July 31, 2025 • 33 mins
In 2019, a group of law students from Pacific island nations set in motion a case that made it to the world’s highest court: The International Court of Justice. The students wanted answers to two important questions: what responsibility do countries have to stop climate change? And if countries don’t stop polluting, will they have to pay for the damages? Now the ICJ has delivered its verdict, and it seems like a huge win for the climate. But is it? Laura Clarke, chief executive officer of legal non-profit ClientEarth, joins Akshat Rathi on Zero to discuss.
Explore further:
- One Pacific Nation’s Court Case Opens New Era for Climate Lawsuits - Bloomberg
- UN Top Court Says Countries Are Obliged to Fight Climate Change - Bloomberg
- Heat Pump Sales Top Gas Boilers in Germany for the First Time - Bloomberg
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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
Welcome to zero I am Akshatrati. This week a landmark
court case. Picture the scene. We are in the Peace
(00:24):
Palace of the Hague in a dark wood paneled room.
There are fifteen judges wearing black counts and white products.
The room is filled with people, all gathered to hear
the result of a major climate case.
Speaker 2 (00:39):
The court meets today to deliver its advisory opinion on
that request submitted by the General Assembly of the United
Nations and the question of the obligations of states in
respect of climate change.
Speaker 1 (00:55):
Among the audience is a group of law students from
the Pacific Islands who's six years earlier set in motion
the case that has now made it to the world's
highest court, the International Court of Justice. The students wanted
answers to two important questions, what responsibilities do countries have
to stop climate change? And if countries don't stop polluting,
(01:16):
will they get in trouble. Fifteen judges from fifteen countries,
including one from the US, heard submissions from more than
one hundred countries over the last six months. Then last
week the judges gave a verdict, a unanimous one, and
it was delivered by Judge Yuji Ivasawa.
Speaker 2 (01:35):
The Court unanimously is of the opinion that the Climate
Change Treaties set forth binding obligations for state parties to
ensure the protection of the climate system and other parts
of the environment from anthropogetic greenhouse gas emissions.
Speaker 1 (01:56):
The reading of the entire verdict is about two hours long,
worth listening if you have the time, but here's the
brief version. The court said governments have a legal duty
to act on climate change, whether you're party to the
Paris Agreement or not, and the countries that fail could
be in breach of international law even liable to pay
reparations to the countries most affected. This word sounds like
(02:20):
a big win on paper, is it? And how will
it change the legal fight against climate change. Here to
answer these questions is Laura Clark, CEO of Client Earth,
an environmental NGO that uses law to hold polluters to account.
They are famous for taking organizations like Shell and even
the UK government to court for not meeting their climate obligations. Laura,
(02:47):
welcome to the show.
Speaker 3 (02:48):
Thank you. It's lovely to be with you.
Speaker 1 (02:50):
So I suspect many people are hearing about the International
Court of Justice the ICJ for the first time. What
is the significance of that court is its jurisdiction.
Speaker 3 (03:01):
Well, the ICJ is the most important international court there is.
It's the most senior international court there is, and so
when it issues decisions like this, those decisions apply to
all states in the world. So it's a hugely significant
court and hugely significant decision. It's connected with the United
(03:21):
Nations and it essentially opines on matters of international law
regulating conduct between states. So what are state's obligations under
international law? You know, where there are disputes between individual states,
it can be asked to rule on a particular issue,
to give an advisory opinion on a particular issue, and
(03:44):
in this case, the advisory opinion the decision on States
obligations on climate change. It was asked by a resolution
of the UN General Assembly to give this advisory opinion,
essentially saying what are the obligations of states under international
law to take action on climate change?
Speaker 1 (04:04):
And you described on LinkedIn that this advisory opinion is
a once in a generation legal decision that is going
to shape climate litigation for decades to come. So let's
just start with the basics. Where and when did this
case begin?
Speaker 3 (04:20):
So this is the most extraordinary initiative that started in
a student classroom in Fiji and was driven by the
Pacific Island students fighting climate change. Now, as you and
your listeners know, the Pacific Island countries, like lots of
other small island states, are hugely vulnerable to climate change.
