CLIMATE CHANGE & THE LAW
A Legal Revolution the World and Kenya Cannot Ignore
INTRODUCTION
“Climate change is no longer merely a scientific or political challenge; it is an urgent and expanding legal one.”
Between 2022 and 2025, the world’s most authoritative legal institutions delivered a series of landmark rulings that fundamentally redefine what international law demands of states, corporations, and individuals in the face of the climate crisis.
Taken together, these decisions constitute a legal revolution, one whose implications land with immediate force in Kenya. This article examines six interconnected developments: a breakthrough human rights ruling from Europe, the most consequential advisory opinion in the history of the International Court of Justice, the emergence of legal frameworks protecting small island nations, the long-awaited creation of a Loss and Damage Fund, rising corporate climate liability, and the growing global movement to criminalize the worst forms of environmental destruction. Each development has direct relevance to Kenyan law, Kenyan businesses, and Kenyan communities.
I. The Women Who Changed Climate Law
KlimaSeniorinnen v. Switzerland —
European Court of Human Rights, 9 April 2024
The story of modern climate human rights litigation begins not with a powerful state or a well-funded legal team, but with more than 2,000 Swiss women in their seventies.
Calling themselves Verein KlimaSeniorin-nen Schweiz, Senior Women for Climate Protection Switzerland had watched their country’s summers grow increasingly brutal. They were not abstract complainants. They documented cardiovascular episodes during heatwaves, described their inability to leave their homes during extreme heat events, and explained in medical detail why elderly women are physiologically the most vulnerable group to rising temperatures.
Swiss domestic courts turned them away, ruling that climate change was a matter for politicians, not Judges. So, the women took their case to Strasbourg. On 9 April 2024, the Grand Chamber of the European Court of Human Rights which the most powerful human rights court in the world, ruled in their favour.
The judgment was historic: for the first time, an international court had found that a state’s failure to act adequately on climate change violated the fundamental human rights of its citizens. The Court’s core finding:
The right to private and family life, protected under Article 8 of the European Convention, encompasses a right to effective protection from the serious adverse effects of climate change.
Switzerland had no binding national carbon budget and no enforceable greenhouse gas reduction targets, and
that insufficiency was a human rights violation. Switzerland was ordered to pay €80,000 in costs and placed under the supervision of the Council of Ministers to ensure its climate framework meets Convention standards. The message to governments world-wide was unambiguous: aspirational climate goals are no longer sufficient.What the law requires is an enforceable framework. ”
What This Means for Kenya
While KlimaSeniorinnen arose within the European human rights framework, its legal reasoning is directly applicable in Kenya. Article 42 of the Constitution of Kenya 2010 guarantees every person the right to a clean and healthy environment. Article 70 goes further to state that any person may seek environmental redress without needing to prove personal injury.
Kenya’s standing provisions are, in fact, more generous than what the ECHR had to construct from scratch in KlimaSeniorinnen. In practical terms, this means Kenyan civil society organizations and communities affected by climate harm such as pastoralists in Turkana, farmers in the Rift Valley and fishing communities on the coast can bring constitutional climate petitions today, without waiting for new legislation. The Swiss women showed the world it can be done. The Kenyan Constitution already opens the door.
II. The World’s Highest Court Speaks
ICJ Advisory Opinion on the Obligations of States in Respect of Climate Change 23 July 2025
If KlimaSeniorinnen lit the match, the ICJ advisory opinion of 23 July, 2025 was the moment the world felt the heat. It began in 2019, when 27 law students at the University of the South Pacific formed the Pacific Island Students Fighting Climate Change. Their ambition was audacious, to persuade the United Nations General
Assembly to ask the world’s highest court what international law actually requires of states on climate change.
Six years later, they had succeeded beyond all expectations. Resolution 77/276, passed by consensus on 29
March 2023 and co-sponsored by 132 countries, formally requested the advisory opinion. When oral hearings opened at the Peace Palace in The Hague, more than 90 states and 11 international organizations participated which is the highest number ever recorded in an ICJ proceedings.
