303: The Climate Case of the Century: Inside the story of a youth-led legal movement

Full Transcript

Tom: [00:00:02] Hello and welcome to Outrage and Optimism. I'm Tom Rivett-Carnac.

Christiana: [00:00:05] I'm Christiana Figueres.

Paul: [00:00:06] And I'm Paul Dickinson.

Tom: [00:00:08] This week, as the world awaits the ruling on a landmark International Court of Justice case on the responsibilities of countries in respect to climate change, we explore the background to the case, what it could mean. And we hear from one of the former law students who first proposed it. Thanks for being here. Okay. It's so nice to be back with you. You always do such a knockout job when I'm not around. I'm very sorry that I was running around London and then music festivals in the West of England, doing work for outrage and optimism, I have to say. But I was saying music.

Paul: [00:00:40] Festivals in the west.

Tom: [00:00:41] Of England. Well, it was music festival. I went to Glastonbury, we did a live episode at Glastonbury.

Christiana: [00:00:45] So tell us, tell us a little bit about Glastonbury and maybe some concluding thoughts on London Climate Action Week. For both of you.

Paul: [00:00:53] I'm just a question for Tom. Did you get a frisson of excitement when you entered? Are you wearing your performer armband?

Tom: [00:00:59] Well, I was actually very much looking forward to that moment. Paul, after you told me that it was such a wonderful moment, walking through with this sense of importance. That's not quite how it was for me, although it was very nice going to the festival. First time I've been to Glastonbury Festival since 1993, if you can believe, which makes me feel very old. So had a lovely time. Went with my son. We spent a couple of nights there, did a great podcast. Gail Gallie co-hosted it with me. We had amazing people who were on the panel. People like Yann Tiersen, the composer Adam met, Oliver Jeffers, spent a couple of days there, really lovely group who came to listen to the live episode. Unfortunately, we're not going to put it out on the feed for various audio rights issues, but I think we probably will do it again in a couple of years. So if you're planning to go to Glastonbury in two years time, another chance to hear us live. And we also did well. Paul, you were at London Climate Action Week as well, weren't you? How did you enjoy it?

Paul: [00:01:47] Yeah, I mean, you know, it was impossible for me to participate in practically anything, not least because I had to do some work, which stopped me sort of stuck on my sofa during London Climate Action Week. But no, I had the privilege to be at an event with business and the incoming president of the co-op. And, you know, his vision of multilateralism and the sort of image of, of a kind of. Takes all of us to do everything was truly inspiring. And business leaders seem to be very much up for it. Notwithstanding headwinds in North America, it seems to be a time of kind of economic and technological confidence, I would say. Was it your impression, Tom?

Tom: [00:02:22] Yeah, I was kind of blown away by the sense of momentum and enthusiasm and optimism that everybody seemed to embody in London. I mean, London Climate Action Week, this is about the momentum. It's about the technology. So many interesting conversations. You know, just a couple of events. I went to the 20 years of C40 event in the Foreign Office.

Paul: [00:02:41] It's a great organization.

Tom: [00:02:42] It is a great organization. The you know, Mike Bloomberg, reflecting on 20 years since they launched that incredible group of leading mayors and everything they've achieved. Christiana will be with them in Rio in November just before the Earthshot Prize. And also we hosted a live event where I facilitated a conversation with Ed Miliband on stage, which was very good, and he sort of pointed out the momentum they're trying to drive in the UK. And I also, in fact, I should tell you this, I committed us to something. I facilitated a discussion with Adam Matt from the band AJR and Mary Robinson together on stage. And and Mary Robinson is the reason that Adam met has gotten into climate change and done so much on it.

Christiana: [00:03:20] Wow. I didn't know that.

Tom: [00:03:21] I know she was so sweet together and the conversation was cut short, so I promised the 400 people in the audience that we'd get them on the podcast together soon, and there was an enormous round of applause.

Paul: [00:03:31] So you're going to get 400 people from the audience on the podcast. How's that going to work?

Tom: [00:03:35] Paul, you're gonna have to do the research on each of them. Exactly. So.

