306: Breaking Planetary News: The ICJ Climate Opinion Explained

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Transcript generated by AI. While we aim for accuracy, errors may still occur. Please refer to the episode’s audio for the definitive version

Christiana: [00:00:00] And it was unanimous.

Christiana: [00:00:02] Whoo hoo!

ICJ President Yuji Iwasawa: [00:00:04] The human right to a clean, healthy, and sustainable environment is therefore inherent in the enjoyment of other human rights. The court thus concludes that under international law, the human right to a clean, healthy and sustainable environment is essential for the enjoyment of other human rights.

Tom: [00:00:27] Hello and welcome to Outrage and Optimism, I'm Tom Rivett-Carnac.

Christiana: [00:00:30] I am very happy Christiana Figueres.

Paul: [00:00:33] And I'm Paul Dickinson. Warming my Hands by Christiana Figueres. Extraordinary happiness, extraordinary happiness.

Tom: [00:00:39] Today we are talking about the landmark ruling from the International Court of Justice. What it means, what happened and what comes next. And we're speaking to some of the lawyers deeply involved in the case. Thanks for being here. So, Christiana, I have had the privilege of seeing you very happy on various occasions. I think this ranks right up there with like, you know gambling of Paris agreement and grandson was born. So I'm glad to make it a holy view. Why didn't.

Christiana: [00:01:06] We?

Tom: [00:01:07] This is all we're talking about to the podcast.

Paul: [00:01:09] But there is dancing. Christiana is dancing a very sort of strange kind of positive. Did did it? How would you describe the dance, Christiana?

Christiana: [00:01:16] Uh, it is like celebration, elation. I mean, all the ations that there are all the age is so thrilled.

Tom: [00:01:25] All right, I'm going to do two minutes on what this was for anyone who didn't understand the background. Then we're going to uncork you, Christiana, to tell us what's happened. Okay. So March 2023, the UN General Assembly adopted a resolution championed by Vanuatu, supported more than 130 countries that requested an advisory opinion from the International Court of Justice on the obligation of states. This was always going to be an advisory opinion. There have been written submissions from states and UN agencies that concluded in March this year, and today, the International Court of Justice ruled and provided its advisory opinion on the obligations of states to deal with the climate crisis. Christiana. What just happened?

Christiana: [00:02:05] Well, I just cannot believe that those were two hours of the most exciting. Sitting on the edge of your chair. Legal reading that I have ever experienced. I mean, who can possibly imagine that a long legal reading would be incredibly exciting and have me in tears for two hours? Reaching for Kleenex after Kleenex after Kleenex.

Tom: [00:02:32] So would you recommend all listeners to watch the two hours? That's the first question.

Christiana: [00:02:35] Yes, yes.

Tom: [00:02:36] Okay, everybody, you don't need lots of specialist background information on knowledge.

Paul: [00:02:40] Spoiler alert this is not like those procedural things. Crime TV, where they say guilty or not guilty. It was not like that. It was a little bit more, shall we say. Spread out. Christiana. But but tell us the story of how you felt when you were watching it and what it means.

Christiana: [00:02:52] Well, yeah. Let's I'm going to try to do this without tears again.

Paul: [00:02:59] I'll. Producers say crying is fine.

Christiana: [00:03:00] The reason why I'm tearful, truly, is because this is, without a doubt, the most far reaching, the most comprehensive and the most consequential legal opinion we've ever had. And that is because a it comes from the highest court in the world. You cannot go higher, higher than the ICJ. It covers all relevant international treaties, including the law of the sea, including the Montreal Protocol. They took all international treaties that were relevant and said they all constitute the basis for the legal obligations of states to address climate change. They made the link very explicit to addressing climate change in a timely fashion to human rights around the world. They brought in all of the human rights principles and also and this was astonishing to me. They also brought in customary law.

Tom: [00:04:06] Defined customary law. For us.

Christiana: [00:04:09] Customary law is different from international treaties. Customary law is typically not written. It is age old, almost traditions, rules, practices that are accepted as being binding within a specific community or society because it has been handed down from generation to generation. The reason why I think this is so amazing is because it was the Pacific Islands who had the vision to unleash this incredible process that then culminated in the case today, in the opinion today. But the Pacific Islands are steeped in their customary law. And listeners to this podcast will remember that when we talked to the Minister of Climate Change of Vanuatu, he was very clear about the customary laws in Vanuatu. When we talk to Cynthia about her participation as one of the 27 students who had this original idea to bring this, she was talking about customary law and traditions. I am just blown over that the highest court in the world lends its ear to customary law. And let's remember, there are judges there from industrialized nations. It is not just justice from, you know, developing countries. We usually have more customary law. It is industrialized country justices.

