Vanuatu is leading a campaign to have the international court of justice issue an opinion on climate change – which could have huge legal ramifications
During their final year at law school, Solomon Yeo and his classmates set their minds to saving the world.
The legal students, who were studying at the University of South Pacific in Vanuatu, all hailed from Pacific island countries that are among the most vulnerable in the world to the climate crisis.
The idea the students came up with was to change international law by getting the world’s highest court – the international court of justice (ICJ) – to issue an advisory opinion on the climate crisis.
That idea – hatched by Yeo, who is from Solomon Islands, and 26 of his classmates in 2019 – has made the extraordinary, improbable journey from a law school classroom in Port Vila to the Hague, where this week a major legal conference examining the case for the advisory opinion will be held.
If it is successful – and those involved in the campaign are quietly confident it will be – then this would be the first authoritative statement on climate change issued by the ICJ. The opinion would clarify legal questions related to climate change, for instance about states’ obligation to other countries and could have huge implications for climate change litigation and the setting of domestic law, as well as international, regional and domestic disputes on climate harm.
“It carries huge weight and moral authority,” says Cameron Diver, the deputy director-general of Pacific Community and a Pacific legal expert with particular expertise in environmental law, international law and climate litigation. “It would be the pinnacle of the international legal guidance that could be provided.”
The campaign is being led by the nation of Vanuatu, a Pacific state of around 300,000 people, about three hours flight from Australia. It sits at the forefront of the climate crisis and has been ranked the country most prone to natural disasters by the United Nations, regularly suffering devastating cyclones, including Cyclone Pam in 2015, which is estimated to have wiped out more than 60% of the country’s GDP, roughly US$450m.
Ralph Regenvanu, Vanuatu’s opposition leader, was foreign minister in 2019 when Yeo and his friends approached him with the idea for the campaign. Yeo says the group of young students – Yeo was 24 – were “nervous” and “dressed to the nines” for the meeting.
Regenvanu chuckles at the memory, but he was impressed by the group.
“It was more than just an idea they came up with and were discussing, they were actually starting to advocate and push forward with trying to get it to actually happen,” says Regenvanu. The group had already written a legal brief and sent it to the leaders of all countries in the Pacific Islands Forum – the key regional diplomatic body – and set up an NGO, Pacific Island Students Fighting Climate Change, of which Yeo is the campaign director, which remains a key part of the campaign for the advisory opinion.
“To imagine that this could possibly happen out of an idea you have was quite visionary and ambitious,” says Regenvanu. “I agreed that this was a very good idea and so I set about trying to get it into the international agenda.”
‘An idea whose time has come’
If the campaign succeeds and the ICJ does issue an advisory opinion, the legal implications would be enormous, says Diver.
“It’s not binding in the same way as we would entertain what that means in a domestic legal system, with a jail sentence or with a fine or some other form of sanction,” he says.
But an opinion like this could lead to penalties of other sorts, Diver says: international sanctions, losing voting rights in international forums or being brought before an international tribunal.
And it’s not just international law that could be affected. An advisory opinion would be a powerful precedent for legislators and judges to call on as they tackle questions linked to the climate crisis, such as the high-profile recent court battle in Australia that saw eight teenagers and an octogenarian nun seek an injunction to prevent then environment minister Sussan Ley from approving the expansion of a coalmine, arguing she had a duty of care to protect younger people against future harm from climate change. The federal court ruled in their favour before that decision was overturned at appeal this year.
It may also lend support to the growing push for climate litigation: individuals or groups (potentially even countries) suing governments or private companies for climate harm.
“What you could see is community groups, Indigenous people, youth groups using the ICJ advisory opinion… to say ‘this group of states or the state is violating my right to a healthy environment, to future, or to the preservation of my cultural identity.”
Vanuatu has been adamant that the approach it is taking is designed to not be contentious.
“This is not a court case. We do not seek to assign blame,” Vanuatu’s prime minister, Bob Loughman, said in a recent speech. “This is for the world’s most vulnerable, for all of humanity, and our collective future … This is the young generations’ call for justice to the world’s highest court.”
But before the ICJ can issue an opinion, Vanuatu first needs to finalise the question it wants to ask the court, and then, in September, get a majority of the United Nations general assembly to vote in favour of putting it to the ICJ – something that some high-emitting nations may not wish to do, given it might make it easier for sanctions or legal action to be brought against them.
“The campaign is at a really crucial stage,” says Yeo. “You have to go in circles, so starting off with your like-minded countries: the Caribbean countries, African nations, countries in Latin America. And then you go towards the difficult states such as the United States, the European Union and others.”
A key factor as to whether the movement will be successful is the formulation of the question that will be put to the UN general assembly for a vote.
“It really does depend on how you draw up the question, how you frame it, how much leeway you give the court to make its own interpretations,” says Diver.
Previous attempts to get questions about climate change before the ICJ – including one from fellow Pacific country Palau in 2011 – have struggled to gain the necessary diplomatic support, and so Vanuatu is on a major offensive.
“Like our prime minister has said: an advisory opinion on climate change is simply an idea whose time has come,” says Ambassador Odo Tevi, Vanuatu’s special envoy on climate change and permanent representative to the UN. “It could catalyse the kind of concrete changes we need in order to avert climate catastrophe.”
Tevi says Vanuatu is “confident” of its ability to get a majority to vote in favour of the question in September.
“Essentially, you know, there is a window of time which humanity has to avert climate catastrophe, and that window is rapidly closing,” says Julian Aguon, the founder of Blue Ocean Law, an international law firm based in Guam, which is representing Vanuatu. “It’s high time for the world’s highest court to pronounce on the defining challenge of our time … This is the one thing that affects all other things.”
This story was written by Kate Lyons, originally published at The Guardian on 19 June 2022, reposted via PACNEWS.