Paul: [00:03:38] Adam and Mary, can I give a last word from London Climate Action Week to a day at an event I wasn't actually attending? He gendered this slightly, but he said that the internal combustion engine automobile was a dead man walking. And I thought that was a very exciting vision of an electric future for mobility.

Tom: [00:03:53] He said that in an event I was at, which prompted Ed Miliband to declare undying love for him from the stage, which was a lovely moment. So now, one other thing I should just share before we go forward is I also had the pleasure and privilege of having dinner with our good friends Nigel Topping, Gonzalo Munoz together with Marcelo Béjar, who is one of the special envoys for Cop 30. And they challenged us with the previous episode that we put out to say that, look, while there are clearly some people who are struggling to find accommodation in Belem, actually solutions are available and we shouldn't be put off by going there. So we wanted to give them an opportunity to explain that to listeners. So there's some resources. Going to point you to in a minute. But first of all, let's have a quick listen to what Marcelo had to say. Okay, Marcelo, you have thousands of people listening. Tell us what's going on.

Marcelo Béjar: [00:04:36] Thank you so much for hosting me. Oh, man. Let me tell you, first of all, there is a big planning going on for accommodations. And last week in Bonn, the presidency for Cop 30 released the numbers in detail for all the venues that will be made available by November. And it's important to us to understand that Belem is a city of 1,000,200 people that annually holds a festivity in which it holds a million people, but they do not book like six months in advance, and they do not book via Airbnb or booking or other other apps. They show up a few weeks in advance, and they try to understand the best accommodation possible, and the city never collapses. The water is fine, the medical systems work, the logistics are there, everything is in place and people get super excited about an amazing cuisine, amazing festivities and the prices will get to its place. So it's a market offer demand issue. Nowadays a lot of demand is going on on BLM, a lot of pressure on the system, but the system is being corrected and hopefully in the next few weeks the system will adjust. Having more offers, bringing prices down on a more reasonable level. Besides that, there will be venues for those who want to go on civil society and to want to engage with others and to stay in more collective spaces like schools and other facilities that will be made available as well. I'm sure that the connectivity between climate, nature and the negotiations will be a boom in Belem and this will be an unforgettable cop in the very positive sense of the word.

Tom: [00:06:21] So I don't wanna take too much more of your time, but I'll ask you two questions. One is so you're not worried about the accommodation, and two is you okay? But the two is. What advice would you give? So there are many NGOs and other corporate leaders listening. What practical advice would you give them in terms of how to ensure that they can be represented at the Cop?

Marcelo Béjar: [00:06:39] So not to say that I'm not worried. I am worried as anyone would be, as I was worried when I attended Glasgow and I was running the suitability area of a global company. We had 26 events, no hotel rooms being found whatsoever. We had to accommodate. Ceos, board members in Airbnbs and it was just fine. That worked really well. I think Belgium can replicate the trick. People will need to be more open to other solutions, that's for sure. But that's what Cop is all about, right? It's finding new solutions for old problems in different ways. A very practical solution would be to not only wait for the system to come up, because the the hosting system is not up yet. The official one and the second one is if you're able to. If you have a friend who's a Brazilian and who can connect you to a local real estate agency, probably you'll find far more reasonable prices than just going to global platforms. That will keep prices on a very high standard. So let's look for the affordable options with the cool mind that a cop requires.

Tom: [00:07:43] So as Marcello points out there, there will be more opportunities coming. We put some links in the show notes to some platforms that are Brazilian that might be able to help you find accommodation. And soon the new platform for accommodation in Berlin will be launched by the Cop 30 presidency, and we will be providing signposts to that and mentioning in the podcast. So I really hope that you can find what you need and be represented at the Cop. Very good. So we have a very exciting discussion today, and this is returning to an issue that has been so critical and that we have visited before, which is the landmark ruling that is due to come out from the International Court of Justice. During our episode on Vanuatu. We touched on this, and as a reminder, this will be an advisory ruling won't lead to any immediate legal consequences. However, it may clarify what states are required to do under international law to remedy climate harm and whether there is a legal foundation for differentiated responsibilities and potentially reparations. Although this is not legally binding. This advisory opinion is expected to carry really significant moral and legal weight and could influence global rule development and court decisions at the national level worldwide. It could shape how courts around the world rule on climate cases, how you empower frontline communities seeking justice and help reframe climate in legal terms as a human rights issue as well as an environmental issue. Now we know that climate lawsuits are growing around the world, but never before has the world's highest court been asked to weigh in on whether states are legally obligated to protect their citizens from climate harm.

