Youth-Led Landmark Climate Change Case Starts in The Hague

By Cecilia Russell
JOHANNESBURG, Dec 2 2024 – The intersection of law, diplomacy, and science will come under the spotlight at the International Court of Justice hearings starting today (Monday, December 2, 2024) in The Hague as the court starts its deliberations into the obligations under international law of UN member states to protect people and ecosystems from climate change.

The case was started by the Pacific Islands Students Fighting Climate Change (PISFCC) with the support of Ishmael Kalsakau, the then prime minister of the Pacific island of Vanuatu. Now Vanautu will be the first of 98 countries that will make presentations during the fortnight of hearings, after which the court will give an advisory opinion.

Grace Malie, Tuvalu youth and climate activist speaking at COP29 in Baku, says the advisory opinion will set a “baseline that cannot be ignored,” especially for the youth in climate change-affected countries.

Tuvalu, a small low-lying atoll nation, faces an uncertain future due to sea level rise and it is estimated that by 2050 half the land area of the capital will be flooded by tidal waters. While it has ambitious adaptation plans, it also has developed a Te Ataeao Nei project (Future Now) that outlines how it will manage statehood should it face the worst-case scenario and sink due to rising sea levels.

“What this means for Pacific youth is that climate talks can no longer dismiss our existential concerns as negotiable.” It will foster an environment that secures the islands as “thriving” and “resilient,” rather than as “distant” memories.

The ruling, she believes, will secure the Pacific’s youths’ rights, including to remain rooted in culture, land, and heritage as protected by international law.

The ICJ’s hearings and advisory opinion are unique in that they do not focus solely on a single aspect of international law. Instead, they include the UN Charter, the International Covenants on Civil and Political Rights and on Economic, Social, and Cultural Rights, the UN Framework Convention on Climate Change, the Paris Agreement, the UN Convention on the Law of the Sea, the duty of due diligence, the Universal Declaration of Human Rights, the principle of prevention of significant harm to the environment, and the duty to protect and preserve marine environments.

The court will give its opinion on the obligations of states under international law to ensure the protection of the climate system for present and future generations.

It will also consider the legal consequences of causing significant harm to the climate system and the environment and its impact on other states, including “small island developing states (SIDS), which are affected by climate change, and peoples and individuals, both present and future generations, affected by the adverse effects of climate change.”

Attorney General Graham Leung of Fiji says the court isn’t a substitute for negotiations, which are complex and painstakingly slow.

“The ICJ opinion will be precedent-setting. That is to say it will cover and discuss and analyze the legal issues and the scientific issues, and it will come to a very, very important or authoritative decision that will carry great moral weight.

While the court doesn’t have enforcement rights and while it won’t be legally binding, it will work through moral persuasion.

“It’s going to be a very brave country that will stand up against an advisory opinion on the International Court of Justice, because if you are in that minority that violates the opinion of the court, you can be regarded as a pariah or as an outlaw in the international community.”

The hearings come as the outcome of the COP29 negotiations was met with criticism, especially with regard to the financing of the impacts of climate change.

Ahead of the hearings, WWF Global Climate and Energy Lead and COP20 President Manuel Pulgar-Vidal said, “With most countries falling far short of their obligations to reduce emissions and protect and restore nature, this advisory opinion has the potential to send a powerful legal signal that states cannot ignore their legal duties to act.”

Other criticisms of the present status quo include a belief that the Nationally Determined Contributions (NDCs) are inadequate, and climate finance, intended as a polluter pays mechanism, has failed to reach those most affected, with, for example, the Pacific countries only receiving 0.2 percent of the USD 100 billion a year climate finance pledge.

Cristelle Pratt, Assistant Secretary General of the Organization of African, Caribbean, and Pacific States (OACPS), , agrees that the court’s decision will make it easier to negotiate on climate finance and loss and damage provisions by making that clearer.

It’s expected the ICJ to publish its final advisory opinion in 2025.

IPS UN Bureau Report

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Excerpt:

Youth and climate activists believe that the International Court of Justice’s advisory opinion will send a powerful legal signal that UN member states cannot ignore their legal duties to act and protect the environment against climate change.