Vepaiamele Trief sees the effects of climate change in her community “everywhere and every day”. On the island of Pele, north of Efate in Vanuatu, the 16-year-old climate activist describes a “sunken graveyard” where graves of villagers were underwater due to rising sea levels. Some effects stem from disasters such as cyclones that ravaged the Pacific nation many years ago. “We still see broken schools and homes, essential facilities like health centres and clinics. We see our coastlines being eroded, and sea levels rising,” she told SBS News.

“It’s very sad to see.”

Trief was among the youngest members of any nation’s official delegation to travel to The Hague last year as part of a case brought to the International Court of Justice (ICJ) on the responsibilities of countries to address climate change. Overnight, the ICJ issued its advisory opinion, which states that countries have an obligation to prevent harm from climate change and redress damage caused by greenhouse gas emissions. “It was amazing — a very emotional moment for all my friends and family. It [the ruling] has so many implications for our future, and for climate justice as well.”

A ‘significant reset’ of international law

Activists and experts have welcomed the non-binding opinion issued by the 15-judge panel, with some saying it opens up pathways for states — including Australia — to be held accountable. “I think it’s a landmark case,” said Siobhan McDonnell, an associate professor at the Australian National University. She is also a climate change negotiator and adviser to Vanuatu, and was involved at the start of the ICJ case in 2019. “It’s an incredibly historic opinion. People sometimes say that about cases — I think in this case, it’s incredibly true.”

McDonnell said the decision was “a very significant reset of the understanding of international law at the moment”.

The coastline of Port Vila, Vanuatu, pictured several years ago, is under threat due to climate change. Source: Getty / Mario Tama

Aidan Craney, a lecturer and research fellow in the Centre for Human Security and Social Change at La Trobe University and whose research focuses on youth leadership and livelihoods in the Pacific, also called it a “historic ruling”. “This is the largest body of evidence that the court has ever had to work with,” Craney said.

“Examining that evidence, the court supported the consensus from scientists: climate change is real, climate change is driven by human actions such as the burning of fossil fuels, and that we need to keep global warming below 1.5C for the best chance to preserve our environment and way of life.”

What does the ICJ opinion set out?

The ICJ’s opinion sets out several key obligations, McDonnell explained. Importantly, it recognises the international obligation on all states to mitigate the impacts of carbon emissions, and to maintain a global temperature of 1.5C. “To collectively work to maintain that temperature, it recognises that all states have an obligation to limit fossil fuel production and fossil fuel consumption, which includes the granting of exploration licenses and provision of fossil fuel subsidies,” she said. “It recognises that if states fail to protect the climate system from global greenhouse gas emissions, that may give rise to legal consequences.” The advisory opinion also recognises that states have international human rights obligations, including to ensure life, health, and clean and safe environments.

“All together, that set of obligations is going to have a really profound implication, I think for both future climate litigation and for climate negotiations between states in the United Nations and under various treaties,” McDonnell said.

Which obligations could impact Australia?

McDonnell pointed to two obligations that could have “very immediate significance” for Australia — the first being maintaining a 1.5C pathway. “There is a lot of debate about whether Australia is meeting its current obligations in terms of its pathway to net zero for 2050 or its 2035 commitments, and whether that is consistent with the existing climate science,” she said. Under the terms of the Paris Agreement, a country must update its Nationally Determined Contribution (NDC) every five years. Australia’s updated NDC, which will include its 2035 target, is due this year.

“The whole of the Pacific is waiting to see what Australia is going to submit in terms of a 1.5 degree pathway,” McDonnell said.

She said obligations to limit fossil fuel production and consumption are “major issues for Australia” and other fossil fuel-producing nations. “The judgement particularly talks about the granting of fossil fuel exploration licenses and subsidies, and it says that these may constitute an internationally wrongful act, which is attributable to states.”It goes on to say that these acts may constitute a breach of customary obligations and that breach may result in the right to reparations and compensation.” Craney said the ruling opens up pathways for states to be held accountable. “Importantly for Australia, legal avenues have now been opened for reparations payments from high-emitting countries to low-emitting countries,” he said.

“How Australia responds to this ruling will have dramatic implications for its relationships with its Pacific neighbours. We can either show solidarity or lose all legitimacy.”

An Australian government spokesperson said it will “carefully consider the court’s opinion”. “Australia was proud to join the Pacific in co-sponsoring this Vanuatu-led initiative and to participate in the proceedings last year,” they said. “We recognise that climate change is one of the greatest existential threats to all humanity, and that it’s having a significant effect on our region.

“The unprecedented participation by other countries in the ICJ proceedings reflects that we’re not alone in recognising the challenges and opportunities of responding to climate change.”

Climate cases ‘increasingly’ being brought to courts

Isabelle Reinecke is the executive director of Grata Fund, which supported Torres Strait Islander Elders Uncle Pabai Pabai and Uncle Paul Kabai in their case against the Commonwealth.

While accepting many of the key facts the Uncles had presented to the court regarding the effects of human-induced climate change on the Torres Strait Islands, Judge Michael Wigney ruled there was not a duty of care under negligence law.

“This month, the Federal Court found that Torres Strait people and culture are being ‘ravaged by human-induced climate change’, and that the Australian government ‘paid scant, if any, regard to the best available science’ when setting its emissions targets,” Reinecke said.”Communities in Australia and around the world are increasingly bringing climate cases to courts of all levels. The facts are already on their side, and now this landmark ruling provides even more legal scaffolding for judges to rule in their favour.”McDonnell expects the ICJ opinion will give rise to a “new set of internal state-based climate litigation” into the future.

“I think there will be renewed efforts that will refer back to this advisory opinion, even though it is based in international law.”

‘Only a matter of time’

The case was initiated by law students at Vanuatu’s University of the South Pacific, who argued the people of Pacific island countries were unjustly bearing the brunt of climate change compared to high-emitting economies.”It’s amazing what the students have done in bringing this case to the ICJ,” Trief said. “We all are feeling very proud of them.”

She said while the advisory isn’t legally binding, it “holds great moral and legal authority”.

Youth Ambassadors and youth climate activists demonstrate ahead of the International Court of Justice’s advisory opinion. Source: Supplied / Save the Children

When it comes to Australia’s role, Trief said: “It’s really important that their actions reflect their empathy for our smaller developing states in the Pacific”. “While many actions taken now may not have impacts on the environment, they will have very negative impacts in the future. While many people may not be feeling really drastic effects of climate change, it’s only a matter of time before they do,” she said. “In the Pacific, we are feeling the immediate effects. We are bearing the brunt of the climate crisis. And in Australia and other countries, it’s very important that people start taking it more seriously, because it’s only a matter of time before it affects all of us.”With additional reporting from the Australian Associated Press

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