Christiana: [00:09:20] So, Tom, that's a great context for what we are awaiting. And we should also just tell listeners that once we hear what the advisory opinion is, once the court comes out with that, we will dedicate a whole episode to the interpretation, because it is very likely not to be a yes or no opinion. It's going to be a very sophisticated legal interpretation of the obligations of states. So we will dedicate a whole episode with lawyers who will help us to understand. But for the time being, this is just a bell of excitement that this is coming.

Paul: [00:10:05] Yeah. I mean, it's an unusual court because it only has jurisdiction over nations. But, you know, just to restate this, the advisory opinion was requested by the General Assembly of the United Nations. It could guide the drafting of General Assembly resolutions. You know, the court supports the principles and purposes of the UN charter, and I think, you know, it will define the present shape and future climate justice. As I said, whatever the result. This is only the beginning. I think a wonderful door has been opened into the court of public opinion, and the court of Justice is going to be a reflection and hopefully an amplifier of that as global concern about climate growth.

Christiana: [00:10:44] As we know, we have so many climate cases that are already ongoing and more and more coming in. We've talked about it quite a few times on the podcast, but this really because it is the highest court in the world. This really lays the foundation for all climate cases that will be filed in the future. So it is very exciting, and it is even more exciting to understand that this case was dreamed up by law students. Amazing from the South Pacific, who in one of their classes were so frustrated about the lack of consequence and liability of large nations on climate change that they said, well, what can we do about this? Let's take this to the ICJ, to the International Court of Justice. And these students just work as we will. We will hear this wonderful story because it is a story that Cynthia will tell us, how they banded together, how they took this to New York, how they mobilized the entire UN General Assembly, how they took it then to the court. I mean, it is an amazing.

Paul: [00:11:59] How the General Assembly voted in support of the students to get the court to make the ruling. I mean, duh.

Christiana: [00:12:06] Yeah, it really is a David and Goliath story, right? Mm. It really is a David and Goliath story. And just a wonderful, wonderful proof that a few determined people can really make a difference, as supposedly Margaret Mead said. But we don't know if it was really her.

Tom: [00:12:28] What do you think? I mean, you've you've kind of become a little bit obsessed with this, haven't you? I know you've been delving into it and looking at a lot of backgrounds. So tell us.

Paul: [00:12:34] Yeah, I mean, people, people across the streets of London are increasingly worried about me because I'm walking past them and I've got these tears running down my face and they think, poor guy, what just happened to him? Well, I for the third or fourth time. Listen to Cynthia Houniuhi giving her speech to the IC. It's only about six minutes, but if it doesn't sort of, you know, give you a bigger and better soul than the one you had before you heard it. I don't think you've got blood in your veins. She would completely reject the idea that she was the instigator of this. You know, she she rejects this kind of Western narrative of the person that does things. But she is the president of that extraordinary student union of students from the Pacific Islands. I mean, just, you know, her words. She said, my island, my people have been my motivation. I mean, doesn't it put a kind of little lump in your throat?

Tom: [00:13:20] Do you think we should listen to a bit of that? I mean, a bigger and better soul is something I feel that we should share with our listeners. And then, Paul, I'd love to hear your thoughts broadly on that.

Cynthia Houniuhi: [00:13:28] I stand before you not as an individual, but as the living embodiment of the voices of our people past, present, and future. Land is our mother, a living, timeless plane where generations past, present and future converge, interconnected and sustained in an unbroken cycle of life. It is upon our land that our values and principles are rooted, preserved and transmitted across generations. Our land stretches to the distant waters with the shark by our swims, rises to the heights where the eagle juara soars, spans the rivers traversed by the crocodile Juara, and reaches into the depths of soil where the snake moa borrows. For my people, the birthright custodians, the only mine only walk in sync with our clan totems reunify the safeguard, the fundamental relationship with the divine law of the land. Marko and people. Know me. My people will understand the continuous duty of past and present generations to protect the environment. For the. For the future generations. Climate change is undermining our ability to uphold this sacred contract.

