How a group of Pacific Islander law students organized the first climate case before the UN’s International Court of Justice
Note: Cynthia Houniuhi’s story was first presented as a speech at the Australian Museum’s 2024 Talbot Oration in Sydney. The annual Talbot Oration showcases leaders in the field of climate change research and environmental conservation to enable the public to understand better and respond to our changing environment.
I was born to two nurses who traveled around the many Islands of the Solomon Islands for their work. When I was born, we moved to one of the most remote areas of our country, called “Reef Islands.” It is so remote that transport to the Island was and is still a huge issue. I remember if we were lucky on Sundays, for a treat, we’d eat rice or any sort of processed foods. The rest of the time, growing up in Reef Islands, I was taught by my aunties and grandmas about the different types of plants available for us to eat, what fruits and plants were edible, and which ones were not. I was taught by my uncles, grandpas, my brothers, and their friends how to fish and set up traps for wild birds.
Most of all, I was taught about the value that the land adds to our lives, and the value we add to the land, by looking after it and being aware of our limits. I was always out in the ocean after class, diving for clam shells, fishing for my lunch or playing with the other children.
I first came to notice that the environment that was sustaining my people was disintegrating during one of the trips that we took to my father’s small island of Fanalei. Whenever I arrive at Port Adam on the island, the first scene that greets me is white sandy beaches, coconut trees and children playing soccer on the sand. Fanalei always brings a smile to my face, and immediately I feel recharged knowing that I am home.
Paradise lost to rising seas
During one of my trips I saw that the Fanalei I love seeing was no more. There were fewer houses than before, and no children on the beach playing soccer — it looked deserted, and some of the houses were standing right in the salt water. I asked my father why, and he pointed to the houses and said that the sea level has come into the village, making it difficult for some of the homes to be safe for families, especially during storms. People have had to move to the mainland, abandoning some of the houses.
I clearly remember this moment as the start of my climate justice journey. I asked questions of grandpas, uncles and aunties about what it was like before and what they have observed that is different now. I learned and saw for myself the realities of climate change, and the further I investigated it I learned my people contribute almost nothing to this human-induced crisis. It made me frustrated; it made me feel small. What did we do to deserve this? Does the world care? Does the world know about Fanalei? What can we do? Will it take losing all of our islands before the world listens to our stories?
Slowly, the once beautiful Island that some of my relatives and family call home is being eaten away by the sea. I often wonder if my children and their children will know of this Island that is home to our sea people. Or will I have to show pictures of it to them? This was now about climate justice for me.
An environmental lawyer emerges
In 2017, I commenced my undergraduate studies at the University of the South Pacific. In 2019, in my third year of law school, we were given a chance to choose our electives. I remember one of the options was International Environmental Law and I registered immediately. It was in that class that our campaign was born.
I remember throughout conversations with other classmates, we all took this unit with the same motivation. I remember my best friend from Tonga, a young mother, shared that she wanted to take the unit because of the environmental challenges in Tonga. My friend Tolu, now a lecturer at the University of the South Pacific, wanted a better future for his children and was concerned that climate change was going to take that away from them. We all came from different Pacific Islands but with the same goal; what do we, as students privileged enough to be able to study at a regional university, add to the fight that our people on the ground back home are doing? We chose the International Environmental Law unit to understand climate change regimes on the international level so that we could better utilize them to bring about the urgent change we need.
In class, we learned about the 2018 Intergovernmental Panel on Climate Change (IPCC) report on 1.5-degree warning, which confirmed that unless drastic action is taken globally to reduce greenhouse gas emissions, Pacific Island countries will cease to exist. That was very difficult to learn.
Our communities at the frontline of the adverse effects of this climate crisis do not have the luxury to wait for the world to take the climate crisis seriously.
The more we learned about climate change regimes on the international level, such as the Paris Agreement, the more we saw the impasse in the regime and its dire consequence: climate action moving at a slow pace.
We saw the rate at which the global community was journeying towards a climate solution is not proportionate to the pace at which the adverse effects of climate change are hitting our islands. Our communities at the frontline of the adverse effects of this climate crisis do not have the luxury to wait for the world to take the climate crisis seriously.
Thinking ahead
We also learned about the nexus between climate change and human rights. The human rights of people living in frontline communities like mine are already being violated today. The rights to life, housing, food, and health are infringed by climate change’s impacts every day. Vulnerable groups such as women, children, Indigenous populations, the elderly, people living in poverty and other marginalized demographics are facing the brunt of this crisis that they contribute almost nothing to.
Something had to change. Although we acknowledged the historical contributions of major carbon emitters, especially from developed nations, to the climate crisis, we believed that a forward-looking approach is most helpful as opposed to naming and shaming.
We learned about various ways those worldwide are working towards climate justice. We learned about advisory opinions from the Inter-American Courts, and we learned about other legal pathways that people have pursued. Closer to the end of the unit, our professor challenged us to research the most progressive and ambitious climate change action that Pacific Island Leaders could initiate in international legal processes and, once we had chosen it, to lobby our leaders to take it forward.