Tom: [00:05:51] And it was unanimous.

Christiana: [00:05:52] And it was unanimous.

Christiana: [00:05:57] And unequivocal. I was honestly expecting a lot of nuance, a lot of, well, maybe, perhaps under certain conditions. Nothing. Nothing. No nuances. It was unequivocal in its opinion of the duties of state to protect our environment. So I am. I don't know if I have cried or danced more, but both.

Paul: [00:06:24] We need a crying and dancing emoji. That's the one for the new list, right?

Tom: [00:06:28] So at the highest level, just to make sure I've got this right, Christiana and Paul, I'd love to hear your views on this as well. What we have found out today through the ICJ, in this landmark advisory opinion, is that states are legally obliged under multiple branches of international law, as you said, including all these different types, to take action to prevent harm to the climate, that mitigation, adaptation and international cooperation are all part of these obligations, and states must act. And that failure to meet these obligations could trigger legal consequences, and that there needs to be cessation of harmful activities. And these duties are owed not just to other states, but to all of humanity and to future generations.

Christiana: [00:07:09] What a beautiful British understatement, but a good summary.

Paul: [00:07:14] And a future generation. That concludes.

Paul: [00:07:17] It.

Paul: [00:07:18] Now the shipping forecast.

Christiana: [00:07:19] It's a good summary, Tom, but.

Tom: [00:07:21] It doesn't have.

Christiana: [00:07:23] The excitement of the moment. I mean, I guess that's why you and I worked together.

Paul: [00:07:28] If you look down the side just on Thomson, there's the Costa Rica button. Press it now press it now.

Tom: [00:07:32] The Costa Rica button. Paul, let's come to you.

Paul: [00:07:36] What do you think? I'm gonna try and go try and rescue the union between the states and the Costa Rica. So, yeah. Look, the, uh, you know, the the industrial nations who thought they knew everything. Had all these emissions going into the sky. How's it working for you? Industrial relations? Not so good. I think you'd have to agree. And the waters were rising, and they got to the Pacific island nations who were there in the front line. And as they, their nations began to sink. They took it back to us with our law. And we've got just such a great interview coming up with Julian again. And he has set up a law firm that was a big part of this. And he says his law firm is ideologically bound to the idea that indigenous people are part of the answer to get out of the mess we're in. And that is what's happened here. It's like a fairy tale.

Tom: [00:08:22] It's like a fairy tale.

Paul: [00:08:23] And that's why I think you were crying. Because Diana is because there is something extraordinary about this. And I think it offers the opportunity for the, the better angels of the natures of governments, of the private sector, of investors, of everyone to come together and say, well, look, the ruling is there. We now have a basis in law that we can move on from. I mean, Julian said that the law is like a spatula. You know, you can use it to hit somebody over the head or make a lovely omelette, but it is going to impact all sorts of people working in different areas.

Tom: [00:08:50] Today is such a special day. We have a kind of slightly more chaotic version of outrageous narcissism coming to you, and we actually have another interview, which is going to start, I think, now. And that is with Jennifer Robinson, the Australian human rights barrister known for high profile free speech and human rights cases. And she's been part of the international legal team and acted as the lead counsel for the Republic of Vanuatu in their request to the ICJ for an advisory opinion. And if I'm not mistaken, she is joining us now.

Jennifer Robinson: [00:09:18] I am so delighted. What an amazing decision.

Christiana: [00:09:22] What an amazing, amazing I mean I honestly Jennifer well sorry, we just have to jump right into this because I can hardly contain my excitement. Every single sentence was bolder than the one before. Opened up new possibilities was completely, completely Unprecedented. I mean, I am just bowled over, but I'm not a lawyer. So you tell us, what is your. I will try to shut up and let you give.

Tom: [00:09:52] She's not going to manage it. Yeah.

Christiana: [00:09:53] I won't manage it, but I'll try. Jennifer, how are you feeling?

Jennifer Robinson: [00:09:58] I am thrilled and delighted and just so proud of Vanuatu and what they've achieved with this decision. The court has ruled in favour of every argument that Vanuatu made and supported by all of the Pacific states and the great majority of governments. So the big emitters, who tried to argue that states only have these voluntary obligations that they sign up to under the climate treaties. The court found, of course, that there are customary international protections that require all states, irrespective of whether they are party to the treaty or not, must protect our climate system, and that there is international state responsibility duties to cease the acts. Attribution and causation can be established. It applies in the context of the climate crisis which opens the way for inter-state complaints and claims against the big emitters on behalf of vulnerable states to argue for cessation, restitution and compensation for the harm that's being caused. It was such an important decision, making clear that 1.5 is the target that we all have to meet, that states do not have an absolute discretion in respect of their NDCs, that they have these additional obligations under international customary law, under human rights law. It was a remarkable decision. The court even set out the obligation of non-refoulement, that climate vulnerable refugees must be protected and cannot be sent home. In the context of climate change, where there is a risk to life.

