“A Matter of Survival”: Pacific Islands Turn to World’s Highest Court in ‘Historic’ Climate Justice Case

The International Court of Justice will hold landmark climate hearings in December. Plus, what the recent Shell court ruling in the Netherlands means for climate accountability.

Credit: Greenpeace

The annual UN climate change summit is currently underway in Azerbaijan, a former Soviet republic on the northwest border of Iran that received a “critically insufficient” grade from Climate Action Tracker on its climate action progress. This is the second consecutive year that a petrostate has hosted the UN climate talks, which have been insufficient, perhaps even a failure, in delivering on the promise of curbing dangerous levels of warming. The landmark Paris Agreement, established at COP21 in 2015, set clear targets for limiting global temperature rise to well below 2°C and to strive for no more than 1.5°C, but almost ten years later the world is way off track to meeting these goals. The best-case outlook is 2.6°C this century, and under current policies warming could exceed 3°C, according to the 2024 UN Emissions Gap report.

That would likely render some parts of the planet uninhabitable, including low-lying small island states that are at risk of disappearing under rising seas. And so, with their survival on the line, these states are turning to the world’s highest court in a historic climate justice case that is set to clarify international law and countries’ legal obligations in the context of climate change.

“Many of the obligations that the court will clarify are obligations that are binding on all states” - Margaretha Wewerinke-Singh, international lawyer

“The lack of progress at the UN climate change talks in lowering emissions and slowing down climate change despite the Paris Agreement necessitates the legal action we are trying to take now,” Ralph Regenvanu, special envoy for climate change and environment for the Pacific Island nation of Vanuatu, said during a recent media briefing.

Vanuatu has spearheaded the global initiative to request an advisory opinion on climate change from the International Court of Justice (ICJ), which is the judicial body of the UN. The initiative originated when a group of law students from the University of the South Pacific launched a campaign five years ago to “bring the world’s biggest problem (climate change) to the world’s highest court.” Vanuatu and other Pacific states backed the idea and then organized to rally support from other UN member states, culminating in the adoption of a UN General Assembly resolution on March 29, 2023 to officially request an ICJ climate change advisory opinion.

This marks the first time in the court’s nearly 80-year history that it will be addressing the issue of climate change. The case focuses on two questions – 1) what are the obligations of countries to ensure protection of the climate system from greenhouse gas emissions; 2) what are the legal consequences for breaching these obligations and causing significant climate harm. The questions also refer specifically to responsibilities towards present and future generations and towards countries, like small island developing states, most vulnerable to adverse climate impacts.

For Vanuatu, these impacts are already resulting in enormous loss and damage. Sea level rise and flooding is displacing communities and wrecking fragile ecosystems and burial grounds, and devastating cyclones wipe out a significant percentage of the country’s GDP. “We’re witnessing the destruction of our lands and livelihoods, our culture, and our human rights,” Regenvanu said.

But Pacific Islanders, especially the younger generations, are determined to fight for their rights and their existence. “This is our home and we intend to defend our right to thrive in it,” said Vishal Prasad, campaign director for Pacific Islands Students Fighting Climate Change. “For our generation and for the Pacific Islands, the climate crisis is an existential threat. It is a matter of survival, and the world’s biggest economies are not taking this crisis seriously.”

That is why small island states and other countries on the frontlines of climate destruction are going to court. “This legal process is about accountability and our shared humanity,” Vishal said.

While an advisory opinion itself is not legally binding, it could be used to bolster other climate court cases, and it may influence how existing sources of law that are binding are understood and applied.

“Many of the obligations that the court will clarify are obligations that are binding on all states,” said Margaretha Wewerinke-Singh, legal counsel for Vanuatu in the ICJ proceeding and an international lawyer at Blue Ocean Law.

“That is particularly relevant in a volatile political climate where treaty membership is often not always universal,” she said. “But there are real threats, for example a new US administration again pulling out of the Paris Agreement and potentially even pulling out of the [UN] climate change convention. And so that makes it even more relevant to have a good understanding of what these obligations are that are universally applicable.”

The United States is expected to once again exit the Paris Agreement under the incoming Trump administration, which may also try to withdraw the country from the UN Framework Convention on Climate Change (UNFCCC), the global climate treaty that gave rise to the COP (Conference of the Parties) climate summits. Trump’s election is a devastating blow for US and global climate action, and it may put even more pressure on the ICJ to deliver an outcome that can strengthen climate justice and accountability.

