities," "fairness," etc. These countries are not opposed to some kind of "historical responsibility" for greenhouse gas emissions in the past, however, more rhetorically than legally.
As for small island States and other most vulnerable States, their approach was the most progressive and radical. It implied the emergence of a wide range of new obligations, including under customary law and in the field of human rights protection. These States made an emphasis on the liability for damage caused by the effects of climate change, discussed possible mechanisms of compensation to victims, and called for the historical responsibility for greenhouse gas emissions to be legally taken into account. They also raised the issue of the legal consequences of the rising sea level - the status of maritime borders and the preservation of statehood.
Thus, the opinions of States differed on many points - the sources of obligations, the status of certain treaty provisions, the relationship between obligations in climate and human rights protection, the mechanism for holding States accountable for climate damage, and others.
Question: Do you think the Court has managed to balance these positions?
Maxim Musikhin: It is hard to say with certainty. In some matters, the pendulum has swung more in one direction, in others - in the other. Of course, it would be quite difficult for the Court to find a compromise on the entire range of topics raised. Speaking generally, on the first issue, i.e. on obligations, the Court's conclusions take into account the positions of vulnerable States to a greater extent, and on the second issue, on legal consequences, the Court took a more restrained approach.
Question: What conclusions of the Court could Russia use to advance its interests on the climate track?
Maxim Musikhin: The Court has ruled that all States have an obligation to cooperate in order to combat climate change, and this obligation stems from common law, and cooperation must be carried out in accordance with the principle of good faith. Although the Court did not comment on the use of illegal unilateral coercive measures (sanctions) by States, it is obvious that such measures are a breach of the obligation to cooperate and the States introducing them must be held responsible.
These arguments could be used on the climate track to put pressure on the countries that have imposed sanctions against Russia, as many of these unilateral measures directly or indirectly affect the implementation of climate policy, the achievement of the goals of the UNFCCC and the Paris Agreement, and undermine global efforts in this area.
A good side of the Opinion is that the Court confirmed that the main sources of "climate" obligations are the UNFCCC treaties, which we have always assumed. This underlines the priority of the contractual nature of the international climate regime and the need to respect the agreements reached between States.
I would note that the Court pointed out the need for due consideration of the principles of "common but differentiated" responsibilities and related opportunities, fairness and sustainable development. These provisions contribute to maintaining a balance between States with different levels of economic development.
Also, the principle of sustainable development, as outlined in the UNFCCC, emphasises that economic development is key to responding to climate change.
Question: In which matters, do you think the Court swayed towards excessive creativity?
Maxim Musikhin: This was most clearly evident in the recognition of the "right to a clean, healthy and sustainable environment" which is not enshrined in any international treaty.
Interestingly, the Court used partly the same arguments as we did when considering this issue at the UN General Assembly, bit it came to the opposite conclusions. In support of this right, the Court referred to several regional treaties and national legislation of countries that recognise similar rights, but in different wording (which, by the way, the Court itself emphasised), for example: "the right of peoples to a generally satisfactory level of the environment conducive to their development," "the right to a safe environment," "the right to live in a healthy environment." In our opinion, the content of these rights is by no means identical. The Constitution of the Russian Federation, for example, recognises the right to a favorable environment.
The "Right to a clean, healthy and sustainable environment" is a mechanical compilation of various rights recognized in various regional and national acts and cannot claim to be universal.
The Court relied on UN General Assembly Resolution 76/300, which recognises this right. However, this is a legally non-binding recommendation document. And it was not adopted by consensus: eight states, including Russia, abstained from voting. The Court, however, presented the resolution as "evidence of the acceptance of this right," which, apparently, should be perceived as a kind of opinio juris (belief in legal obligation).
Yet the Court's conclusion seems more logical that a clean, healthy and sustainable environment is "a prerequisite for the exercise of many human rights" (the right to life, to health, to a sufficient standard of living, etc.). It follows that their provision by the state may require measures to protect the environment. However, we do not think this means the emergence of any particular new right.
Question: Judging by the publications, world experts were surprised most of all by the Court's conclusion that the failure of the state to take appropriate measures to protect the climate system, including through production and consumption of fossil fuels, issuing licenses for its prospecting or providing subsidies for it, may constitute an illegal act. Could you comment on what is behind this phrase and what are its consequences?
