How the ICJ’s Climate Ruling Could Halt Shell’s Controversial Drilling Plans in South Africa

By Angela van der Berg

A recent decision from the International Court of Justice (ICJ) is helping South African communities fight against oil drilling by Shell off their coast. This advisory opinion, issued in July 2025, outlines what governments must do to combat climate change. It emphasizes several key points:

• All nations must prevent harm from activities in their area.
• To keep global temperatures below 1.5°C, countries need to phase out fossil fuels and regulate corporations involved in fossil fuel extraction.
• Climate change directly impacts rights to life, health, food, water, and a clean environment; thus, these rights must be protected.
• Even small projects can significantly contribute to global emissions; hence cumulative effects must be considered.
• Governments have a duty to adapt communities to withstand climate disasters, focusing especially on those most vulnerable.

In South Africa, the environmental groups Natural Justice and The Green Connection are using this opinion to challenge the government’s decision to let Shell drill up to five wells off the Northern Cape. They argue that the government didn’t fully consider how this drilling would add to climate change.

As an expert in environmental law, I believe this ICJ opinion could empower communities by providing a stronger legal argument against fossil fuel projects. It helps clarify that governments must base their decisions on the need to avoid environmental harm, giving communities a basis to argue that activities like drilling threaten both their rights and climate commitments.

South Africa faces rising floods, droughts, and storms, all worsened by climate change. The 2024 Climate Change Act aims to reduce emissions and improve resilience, but fossil fuel projects are still approved.

What’s Behind the Shell Appeal

In June 2025, the Department of Mineral Resources greenlit Shell’s oil drilling project, impacting a sensitive ecological area critical to marine life and local fishing communities. Natural Justice and The Green Connection claim this decision is flawed for several reasons:

• The environmental assessment assumed drilling would be safer than it is, underestimating the risks of disasters similar to the 2010 Deepwater Horizon incident.
• Important safety plans were not included in the public assessments, leaving questions about Shell’s ability to handle a potential crisis.
• No baseline studies of marine life were done prior to approval, making it difficult to understand the full impact of drilling.
• The assessment also ignored how this project could affect South Africa’s commitments under the Paris Agreement, as fossil fuels are outdated energy sources.
• The potential for oil spills could harm ecosystems across borders, especially impacting neighboring Namibia’s fisheries and tourism. These risks weren’t evaluated.
• The approval did not align with the Integrated Coastal Management Act, which mandates protection for sensitive environments.

Using the ICJ Opinion in the Appeal

Though the ICJ’s opinion isn’t legally binding, its conclusions reflect international law that governments must follow. Under South Africa’s constitution, courts must consider international guidelines, giving groups like Natural Justice and The Green Connection a strong tool.

They can:

• Challenge fossil fuel projects, claiming they contradict international climate obligations.
• Hold governments accountable for weak climate policies and failure to meet targets.
• Amplify community voices, showing demands for clean energy are supported by international law.
• Foster regional solidarity among African activists using the same legal framework.

A Significant Moment

With 45 African countries exploring fossil fuels, the ICJ’s opinion marks a turning point. The Shell appeal tests whether South African courts will acknowledge that fossil fuel expansion contradicts both the constitution and international law. Regardless of the outcome, this case represents a shift. For the first time, activists are incorporating the highest court’s guidance into their legal strategy. As climate challenges grow, this approach could be key in shaping Africa’s energy landscape.

Angela van der Berg is Director of the Global Environmental Law Centre and Associate Professor, Department of Public Law & Jurisprudence at the University of the Western Cape.

This article is republished from The Conversation.

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