(04:42):
They bear almost none of the responsibility for it, but
they're on the front line of the impacts, whether that's
sea level rise or other impacts. And so the Pacific
Island students decided they wanted to ask the International Court
of Justice, the highest court in the world, for a
you on what the state's obligations to tackle climate change.
(05:04):
Now that was then picked up and championed by Vanuatu
in the first place, and then a number of other states,
which then led to the UN General Assembly passing a
resolution asking the ICJ to consider this question.
Speaker 1 (05:19):
Student projects are really fun, very important, but a student
project that then goes all the way to the highest
court in the world, yeah, is kind of unheard of.
Like what was needed to actually take what was the
student project to that level?
Speaker 3 (05:37):
It's extraordinary. I mean, firstly to the leadership, the moral
authority of these students, you know, who are I suppose
reflect various elements of climate justice, right first that they're
from very climate vulnerable countries. Secondly that they are the
younger generation. And one of the questions that they wanted
the ICJ to consider is what are the obligations on
(05:58):
states for future generations? And so you have young people
from climate vulnerable countries driving this, but it developed this
massive movement, a massive momentum of states getting involved and
supporting civil society getting involved in an enormous way. Clan
Earth played a very small part in that, but there
were so many others really giving that a sort of
(06:21):
a momentum. And I think where we are now is
a decision that is the most significant development in international
climate law since the Paris Agreement. And it's an extraordinary
victory for these Pacific Island students and for climate vulnerable
communities everywhere.
Speaker 1 (06:39):
And so Januar two takes this request to the United
Nations and the General Assembly say is, yes, we would
like to know what is the legal obligation of states
on climate action? And the ICG holds a hearing and
we understand it's the largest hearing that the ICGA has held.
More than a high hundred countries made legal arguments, some
(07:02):
of them against it, and we'll come to that. And
so now we have this legal advisory. What does the
legal advisory say, what is the verdict?
Speaker 3 (07:11):
Well, let me I mean if I can just pause
a moment on your point around the number of submissions,
because the Court itself said in its press statement in summary,
this was unprecedented in terms of the global engagement. There
were more than one hundred submissions. But there were also
other interventions because sort of civil society organizations like Clan
(07:32):
Earth can't submit in the normal process, and so others
intervened with their own legal opinions, advocacy and so on.
And I think the other interesting thing to say about
the process was the decision was adopted unanimously by the
Court by all the judges. There was no dissent, and
it was I think far more forward leaning than most
(07:55):
people expected. In a nutshell, what does the decision say.
It says that states have binding obligations under international law
to prevent significant environmental harm, to cooperate internationally, and uphold
fundamental rights in the face of escalating climate risks. Now,
(08:15):
there's a lot to unpack there, but I think one
of the really important things is it's very clear that
climate action is not a matter of aspiration or discretion,
but it's a matter of due diligence. There's an obligation
on states, and that's really important.
Speaker 1 (08:33):
And so we can understand when it's an obligation to
a state, what are other obligations of states that we
know already exist in national law and international law, and
how does this verdict add to their responsibilities.
Speaker 3 (08:48):
So there are obligations under international law and relation to sovereignty.
For example, upholding sovereignty is a very good example that
a country's borders and its territory are sovereign. So that's
a very good example. One that this builds on. A
principle of a customary international law is about trans boundary harm,
(09:11):
this sense that a state must not do something that
harms another state. That sense that you're drawing on. The
court looked at all ther relevant international law, not just
the Paris Agreement, but the UN Convention on the Law
of the Sea, the Conventional and Biological Diversity or the
Kyoto Protocol, all this different law that there is out
(09:34):
there as well as customary international law, and reach this
decision that really sets out what states have to do
and then interestingly, the unpack what that obligation means, including
in relation to the private sector.
Speaker 1 (09:49):
And so the Advisory Opinions states that, you know, states
must pursue the highest possible ambition, which under the Paris
Agreement is to limit warming to one point five degree celsius.
It also states that granting for self fuel licenses or
subsidies may constitute an internationally wrongful act, and that countries
could be required to compensate or remedy the damage caused
(10:12):
by their emissions anywhere in the world where the damage
might occur. These are things that on this podcast we've
talked for a long time because the Paris Agreement speaks
to many of those points. The Loss and Damage Fund
that was created speaks to the point of needing compensation
for these But how exactly does this opinion go beyond
Paris Agreement, because it's not just taking the Paris Agreement
(10:36):
and the language underneath it, but also other international laws
and consideration.
