During her final year at law school, Solomon Yu and his classmates set out to save the world.
All law students studying at the University of the South Pacific in Vanuatu come from the Pacific island nations, which are among the countries in the world hardest hit by the climate crisis.
The students’ idea was to change international law by getting the world’s highest court – the International Court of Justice – to issue an advisory opinion on the climate crisis.
That idea — that of Yu, from the Solomon Islands, and 26 of his classmates in 2019 — made the unusual and unlikely trip from a semester at Port Vila Law School to The Hague, where a major legal conference this week was looking at a case for evaluation.
If it succeeds – and campaigners are confident it will – it will be the International Court of Justice’s first official statement on climate change. The consultation will clarify legal issues related to climate change, such as states’ obligations to other countries, and can have a significant impact on climate change litigation and national law-making, as well as international, regional and national disputes over climate damage.
“It has tremendous weight and moral authority,” says Cameron Diver, deputy director general of the Pacific Society and a Pacific legal expert with particular expertise in environmental law, international law and climate disputes. This will be the culmination of the international legal advice that can be given.”
The campaign is led by Vanuatu, a Pacific nation of about 300,000 people and a three-hour flight from Australia. It is on the front lines of the climate crisis, has been ranked by the United Nations as the country most prone to natural disasters, and regularly suffers from devastating hurricanes including Cyclone Pam in 2015, which is estimated to have wiped out more than 60% of the country’s GDP, about 450 Million dollars.
Ralph Reginvano, Vanuatu’s opposition leader, was foreign minister in 2019 when Yu and his friends approached him with the idea of the campaign. Yu says the group of young students – Yu was 24 – were “nervous” and “nicely dressed” to attend the meeting.
Reginvano chuckles at the memory, but admires the group.
“It was more than just an idea that they discussed, they really started campaigning and pushing to really try to make it happen,” says Reginvano. The group has already drafted and sent a legal letter to leaders of all countries in the Pacific Islands Forum – the main regional diplomatic body – and created a non-governmental organization, Pacific Island Students Fighting Climate Change, which is led by Yu. Which remains an important part of the opinion campaign.
“Imaging that this could happen with an idea was very visionary and ambitious,” says Reginvano. “I agreed that this was a very good idea and proceeded to put it on the international agenda.”
‘It’s time for an idea’
If the campaign succeeds and the International Court of Justice issues an advisory opinion, Diver says, the legal implications would be enormous.
“It’s not as binding as we can build it into a domestic legal system with a prison sentence, a fine, or any other form of punishment,” he says.
But such an opinion can lead to other penalties, says Diver: international sanctions, loss of the right to vote in international forums, or prosecution in an international court.
And not only international law can be affected. The advisory opinion would provide a strong precedent for lawmakers and judges to cite when addressing issues surrounding the climate crisis, such as stopping Environment Secretary Susan Lee from approving a coal mine expansion on the grounds that she has a duty to protect young people. of future damage from climate change. The federal court ruled in her favour, before that decision was overturned on appeal this year.
It could also support the growing drive for climate-related lawsuits: individuals or groups (and possibly countries) suing governments or private companies for climate damage.
“What you might see are community groups, indigenous peoples, or youth groups that use the Advisory Opinion of the International Court of Justice… to say, ‘This group of nations or state is violating my right to a healthy environment, to a future or to preserve my cultural identity.’”
Vanuatu insisted that its approach was designed to be non-controversial.
“This is not a court case. We are not to blame,” Vanuatu Prime Minister Bob Logman said in a recent speech. “This is for the most vulnerable people in the world, for all of humanity and for our collective future… This is the younger generations’ call to justice before the highest court In the world.”
But before the ICJ can give its opinion, Vanuatu must first finish the question it wants to put to the court, and then get a majority of the UN General Assembly in September to vote to refer it to the ICJ – something some countries do highly . Emissions may not want to do this, as this could facilitate the initiation of penalties or legal action against them.
“The campaign is at a really pivotal stage,” says Yu. “You have to go in circles, so start with the like-minded countries: the Caribbean countries, the African countries, the Latin American countries. Then you get close to the difficult countries like the United States, the European Union and other countries.”
A critical factor for the movement’s success is the formulation of the question for a vote in the United Nations General Assembly.
“It really depends on how you frame the question, how you frame it, and how much space you give the court to make its own interpretations,” says Diver.
Previous attempts to bring climate change cases to the International Court of Justice — including a case from the Pacific nation of Palau in 2011 — have struggled to muster the necessary diplomatic support, leaving Vanuatu on a major offensive.
“As our Prime Minister has said, advising on climate change is just an idea whose time has come,” said Ambassador Udo Tevi, Vanuatu’s Special Envoy on Climate Change and Permanent Representative to the United Nations. “It could catalyze the kind of tangible changes we need to avert climate catastrophe.”
Tevey says Vanuatu is “confident” of winning a majority on the issue in September.
Represents Vanuatu, says Julian Agon, founder of Blue Ocean Law, a Guam-based international law firm that advises them. “It is time for the world’s highest court to rule on the defining challenge of our time…it is the one thing that affects all other things.”