by Freya Doughty-Wagner, JSD Candidate at Washington University in St. Louis.
On 28 November, 2023 at the European Parliament in Brussels, MEP Mounir Satouri, Vanuatu Attorney-General Arnold Kiel Loughman, climate justice practitioners, and youth advocates came together to discuss and analyze the UN General Assembly resolution requesting the International Court of Justice to provide an Advisory Opinion known as the ‘ICJ Climate Case.’ This resolution, adopted by consensus on March 29, 2023 asks two questions:
- What are the obligations of States under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases for States and for present and future generations;
- What are the legal consequences under these obligations for States where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect to:
- States, including, in particular, small island developing States, which due to their geographical circumstances and level of development, are injured or specially affected by or are particularly vulnerable to the adverse effects of climate change?
- Peoples and individuals of the present and future generations affected by the adverse effects of climate change?
The conveners of this event explicitly highlighted the import of this Advisory Opinion: it will “have [a] transformational impact on international cooperation […] to address the climate crisis,” especially for nations most profoundly experiencing the impacts of climate change. ‘Future generations’ needs to be clearly defined and demarcated by the ICJ to create a consensus for ongoing and future youth-led climate litigation, and the consequences of purposefully or overtly harming the fundamental rights of future generations must be clear and incontestable.
Attorney-General Loughman began the conference by reminding attendees just how devastating the consequences of anthropogenic climate change have been upon Vanuatu. “Over five decades we have known about the climate crisis; today, Vanuatu is experiencing the consequences of sea-level rise, ocean acidification, and extreme weather. We are the most climate vulnerable nation in the world.” He continued, emphasizing the need for international climate protection consensus and hoped the future Advisory Opinion, “spearheaded by our tiny nation,” would transform state obligations under the Paris Agreement to make decisions hastening the surpassing of 1.5C finally face consequences. When this year alone, Attorney-General Loughman has experienced “two cyclones in a week,” low-lying nations simply cannot afford to wait. The ICJ has been the only principal UN organ yet to be given the opportunity to address the climate crisis: this Advisory Opinion affords the body this chance.
The rights of Vanuatu’s youth and future generations are vanishing and face total devastation. Traditional knowledge, passed down through ancestors, has sustained Vanuatu for generations, but “our younger generations are losing transgenerational knowledge and opportunities through the frequency of extreme weather events.” Drought and sea-level rise are resulting in the youth leaving the country en masse to seek other opportunities, causing a significant cultural loss. Loughman pleaded with the European Parliament to think of these losses and push for an Advisory Opinion with ambitious outcomes, and to remind anyone reluctant that “we are just asking for clarifications, not new law.” The Advisory Opinion has the chance to aid in creating a sustainable world for many to come and make climate litigation more actionable. The Attorney-General concluded, thanking all present for “our concern for the rights of future generations.”
Gloria Julia King, Vanuatu’s first female Member of Parliament, followed. In a prerecorded message, she stressed how important the upcoming Advisory Opinion is to the Vanuatu government; “our people are resilient, but the onslaught of climate change threatens our lives. […] The healthy and strong continue to give their food to the young and the weak.” She gave examples of how Vanuatu youth today are impacted by climate change: schools are physically destroyed or lost to sea-level rise and children are losing hope for their futures in their homeland. An overwhelming amount of governmental funding has to go towards disaster response, but King declared “we simply cannot keep doing this for every disaster.” (In 2020, Cyclone Harold caused $600 million in damage – representing more than 60% of the country’s GDP.) Despite limited resources, Vanuatu was ready to choose sacrifice in order to participate in the ICJ Climate Case. She urged the European Parliament to utilize its influence: “you have the power to help our young and help Vanuatu’s continued existence.”
Three members of the World’s Youth for Climate Justice (‘WY4CJ’) were next, explaining how and why young people are the driving force behind the quest for the Advisory Opinion. Jule Schnakenberg, Lolita Couchene, and Altynaï Bidaubayle began with an overview of the Pacific Island student collective behind the campaign for the ICJ to consider the issues of climate change and human rights. The Pacific Island group and WY4CJ pushed for this because they believed “the ICJ would be the most legitimate and diplomatic way to seek insight into state obligations.” Members of the WY4CJ attended every UN General Assembly hearing to develop deeper insight, opinions, and rebuttals as preparation for the Advisory Opinion. “It was essential for young people to be physically present to show our work and to show that young people are actively involved in these historic processes.” Young people championed this mission, the UNGA, ICJ, and state submissions would be remiss to exclude youth from any part of the remainder of this fight for climate justice. Showing their faces and boosting their voices “inspires other young people to reach out to their respective governments and to speak up.” There are no better nor more invested advocates for youth and future generations than the youth themselves.
