April 16 - 22  2023: Issue 579


UN General Assembly Adopts Resolution Requesting International Court Of Justice Provide Advisory Opinion On States’ Obligations Concerning Climate Change: The Pacific Islands Students Fighting Climate Change Led Campaign

On Friday April 14th 2023 ABC's The Drum's Ellen Fanning had the privilege of having Pacific Islands Students Fighting Climate Change President Cynthia Houniuhi as a guest speaker on the March 29th 2023 UN General Assembly adopted by consensus a resolution requesting an advisory opinion from the International Court of Justice on the obligations of States in respect of climate change, with most speakers hailing the move as a milestone in their decades-long struggle for climate justice.  

Pacific Islands Students Fighting Climate Change (PISFCC) began in March 2019 when 27 University of the South Pacific Law students from 8 Pacific Island countries decided to join together to begin a campaign to persuade the leaders of the Pacific Island Forum to take the issue of climate change and human rights to the International Court of Justice.

As Cynthia stated on Friday night:

''This [climate change impacts] is not an existential idea to me.''

Cynthia Houniuhi is from Solomon Islands - her family and other members have had to move from their coastal village due to rising waters caused by climate change. Atop this the increased rainfall in the food growing mountain areas they have moved to have meant growing food has become more difficult.

Cynthia believes that most Pacific Islander’s fundamental human rights are already being undermined by the adverse effects of climate change and so a human rights centred approached must be considered in addressing climate change.

There is no point in anyone shimmying sideways with a 'we're not responsible, we just sell the coal, mine the earth, make the concrete.' Those selling the coal, mining the earth, profiting from selling concrete and making the emissions are responsible and it is time to cease denying this and put humans and other animals at the centre of the decision, not money.

Siosiua Veikune,  Vice-President, has grown up in Tonga his whole life, the damaging effects of climate change have literally become a part of his life. Tanya Afu, Secretary, is from the beautiful country of Solomon Islands and hails from the northern part of Malaita province in the Lau region. Growing up in an artificial island she has experienced and has witnessed the devastating impacts of climate change to her people even though they contributed so little to global emissions. Tanya wanted to use her voice to advocate for climate action and protection of the environment for a better future for the next generation. She also believes that human rights should be at the centre of climate negotiations to ensure a future where her children are connected to their culture, traditions and heritage.

They now have members in every Pacific island country and from all levels of education, from primary and high schools to postgraduate university students.

PISFCC are also committed to educating and activating all Pacific island youth to become aware and take action to help prevent and fight against  climate change. 

“Climate action for the Pacific is non-negotiable and we see naming and shaming as not progressive in this critical decade. Instead, our focus is on advocating for forward looking global solutions to accelerate climate action. One way of achieving this is to take climate change to the world’s highest court - the International Court of Justice” — Cynthia Houniuhi - President PISFCC

In September 2021, the Government of Vanuatu announced its intention to take climate change to the International Court of Justice seeking an Advisory Opinion. Such an advisory opinion would be a potent tool in bolstering state action on climate change, complement and strengthen the Paris Agreement, integrate human rights and climate change law and provide necessary baselines for state action on climate change. 

The road to the ICJ requires the UN General Assembly to pass a resolution requesting the ICJ to provide its opinion on the matter. This September, this resolution will be tabled before UN member states and a simple majority vote will be needed in order to refer the matter to the ICJ. A strong diplomatic and political push is therefore currently underway from governments, and civil society in a bid to secure the necessary support at the General Assembly for such a resolution.

Civil Society Organisations from the Pacific have indicated their support and willingness to engage and advance this campaign both in the region and beyond and have formed an initial alliance that would grow to include other CSO and non-state actors interested in the campaign.

Together they are the Alliance for a Climate Justice Advisory Opinion (ACJAO) and are asking world leaders to support the ICJAO campaign at the UN General Assembly. 

Their core campaign remained convincing the governments of the world to seek an Advisory Opinion from the International Court of Justice answering a question that will develop new international law integrating legal obligations around environmental treaties and basic human rights. 

Now, they have succeeded.

105 Countries Co-sponsor ICJAO Resolution

The United Nations General Assembly has adopted the Government of Vanuatu’s proposal for an advisory opinion from the International Court of Justice on the obligations of States on climate change. More than 100 countries came together to co-sponsor the initiative in a show of global solidarity on climate. 