How we chose the International Court of Justice
We believed we needed ambitious climate action and a pathway to accelerate it to reflect the urgency of the matter for our people. After assessing the global impact such authority can potentially have on efforts to combat the climate crisis, we were convinced that the International Court of Justice (ICJ) advisory opinion was the most appealing option.
Once we all agreed on the legal pathway, we had to decide who in the class was willing to take this on.
Volunteers for climate justice
Some 27 students put up their hands to volunteer — not for special credit, but by their own choice. I was one of them. I remember feeling hesitant at the start. The journey looked scary, especially for someone coming from a small Island. I questioned if the world out there would listen to us. How can 27 law students from the Pacific convince the majority of the United Nations General Assembly to request an advisory opinion from the ICJ?
This was the birth of Pacific Island Students Fighting Climate Change (PISFCC).
We started getting organized, online group chats were created and our first activity was to write letters to all of the leaders of the Pacific Island Leaders Forum. They were meeting in Tuvalu later that year in August of 2019 and that was the intended destination for our proposal to be endorsed.
Our proposal was for our Pacific Island leaders to urgently commence the process of seeking an advisory opinion from the ICJ on climate change.
We started drafting letters, launched an online petition, and campaigned. The most difficult task was convincing our peers about the campaign. I remember hustling my friends for loose coins to afford a $50 banner to get people to know about our campaign. We didn’t have the resources or the experience to be activists or campaigners, but we were ambitious and very equipped with our experiences, knowledge, and hope.
From all the letters we sent out to Pacific Island Leaders, including Australia and New Zealand, we received only one positive response — the Republic of Vanuatu. The Vanuatu government has always been a climate leader. From there, we discussed and agreed that our members based in Vanuatu Law School should approach the Vanuatu government to build on their response.
We pitched the idea to the Minister, who informed us that he would bring this up to the government and update us on any progress. Several weeks later, the Vanuatu government approved taking our proposal to the Pacific Island Leaders Forum in Tuvalu.
Recognition grows
In August 2019 at the Pacific Islands Forum Meeting, in the final communique, the Pacific Island Leaders noted our proposal. to request a UN General Assembly Resolution seeking an advisory opinion from the ICJ.
We were not satisfied with that outcome and were determined to continue campaigning. In 2020, due to the global pandemic and the regional political and economic turmoil, the campaign lost its place in the forum’s priority list. Nevertheless, our organization, PISFCC, alongside civil society organizations (CSOs) kept the campaign alive via a series of exciting and innovative initiatives such as internationally-accessible webinars and online information.
We also went global — like-minded young people worldwide heard about the initiative and came together through the campaign. We formed an umbrella organization called “World’s Youth for Climate Justice” to mobilize and engage young people from Europe, Asia, Latin America, the Caribbean Islands and Africa, all of this during the pandemic.
“What are states’ obligations under international law to protect the rights of the present and future generations from the adverse impacts of climate change?”
In September 2021, the government of Vanuatu announced that it would campaign for the ICJAO initiative, with a timeline set for 2022. This announcement gave the campaign new momentum.
While the Vanuatu government worked on the political front, the PISFCC focused on working with civil society. Starting with students, regional interest grew exponentially in early 2022 with the formation of the Alliance for a Climate Justice Advisory Opinion. The Alliance represents more than 1,500 organizations, from grassroots associations to large international organizations. We came together to support the efforts of the Vanuatu government.
What is the ICJAO Campaign?
We often refer to our campaign as the “ICJAO” or the International Court of Justice Advisory Opinion Campaign. The ICJ is the principal judicial organ of the UN. Also known as the “World Court,” the ICJ’s role is to settle legal disputes submitted to it by States in accordance with international law and to give advisory opinions on legal questions.
An advisory opinion of the ICJ is different from a decision in a contentious case. Advisory opinions are provided by the ICJ in response to a legal question that may come from the United Nations General Assembly, UN Security Council, or a UN specialized agency. However, unlike the Court’s judgments, they are not officially binding. Nevertheless, the Court’s advisory opinions do carry its authority and prestige and are highly persuasive in determining the obligations of international law in other international and national fora.
This matters because an ambitious Advisory Opinion on Climate Change and Human Rights from the ICJ can contribute to global progress towards climate justice and intergenerational equity that:
- Puts humans and human rights at the center of the climate change discussion, at all levels addressing the crisis when dealing with mitigation, adaptation and loss and damage. In short, it can ensure countries have a rights-based approach when taking climate action;
- Puts greater emphasis on human rights during UNFCCC COPs and during the implementation efforts of the Paris Agreement;
- Ensures the best available science be endorsed by the ICJ, and scientific consensus on climate change and attribution science is reached;
- Civil society and people can utilize this authoritative advice to hold their governments accountable to their duties to protect their citizens.
The PISFCC proposal was to request the advisory opinion via the United Nations General Assembly. To successfully refer the request to the Court via the UNGA, there must be a simple majority vote in favor. The UN has 193 states, and that would mean 96 states voting yes when the question is tabled before the UNGA in its annual sessions, which usually convene every September.