Maxim Musikhin: The Court, which is usually careful in its wordings, took a rather radical approach to interpretation because climate treaties do not impose restrictions on resource activities or the use of specific energy sources. The topic of fossil fuels was raised by the Court as part of a question about the legal consequences of violating climate obligations, and specifically, in the context of attributing a particular behaviour to the State. It is important to clearly understand what the Court meant in order to avoid misinterpretation.
The production and consumption of fossil fuels, their licensing and subsidisation were mentioned by the Court as possible examples of the State's failure to take appropriate measures to protect the climate system from greenhouse gas emissions. The Court stressed that it was not the release of greenhouse gases itself that was illegal but a hypothetical violation of contractual and common law obligations indicated by the Court in the response to the first question of the General Assembly.
In other words, activities related to fossil fuels are not illegal, but under certain conditions they can lead to a violation of obligations. The main question that arises is who and how will define these conditions? The court did not mention this.
The approximate framework can be understood using the concept of "due diligence" which the Court used to describe the obligation to prevent significant harm to the environment. When carrying out activities related to fossil fuels, States should act with due diligence to prevent or mitigate negative impacts.
"Due diligence" is a rather vague term and there are no clear standards of conduct. As a rule, an assessment of whether it has been present is made on a case-by-case basis, taking into account all the circumstances. The States disagreed about the threshold of permissible activity, and the Court was unable to establish any criteria. However, based on the Court's findings, the behaviour expected from different States will vary according to the principle of "common but differentiated responsibilities and respective capabilities in the light of different national circumstances."
As to private entities, the liablilities of the state, as noted by the Court, include regulating their activities. The State may be held accountable if it has not taken necessary regulatory and legislative measures to limit the amount of emissions produced by private entities under its jurisdiction. The court described this as "regulatory due diligence."
Thus, the Court's conclusions cannot be interpreted as a ban on the production, consumption, licensing or subsidising of fossil fuels. It is also not true that such an activity in itself can entail responsibility.
The use of certain energy sources lies within the exclusive competence of the State and should be determined with account of national specifics, including energy security, the structure of the economy and the level of technological development. At the same time, the State must regulate greenhouse gas emissions in accordance with its obligations under the climate treaties and the general obligation to prevent harm whereby an assessment of what kind of behaviour is required in accordance with the principle of "due diligence" will be carried out on a case-by-case basis.
Question: The court recognised the legal force of the global temperature rise limit of 1.5°C. In fact, the Court's interpretation changed the temperature target of the Paris Agreement where the upper limit is indicated as 2°C. How does this affect the Paris Agreement?
Maxim Musikhin: Let us figure it out step by step. The Court pointed out that decisions of the governing bodies of climate treaties can entail certain legal consequences in two cases: the first is when it is explicitly stated in the treaty; the second is when the decision is a "subsequent agreement of the parties" within the Vienna Convention on the Law of Treaties. That is, it expresses an agreement between the parties regarding the interpretation of the agreement. The Court recognised the decisions of the Conference of the Parties precisely as such "subsequent agreements" reflecting the desire to limit the temperature rise limit to 1.5°C.
However, this does not mean that they replace the provisions of the Agreement. Such decisions, as the Court noted, can act as a means of interpretation. At the same time, it referred to the commentary to the "Draft conclusions on subsequent agreements and subsequent practice regarding the interpretation of treaties" prepared by the UN International Law Commission in 2018. This document contains very important provisions. Thus, the interpretative resolutions of the conferences of the parties themselves are not legally binding. The interpreter should attach importance to them but not necessarily consider them as legally binding.
The same commentary notes that the decision of the Conference of the Parties can be considered as a "subsequent agreement" if there is enough evidence that this was the intention of the parties at the time of the decision. And here the key question arises - did the parties have an intention?
As representatives of some countries noted in Court, the sessions of the UNFCCC Conference of the Parties (the same body acts as the meeting of the Parties to the Paris Agreement) are a political process. The decisions made within its framework are also political. When a number of the parties to the agreement explicitly state that they had no intention of giving legal force to the decisions of the Conference of the Parties, the Court comes to the opposite conclusion.
