Opinion: International Court of Justice ruling marks new era in climate accountability

Last week, perhaps the most significant event in a decade of climate justice actions occurred in The Hague. Namely, the International Court of Justice (ICJ) issued an advisory opinion on the obligations of nation states in respect of climate change. This action, sparked originally by 27 Pacific Island law students at the University of South Pacific campus in Vanuatu, asked the court to rule on the standing of the various international climate change agreements – like the 2015 Paris Agreement – which countries (virtually all of them) have signed up to, and the subsequent obligations that states had to work to reduce their climate emissions.

The ICJ ruling is blunt: the multilateral climate change and environmental agreements and treaties that countries–including New Zealand–sign-up for, do contain binding obligations for states in relation to protecting the climate system from greenhouse gas emissions. From this flow state obligations to prevent significant harm to the environment by abiding by the agreements, as well as the duty to cooperate in good faith to prevent significant environmental harm. Where states do not meet these obligations, legal action and claims for repatriations and compensation can flow. There can be – indeed we can now predict that there will be - real costs associated with our non-compliance with the agreements that we sign up to.

As one news headline read, ‘World Court climate decision lights match under Australia's fossil fuel industry’, and another, ‘Vanuatu might sue Australia…’. How long will it be before New Zealand is also asked to pay up?

Te Kunenga ki Pūrehuroa Massey University last year introduced a Climate Action specialisation in the Master of Sustainable Development Goals (MSDG) qualification, and students this week have been following and debating the significance of this far-reaching ruling from the ICJ. There is a real sense of excitement among the international students, who stem from countries as varied as Fiji, India and Kenya, particularly at the implications of this ruling for generating more meaningful climate action at the international level. This is, however, tempered a little by scepticism at the extent to which the ruling can shift the dial on climate action to reduce emissions and keep the world on track.

The MSDGs Climate Action specialisation equips students to respond and engage in these debates in informed, critical and practical ways. The qualification requires students to undertake a Practicum working with organisations – companies, governments or NGOs – that are involved in climate change mitigation, adaptation, and reporting and, so they are able to observe and participate in real world climate actions.

Opportunely coinciding with the ICJ’s ruling, Emma West, a Master of International Development student, submitted her mini-thesis entitled The Mana of the Pacific Youth Voice in Climate Action. Her research explored the human rights approach adopted by the young students from the Pacific, as well as other Pacific youth-led initiatives, finding that young people were empowered by their collective efforts, and often garnered respect, even though taking on leadership roles which is something usually reserved for older people in Pacific societies.

Importantly, although the ICJ advisory itself is not legally binding, it is “an authoritative description of the state of the law and the rights of countries to seek reparations if the law is breached. As such, it carries great legal weight”. The ICJ ruling then provides “a clear baseline against which to assess countries’ action, or inaction, on climate change”. For more on this, see University of Melbourne Professor Jacqueline Peel’s recent piece in The Conversation.

A measure of the impact of the ICJ’s ruling can be seen in the effects of some earlier rulings from the Court that New Zealand has been involved in. Along with Australia, we took France to the ICJ in 1973 over their Pacific nuclear testing programme. And although France refused to either participate or accept a decision of the Court, the exposure and pressure on France led to them ending their atmospheric nuclear tests in 1974, before the decision was even released. A follow-up case in 1995 that New Zealand pursued resulted in France ending its underground nuclear testing programme for good in 1996 and joining the Comprehensive Nuclear Test Ban Treaty.

We have also been on the receiving end of an ICJ ruling (along with Australia and the United Kingdom) regarding the environmental legacy of phosphate mining on Nauru, in which the small Pacific island state received a significant settlement for the damage to the islands environment.

So we can confidently predict that this ICJ ruling has created the foundation on which further actions – legal and negotiated – will play out in the years ahead. And Massey’s MSDGs Climate Action students will be involved in shaping this rapidly changing and urgent field in the future.

Professor Professor Regina Scheyvens is a professor of development studies and Professor Glenn Banks is a professor of geography both within Massey University’s School of People, Environment and Planning.