Our campaign was strategically designed to push for the simple majority that will ensure that when the Vanuatu Government tables the draft resolution, it will pass through the UNGA. We saw that 18 votes were already in our region in the Pacific Islands Forum, and that was our first destination.
Two ideas have always remained at the core of our campaign: human rights and intergenerational equity. In the proposal we sent with our letters, we wanted the court to give an advisory opinion on the question “What are states’ obligations under international law to protect the rights of the present and future generations from the adverse impacts of climate change?”
The UN vote sent a clear message that the world needs the highest court to weigh in on the greatest challenge of our century.
We focused first on getting the United Nations General Assembly to vote by simple majority for the resolution led by the Vanuatu Government, second on getting the submission before the ICJ and third, the post advisory opinion.
After four years of campaigning alongside governments, particularly the government of Vanuatu and alliance members, we went to work building the numbers needed to pass the UNGA vote.
Success
On March 29th, 2023, the UN General Assembly unanimously adopted the resolution to request an advisory opinion from the ICJ supported by 130+ countries for the first time in UN history. The result was beyond our wildest dreams, it was more than the simple majority that we campaigned for. This sent a clear message that the world needs the highest court to weigh in on the greatest challenge of our century.
The final question to the ICJ included two of the ideas we had advocated for since 2019: intergenerational equity and human rights. The final legal question asks the ICJ to consult international law, such as human rights law, climate law, and environmental law, to consider them together and clarify states’ obligations to protect the rights of present and future generations and the consequences of breaching these rights.
Since the unanimous adoption, the ICJ has invited countries to make submissions before the court and written submissions on the 22nd of March this year 2024.
Record-breaking response
The ICJ received 90+ written submissions, the highest number ever received in the court’s history.
The next phase is the comments phase, and the deadline for this has been extended from June 24th this year to August 15th, 2024. States that have made written submissions to the ICJ will have an opportunity to comment on the submissions by other states received by the ICJ. Once the comment phase is done, the next phase is the oral hearing, and the deadline for this has yet to be confirmed.
For PISFCC we will continue to support our governments regarding their submissions in various ways we have done already, from being part of the drafting team to evidence gathering.
Looking ahead
This is a unique and historic opportunity for states to shape the development of international law, especially from a human rights perspective. To date, the ICJ has never ruled on the issue of climate change. For too long, we have been reliving a cycle of inaction that demands an approach that is both radical and yet strengthens existing climate efforts.
This advisory proceeding does not seek to replace existing mechanisms, such as the UNFCCC frameworks or the Paris Agreement, but rather to strengthen them with legal clarity through a strong advisory opinion.
The world is not taking climate change seriously
Overall, we hope for an advisory opinion grounded in climate justice and human rights. By approaching climate change from a human rights perspective, the court would put people at the center of the solution to the climate crisis. Human rights law allows for more ambitious climate action by providing a more comprehensive perspective of state obligations.
By taking on this case, the court will address state obligations under all international law and not just the Paris Agreement, the scientific consensus that global warming needs to be limited to 1.5C, and the advocacy for ambitious consequences that flow from a breach of obligations that include reparations, compensation, cessation and loss and damage, among others.
The success of the campaign so far was possible because many people – especially young people – around the world came together to help us realize our goals.
The world is not taking climate change seriously. Carbon pollution continues to rise as the window for action closes. Vulnerable communities such as mine, who didn’t cause the climate crisis, are already experiencing it. We demand a strong advisory opinion that will uphold climate justice and human rights.
Supporting the effort
The success of the campaign so far was possible because many people – especially young people – around the world came together to help us realize our goals. As the ICJAO campaign nears the last few engagements with the ICJ — the comments and oral submissions phase — PISFCC intends to garner as much support as possible from our people and the public at large.
Despite the movement starting in the Pacific, today it is international and requires a global effort to ensure its success. Through this campaign, I fight for my people and our children to live in dignity and without fear of climate change denying them that freedom.
May our journey inspire you to act. Be like the students of the Pacific — reach out to your governments through letters, hold the polluters accountable by sharing your voice, sharing your stories, sharing your passion, donating, marching with school students, and, if you’re an educator, inspiring your students to act as our lecturer did for us. Plant trees, get informed about the cause, and join the fight in whatever way you can. Do what you can for a sustainable future for future generations.
Nothing is too big or too small — everything counts. Our story shows what passion, determination, courage, knowledge, and hard work can do. We often refer to ourselves as stubborn optimists. Let’s all be stubborn optimists.
The former Prime Minister of the Republic of Vanuatu, Bob Loughman, summed it up perfectly:
“This is for the world’s most vulnerable, humanity and our collective future. This is about what we must save, not what has been lost. This is a campaign to build ambition, not division. This is a campaign to uplift the goals of the Paris Agreement. This is the young generations’ call for justice to the world’s highest court.”
Featured photo: Cynthia Houniuhi speaking at the 2022 United Nations Climate Change Conference (COP27). Image: Australian Museum