“All of the judges of the ICJ know who won the [US] election and know what the incoming administration’s stance will be. But that might make some members of the court think that a [strong] ruling on climate change is even more important,” Michael Gerrard, founder and faculty director of the Sabin Center for Climate Change Law at Columbia Law School, told me.

Even without a climate denier as commander-in-chief, the US has long resisted accepting legal responsibility or liability for its significant role in driving the climate crisis, and Gerrard said we can “assume they’ll continue with that stance” when the US presents its oral statement to the ICJ on December 4.

“Biggest case in human history”

The court is slated to hear from a record number 110 parties, including 98 countries and 12 international organizations, during the upcoming two-week oral hearings that start on December 2. It is the largest level of participation ever in any proceeding in the court’s history. Wewerinke-Singh called it the “biggest case in human history” in terms of engagement, and a historic case in the development of international law and climate justice. “What began as a grassroots initiative in Vanuatu…has now evolved into one of the most significant legal proceedings in climate justice history and I think we can say in human history.”

Vanuatu is scheduled to testify first on the opening day of December 2. The full schedule can be found here. The hearings will take place at the ICJ’s location at the Peace Palace in The Hague, Netherlands, and they can be followed live on UN Web TV.

Regenvanu said he is optimistic that this historic court proceeding could result in a desperately needed breakthrough in global climate action. “I’m hopeful that these proceedings at the ICJ will ignite a stronger global commitment to act decisively, ensuring that justice and accountability become the cornerstones of climate action.”

Dutch court: “Protection from dangerous climate change is a human right”

The court’s opinion could come sometime next year. Meanwhile, another court in The Hague issued a decision earlier this week in a landmark climate lawsuit brought by Friends of the Earth Netherlands (Milieudefensie) and other environmental organizations against the oil major Shell. The decision came in Shell’s appeal of a historic 2021 court verdict that had ordered the company to take responsibility for curbing climate pollution in line with the Paris Agreement and specifically to reduce emissions across its entire supply chain by 45 percent by 2030. On November 12, the Hague Court of Appeal ultimately sided with Shell and dismissed the case, rescinding the 45 percent emissions reduction order.

While the outcome was undoubtedly a disappointing setback for the push to hold corporate polluters and Carbon Majors like Shell accountable amidst the worsening climate emergency, climate advocates and experts see some silver linings in the court’s decision. At least in principle, the court agreed that big, carbon-intensive corporations including Shell do bear responsibility for reducing emissions and preventing serious climate harm and consequent human rights abuses.

“[T]here can be no doubt that protection from dangerous climate change is a human right,” the court said. While the primary obligation for climate action in this context rests with governments, according to the court, it added that “companies, including Shell, may also have a responsibility to take measures to counter dangerous climate change.” The court furthermore ruled that Shell and similar companies “have an obligation to limit CO2 emissions in order to counter dangerous climate change” and “thus have their own responsibility in achieving the targets of the Paris Agreement.” That determination is important, especially considering that the activities and strategies of Shell and its big oil peers are currently at odds with the Paris Agreement goals.

“It is only a matter of time before carbon majors are held responsible for the immense costs and harms their operations inflict on communities and ecosystems worldwide” - Sébastien Duyck, senior attorney, CIEL

Climate law experts say the court of appeal’s decision acknowledges that climate action is a legal duty even for private companies and that further climate court cases can build upon this understanding.

“While the Court dismissed the claim, the judgment also offers encouragement for future climate litigation. It reinforces the principle that companies must take meaningful action to reduce emissions and highlights the growing legal focus on corporate accountability in the face of climate change. More than 20 other cases are currently examining the human rights responsibilities of companies regarding climate change,” said Joana Setzer, associate professor at the Grantham Research Institute on Climate Change and the Environment in London.

“The court stressed once again the importance of protecting human rights from activities causing climate harms. On this basis, the Court reaffirms that companies have the legal obligation to reduce emissions – including scope 3 emissions – even in the absence of a specific standard regulating the conduct of private actors. It is only a matter of time before carbon majors are held responsible for the immense costs and harms their operations inflict on communities and ecosystems worldwide,” said Sébastien Duyck, a senior attorney at the Center for International Environmental Law (CIEL).

“Momentum for climate accountability is unstoppable. The number of cases against big polluters and their financial backers is only growing. In just a few weeks, attention will shift to another courthouse here in The Hague, where the International Court of Justice is set to advance advisory proceedings that could reshape international climate obligations,” Duyck added. “The ICJ’s forthcoming opinion could address states’ legal duties to regulate corporate actors within their jurisdiction, tightening the framework around the companies that contribute most to the climate crisis. This is a pivotal moment. The call for corporate accountability is only growing stronger.”