Pacific youth, led by Pacific Island Students Fighting Climate Change (PISFCC) and the Worlds Youth for Climate Justice (WYCJ), have celebrated the vote and called for more action to save the planet and protect the most vulnerable people. PISFCC was the driving force behind the civil society campaign, with the idea hatched in a Vanuatu class room four years ago. 

The International Court of Justice will now hold hearings and hear evidence on the obligations of states in respect to climate change, with a view to handing down an advisory opinion in 2024. 

Cynthia Houniuhi, Solomon Islands based President of Pacific Island Students Fighting Climate Change (PISFCC), said,  “We are just ecstatic that the world has listened to the Pacific Youth and has chosen to take action. From what started in a Pacific classroom four years ago.

“We in the Pacific live the climate crisis. My home country Solomon Islands is struggling. Through no fault of our own, we are living with devastating tropical cyclones, flooding, biodiversity loss and sea level rise. The intensity and frequency of it is increasing each time. We have contributed the least to the global emissions that are drowning our land.

“As young people, the world’s failure to stop planet killing emissions is not a theoretical problem. It is our present and it is our future that is being sold out. The vote in the United Nations is a step in the right direction for climate justice. 

Nicole Ponce (Philippines), Asian Front Coordinator - Worlds Youth for Climate Justice, stated, “We thank all countries for their support, especially those countries around the world that joined with Vanuatu as cosponsors. We also extend deep thanks to the Government of Vanuatu and all those who have been working to make what started as a thought in a classroom to become reality. 

“While this is no silver bullet to the climate crisis it is a huge step forward in international law. We urge countries to engage with the process and to increase their climate ambitions. 

Mert Kumru (Netherlands), European Front Coordinator - Worlds Youth for Climate Justice, said, ''Importantly, the court will be looking at issues of human rights and intergenerational equity which have been largely ignored by the current system. 

No one can dispute that states have an obligation to take effective measures to prevent and redress these climate impacts, mitigate climate change, and to ensure that everyone is able to adapt to the climate crisis. But somehow, the process seems stuck. This request for an advisory opinion aims to be the catalyst in encouraging greater ambition within existing processes.'''

Jose Rodriguez (Costa Rica), Front Coordinator Latin America and the Caribbean – World’s Youth for Climate Justice, said “More than 40 youth movements and 58 civil society organizations from Latin America have joined the world’s youth in raising awareness on the adverse impact of climate change on the full enjoyment of human rights. We commend Costa Rica's leadership in this process and are inspired by the regional commitment to seek legal clarity on these critical issues. Human rights violations caused by climate change disproportionately affect indigenous peoples, women, youth, and historically discriminated populations in Latin America. To address these inequities, in the pursuit of climate justice, we will work to facilitate that those most affected by climate change are heard by the ICJ”.

Khulekani Magwaza, African Front Coordinator – World’s Youth for Climate Justice, stated, “This is a very big achievement, especially for my people in Africa. Recently I hosted a regional workshop on climate change and human rights in Johannesburg, one of the general feeling from the participants, campaigners, was that it very concerning that the climate change legal frameworks that currently exist are not able to demonstrate a powerfully enforceable law to protect the rights of innocent people, this is obviously for many countries in Africa, the Pacific islands and the world, so we should definitely celebrate the vote for ICJ to provide Advisory Opinion.”

Vishal Prasad, Campaigner – Pacific Islands Students Fighting Climate Change added, “This isn’t the end of our campaign for climate justice. The court process will unfold, taking evidence from around the world. The real work begins in applying whatever the court advisory opinion says in domestic law, especially in countries that continue to drive the climate crisis with their toxic emissions. 

On the former text titled, “Request for an advisory opinion of the International Court of Justice on the obligations of States in respect of climate change”, the Assembly decided to request the Court to render an opinion on the obligations of States under international law to ensure the protection of the climate system from anthropogenic emissions of greenhouse gases.

The text further requested the Court’s opinion on the legal consequences under obligations for States where they, by their acts and omissions, have caused significant harm to the climate system with respect to States, and in particular, small island developing States, and people of present and future generations.

