Environmental Rights from the Ground Up: What the ICJ’s Climate Advisory Opinion Means for the Protection of Soil and Our Common Future

Introduction 

The International Court of Justice’s (ICJ) Advisory Opinion of 23 July 2025 marks a decisive moment in international law. In its response to the United Nations General Assembly’s request for clarification of states’ obligations regarding climate change, the court rejected a narrow, sectoral reading of climate law and instead embraced a systemic approach that integrates climate obligations with human rights, biodiversity protection, and sustainable development.

This jurisprudential move has already been widely interpreted as strengthening climate accountability. Less attention, however, has been paid to its material implications. If environmental protection is a prerequisite for fundamental rights, then the legal gaze must extend beyond emissions and the atmosphere to the ecological systems that sustain those rights. Among these systems, soil is foundational but conspicuously under-protected.

1.1 Soil: The Silent Foundation of Environmental Rights

Despite its foundational importance, soil remains marginal in international environmental law. It is typically treated as an object of land-use or agricultural management rather than as a legally significant ecological system in its own right. It sustains food production, filters and stores water, supports biodiversity, regulates climate through carbon sequestration, and buffers ecosystems against extreme weather events. 

Multilateral environmental agreements with clear relevance to soil, including the Rio Conventions (UNFCCC, CBD, UNCCD), address soil only indirectly. Monitoring and reporting mechanisms are often under-resourced, soil data remain incomplete or outdated in many regions, and access to justice for soil-related harm is rare. Soil degradation is, therefore, frequently normalised as a technical or sectoral issue rather than recognised as a matter of legal responsibility. The result is fragmented regulation, weak and uneven standards, and limited justiciability, which together obscure the soil’s distinctive functions and vulnerabilities.

The consequences are concrete and rights-relevant. Degraded soils undermine food and water security, increase vulnerability to droughts and floods, and place mounting pressure on livelihoods and migration. These impacts are further intensified in situations of armed conflict, where military activities contaminate soils, restrict access to farmland through mines and unexploded ordnance, and disrupt food production and trade, transforming soil degradation into a driver of hunger, instability, and forced mobility.

This regulatory gap has prompted growing scholarly and civil-society engagement with the concept of “soil rights,” which can be understood in two analytically distinct but related ways:

First, soil rights refer to rights to soil protection, reflecting the recognition that human rights, such as the rights to food, water, health, culture, and a clean, healthy, and sustainable environment, cannot be realised without the preservation of core soil functions. In this sense, soil rights do not create new normative categories but give concrete content to existing human rights obligations by anchoring them in the material conditions that sustain human life.

Secondly, a more ambitious strand advances the idea of rights of soil, drawing on rights of nature jurisprudence. This approach challenges the reduction of soil to a mere commodity and conceives it instead as a living system with intrinsic value. While not recognised in international law, it has begun to shape the legal imagination and institutional debates, particularly around guardianship models and ecosystem-based governance.

The emerging discourse on soil rights does not sit outside international law; rather, it exposes the limits of existing frameworks and points towards the next stage in the evolution of environmental rights, namely one in which the material foundations of life are no longer treated as legally peripheral.

1.2 The ICJ’s Climate Advisory Opinion: A Doctrinal Shift with Broader Implications 

One persistent critique of environmental rights is that they risk remaining symbolic unless translated into concrete standards and duties. The ICJ’s Advisory Opinion provides tools to overcome this concern:

First, the court reaffirmed the centrality of due diligence in international environmental law, requiring states to take all appropriate measures, commensurate with risk and capacity, to prevent significant environmental harm through legislation, regulation of private actors, and environmental impact assessment. Applied to soil, due diligence demands more than cursory land-use references in environmental assessments; it requires attention to soil functions, contamination risks, erosion dynamics, and cumulative impacts. Many assessment regimes continue to treat soil narrowly, focusing on topsoil management rather than long-term soil health, an approach increasingly incompatible with the court’s articulation of environmental protection as a prerequisite for the effective enjoyment of human rights.

Secondly, the court’s method of systemic integration reinforces the relevance of soil within existing treaty obligations. The rights to health, food, water, and an adequate standard of living, recognised, inter alia, under the International Covenant on Economic, Social, and Cultural Rights, are directly dependent on soil integrity. Where soil degradation foreseeably undermines these rights, state inaction may give rise to international responsibility. The court further affirmed that international cooperation in addressing climate change, recognised as a common concern of humankind, constitutes a binding legal duty guided by principles such as sustainable development, common but differentiated responsibilities, equity (particularly intergenerational equity), and the precautionary approach.

Consistent with this reasoning, the protection of global environmental media, including, by necessary implication, soils, may engage obligations erga omnes. The Advisory Opinion thus widens the legal aperture for claims in which soil degradation constitutes a cognisable form of harm linked to climate-related breaches, whether through contamination, desertification, or the neglect of precaution in the face of serious edaphic risks.

Importantly, the ICJ’s Advisory Opinion did not need to articulate an express right to healthy soil for such a right to be legally cognisable. Read as a whole, the court’s observations permit the inference of soil-related protections as an implicit dimension of existing human rights, when interpreted in light of contemporary environmental realities. Food security constitutes the clearest transmission belt between climate harm and human rights, and soil is the biophysical precondition for food security. Seen through this lens, soil degradation is not a sectoral issue of land management but a human security threat.