Christiana: [00:11:21] And Jennifer, to the detail, well, detail from I think from normal international law, but absolutely crucial to the survival of small island states, to the point that they said that a state does not lose his statehood because of sea level rise. I mean, I just completely lost that one. I'm I am just absolutely one big puddle of tears because I thought how absolutely deserving.

Jennifer Robinson: [00:11:52] And this is, as you know, has been a huge priority for all of the Pacific states. Yes, I act for both Vanuatu and assisted Marshall Islands in their oral presentation to the court, the oral submissions, and for all of the Pacific. This recognition of statehood, despite sea level rises, was such a big priority for the Pacific, and that the court addressed this directly and made that clear was really remarkable. It's such an exciting day and what an exciting day for the Pacific Islands students.

Christiana: [00:12:22] Are those 27 students? Oh my gosh.

Jennifer Robinson: [00:12:26] Can you imagine? So when Ralph Regan, our climate envoy for Vanuatu, who really was a driving force behind this and who I've worked with for the past five years, just gave a speech for all of us who are here celebrating the decision. And he talked about how this shows that young people can can change the world.

Christiana: [00:12:43] Exactly.

Jennifer Robinson: [00:12:44] Can take this on and achieve remarkable things. And in a time when I think everyone's feeling quite depressed about the state of the world, about where we are in terms of climate action, what the future looks like. This decision really provides a roadmap to climate justice and will be game changing for negotiators. It will be game changing for litigators around the world. This decision will be used for strategic litigation in domestic and regional courts around the world. It's unprecedented in many ways. It was passed by consensus in the General Assembly, the first time in history that the General Assembly has referred a matter to the court by consensus, which shows that states want clarity on their legal obligations. And the court has given them that today.

Christiana: [00:13:25] Unanimously.

Jennifer Robinson: [00:13:26] Jennifer, unanimously. I was actually waiting for the separate opinions to come. Yeah, but when they started admitting that it was unanimous, I was Delighted and surprised. But not only that, there's all these extra separate opinions and declarations which show which actually go further, further than the unanimous decision.

Christiana: [00:13:43] What we heard was groundbreaking and it was the minimum common denominator. On top of that, we have even more ambitious from from so many of the justices.

Jennifer Robinson: [00:13:53] I think it's one of the most remarkable decisions we've ever seen from the court. It's and as much as we could have hoped for and for these students.

Christiana: [00:14:02] Absolutely. Jennifer. I mean, so, so many, so many, so many details, none of which is a detail, but referring to 1.5, the court deems that 1.5 degrees ten degrees is the agreed global temperature limit. Oh my gosh, thank you for that clarity. Thank you for that clarity.

Jennifer Robinson: [00:14:25] All governments need to be reviewing their NDCs to make sure they're in line with 1.5, because we know they don't all they don't all set that target. But not only that, the court didn't only just say that, but they acknowledged that 1.5 degrees is not safe. Yes, it is already causing catastrophic damage. And if you looked at the example, for example, the evidence we presented, the scientific evidence we presented, and projections for Marshall Islands, 1.5 degrees of warming is catastrophic in terms of sea level rise for the Marshall Islands and requires billions of dollars in adaptation. So what's very interesting about this decision, I think, is not just marking it at 1.5, acknowledging that 1.5 is already causing significant damage, but also giving climate vulnerable states the ability to take legal action to enforce these obligations against the big emitters and claim compensation. And of course, it all depends on the individual circumstances. But what the court said, you had countries like Australia and the US saying this is all too difficult. Climate change is very complex and we can't possibly attribute it to two different states. Everybody contributes its cumulative acts, and the court said no, actually, scientifically, it is possible.

Christiana: [00:15:36] To determine for each country. Yeah, it turns out.