In the ensuing debate, many Member States voiced alarm that the most vulnerable populations who have historically contributed the least to the unfolding climate calamity are being disproportionately affected by the consequences.  

The Court’s advisory opinion will put a spotlight on the obligation of States to ensure that all countries have a right to a healthy and sustainable environment, the representative of Seychelles said.  With small island developing States such as his facing both immediate and slow onset impacts from the rise in temperatures, today’s decision is a highly significant one, she said.

Iran’s delegate expressed concern that those in the Global North who are responsible for global challenges continue to disregard their obligations.  “We can forgive those who were historically involved in degrading our planet and its environment, but we cannot ignore their historical responsibilities and subsequent obligation to fulfill their commitment to redress it,” she said.  Iran is disappointed that the final text did not incorporate its suggestion to explicitly request the Court to identify and consider situations and circumstances which also preclude States’ required actions.

Sierra Leone’s delegate said that his country is highly vulnerable to the adverse effects of climate change and its coastal regions have become more susceptible to torrential rains, flooding, and mudslides.  That is why the importance of the request of the Court’s advisory opinion on the obligation of States in respect to climate change cannot be overstated.

Alatoi Ishmael Kalsakau, Prime Minister of Vanuatu, was commended by many for organizing the process and tabling the draft text.  “The science is settled,” he proclaimed, urging the international community to use all tools to address the threat of the climate crisis. 

While most countries voiced support for the request of the Court’s advisory opinion, a few expressed reservations.  The representative of the United States voiced disagreement that the resolution is the best way to reach shared goals.  Launching a judicial process, especially given the broad scope of the question, might not be conducive to supporting such diplomatic processes, he said. Successfully tackling the climate crisis is best achieved via diplomatic efforts.

However, the Pacific Islands Students Fighting Climate Change are right - those who are not responsible for the impacts of climate change are those currently being most impacted, and, because they are not big financial world players, have been ignored, not seen, disregarded.

By giving an advisory opinion, the Court can provide impetus for more ambitious action under the Paris Agreement, provide authoritative baselines for state action on mitigation and international cooperation and assistance, integrate areas of international law that are currently separate, namely human rights and environmental law, provide impetus and guidance for domestic, regional and international adjudications, and cement consensus on the scientific evidence of climate change.

With young people having contributed the least to historic CO2 emissions, but increasingly facing adverse climate impacts, it is not surprising that youth all over the world are seeking climate justice for current and future generations.

Australia violated the rights of Torres Strait Islanders by failing to act on climate change: UN

On September 23rd 2022 the United Nations Human Rights Committee found that the Australian Government is violating its human rights obligations to Torres Strait Islander people. 

Rising sea levels are currently threatening Torres Strait Islanders’ homes, burial grounds and sacred cultural sites. They too will not lie down and just let their homelands and culture be extinguished. 

The landmark decision delivered by the Committee agreed with the complaint filed in 2019, obliging the Government to pay adequate compensation to the claimants and do whatever it takes to ensure the safe existence of the islands. 

The complaint was the first legal action brought by climate-vulnerable inhabitants of low-lying islands against a nation state, and the decision has set several ground-breaking precedents for international human rights law. 

Yessie Mosby, a Kulkalgal man and Traditional Owner on the island of Masig and a claimant in the case, said, “This morning when I woke up on Masig, I saw that the sky was full of frigate birds. In my culture, we take this as a sign from my ancestors that we would be hearing good news very soon about this case.

“I know that our ancestors are rejoicing knowing that Torres Strait Islander voices are being heard throughout the world through this landmark case. Climate change affects our way of life everyday. This win gives us hope that we can protect our island homes, culture and traditions for our kids and future generations to come.

In its decision the Committee agreed with the complaint stating that: 

  • Climate change was indeed currently impacting the claimants’ daily lives; 
  • To the extent that their rights are being violated; and, 
  • That Australia’s poor climate record is a violation of their right to family life and right to culture under the global human rights treaty, the International Covenant on Civil and Political Rights.
  • A minority also found that the Government had violated their right to life. 

The decision marks the first time an international tribunal has found a country has violated human rights law through inadequate climate policy; the first time a nation state has been found responsible for their greenhouse gas emissions under international human rights law; and, the first time that peoples’ right to culture has been found to be at risk from climate impacts.