Tom: [00:15:01] You know, that's the first time I've heard that Paul and I completely share your perspective. That's astonishing.

Paul: [00:15:05] So think about the International Court of Justice, you know. What is it? She used the phrase, she said, it's the world's highest court. And of course, she said that because she didn't want to use technical language when talking to people, which is a really smart lesson for all of us. Don't call it the International Court of Justice. Call it the highest world's highest court. But, I mean, I think the point was explained extremely well in Peter Pan by Tinker Bell, who observed that every time someone says they don't believe in fairies, one dies. Okay. The significance of the International Court of Justice, the ICJ, or the world's highest court, is exactly the same as the emerging process of us as humans. Thinking about how much we care and support rule of law. I mean, one extreme you've got I don't know what the philosopher Habermas called the the colonization of the life world by instrumental rules and contracts and just big companies ripping up forests and all the rest of it, and Trump pulling out of the Paris Agreement. But at another level. And there was a Mexican diplomat, a legal scholar, who spoke about this, saying international laws should be seen as a legal system and not regarded as something random, but something increasingly harmonized. So I think the genius of Cynthia and her colleagues is to recognize that there is an emerging legal consensus, and there's something morally and legally persuasive about the International Court of Justice. So I just think it's the most brilliant climate strategy. And so such an honor and pleasure for us to be able to hear from someone who who from such modest start, worked with others to build something of such global significance. Hmm.

Tom: [00:16:39] Christiana.

Christiana: [00:16:40] Wait. I got lost with Peter Pan.

Paul: [00:16:43] Okay, so I'll give you what you. One more time. The significance of the International Court of Justice is exactly how significant we think it is in Peter Pan. Tinkerbell explains that every time you say you don't believe in fairies, one dies. And the same applies to the notion of an international law that binds us to each other through emerging norms of behavior that evolve as we ourselves evolve to think about protecting what's important at one level, something like human rights, but at another critical level, environmental rights. Because human rights can only be understood within the context of a stable environment. And that's the genius of this case, and it allows us all to pile in behind this case and give it support and energy and life to bring its, its fruition, whatever the judgment is. It doesn't end here. This process has now been formally started and I think will forever be grateful to Cynthia and her team for doing this. I got a nod out of Christiana. Two thumbs up. I don't think I explained it brilliantly. Well, first time, thank you for bringing me back, Christiana.

Tom: [00:17:47] Paul. I really love what you say there as well about how it has the importance we present on it. I'm going to give 25 seconds of a side quest, and then it can probably be removed later. I was at an event the other day where I sat next to a US High Court judge, District court, federal district court. So two levels below the Supreme Court. And she is frequently has the Trump administration in the dock. And she is holding judgment over illegal removal of non-U.S. citizens without due process. And what she explained to me privately over dinner is that she keeps telling them what to do. They keep not doing it. She keeps calling them back, and they don't do what she asks them to do. She then has to hold them in contempt of court. And the thing we discussed over dinner is what happens next. And she doesn't know. And she gets together with all her fellow judges. And if they just stop following due process and stop paying attention to her rulings. Then she doesn't know what happens next. And we get very quickly in the United States to a pretty serious constitutional crisis. That's a side quest that I'm sure we will remove. But I thought it referenced, as.

Paul: [00:18:47] You said, I think we should we should leave it in because I think, you know, the point being, she is doing extraordinarily important work, as are the millions of citizens who went on the streets with no Kings days, as are many other people in many other nations and civil society and investors and corporations and people like the C40 Cities Network. We're all trying to move towards a situation whereby the law helps to protect us. And of course, there are counter arguments that, you know, we need more efficient laws and all the rest of it, but it's just a great other dimension of the work of the climate movement.

Tom: [00:19:19] So I think we're going to take a short break. And then when we come back, we're going to hear this remarkable conversation that Christiana you had with Cynthia Holloway. I wonder if just before we go to the break, you want to set up the meeting that you had with her and describe her, and then we'll go into the interview when we come back.