On 23 July 2025, the Court delivered its opinion. It was unanimous. And its findings were more far-reaching than even the most optimistic advocates had anticipated. The Opinion’s Central Findings The 1.5°C target carries legal force.
The temperature goal enshrined in the Paris Agreement is not merely aspirational, it is a binding legal standard. Every state’s Nationally Determined Contribution must reflect the highest level of ambition science and capacity allow. States have no discretion to set Obligations flow from multiple sources of law.
State obligations arise not only from climate treaties but from customary international law and, critically, from
international human rights law including; the rights to life, health, and the right to a clean, healthy, and sustainable environment, formally recognised by the ICJ for the first time. Breach carries real legal consequences.
States that fail to meet their climate obligations face cessation of wrongful conduct (which could mean revoking fossil fuel licences), guarantees of non-repetition, and full reparation including; restitution, compensation, and satisfaction. Failure to exercise due diligence in preparing or implementing NDCs may constitute an internationally wrongful act.
Climate displacement has
legal protection.
People displaced across borders by climate change cannot be returned to environments where their survival or rights would be at serious risk. Non-re-foulement now extends to climate refugees. And states whose territory may be inundated by sea-level rise do not lose their legal identity, sovereignty, or maritime entitlements.
What This Means for Kenya
Kenya’s Constitution, under Articles 2(5) and 2(6), incorporates international law and ratified treaties as part of
domestic Kenyan law. This means Kenyan litigants can today invoke the ICJ’s holdings in constitutional peti-
tions, judicial review proceedings, and environmental tribunals —to challenge the adequacy of Kenya’s NDCs, contest new fossil fuel infrastructure decisions, and demand binding emissions reduction frameworks.
Kenya participated in the ICJ advisory proceedings and now faces growing domestic and international pressure to demonstrate that its climate policies align with the 1.5°C standard the Court enshrined in international law through its unanimous opinion of 23rd July 2025.
With COP30 now concluded in Belém where outcomes fell short of binding fossil fuel commitments, the African Union has since moved to frame climate finance, technology transfer, and loss-and damage mechanisms as legal entitlements rather than voluntary commitments, a posture Kenya is expected to carry into COP31, co-hosted by Australia and Turkey in November 2026.
III. The Smallest Countries, the Largest Stakes
Small Island States and the
Climate Justice Trilogy
It is one of international law’s deepest ironies that the nations doing the least to cause climate change are bearing its most severe consequences. Small island states such as Vanuatu, Tuvalu, Kiribati, the Marshall Islands, Fiji, and Samoa collectively contribute less than one percent of global greenhouse gas emissions. Their citizens are watching coastlines disappear, freshwater tables fill with salt, and cyclone seasons grow more ferocious.
Rather than wait for the international community’s conscience to catch up with the science, these nations chose to fight through law. Their persistence has produced a trilogy of advisory opinions that together constitute the most comprehensive legal statement on climate obligations ever assembled.
International tribunal for the law of the sea (itlos) opinion on (may 2024) The International Tribunal for the Law of the Sea held that states have binding obligations under the UN Convention on the Law of the Sea to prevent, reduce, and control marine pollution caused by greenhouse gas emissions. Carbon dioxide and
other GHGs, the Tribunal confirmed, constitute marine pollution under international law.
ICJ Opinion (July 2025):
As described in Part II, the ICJ confirmed that even if Tuvalu, Kiribati, or the Marshall Islands cease to exist as physical territory, they retain their status as sovereign states and their maritime entitlements under international law. It also confirmed that each injured state may invoke the responsibility of every state
whose internationally wrongful acts contributed to climate harm establishing the legal foundation for formal reparations claims against major historical emitters.
What This Means for Kenya
Kenya’s coastline, from Mombasa to Lamu, faces the same sea-level rise, coastal erosion, and saltwater intrusion confronting small island states. The legal architecture constructed through this trilogy, particularly on state responsibility and reparations, provides powerful tools for Kenyan advocates arguing for climate finance, adaptation support, and compensation from major emitters.