Australian climate lawyer Sophie Marjanac, with environmental legal charity ClientEarth, acted for the claimants. Marjanac said: 

“This is an historic victory for climate justice. It is a victory for all peoples who are the most vulnerable to runaway climate change. This case opens the door for further legal actions and compensation claims by other climate affected people, and will give hope to those fighting for loss and damage at this year’s international climate talks in Egypt.

“The Australian Government must act on this decision and take decisive steps to protect the islands of the Torres Strait and their ‘Ailan Kastom’. Australia must seriously invest in adaptation and also drastically reduce its national emissions. Nations can no longer hide behind the myth that climate change is a collective problem and that they are free of legal obligation. They must act, now.”

The public campaign led by the Torres Strait Eight, Our Islands Our Home, vowed to build on this win by calling on the new Government to take urgent action to address the findings of the OHCHR. A petition with more than 47,000 signatures was to be presented by Torres Strait Eight members to the Australian Government at Parliament House later in 2022.

Yessie added, “This is not the end - we must hold the Australian government accountable and keep fossil fuels in the ground to protect our island homes.”

Another claimant, Kabay Tamu, a  Warraberalgal man from the Kulkalgal nation said, “I’m lost for words. I feel like a huge weight has lifted off my shoulders. I’m so proud and appreciative of everyone involved from the very start to now. This has given us Torres Strait Islanders more solid ground to stand on now. At this very moment I can’t think of anything to say but thank you and we Zenadth Kes thanks everyone involved and who supported us in any way. Mina koeyma eso.”

Claimant Nazareth Fauid said, “This is a happy moment for me. I can feel the heartbeat of my people from the past, to the present and the future. Our stories are echoing across the world.

"This is about protecting our culture and identity. Our people living in the low-lying islands have been struggling and suffering because of climate change and the decisions of others.

"We are now celebrating history in the making. This is for future generations so that they won’t be disconnected from their island homes of the Torres Strait.”

The claim was supported by the Torres Strait’s leading land and sea council that represents the regions’ traditional owners, Gur A Baradharaw Kod (GBK). Lawyers with environmental law non-profit ClientEarth, represented the claimants, with support from barristers from 20 Essex Street Chambers in London and the Victorian Bar.

So what does the ''Request for an advisory opinion of the International Court of Justice on the obligations of States in respect of climate change'' to the ICJ mean for Australia and all those companies profitting from your and the earth's demise?

This piece by Jacqueline Peel, Director, Melbourne Climate Futures, The University of Melbourne and Zoe Nay, PhD candidate, The University of Melbourne, provides a few insights:

The UN is asking the International Court of Justice for its opinion on states’ climate obligations. What does this mean?

Jacqueline PeelThe University of Melbourne and Zoe NayThe University of Melbourne

The United Nations has just backed a landmark resolution on climate justice.

Last week, the UN General Assembly supported a Pacific-led resolution asking the International Court of Justice (ICJ) to provide an advisory opinion on a country’s climate obligations.

This has been hailed as a “turning point in climate justice” and a victory for the Pacific youth who spearheaded the campaign.

But what does this UN decision actually mean? Does an advisory opinion from the ICJ have any teeth? And what might be the legal consequences for rich countries, like Australia, that have contributed the most to the climate problem?

The theme song asking the ICJ to deliver an advisory opinion on the legal obligations of states to prevent significant harm to human rights and the environment. www.VanuatuICJ.com.

What Is An ICJ Advisory Opinion?

The ICJ is the world court and the leading global authority on international law. It generally hears disputes between countries known as “contentious cases” such as the 2010 case brought by Australia against Japan over whaling in the Southern Ocean. In that case, the court ruled in Australia’s favour.

However, the ICJ can also issue advisory opinions. This is a kind of general advice on the status of international law on a particular topic. Opinions must be requested by one of the organs or specialised agencies of the UN, such as the General Assembly.

On March 29 2023, the UN General Assembly resolved to seek an ICJ advisory opinion on the obligations of states with respect to climate change. That was based on draft text put forward by the tiny Pacific nation of Vanuatu.

Significantly, this resolution was co-sponsored by 105 states, including Australia. It’s the first time the General Assembly has requested an advisory opinion from the ICJ with unanimous state support.