Jennifer Robinson: [00:15:39] And therefore the same principles apply to damage to the climate system, like we would consider any other form of transboundary harm. And that that is an honors principle, which means that all states have the ability to seek to enforce this rule of international law. So this decision is, I think, better than we could have hoped. Better. It is exactly what we hope for and more. The court has done what we asked them to do. And as they said, we have done our job as the judicial organ of the UN. International law is not enough, though it requires political action, it requires the whole of the world to come together. And I hope that the governments who came here and argued against these principles the US, Australia, China, Saudi Arabia, see that this is the writing on the wall. We have to stop fossil fuels. That was another part of the judgment that I was delighted with today in the summary that they announced, acknowledging that subsidies for fossil fuels is potentially an unlawful act under international law. Subsidies are proving further fossil fuel developments. The writing is on the wall that we have to move away from fossil fuels and that states will be held accountable, legally accountable and potentially financially accountable for their historic and ongoing emissions that cause significant harm to the climate system.

Christiana: [00:17:04] Yeah. Let's just go into the actual text of the court on fossil fuels. It says, I quote, failure of the state to take appropriate action to protect the climate system from GHG emissions, including through fossil fuel production, fossil fuel consumption, the granting of fossil fuel exploration licenses, or the provision of fossil fuel subsidies may constitute an internationally wrongful act which is attributable to that state. Whoa! We have never heard any legal organization be as clear as this. Jennifer, after this, do you think that we still need any more international treaties, any more agreements, any more, you know, big overarching legal structures? Or would you say we have enough? It is now time to implement as the conclusion. I mean, listeners, if you don't listen to the whole thing and read the whole thing, read the conclusion. The fact that the president of the ICJ say it is now down to will and wisdom. And I thought such a beautiful pairing to say it is up to each state now to act on its will and its wisdom. I thought that was beautiful, but sorry. My question is, do we still need any more international legal structures, or do we have what it takes? And is it down to will and wisdom?

Tom: [00:18:38] And can I actually add to that question before we answer? I'm sorry to jump in is my understanding now is this goes back to the General Assembly to vote on whether they accept it. And that's a very interesting moment of political decision making. Right. Because if they vote to accept it, then by definition, that presumably strengthens the legal hand of anyone who might want to hold them to account. But to vote against it would be quite a thing. So that sort of tax on to what Christiana was saying about more opinions.

Jennifer Robinson: [00:19:05] Well, to answer Christianas question, the court has just laid out what the international law is as it applies to climate change. We know what causes it. We know what we have to do to fix it. Now we need to have the will to implement it. I hope this decision will also encourage states to not just take the action that they are required to under international law, but that the threat of litigation and compensation will encourage states to actually comply with their commitments under loss and damage commitments, which we haven't seen actualized, that states are not being able to access quickly enough for adaptation measures. Countries like the Marshall Islands and countries across the Pacific, Vanuatu, are not getting the funds that they need to be able to address the damage that's already being done. So it isn't a matter of will. The law is there. The law is is clear, and it'll be interesting to see what happens to the UN General Assembly. But the great majority of states, 91 governments appeared before this court, and the great majority of states agreed with the arguments that the court has adopted. There are a few outliers. They are big, powerful countries at the UN, but at the same time, I look forward to seeing what happens with it. And obviously that's the next procedural step and it will be very interesting to see. I would love to be a fly on the wall of the meetings that are happening in capitals.

Christiana: [00:20:20] Today.

Jennifer Robinson: [00:20:21] And tomorrow.

Christiana: [00:20:23] Jennifer, this was the largest advisory hearing in ICJ history by far. To go back to Tom's question, the fact that so many governments turned up, the fact that how they argued was very much in line with what the court has come out now with. How are you expecting individual countries, governments to begin to react to this?

Jennifer Robinson: [00:20:49] Well, the majority of states are going to welcome this decision because the majority of states argued in line with the arguments that we made for Vanuatu. So I think you'll see a lot of governments welcoming the decision. Climate vulnerable states, small island developing states welcoming this decision. It will be interesting to see how the big emitters react. And so I'll be watching with interest over the next few days. But I hope they see this as a roadmap, as an opportunity to move forward as impetus for negotiations going forward. What I found really encouraging, being here in The Hague is talking to diplomats who are at Cop who are in these rooms, and for them, this decision, they say, is game changing for them in terms of the dynamics of negotiations. And Christiana, you can speak to that in the really important roles that you've played. So I really hope that it gives the impetus for the climate action that we so desperately need. But it will be interesting to see state reactions.

Christiana: [00:21:48] Jennifer. Ironically, Tommy is in Tarrytown, New York, at a meeting with the president, with the CEO of the Cop, with many of our well-known and, well beloved climate leaders, and of course, talking about strategies for the Cop. The irony, of course, is that while they were trying to focus on the cop, here is the most important thing in the history of climate change happening. And Tom, what was the reaction in the room?