Speaker 3 (10:40):
Yeah, I think what you have here is an incredibly holistic,
an authoritative statement and articulation of international law and how
it applies to states' obligations is then authoritative and will
be sort of fronts of mind for any national level litigation,
(11:02):
for example, it sets out very clearly and again I
come back to this point around and NDC is not aspirational.
It is it is an obligation. And as you said,
it was really you know what's really interesting, and I
think you came to that point around it's not just
about you know, setting out NDC's nationally determined contributions and plans.
(11:24):
It's also about looking at what's happening within a state's territory.
So stopping fossil fuel production, the granting of fossil fuel
exploration licenses, the provision of fossil fuel subsidies, all of
those could constitute an internationally wrongful act. So it's hugely interesting,
(11:45):
I think in terms of the question about what could
this look like in terms of reparations or further litigation
at the international level, I think, you know, we, along
with the rest of the international legal environmental community, is
still diving into the implications and really understanding them. But
there is of course precedent for cases before the ICJ
(12:09):
on trans boundary harm, and so you could well see
more like that. I mean, I don't want to go
too far in terms of you know, setting out how
it will work. But as a ruling it gives a
real shot in the arm to climate vulnerable communities looking
for justice for climate litigation generally. But it's also a
really really important advocacy tool in terms of, you know,
(12:33):
pushing states to increase their ambition, increase their action in
what is the critical decade.
Speaker 1 (12:42):
One thing that stood out for me which I did
not see coming, was that this advisory opinion says that
countries that may be affected by climate change, especially climate
vulnerable small island countries that may lose their territories altogether
as a result of rising sea levels will be able
(13:03):
to retain their statehood even after the lands are sunk.
Now you have represented the UK for these small island nations.
What does life like on those islands and why does
keeping statehood matter so much?
Speaker 3 (13:19):
I mean, it's a hugely important element of the of
the decision, which perhaps has not been had as much
pick up so far. But yes, when I when I
lived in in New Zealand, as High Commisions to New
Zealand and the High Commission at Asamoa, I spent a
lot of time in the South Pacific. You know, it's
really clear climate change is an existential threat to these communities.
(13:41):
It's a day to day lived reality, and that's about
both their way of life but also the existential threat
to their territories and therefore their sovereignty and their statehood,
you know, And the ICJ was very clear about that.
It said that I under the UN Convention on the
(14:01):
Law of the Sea, if sea level rise affects the
sort of outline of your state, if you like, that
doesn't mean that you then have to revise your maritime boundaries.
Your statehood is your statehood, even if your territory change
just shape as a result of climate change. So that's
really important in terms of international law because as you
(14:26):
can imagine, this is an area where geopolitics and climate
change interact very very strongly.
Speaker 1 (14:34):
It empowers these countries to keep fighting even if it
gets to the level where they may lose their land.
I mean, we are seeing some of these islands already
starting to act. So Australia now has a climate visa
that people from Tuvalu can apply to, and Australia says
they can eventually give enough of them for all of
(14:57):
the people living on those islands to move to Australia
if they so choose or they are forced to. But
going back to the point of the implication here, because
as much as this is a big legal event, it
is an advisory opinion. Yes, it comes from the world's
(15:18):
highest court. But when you say that it's a once
in a generation legal decision, what do you think changes
as a result of this.
Speaker 3 (15:28):
So I think it's it's a very very clear you know,
you're right, there is no enforcement mechanism, right, there's no one,
No one's going to come along, you know, following this
advisory opinion from the you know, ICJ and sanctioned states
for not doing the right thing. That's that's clear. There
is no enforcement mechanism, but it is extraordinarily authoritative articulation
(15:52):
of legal obligations of states under international law. And I
think the opportunity now is using it as an advocacy tool. Firstly,
so in the run up to COP thirty and Belem,
we've got lots of countries still haven't produced their nationally
determined contributions, others you know, not doing enough, so it
(16:13):
will really push states to do more. It will help
guide national courts. That's hugely significant because we are going
to see even more climate litigation as you know, has
been increasing exponentially over the past couple of decades. It
will increase even further. And every time a national court
here's a court case, it will have the ICJ decision
(16:36):
in front of mind in hearing that case. And so
I suppose, you know, really it's a very clear message
to states everywhere the action can't be deferred and legal
systems have to reckon with climate duties. So international law
has to be interpreted in the current context of the
(16:57):
climate crisis.
