From Vanuatu Law School to The Hague: The Fight for Recognition of Climate Damage in International Law | Vanuatu

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During their senior year of law school, Solomon Yeo and his classmates set out to save the world.

The law students, who were studying at the University of the South Pacific in Vanuatu, were all from Pacific island countries that are among the world’s most vulnerable to the climate crisis.

The idea the students came up with was to change international law by asking the world’s highest court – the International Court of Justice (ICJ) – to issue an advisory opinion on the climate crisis.

This idea – hatched by Yeo, who is originally from the Solomon Islands, and 26 of his classmates in 2019 – made the extraordinary and unlikely journey of a law class to Port Vila in The Hague, where this week a major conference legal reviewing the case for the advisory opinion will take place.

If it succeeds – and those involved in the campaign are quietly confident it will – then it would be the first authoritative statement on climate change issued by the ICJ. The opinion would clarify legal issues related to climate change, for example on states’ obligations to other countries and could have huge implications for climate change litigation and the establishment of national law, as well as disputes international, regional and national on climate damage.

“It carries tremendous weight and moral authority,” says Cameron Diver, deputy chief executive of the Pacific Community and a Pacific legal expert with particular expertise in environmental law, international law and climate litigation. “That would be the pinnacle of international legal advice that could be provided.”

Solomon Yeo, the campaign manager for Pacific Island Students Fighting Climate Change, came up with the idea of ​​seeking an advisory opinion on climate change while in law school. Photography: Amir Hamja/The Guardian

The campaign is led by the nation of Vanuatu, a Pacific state of around 300,000 people, about a three-hour flight from Australia. It is at the forefront of the climate crisis and has been ranked by the United Nations as the country most prone to natural disasters, regularly suffering devastating cyclones, including Cyclone Pam in 2015, which is believed to have wiped out more than 60 % of the country’s population. GDP, about $450 million.

Ralph Regenvanu, Vanuatu’s opposition leader, was foreign minister in 2019 when Yeo and his friends approached him with the idea for the campaign. Yeo says the group of young students – Yeo was 24 – were “nervous” and “newly dressed” for the reunion.

Regenvanu laughs at the memory, but he was impressed with the group.

“It was more than just an idea that they had and were discussing, they were actually starting to advocate and push things forward to make it actually happen,” says Regenvanu. The group had already drafted a legal brief and sent it to the leaders of all the countries in the Pacific Islands Forum – the key regional diplomatic body – and created an NGO, Pacific Island Students Fighting Climate Change, of which Yeo is the campaign manager, who remains a key part of the campaign for the advisory opinion.

“To imagine that this could possibly happen from an idea you had was quite visionary and ambitious,” says Regenvanu. “I agreed it was a very good idea and so I set out to try and put it on the international agenda.”

Solomon Yeo and other law students meet Vanuatu Foreign Minister Ralph Regenvanu in 2019
Solomon Yeo (far left) and other law students meet Vanuatu Foreign Minister Ralph Regenvanu (third from left) in 2019. Photograph: Pacific Island students fight climate change

“An idea whose time has come”

If the campaign is successful and the ICJ issues an advisory opinion, the legal implications would be huge, says Diver.

“It’s not binding in the same way that we would be in a national legal system, with a prison sentence or a fine or some other form of punishment,” he says.

But an opinion like this could lead to other penalties, says Diver: international sanctions, the loss of the right to vote in international forums or being brought before an international court.

And it’s not just international law that could be affected. An advisory opinion would be a powerful precedent for lawmakers and judges to call upon when addressing issues related to the climate crisis, such as the recent high-profile court battle in Australia that saw eight teenagers and an octogenarian nun seek an injunction. to then prevent Environment Minister Sussan Ley from approving the expansion of a coal mine, arguing that she had a duty to protect young people from future damage from climate change. The Federal Court ruled in their favor, before that decision was overturned on appeal this year.

It may also support the growing push for climate litigation: individuals or groups (potentially even countries) sue governments or private companies for climate damages.

“What you may have seen are community groups, indigenous peoples, youth groups using the ICJ advisory opinion…to say ‘this group of states or the state is violating my right to a healthy environment’ , to a future or to the preservation of my cultural identity’.”

Vanuatu has been adamant that the approach it is taking is designed not to be controversial.

“This is not a court case. We are not looking for blame,” Vanuatu Prime Minister Bob Loughman said in a recent speech. “This is for the world’s most vulnerable, for all of humanity. and for our collective future… This is the younger generations’ call for justice in the highest court in the world.”

But before the ICJ can issue an opinion, Vanuatu must first finalize the question it wants to put to the court and then, in September, get a majority of the UN General Assembly to vote in favor of submitting it to the ICJ – something that some high-emitting countries may not wish to do, as it could make it easier to bring sanctions or legal action against them.

“The campaign is at a really crucial stage,” Yeo says. “You have to go around in circles, so start with countries that look like you: Caribbean countries, African countries, Latin American countries. And then you go to the difficult states like the United States, the European Union and others.

A key factor in whether the move will be successful is the wording of the issue that will be put to the UN General Assembly for a vote.

“It really depends on how you write the question, how you frame it, how much leeway you give the court to make their own interpretations,” says Diver.

Ambassador Odo Tevi, Vanuatu's Special Envoy on Climate Change and Permanent Representative to the UN, and Julian Aguon, Senior Advocate for Vanuatu's Campaign for an ICJ Advisory Opinion
Ambassador Odo Tevi, Vanuatu’s special envoy on climate change and permanent representative to the UN (left), and Julian Aguon, lead advocate for Vanuatu’s campaign for an ICJ advisory opinion. Photography: Kevin Chand

Previous attempts to get climate change questions before the ICJ – including one from Palau, another Pacific country in 2011 – have struggled to gain the necessary diplomatic support, and Vanuatu is therefore on a major offensive.

“As our Prime Minister has said: an advisory opinion on climate change is simply an idea whose time has come,” says Ambassador Odo Tevi, Vanuatu’s Special Envoy on Climate Change and Permanent Representative to the UN. “It could catalyze the kind of concrete changes we need to avert climate catastrophe.”

Tevi says Vanuatu is “confident” of its ability to secure a majority to vote in favor of the issue in September.

“Essentially, you know, there’s a window of time that humanity has to avoid climate catastrophe, and that window is closing fast,” says Julian Aguon, the founder of Blue Ocean Law, an international law firm based in Guam, which represents Vanuatu. “It is high time for the highest court in the world to rule on the defining challenge of our time… It is the one thing that affects all other things.”

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