Even if there is a minority of such participants, in order for the decision of the Conference to be recognised by a subsequent agreement, the intention must be general, otherwise it is not an agreement. The Conference did not qualify its decisions in this way. It would be possible to recognize the existence of a "subsequent agreement" only between those parties who are willing to consider it as such. However, in our opinion, such an option would not succeed, as it would lead to the fragmentation of the UNFCCC treaty system.
We should also remember that many States have agreed to include certain provisions in the decisions of the Conference of the Parties in view of their lack of binding legal force. Otherwise, we simply would not have reached decisions that were very difficult to make even within the framework of a purely political process.
There is another point that casts doubt on the Court's conclusion about the validity of decisions on the temperature target. Decisions of the Conference of the Parties may be used as a means of interpreting the treaty. However, this is not the only remedy, there are others. For example, the subsequent practice of applying the agreement. And here we need to look at the Paris Agreement. The Court found that, taken together, the so-called nationally determined contributions of States should be able to achieve the temperature target (1.5 °C in the Court's interpretation). However, the States are currently far from this level. Moreover, even the immediate goal of keeping the temperature rise within 2°C has not yet been achieved. To move towards a more ambitious goal, States first need to achieve a more realistic one. The practice of applying the Paris Agreement to date does not confirm the legal reduction of the temperature rise limit.
I believe that the arguments of those countries that argued in the framework of process that 1.5°C is an aspiration, a guideline, a political goal are fair. The decisions of the Conference of the Parties do not reflect the general intention of States to make this benchmark mandatory.
So, for us, the temperature target of the Paris Agreement remains the same.
Question: How much do you think the Opinion of the International Court of Justice will affect international climate law?
Maxim Musikhin: The Advisory Opinion will certainly have an impact on the development of the doctrine of international law in the area of climate. It can be used as an auxiliary source for argumentation in international negotiations, in the formation of legal positions of States, as well as in the work of national and international courts.
However, the Opinion is unable to independently change the scope or nature of States' obligations without their consent.
The particular impact of the Advisory Opinion will depend on the extent to which the subjects of international law perceive the approaches contained in it as legally balanced and practically applicable. Russia, for its part, advocates that this influence should not replace contractual mechanisms based on the consent of States. The relevant treaties - the UNFCCC and the Paris Agreement - remain the main source of legal stasndards in climate change.
Question: What are the potential implications of the Advisory Opinion for the international climate negotiation process?
Maxim Musikhin: The Opinion may affect the dynamics of international climate negotiations. Some participants in the negotiation process may use it as an additional argument to strengthen their positions. Nevertheless, we believe that what is important is the consensus that has already evolved within the framework of the UNFCCC and can be further aligned by the States themselves.
Question: How does Russia feel about the idea of increasing the role of international judicial bodies in regulating global challenges such as climate change?
Maxim Musikhin: Russia admits that global challenges require effective international cooperation and a search for new forms. International judicial authorities play an important role in resolving disputes and ensuring legal certainty.
However, their role should be expanded in strict accordance with international law, respect for the sovereignty of States and within the framework of established competence. Judicial authorities cannot and should not replace political processes or create new obligations that are not agreed upon by States.
Thus, Russia advocates a balanced approach, in which judicial authorities complement, but not replace, political and legal mechanisms especially in such a sensitive and complex area as climate policy.
Question: Do you expect that the court's decision will lead to filing climate lawsuits by states against each other?
Maxim Musikhin: There are significant limitations to this. If we talk about the International Court of Justice, a dispute can only be initiated against states that have made a general declaration recognising the Court's jurisdiction as binding, and on the principle of reciprocity. Russia, by the way, is not among them. Today, these are 74 countries, and among them there are major emitters of greenhouse gases: India, Japan, Canada, Mexico, Germany, Australia, Great Britain, Italy, Poland, Spain. But we also need to look at the content of these statements, as they contain many exceptions.
The UNFCCC also provides for the transfer of a dispute to the International Court of Justice if the parties have made a statement on the choice of this way as mandatory. However, so far only the Netherlands has made such a declaration under the Convention.
Thus, legal proceedings can be initiated against a limited number of States. Let's see if someone decides to make such a step.
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