Kenya’s legal community should be tracking ITLOS and ICJ jurisprudence not merely as academic material, but as living law with direct domestic application under Articles 2(5) and 2(6) of the Constitution.
IV.Thirty Years in the Making
The Loss and Damage Fund — COP27 to COP30
When the UN Framework Convention on Climate Change was adopted in 1992, developing nations began argu-
ing that the countries’ most responsible for climate change should also pay for the harm it causes to those least responsible. For thirty years, they were turned away. At COP27 in Sharm el-Sheikh in November 2022, that finally changed. States agreed, without objection, to establish a dedicated Fund for Responding to Loss and Damage the first formal acknowledgement in the multilateral climate system that climate harm carries financial consequences for those who caused it.
COP28 — Dubai (2023): The Fund was formally operationalised with the World Bank appointed as interim host.
Pledges exceeded $700 million at launch, covering not only infrastructure damage but human mobility —
migration, displacement, and the planned relocation of communities whose homes will no longer be habit-
able. COP29 — Baku (2024): The Finance COP raised the collective climate finance target to $300 billion per year by 2035, with a longer-term ambition to mobilise $1.3 trillion through the Baku to Belém Roadmap. The Fund was constituted as a legal entity capable of receiving contributions.
COP30 — Belém, Brazil (November 2025): COP30 will be the Fund’s first real test of delivery. Researchers esti-
mate that loss and damage needs across vulnerable nations could reach between $128 billion and $937 billion
in 2025 alone. The defining question for Belém — and for international litigation — is whether the ICJ’s find-
ings on state responsibility will translate into binding reparations obligations rather than voluntary contribu-
tions.
What This Means for Kenya
Kenya is eligible to access the Loss and Damage Fund. Prolonged droughts in Turkana and northern Kenya, devastating floods throughout the country, and accelerating coastal erosion along the Indian Ocean coastline are precisely the categories of harm the Fund was designed to address. For Kenyan lawyers, the intersection of the Fund’s framework with the ICJ’s state responsibility findings creates emerging opportunities to develop and advance loss and damage claims at the international level on behalf of affected communities.
V. When Companies Must Answer
Corporate Climate Accountability —
Shell v. Milieudefensie and Beyond
Every major advance in climate law so far has targeted states. But what about the corporations whose business models are, in many cases, the proximate cause of the emissions that states are now legally
required to address? The most consequential frontline of corporate climate liability has been the Neth
erlands. In May 2021, the District Court of The Hague ordered Royal Dutch Shell to reduce its global CO2 emissions by 45% by 2030. The first time in legal history that a court had extended an emissions reduc-
tion duty from a government to a private corporation. Shell appealed. On 12th November 2024, the Court of
Appeal of The Hague delivered its judgment. Shell won on the specific 45% figure, but to read this as a victory is to profoundly misread it. On every foundational principle, the Court affirmed and extended what the District Court had established:
A social duty of care is enforceable. Corporations of Shell’s scale are subject to an unwritten standard of care requiring them to contribute to the mitigation of dangerous climate change grounded in the indirect horizontal effect of human rights obligations and the Paris Agreement’s temperature goals.
Scope 3 emissions are within scope. Approximately 90% of Shell’s total emissions are Scope 3 generated by customers burning Shell’s products. The Court acknowledged that companies bear responsibility for these emissions, meaning commercial decisions about what to produce and at what volume are now subject to legal scrutiny. New fossil fuel investments carry legal risk.
The Court signaled that Shell’s planned investments in new oil and gas fields could be incompatible with its own duty of care, a clear signal that future litigation will target new investment approvals directly. Meanwhile, the EU’s Corporate Sustainability Due Diligence Directive (CS3D), which entered into force in July 2024, imposes binding obligations on large companies to identify and address human rights and environmental impacts across their entire value chains — transforming what was previously corporate social responsibility into a legal compliance obligation.