Tom: [00:22:17] Well, what was interesting is that, you know, there were these discussions going on around how we pulled together coordination. But of course, everybody was actually refreshing their phones and watching what was happening in The Hague and this sort of ripple of excitement that went round this relatively small room. We were all in as it sort of burst out into the room that this had happened, and sort of negotiator after minister after senior official reflected on the fact that this has changed the game, that what you have achieved and what those the students have achieved, what's happened today in The Hague. We're now operating in a different context, and it's going to take a while to realize the full implications of what that means, and it'll be interesting to see it manifest in states.

Christiana: [00:22:56] But it's not going to take a while to realize the full implications. We're on it. We're on it.

Tom: [00:23:01] A profound thank you. I would say is one thing from everybody here who is really trying to make Cop 30 a success.

Jennifer Robinson: [00:23:08] Well, the thank you, I think, goes to Vanuatu. It's been an honor to represent them. And for a small island state like Vanuatu to achieve the impossible. And first getting that resolution through the General Assembly, which everyone said would be impossible, but to do it by consensus for the first time in history. Then to achieve this legal outcome is remarkable, and the countries that banded together with Vanuatu to achieve this deserve this praise and recognition. But those students?

Christiana: [00:23:34] Oh yes.

Jennifer Robinson: [00:23:35] What a.

Christiana: [00:23:35] Story. Story. Jennifer, we have the story of those students because we recorded Cynthia when I was in Vanuatu just a couple of months ago. Right. And so on this podcast, we actually have the full story of the students behind this amazing ICJ opinion today.

Tom: [00:23:54] Honestly, it's been a struggle to get Christiana to talk about anything else for a couple of months now. So.

Christiana: [00:23:59] Jennifer, thank you, thank you, thank you, thank you for all the work you've done. Thank you for cutting a few minutes out of your very busy. I'm sure the entire media of the world wants to talk to you today, so thank you very much for including us in your very busy agenda today.

Paul: [00:24:14] And congratulations.

Jennifer Robinson: [00:24:16] Well, anything for you, Christiana. Thank you. Well, the congratulations again is for Vanuatu and those wonderful students. But great to speak to you all and thank you for your work.

Christiana: [00:24:26] Thank you Jennifer.

All hosts: [00:24:27] Bye bye bye.

Tom: [00:24:30] What an amazing woman. I mean, and so humble. But what an incredible thing that's been achieved. Amazing, amazing. So at this retreat I'm at. This morning I was sitting next to Tina Stage, the negotiator from the Marshall Islands, who is the great Toni Abrams niece. And as we were sitting there, Toni Abrams daughter was the one who was actually in The Hague monitoring and sending messages to Tina, and the two of them together were just reveling in this moment and just overwhelmed by what has happened. So, Tina, we've been sitting together for the last several hours at this retreat in upstate New York while the ICJ opinion was unfolding. I would love to just ask you how you feel about this. This is something that has been precipitated in the islands. You have been at the heart of this. I'd love to just get your immediate reaction.

Tina Stege: [00:25:17] It's been such an emotional day. A glorious day, I have to say. I'm so proud of the Pacific. I am so proud of the students that brought this idea forward in the first place. I'm proud of Vanuatu and the other countries that have just led the charge. I'm proud of all the Pacific nations that came in and supported it, and we did our submissions to the ICJ. There was so much time and thought put into the whole process up and down in our system in the Marshall Islands. It's a really proud day for for Islanders.

Tom: [00:25:59] I know, you know, it only just happened. But one thing I observed is that the ruling pointed out that sea level rise does not mean does not remove the right to statehood. I know that's something you've fought for for a long time.

Tina Stege: [00:26:09] So many of the things that we have fought for for so long. We're seeing them affirmed in this legal opinion. You know, we we've talked for so long about. About the science and how it's so clear that 1.5 is the, the limit. For for all of our countries and for people around the world, and to have the law come in and say, yes, because we continue to fight that fight in other places, even in the unnatural sea that that 1.5 has to be the limit. And when we we get pushback, but we now have the law backing us up. The fact that they've come in and said, yes, statehood does not go away when you have the seas rise. You know, that's something that that we've worked on for, for years and in our region has put out declarations and we're seeking the world to to recognize. And here we have an international legal opinion that that recognizes there's so much in there that really affirms so many of the things that we fought for. And that's why I'm just again. It's quite an emotional day.

Tom: [00:27:12] All right. Thank you so much. We'll talk more. Congratulations. It's huge. Yeah. Sadly, heartbreakingly. I'm gonna have to leave you now because I have to run and get your home.

Christiana: [00:27:20] Well your loss...