2022 Peace Palace Conference on Climate Change and International Law: Key Takeaways
“The climate justice movement must listen more carefully to those most vulnerable to the ravages of climate change… We who are waist deep in that movement need more than facts to win… we need stories of the places we call home… as we know them and as we love them.” — Julian Aguon
These were the sentiments conveyed by Julian Aguon, founder of Blue Ocean Law, during his keynote speech at a climate change conference at the Peace Palace, in The Hague. Hosted by Blue Ocean Law and Leiden University, this conference, which took place June 20–21 of this year, centered on Climate Change and International Law: The Promise of an Advisory Opinion from the International Court of Justice. The conference took place in person and included an online audience of over 180 attendees. Panelists discussed the campaign for an Advisory Opinion (AO) from the International Court of Justice (ICJ) on climate change as well as the potential impact that guidance from the ICJ could have on the current climate regime. H.E. Ambassador Odo Tevi, Vanuatu’s Special Envoy on Climate Change and Permanent Representative to the UN chaired one of the panels.
Below are key takeaways and reflections from the discussions across the four panels.
Panel 1: Urgenda and the ‘human rights turn’ in climate litigation
Chaired by Daniella Dam-de Jong, Professor at Leiden University, Panel I focused on the recent landmark decisions in the climate litigation sphere, and the potential impact of an AO on future domestic and regional climate change related cases. This panel discussed the role of domestic and international courts and bodies in enforcing climate change law and highlighted landmark cases like Urgenda, emphasizing the value of the International Court of Justice as a venue to resolve fundamental legal principles on climate.
Fadjar Schouten- Korwa of Leiden University underlined a crucial issue of climate injustice: “[Indigenous Peoples] face the same problems and are on the frontlines for the fight against climate change.”
Freerk Vermeulen, a lawyer at NautaDutilh, reflected that “The impact [of an AO from the ICJ] would be huge because it would give further justification and legitimacy for what the courts will have to do in the coming decades… because it is really difficult for justices to step in and there will be a lot of geopolitical developments and stress… having a clear baseline in international customary law will be of great help.” He also assessed the impact and lessons learned from the landmark Urgenda decision: “Under the European Convention of Human Rights, there is a need for an effective remedy… which would mean in the context of climate change access to a national court and a government cannot say its contribution to climate change is insignificant.”
The panelists also highlighted the value of the AO procedure as an exercise of collaboration, participation, and promulgation of diverse perspectives. Jennifer Robinson of Doughty Street Chambers expressed that,“Looking at the issue of climate change, this procedure could be incredibly impactful, not just for Vanuatu and Pacific States but for climate-vulnerable States to be able to have their say, to come together and to be able to provide their input to protect States in this context.” She further remarked that “The possibilities of the AO in grappling with questions like self-determination which domestic courts can’t grapple with, that are non-justiciable for the courts of each country… and for countries around the world affected by climate to come together, and to set down principles that will shape the future on climate is very exciting.”
Panel 2: Bringing climate change before international courts and tribunals
The second panel focused on the potential role of international courts and tribunals in enforcing climate change law. Panelists also discussed the particular value of an AO from the International Court of Justice. Chaired by Mamadou Hébié, a professor at Leiden University, panelists included Nilüfer Oral of the National University of Singapore and Member of the International Law Commission, Jorge Viñuales of the University of Cambridge, and Marcelo Cohen of the Graduate Institute of International and Development Studies. The panel emphasized that an AO is necessary for continuing peaceful relations amongst States. As Viñuales remarked, “climate change never ever enters the door dressed as climate change.”
The following are key takeaways from this panel:
- Climate change and sea level rise are existential issues with serious legal consequences; any legal ambiguity may have serious implications for peaceful relations amongst states. All states will be impacted by climate change, and thus far, state-led negotiations have not produced the necessary concrete action needed to curb the worst effects of climate change. This has had and will continue to have devastating impacts on human rights across the globe. Viñuales emphasized how unprecedented mounting scientific evidence drives home the idea that “we are living through the most consequential decade in the history and prehistory of our species today.” In order to protect life as we know it for future generations, we need to pursue more rigorous climate action on a united front; of all judicial avenues for action available, an Advisory Opinion from the International Court of Justice is the most legitimate, constructive, authoritative and non-confrontational route that can be pursued.
- How could a legal matter be detrimental to ongoing negotiations? If the court provides an opinion, this would be beneficial for ongoing negotiations. As the principal judicial organ of the United Nations, the International Court of Justice has yet to weigh in on the imminent challenges of climate change. The International Court of Justice can provide guidance that would bring legal clarity to ongoing negotiations. Past opinions from the International Court of Justice have been useful in making progress on particularly political negotiations, as some aspects of climate negotiations have come to be. There is a synergistic relationship between the ongoing climate negotiations through the UNFCCC and the campaign for an Advisory Opinion from the International Court of Justice; the world is united in agreement that states should be taking action to reduce their Nationally Determined Contributions (NDCs) to climate change, but remain divided in how to achieve more ambitious targets. Drawing a legal line with the help of an Advisory Opinion from the International Court of Justice would only aid this process, and allow for more productive conversations on diverse climate legal matters, such as climate finance and loss and damages provisions.
Viñuales closed the panel with an overview on what the process for approaching the court would look like. Under Article 18 of the United Nations Charter, the General Assembly only needs a simple majority to bring a question forward to the ICJ. What this question states is a delicate matter that will incorporate the thoughtful input of supporting states, of which there are many. This movement is gaining traction and is currently our best path forward to pursuing meaningful climate action at the international scale.