What This Means for Kenya
Kenya hosts a growing number of multinational corporations in energy, infrastructure, agriculture, and extractive industries, sectors at the intersection of climate risk and legal liability. The duty of care principles established in Milieudefensie, combined with Kenya’s Environmental Management and Co-ordination Act (EMCA) and the Climate Change Act 2016, signal that Kenyan courts may, in appropriate cases, be asked to apply analogous reasoning.
For Kenyan businesses, this is a governance and risk management issue as
much as a legal one. Boards and management teams operating in carbon-in-tensive sectors should be conducting climate risk assessments, reviewing their Scope 1, 2, and 3 emissions exposure, and seeking legal advice on their obligations under Kenya’s existing environmental regulatory framework, before that advice becomes urgently necessary in the context of litigation.
VI. The Fifth Crime
The Ecocide Movement and International Criminal Law
A growing movement of states, lawyers, and civil society organizations argues that the most severe, most
deliberate, most catastrophic forms of environmental destruction deserve to be treated not merely as regulatory failures or civil wrongs, but as international crimes. They call it ecocide: the severe, widespread, or long-term destruction of the natural environment. And they want it recognized as the fifth international crime under the Rome Statute of the International Criminal Court.
On 9 September 2024, Vanuatu, Fiji,
and Samoa formally submitted a proposed amendment to the Rome Statute to the UN Secretary-General and
the ICC’s Assembly of States Parties. The proposed definition describes ecocide as unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term
damage to the environment.
The momentum is real and growing. Belgium has criminalized ecocide in national law. The EU’s revised Environmental Crime Directive of April 2024 introduced a qualified ecocide-like offence. Peru,
Brazil, Scotland, Italy, and Mexico are each advancing ecocide legislation. A 2024, Ipsos survey found that 72% of people in the world’s wealthiest nations support ecocide law. And in December 2025, the ICC’s Office of the Prosecutor issued a Policy confirming that existing Rome Statute offences, including crimes against humanity, can be applied to environmental destruction that forces communities from their homes.
What This Means for Kenya
Kenya is a Rome Statute state party and participant in the Assembly of States Parties process that will determine whether the ecocide proposal advances. Kenya’s extraordinary natural heritage like the
Maasai Mara, Lake Victoria, Mount Kenya, the Rift Valley ecosystem, and extensive marine environments among others, is precisely the kind of irreplaceable ecological patrimony that ecocide law is designed to protect.
The question of whether Kenya should adopt ecocide as an offence in national law as several countries have already done, deserves serious engagement from the legal profession, civil society, and Par-
liament.
Conclusion
A Legal Revolution, and Kenya’s Moment The developments surveyed in this article share a common thread. They were not produced by the most powerful nations or the largest economies. They were produced by elderly Swiss women, Pacific law students, small island nations with no military leverage, and communities determined to use the law where politics had failed. And together, they have assembled a legal architecture with immediate, practical consequences for countries like Kenya.
Kenya sits at the confluence of all these developments with a progressive Constitution, a growing corpus of environmental jurisprudence, significant climate vulnerability, and active participation in international climate negotiations.
The communities who stand to benefit from these legal developments are not abstract, they
are farmers in the Rift Valley and Central Kenya whose rains no longer come on schedule, pastoralists in Turkana watching water sources dry up, and coastal families in Mombasa watching the tide creep
closer. The world’s courts have spoken. International law is no longer silent on climate change. The era of legal impunity for climate inaction by states and corporations alike, is over. The question, in Kenya as everywhere, is whether we are listening and whether we are ready to act.
How ESK Advocates LLP can help
The international climate law landscape is shifting rapidly and its implications for Kenyan businesses, communities, and public institutions are real, immediate, and growing. At ESK Advocates LLP, we help our clients navigate this evolving legal terrain with clarity and confidence. Contact us today for a consultation.
Disclaimer: This content is for informational purposes only and does
not constitute legal advice. For guidance specific to your situation
please consult a qualified lawyer.