The question put to the ICJ asks whether countries have an obligation to protect the global climate system. It also seeks advice on the “legal consequences” when countries’ actions or omissions cause significant climate harm to small island states and future generations in particular.

The UN will communicate the resolution to the ICJ in coming weeks and the court will then organise hearings over the next few months. It’s expected an advisory opinion will be issued six to 12 months later.

A Win For The Pacific

The adoption of the advisory opinion resolution represents an important milestone in a long-running fight by Pacific small island nations and youth activists to secure climate justice.

For these communities, climate change is already causing or exacerbating harm to natural and human systems. Indeed, only a few weeks before the UN General Assembly decision, a rare double cyclone event ripped through Vanuatu.

Faced with these threats, Pacific nations like Tuvalu and Palau have previously publicly discussed options for seeking a ruling from the ICJ. These efforts met with stiff resistance from major emitting countries, which eventually saw the proposals shelved.

Renewed efforts began in 2019 with 27 law students from The University of the South Pacific forming Pacific Islands Students Fighting Climate Change.

The students worked with the Vanuatu government to launch a new campaign for a General Assembly resolution on climate change and human rights. Introducing the resolution, Vanuatu’s prime minister Ishmael Kalsakau stated:

This is not a silver bullet, but it can make an important contribution to climate action, including by catalysing much higher ambition under the Paris Agreement.

For student campaigners like Cynthia Houniuhi, it means

an opportunity to do something bigger than ourselves, bigger than our fears.

The Power of the People is an explainer from the Pacific Islands Students Fighting Climate Change.

What Might The ICJ Advisory Opinion Deliver?

Advisory opinions issued by the ICJ are – as the name suggests – advisory. They are not legally binding on any country or on the General Assembly. So this climate advisory opinion will not establish the accountability of particular countries for climate harms, nor deliver compensation to vulnerable nations like Vanuatu.

Nonetheless, the authority of the world court means its advisory opinions do matter in shaping how countries understand their international obligations.

There is an opportunity with this opinion to cement emerging links between climate harms and human rights, which could open up new avenues for litigation either domestically or internationally. Already there are several new climate rights cases underway, with the European Court of Human Rights hearing its first two climate cases (against Switzerland and France) on the same day the advisory opinion resolution was adopted.

The ICJ opinion could also provide an extra incentive for countries to reexamine and strengthen their national emissions reduction targets, to make sure they are compliant with the Paris Agreement. As the new fund for climate-related loss and damage takes shape at this year’s international climate meeting (COP28 in Dubai), negotiators may be thinking about how the rules they are crafting could complement the ICJ opinion.

Australia’s support signals our government understands the need to strengthen cooperation and solidarity in the region. Such efforts – including increasing the ambition of Australia’s emissions reduction target and contributing funds to the emerging loss and damage fund – would be tangible indications Australia is striving to meet its international obligations. It’s about being a good neighbour while also avoiding future lawsuits.

A Turning Point For Climate Justice?

For many advocates the success of the ICJ advisory opinion campaign heralds the beginning of a new era in the quest for climate justice. By asking the world court to bring its authoritative voice to this issue, campaigners like the Pacific students’ group seek to make a difference. They hope to ease the path to holding polluting countries accountable for climate harms and help ensure vulnerable communities receive the resources they need to realise a better climate future.

Other voices urge a more cautious approach. The ICJ, for example, does not have much expertise in human rights – with the notable exception of recently appointed Australian judge Hilary Charlesworth. With judges drawn from several major emitting states, the court may be reluctant to intervene decisively on such a highly charged political question. Courts are generally followers, not leaders, of social movements.

Nonetheless, the confluence of dire warnings from climate scientists in the latest report of the Intergovernmental Panel on Climate Change, proliferating climate protests and litigation around the world, and the accelerating occurrence of climate harms like last year’s massive floods in Pakistan may just yield a moment in history - one where the world court steps forward to put its thumb on the scales in favour of the cause of climate justice.The Conversation

Jacqueline Peel, Director, Melbourne Climate Futures, The University of Melbourne and Zoe Nay, PhD candidate, The University of Melbourne

This article is republished from The Conversation under a Creative Commons license. Read the original article.