Panel 3: Potential Advisory Opinion from the International Court of Justice on climate change
The international climate regime is a product of consensus based decision-making, a “sweet spot of red lines for countries with incentives for action and inaction.” — Lavanya Rajamani
Lavanya Rajamani, from the University of Oxford, opened the third panel with a reminder that there are significant limits to the current international climate regime, including that there are no measures of accountability for states to uphold and achieve the emissions reductions targets they have obliged themselves to. Chaired by Vanuatu’s own Special Envoy on Climate Change, Ambassador Odo Tevi, the panel also featured Cristelle Pratt of the Organisation for African, Caribbean and Pacific States (OACPS) as well as Laurence Boisson de Chazournes of the University of Geneva, and focused both on the limits of the current climate regime and on how the interpretation of the AO can provide guidance on future negotiations.
Panelists highlighted how current NDC targets are nationally determined and not multilaterally negotiated, with no mechanism for reviewing the fairness or ambition of a NDC and no obligation of result. Under current policies, global temperatures are expected to exceed a 2.7-degree increase at minimum; in order to curb increasing global temperatures, states need to be ambitious in achieving their targets. And while each state’s fair share, or the share at which a nation contributes to stabilizing the global climate based on their historical emittance, is incredibly important to negotiations, it has not been adequately addressed through those same avenues. For instance, though developed nations with larger fair shares pledged $100 billion USD in climate finance two years ago at the climate summit in Copenhagen, today, that pledge has not been met. Furthermore, that commitment is but a fraction of the estimated $4 trillion USD that would need to be invested in order to achieve a 1.5-degree warming scenario. As is, current negotiation approaches are not producing the funding for much needed climate solutions.
In light of the above, how can an Advisory Opinion from the International Court of Justice help facilitate actual climate action? Rajamani remarked that an Advisory Opinion would “bring much needed clarity to the nature and extent of legal obligations states have in relation to addressing climate change, in relation to preparing for its impacts and in relation to supporting those that are suffering from the harms that are already occurring.” Cristelle Pratt, Assistant Secretary-General for the Environment and Climate Action of OACPS, announced for the first time that the 79 OACPS Member-States endorsed the initiative. She highlighted that though their contribution to greenhouse gas emissions is lower, they disproportionately bear the burden of global warming as climate vulnerable countries.
Panel 4: Climate change and the International Court of Justice — Youth perspectives
This panel was led in its entirety by the youth, who expressed the realities of climate injustice and of humanity’s obligations to future generations. Panelists shared impassioned personal anecdotes about their suffering caused by the climate crisis. These stories revealed how efforts to address the climate crisis will be reinforced by appropriately communicating people-centered narratives on climate.
“This is no natural disaster… this is human-caused change in climate.” — Nicole Ponce
Khulekani Sizwe Magwaza from South African Youth Centre for Climate Change shared a sobering memory: “Some young people I grew up with… died from the climate crisis… in my hometown where my family and my friends were from flooding…and I know some of these people… a few weeks after that I was getting messages for funerals and naming them.” Nicole Ponce of I Am Climate Justice illustrated the stark reality that “The poor, vulnerable and the marginalized bear the brunt from the disasters.” In the face of these realities, Solomon Yeo of Pacific Island Students Fighting Climate Change supplied an invigorating call: “The Vaka is now sailing for climate justice!”
“This campaign for an ICJAO is also a campaign for our lives and our homes.” — Nicole Ponce
The panelists also noted the duties that governments hold to the youth and future generations, especially since they are lodging their faith in a better future on universal respect and enforcement of domestic and international laws. Nicole Ponce provided a resounding affirmation, that “Every generation has a duty to future generations.” Aoife Fleming of World Youth for Climate Justice expressed, “Youth have been demonstrating understanding and empathy through engagement with the AO… when the vote gets to New York we hope that our governments will recognize that and will feel the same responsibility and will vote in favor of this initiative.”
“Young people, children, and Indigenous people are watching and listening to every single word the court will speak.” — Aoife Fleming
The panelists placed strong emphasis on the importance of civil society participation in governance processes, and shared stories of youth holding their governments accountable for violations of their environmental rights. Nicole Ponce highlighted a widely shared sentiment that “This campaign for an ICJAO is also a campaign for our lives and our homes.”
Solomon Yeo highlighted that “[An ICJAO] will create this psycho-political pressure on the government to know that the youth are always watching.” Likewise, Khulekani Sizwe Magwaza raised the issue, “If entities or states are committing to something, and they are not doing what they said they are going to do… then what do we do with that?” Ultimately, this is why Nicole Ponce’s declaration rings true: “When we band together we not only survive, we thrive.”
“An advisory opinion would protect some of our leaders when they have to do the right thing for their people.” — Khulekani Sizwe Magwaza
Looking forward — A message of hope
Though climate change is often a heavy topic, the conference atmosphere and general demeanor of panelists and attendees was positive and full of hope. Having so many passionate voices come together in one space at the Peace Palace was an inspiring reminder that we are not alone in this journey to tackle the world’s biggest problem. The Permanent Mission of Vanuatu looks forward to building a better future with the international support it continues to receive on this campaign. For those interested, the Mission also hopes to host similar events in the coming months. That information will be shared on our social media platforms, including our Twitter (@VanuatuUN). The Permanent Mission of Vanuatu extends its gratitude to the organizers, panelists and participants of this event for their profound reflections on the ICJAO campaign, as well as to Blue Ocean Law and Leiden University for hosting this impactful conference.
Prepared by Molly Ryan and Samia Shell, Policy and Communications Advisors, Permanent Mission of Vanuatu to the United Nations.