1.3 International Courts and the Expansion of Environmental Rights

The ICJ’s Advisory Opinion forms part of a broader judicial momentum:

The International Tribunal for the Law of the Sea confirmed that states have obligations under the law of the sea to prevent marine pollution caused by greenhouse gas emissions. The Inter-American Court of Human Rights has articulated robust links among environmental degradation, human rights, and the protection of nature. The European Court of Human Rights, in Verein KlimaSeniorinnen Schweiz v Switzerland, held that inadequate climate action can violate human rights.

Together, these decisions reflect a judicial willingness to clarify state obligations in response to global environmental crises. They also demonstrate how courts can shape the content of environmental rights by linking them to specific ecological systems and governance failures. So far, however, soils have mainly remained outside this jurisprudence. This omission is increasingly difficult to justify. Soil degradation contributes to biodiversity loss, climate instability, water pollution, and food insecurity — precisely the harms that courts are now recognising as rights-relevant.

1.4 Multilateral Momentum: Signs of Change

Encouragingly, recent developments suggest growing multilateral recognition of soil’s importance:

In 2025, the Pan-African Parliament adopted the Model Law on Sustainable Soil Management in Africa, providing a legislative blueprint for harmonising soil governance across the African continent. In Europe, the adoption of the EU Soil Monitoring Directive establishes, for the first time, a region-wide framework for assessing soil health, identifying contaminated sites, and setting long-term objectives for soil restoration. 

At the global level, the International Union for Conservation of Nature has called for the development of a more comprehensive legal framework for soil security, signalling growing support among states and civil society for elevating soil within international environmental law.

Soil also featured prominently in side events and parallel initiatives at COP30 in Belém, particularly within broader discussions on sustainable agriculture, food systems, and land-based mitigation. These forums reflected growing recognition of soil health as a linchpin of climate mitigation, adaptation, food security, and just transitions, accompanied by announcements of new financing, regenerative-agriculture initiatives, and technological tools. 

Parallel signals of geopolitical alignment were evident at the African Union–European Union Summit and the G20 South Africa Summit, both of which explicitly linked soil health to food security, conflict prevention, climate resilience, and historical justice. These initiatives do not yet constitute a global soil regime. But they indicate a convergence between science, policy, and law that must be consolidated across international, regional, and national levels of governance.

1.5 Conclusion: From Climate Law to Soil Obligations

The ICJ’s 2025 Advisory Opinion has altered the normative landscape of environmental law. By affirming that environmental protection is a legal precondition for human rights, the court has strengthened the case for multilateral action in the face of the triple planetary crisis of climate change, pollution, and biodiversity loss. 

To fulfil this promise, environmental rights must be anchored in the material systems that sustain life. Soil is one such system. Its degradation is neither merely local nor incidental; it is global in consequence and deeply intertwined with the enjoyment of fundamental rights. Soils function as transboundary systems of life, transmitting harm far beyond the place of disturbance through atmospheric dust, transboundary watercourses and aquifers, migratory species, global food chains and world trade, and the circulation of persistent pollutants, carbon, and nutrients across borders. What appears as a local act of soil degradation thus reverberates across borders, ecological, climatic, and human systems.

Several concrete steps are available across different levels of soil governance:

• Make soils legally “visible” in environmental rights interpretation: Courts, treaty bodies, national authorities, and international institutions should explicitly interpret the right to a clean, healthy, and sustainable environment as encompassing minimum protections for soil health, including against contamination, erosion, sealing, and organic-carbon loss, building on the ICJ’s environment-as-precondition reasoning. 
• Translate due diligence into concrete soil duties: States should operationalise due diligence through mandatory soil baseline data, systematic soil-health monitoring, and the integration of Soil Impact Assessments (SIAs) within environmental impact assessment frameworks at project, policy, and strategic levels, coupled with public access to soil information and remedies prioritising restoration and non-repetition.
• Digitalise soil protection by exploring the interdisciplinary interplay among emerging digitalisation opportunities, Artificial Intelligence, Sustainable Soil Management, and the proactive role of national, regional, and international legislation, regulatory frameworks, and soil governance mechanisms, guided by the best possible science and the responsible use of these new technologies.
• Decolonise soil governance by confronting the backwards-looking demands of justice through restitution, reparations, and redress, while also advancing forward-looking legislation and imperatives of climate neutrality, just transitions, sustainable development, and new maps.
• Create cross-regional synergies between, for instance, Europe’s and Africa’s evolving soil framework (including the EU Soil Monitoring and Resilience Directive and the Model Law on Sustainable Soil Management in Africa), where knowledge exchange on monitoring, data governance, and science-policy interfaces could accelerate progress through shared research, interoperable datasets, and coordinated capacity-building.
• Advance the multilateral consolidation at the global level, either through a stand-alone framework convention with protocols or by incorporating soil-specific obligations, standards, and monitoring annexes within existing Rio Conventions, complemented by strengthened compliance mechanisms and the exploration of a specialised environmental chamber or equivalent forum capable of adjudicating serious harm linked to human rights, environmental and climate obligations.

International courts have begun to articulate what environmental rights can mean in practice. The next step is to ensure that these rights do not remain suspended in the atmosphere. They must be built from the ground up. Ultimately, the protection of soil is an environmental rights issue. It is not only an act of justice or a moral duty, but an imperative investment in our common future.

By Oliver C. Ruppel
Professor of Public and International Law and Director, Development and Rule of Law Programme, Faculty of Law, Stellenbosch University, South Africa; Director, Research Centre for Climate Law, Faculty of Law, University of Graz, Austria (ORCID: 0000-0003-3362-4285)