By Dana Drugmand
As leaders of Pacific island nations converge this week in Tuvalu, a group of students from the region are calling on their governments to bring the issue of climate justice to the highest court in the world.
The Pacific Islands Students Fighting Climate Change, an organization started earlier this year by 27 law students from eight Pacific island nations, will greet the leaders gathering for the Pacific Islands Forum with their plea to seek an advisory opinion on climate change and human rights from the International Court of Justice. An advisory opinion, while not legally binding, would help clarify countries’ obligations under international law to take action on climate change to safeguard human rights.
The climate crisis presents an existential threat to many of the islands in the South Pacific region, particularly low-lying nations like Fiji, Tuvalu, Kiribati and the Marshall Islands. Sea levels are rising here several times faster than the global average. The students are calling on the richer countries to do more to protect their future.
“I’m sick of the hypocrisy,” one of the students, Solomon Yeo, said in a video explainer. “It seems like they’re just dancing on our graves, dancing on our demise. We will not stand by and accept this.”
The Intergovernmental Panel on Climate Change reported in 2014 that 1 meter of sea level rise would wipe out 15 percent of Pacific islands. A resolution passed last year by the UN Human Rights Council recognized that “climate change poses an existential threat for some countries,” and that “climate change has already had an adverse impact on the full and effective enjoyment of human rights enshrined in the Universal Declaration of Human Rights and other international human rights instruments.”
But the Pacific Island Students Fighting Climate Change say this resolution is not enough, considering countries like Australia that supported the resolution also continue to embrace coal and have not taken concrete steps to meet their climate goals.
In June, the students wrote letters to heads of state in the Pacific region, including Australian Prime Minister Scott Morrison, requesting they “urgently commence the process of seeking an advisory opinion from the International Court of Justice on the issue of climate change.” Those leaders are meeting this week for the 50th annual meeting of the Pacific Islands Forum, an intergovernmental organization consisting of 18 countries in the region. The Pacific Islands students are urging the Forum to take up their request to help bring climate change and human rights before the ICJ. “We look to an intervention by the ICJ to endorse at the highest level our fundamental moral and legal rights,” the students wrote in their letters.
According to the PISFCC campaign, an advisory opinion would have many benefits despite not being legally binding. It would integrate separate areas of international law such as human rights and environmental law; provide impetus and authority for more ambitious action under the Paris Agreement to fulfill existing human rights obligations; cement consensus on the scientific evidence of climate change; and help inform international and domestic climate litigation.
“Such findings could also be influential both in encouraging claimants to bring matters before national courts, as well as in their ultimate determinations,” the students explain in a briefing paper. “An advisory opinion could therefore pave the way for successful litigation against governments and corporations that are responsible for climate change and its consequences.”
This litigation is already underway and is expected to continue as climate impacts worsen. Presenting the climate crisis as a violation of human rights is an emerging strategy in climate liability lawsuits and other proceedings. Cases against national governments claiming that government-sanctioned climate breakdown threatens human rights are pending in several European countries as well as in the U.S. In May, a group of indigenous Australians from the Torres Strait Islands brought a complaint against Australia before the UN Human Rights Committee over climate change and human rights. And the Philippines’ Commission on Human Rights is set to soon release the findings of an investigation into the role of major fossil fuel corporations in causing climate change and possibly violating human rights.
An International Court of Justice advisory opinion could help strengthen these cases and encourage future climate lawsuits. While nations cannot seek advisory opinions directly from the court, they can come together under the UN to do so. The students say their goal is for the UN General Assembly to pass a resolution in 2020 seeking an ICJ advisory opinion on climate change. Legal experts and law professors from around the world have written in support of this campaign.
Michael Gerrard, faculty director and founder of the Sabin Center for Climate Change Law at Columbia Law School and one of the experts supporting the initiative, called ICJ advisory opinions “important statements of international law.”
“The current leaders of some major emitting countries, such as the U.S. and Brazil, may not care much about international law, but hopefully their successors will,” he told Climate Liability News via email. “Additionally, the national courts of an increasing number of countries are declaring the legal importance of addressing climate change on constitutional, human rights and other grounds, and an ICJ opinion would further support these cases.”