Christiana: [00:19:34] Yeah. I met Cynthia in Vanuatu.

Christiana: [00:19:37] And we were there. Marina. Julia and I. What is it? 1 or 2 months ago. And I met her because our colleague Marina had been at a climate justice retreat last year and had met her there and had become friends with her. So Marina pursued her. It was very difficult to find where she was and entice her to take time for us, but eventually she did, and we sat down on the lawn in front of the absolutely beautiful Pacific Ocean, and we had this conversation. Now, you have to understand, in 2019, she was one of 29 Pacific law students at the University of South Pacific who came up with this idea. And she will describe today she's a professor of law at this very same university of South Pacific. What stays the same Name is that those students formed this Pacific Island Students Fighting climate Change organization that is still operating today and has mobilized, as she will describe, mobilized the world to pay attention at the highest court in the world. So, as Paul says, she does not take credit for being the student. She's very clear that it was a group of them. And the best thing is actually to hear it in her own words.

Tom: [00:21:09] Amazing. All right. Thank you, Christiana, for that beautiful introduction. And we will be back in a minute with Christina's conversation with Cynthia ennui.

Christiana: [00:21:21] Okay. Cynthia, thank you for coming all the way out here to this absolutely gorgeous place. It is beautiful. Absolutely beautiful. Here we are sitting in front of a white beach with beautiful crystal waters. One person out in a kayak. So I just would love to know when and where did the germ of the idea begin to appear?

Cynthia Houniuhi: [00:21:47] Our journey started when all of us saw firsthand what the realities were kind of taste like. For me, seeing the island of Hanalei in Solomon Islands, in Malaita Province, how the salt water kept coming in, and slowly you see people moving from that island. Families moving from the island to move further into the mainland. My journey beginning in Solomons. Seeing what it was like for my people. It's an island where people call home. And over the years, it has turned into a place that it's not a home. It's not habitable anymore. But the church used to be. The salt water has come all the way to the middle of the island. Most of the people have already moved. Whenever I go home, that's the first image I see. And I know I'm close to my island. Now the houses are literally in the water, but it wasn't used to be like that. Made me question what is happening, why it was happening. At that stage I did not see, okay, this is climate change. I did not even know the word, but I knew the stories, I heard the stories. And so I kept those questions in my bag and said, one day I'll have the answers to them. I remember my first time hearing climate change, and I was like, whoa, it's like a click. That question that I had, this makes sense. And so I dove into that.

Cynthia Houniuhi: [00:23:13] The more I learned, the more it was frustrating to learn that people finally the people, your people, they did not contribute because you released this, but they are the ones that five years from now, ten years from now, where will they go if family is know what? It's made me frustrated. And for me, lor growing up appealed to me because it has that ability to bring justice. But not just that, its ability to also regulate out people's behavior. And I question people's behavior. If we know that this is the cause, why are we still going wrong? So I was supposed to study medicine. My parents, both nurses. So I went behind my parents back and I applied for the Bachelor of Laws at the University of the South Pacific. When the list came out, I was offered a scholarship. And I remember sitting thinking, oh, this is it. What am I going to tell them? And I said, I just wanted you to know that I've applied for law. I let that sink in and they've accepted me. And there's my name is appear on the scholarship list as well for long. And he sat there for a bit, as my dad usually does. His Nate is very calm, so he sat there for a bit and he said, my girl, I've always known for a long time that you are meant to be a leader, and I know that this pathway is something that was designed for you.

Cynthia Houniuhi: [00:24:44] And so I remembered being emotional and saying to my parents, I do appreciate the support. I'd like to say my ancestors sort of guided me too, because everything worked out well for me. I went into law school, loved it. I remember first year I said, I want to specialize in environmental law. And then the more we learned, the more frustrating it became. The more we learned about the climate change regimes, the more it became. Wow, the way the world is moving towards solutions with the cops. How many cops we've had so far? It's not reflective of the urgency of the matter. When people go off to cops, we often forget that the day continues on for these people. You have the fishermen, they go out sunny in the morning, and then all of a sudden there's a bad storm. Before my uncles and aunties and grandmas, they could tell where the wind is blowing. It informs them of where they can fish. But now that's not the story. They can't wait for us to come to a consensus. They already have to relocate. They already have to adapt. What is the limit to this adaptation? Do we adapt until we no longer have our islands? Where do we go then? For a lot of people, the concept of belonging to a piece of land is not the same as for indigenous people with the land that they have lived on.