Speaker 1 (17:03):
More from my conversation with Laura Clark, CEO of Client
Earth after the shortbreak. Also, we're still looking to get
a few more questions from listeners for an episode we
are making this summer. Do you have a burning question
about climate, green tech, or the future of the planet,
Please send it to us in writing or as a
voice memo to zero Pod at Bloomberg dot net by Monday,
(17:24):
August fourth. Thank you to everyone who's sent there so far.
During the hearing, we did hear from countries opposing the
(17:48):
view that states will be bound by climate action. We
heard from Australia, from Saudi Arabia, from the United States,
from China arguing that their obligations limited to the Paris Agreement,
but they've lost. What was it that they were arguing
for and why did they not succeed?
Speaker 3 (18:09):
You know, there's a lot to that question, but it
really comes to this point around discretion versus due diligence,
and so this idea that actually, you know that what
you say you're going to do under an NDC as
aspirational is that your discretion rather than being something that
you absolutely have to do and you have to compel
private actors to align and so on, which is where
(18:31):
the court came out. So, you know, so I think
that's an important distinction. I think, you know, one thing
I would say is, you know, this is not a
new law or anything like that. This is just a
confirmation or an explanation of existing law. So you know, obviously,
(18:54):
then each each state will sort of take its own
view on what it wants to do as a result
of it, and it won't be we won't be surprised
that some states won't do anything different.
Speaker 1 (19:03):
As a consequence, there are some sixty countries that have
national climate laws right now, which means the majority of
the world does not have national climate laws. Even when
a country does have a national climate law to actually
make the country do what the climate law says it
should do is hard. Client Earth has fort this case
in the UK, which was among the first countries to
(19:25):
get a climate law, to actually get the country to
deliver on those promises. And I know that you're waiting
on this labor government to actually put out their steps
to meet the obligations that they have. So how does
it affect countries that do not have national climate laws
in the first place, and how would enforcement work for them?
Speaker 3 (19:47):
A couple of things to unpack their I suppose I
think it adds to the imperative to have national climate laws.
And at Client Earth we have been pushing and advocating
and supporting for a while for climate laws as the
kind of missing link between international commitment and real world
(20:07):
domestic action and delivery. And so we've supported a number
of countries their climate laws. But how you know, you're saying,
how would if you have litigation in a country that
doesn't have a climate law, how does this decision help? Well,
it absolutely helps, because there are any number of ways
in which cases can be brought, and one of the
(20:28):
ways that's very very clear is when communities bring cases
related to human rights and climate change, where they say,
my government is not doing enough to protect my human
rights from the impacts of climate change. And if I
give you an example of a case we supported in Australia,
the indigenous Torres Strait Islanders, who we supported to take
(20:52):
a case to the UN Human Rights Committee essentially saying
that Australia's inaction on climate change was a violation of
their human rights, violation of their right to indigenous right
to culture, and the UN Human Rights Committee agreed with
us and ordered the Australian government to do more and
to pay compensation. We've also had the European Court of
(21:14):
Human Rights issue it's binding judgment on Switzerland in the
case of the Kimas senior in and so the sweet
senior Swiss women who said that by virtue of their
age and gender, they are much more vulnerable to climate impacts,
to extreme heat, for example, and the government wasn't the
Swiss government was not doing enough to protect their rights.
(21:37):
So that's just one avenue whereby these climate cases can
be brought regardless of whether there's national climate legislation in place.
And as these cases are brought, the plaintiffs will have
in mind this decision from the ICJ, which is also
(21:57):
really clear on the human rights where it says a
healthy environment is the foundation for human life and human rights,
and you know, and that's a really sort of remarkable statement.
It says a clean, healthy and sustainable environment is a
precondition for the enjoyment of human rights, and the rights
(22:19):
were an environment. So it helps to such an environment
results from the interdependence between human rights and the protection
of the environment. So that's really, really, really important because
most states are very clear on their obligations to their
citizens from a human rights perspective, and so it's taking
that across.