Lead Counsel for Vanuatu in the ICJ Advisory Opinion Margaretha Wewerinke-Singh examined the two questions posed to the ICJ, offering two potential conclusions: one more worrisome than the other. The resolution was historically adopted by consensus, but does that mean the whole world agrees on the imperative of climate justice? Unfortunately, whilst this would be wonderful, “it is clear there are divergent interests and some are working harder to promote climate justice than others.” The resolution was intensely negotiated between parties interested in a mere surface level advisory opinion that does not change the present emission regime, and those who are the true climate justice champions. “When we ask about the legal consequences of certain conduct, we are asking if it is lawful under international law. These legal consequences, this is where it bites – if you recognize these consequences, this is where you can really change the status quo.” Group one, those who wanted the weaker outcome, did not succeed in persuading climate justice proponents to lose question two – the consequences – but the ICJ may still kill question two by answering question one apathetically.
Question two could be killed by answering question one without ambition. Question one asks about obligations – if the ICJ answers this by saying obligations are already sufficiently contained in the Paris Agreement, i.e., States must try their best and continue to submit Nationally Determined Contributions (‘NDCs’), then question two is quashed because, as Wewerinke-Singh puts it, “what are the consequences for not submitting NDCs? Nothing, really.” Therefore, obligations under question one must be articulated meaningfully with human rights incorporated, beyond the Paris Agreement, to ensure Vanuatu’s work has a worthwhile conclusion. Breaching fundamental human rights norms, for example Vanuatu’s right to subsistence being directly impacted by the climate crisis (in violation of, including but not limited to, UDHR Article 25, ICESCR Article 11, and UNCRPD Article 28), faces much harsher penalties than not submitting an NDC. The obligations must be significant for the consequences to actually be consequential.
Co-founder of FACE Intergenerational Justice Trina Chiemi shared the work of her and other youth activists in their creation of a youth amicus submission for a separate Advisory Opinion to the Inter-American Court of Human Rights (‘IACHR’) on the climate emergency and human rights. Chiemi’s secondary focus was advocating for intergenerational justice; “we are the last generation that can do something now to keep below 1.5C […] we are failing to keep intergenerational climate justice.” The ICJ and IACHR Advisory Opinions are needed to create a foundation; “there is no broad binding document protecting intergenerational equity, representation of youth in climate decision spaces, or a judicial system built to aid intergenerational justice.” She called on the room to use their powers to concretize intergenerational justice, to create a clean, healthy, safe, and sustainable environment for present and future generations, whilst recognizing the unequal distribution of climate impacts. More specifically, Chiemi demanded a Global Methane Pledge, the protection of carbon sinks, the protection of climate activists and defenders, the prosecution of polluters, youth inclusion in climate decisions, and ultimately – climate justice.
Derek Walker and Marie Brousseau-Navarro, the Commissioner and Deputy Commissioner for the Office of the Future Generations Commissioner for Wales, provided defined indicators and measures of how to determine the successful protection and empowerment of future generations through their novel future generations body. This association’s indicators should act as inspiration for the future generations movement, especially because measuring well-being does not factor in gross domestic product – “wellbeing needs to be defined beyond GDP.” Wales has now made it a statutory duty to improve all dimensions of the wellbeing of future generations through long-term thinking, a duty to prevent, mitigate, and understand the root causes of climate destruction, and collaboration: “with people, not for people, to better public services and foster trust.” These duties, found in the Well-being of Future Generations (Wales) Act 2015, align with the UN Sustainable Development Goals and incorporate economic, social, environmental, and cultural solutions, or as Walker framed it, “win, win, win, win solutions.” ICJ Advisory Opinion submissions need to examine the work of this Office and utilize their resources in determining state obligations for future generations.
Professor Emilie Gaillard of Sciences Po and Alyn Ware, Founder of the World Future Council, concluded. Gaillard stressed the consequences of inaction: “there are no rights to health if children are born into a limited world.” The UN Summit of the Future (happening in 2024) should be a “metamorphosis” for transgenerational policies and will show the true status of the international conscience regarding future generations. She called back to the apparent theme of the conference – ambition – and the need to be determined “even amongst cynicism by large corporations protecting investments more than humanity.” Like the ICJ’s Advisory Opinion, this Summit necessitates constructive disruption. Ware continued, underlining the variety of present and potential tools at future generations advocates’ disposal, including the Summit’s plan to appoint a Special Envoy to represent and advocate for future generations, increasing support for a Fossil Fuel Non-Proliferation Treaty, including ecocide as the fifth crime under the Rome Statute, and the push to create an International Court for the Environment. Of course, the ICJ’s decision has the power to be monumental for the protection of future generations, but it does not answer all of the problems created through the climate crisis. These alternatives are necessary additions in the effort to truly fulfil our collective social contract between present society, the climate, and generations to come.
This conference tells us that so much is being done to protect and advocate for future generations in the context of the climate crisis – from protestors to Attorney-Generals, from the youth themselves to individuals who will not live to see the harsher consequences of climate change. And yet, if the ICJ chooses the easier, unchallenging route when answering question one, this tireless work will feel as it if were all for nothing. It should not be down to the most climate change vulnerable nations in the world to use their limited resources to fight for their livelihoods. Wealthier nations must use their influence and resources to, at the very least, submit progressive written statements to the court in support of future generations.
The deadline for all written statements on the questions is 22 January, 2024 and the Government of the Republic of Vanuatu, and its partners, has offered technical and financial resources to vulnerable Countries unable to engage effectively in the advisory opinion proceedings.