Cynthia Houniuhi: [00:26:09] When you treat the land with respect, it remembers you what you do to the land, it remembers, and it takes care of the people because of that respect. But what happens when it's no longer there? So in that classroom, we are spectators. That classroom. Those are the things that we consider when we have conversation. I remember the more our lecturer taught us, it was not easy for him to say, okay. According to the IPCC report, five years from now on your island, it's predicted that your island space ceases to exist. Imagine selling that to students that, you know, values this land more than in terms of distributing land, but identity as well. Thoughts for heritage as well. The lecturer did a great job not really accepting that as well, but pushing us to say look. Challenge yourself. Look for a way within the laws. Look for a way that you can propose to your leaders to take on your behalf. And I remember the last lectures we were learning about advisory opinions. We're learning about ICJ, its functions. And then we were learning about Inter-American court, how they've done advisory opinions. And then we've learned about Palau initiative to seek an advisory opinion in 20 2012. Island nation of Palau. So all those things made it clear.

Cynthia Houniuhi: [00:27:29] Wow. This is inspiring. It pushes you to. They've done it this way. They've done it this way. They've tried to attempt it this way. We can build on that. We often say we are standing on the shoulders of giants. Right? There's a lot of work being done to come to that classroom where we could say, look, this is possible. We should do this. And so in that classroom, we looked at different legal pathways. We were researching at that classroom. How can we actually do it? How what universe will 27 law students actually take it all the way to the international court? How can USP students in a university where we are trying to just photocopy books, we don't have access to those books. We don't often have the readings available at the library, but we make do. How can students from that background get it all the way there? I was ambitious in that sense, and we liked we liked that. And one of the principles that we really, as young people at that stage, really was close to us was the principle of intergenerational equity. What we do now may take a while, but we are working for the ones that come after us. It is them that have the most to lose. What would they want us to say? At that time, I'd like to have kids eventually as well.

Cynthia Houniuhi: [00:28:48] And what will their kids say to me if I become a grandparent in the future? If they ask me, what did you do? And all of this was an issue? What side were you on? Were you on the right side of future or were you on the side that is passing and accept? Or did you fight back? And for a long time, our ancestors have fought to be on those islands. And so that's the model we take. We will fight you in those islands. And so we decided, let's do this. We come from it from a human rights perspective. Our proposal at that time was to write a letter to our Pacific Island foreign leaders to ask them to take our proposal of requesting to the Unga, United Nations General Assembly, an advisory opinion from the International Court of Justice on the question of what are the legal obligations of state to protect the rights of the present and future generation from the adverse effects of climate change? As a class, we said, who would like to action this? So 27 law students put their hands up and said we'll action it on our behalf. As a project. It was a class challenge. The next step was who would action? And I thought, oh, this is a scary journey ahead. I don't know much about being an activist. I was a law student and I remember asking myself that question again.

Cynthia Houniuhi: [00:30:13] What would you want to say if your grandchild asks you, what did you do when you were actually given a chance to be part of something? And so that's what we did. We put up our hand first agenda, draft those letters and send them off. Weeks of drafting, going back and forth. Okay. We were able to have a briefing with our proposal letter being sent out to all the Pacific island leaders, the prime ministers, presidents. The letters were addressed to them. We waited anxiously, you know, when you hardened. And then you're doing this for the first time. The anxiety that comes with it is another level. Weeks go by, no response, another week no response. And then one country responded. And it is the country that we're sitting on right now, the one we want to govern. They wanted to respond to our letter and at that time, Honorable Minister Ralph Regenvanu, when he was the foreign affairs minister at that time. And he had a reputation And that all of the students at the law school know as well of helping young people. We decided to have a face to face meeting. So when they went to meet, I remember. So I was praying it went well. Honourable Minister of Finance said he'll take it up on our behalf to the the revenue to government and then get back to us.