Speaker 1 (22:37):
It's interesting to have these legal judgments. The Swiss women
case is very interesting. You had the Human Rights Court
say that yes, you're right, Switzerland needs to do more
on climate and yet the Switzerland government rejected it and
did not change anything as a result. Now, if we
even go and focus on the ICG itself, it released
(23:00):
an advisory opinion in July twenty twenty four stating that
Israel's occupation of the Palestinian territories is unlawful and that
Israel should put an end to this occupation. The UN
General Assembly adopted a non binding resolution to enforce that
advisory opinion. But of course here we are nothing has
changed as Weel's attack on Kaza continues. So why should
(23:27):
we take this ICGA advisory opinion seriously because things don't
change that often.
Speaker 3 (23:33):
I suppose this goes to the point of how hard
it is to affect change generally, right. You know, it's
sort of quite a philosophical question, isn't it. And you know,
how do you affect change? Where does power actually lie?
How do you change terrible things that are happening stop
terrible things that are happening? There is no silver bullet.
You can have the most perfect ruling, but ultimately you
(23:56):
need the state to take action. And I suppose my
answer then is that these legal avenues, your litigation, your
advisory opinions or decisions, even getting the right laws in place,
are only part of the picture because you need political
will and action. You need societal mobilization, you need behavioral change,
(24:19):
you need businesses pulling in the right direction, and so on.
You're absolutely right that when this decision, this decision is
now out there, that doesn't mean that states everywhere next
week are suddenly going to transform their work, but it
will definitely push in that direction, and it equips those
(24:40):
that want to see more action, advocacy groups, lawyers, climate
vulnerable communities. It equips them with another tool to push
for that sort of action.
Speaker 1 (24:51):
Much of the work that land Earth has done has
also focused on companies. You as a shareholder sued a
Polish goal company from building a call power plant and
you succeeded. How does this opinion, which is very much
focused on international law on countries, affect corporations, which are
the places where most of the emissions are generated.
Speaker 3 (25:13):
It's a great question. And of course the ICJ is
about state responsibilities and state obligations, so it can't directly
hold companies or businesses to account. But what it did say,
and I talked earlier about this question of states having
a due diligence requirement take action, that states have an
(25:35):
obligation to regulate private actors. You know, if a private
company is producing huge amounts of emissions, then the state
has a responsibility to regulate them and stop that harm.
So I think that's a really important development. So if
for example, you have a fossil fuel company that's polluting
(25:55):
with abandon, the country has to underwe international law regulate
them and stop that. It's again, it's just another tool
I suppose to drive corporates to do the right thing.
Speaker 1 (26:07):
So you're not a lawyer. I am not a lawyer,
but I am married to one and you work.
Speaker 3 (26:11):
With so am I I'm married to one and I
work with them. I'm surrounded there you go.
Speaker 1 (26:16):
Yeah, And one of the things that people tend to
think of lawyers, and I think we should do some
mythbusting here is that they are not creative people. But
actually they are. And if anything, climate litigation is proof
of what being creative with the law can enable. Because
the number of climate lawsuits have been growing and the
impact from them is starting to add up. How exactly
(26:39):
do you think Client Earth's work changes as a result
of the ICGO opinion.
Speaker 3 (26:44):
Yeah, let me just pause on your point about creativity,
because you're absolutely right, and that's what's one of the
most exciting things about Client Earth and other organizations like this.
You've got these brilliant, committed, clever people who are using
the law creatively to affect change. And I think sometimes,
you know, often the law is seen as a tool
(27:06):
to defend the bested interests of the status quo, right,
but actually it can be used in the right way
for radically progressive means, and that's hugely exciting. So you know,
at Clan Earth we've long taken law at corporate and
financial law, human rights law, you know, others, and say
how can we use that for better environmental outcomes? So
(27:29):
that's hugely exciting and I think that's often why we
get such great support from the music and culture industries,
because they're attracted to that creativity. How does it change
our work as Clan Earth, Well, we're obviously deep into
the implications for our work. It really provides an even
stronger framework for the work that we're doing, the national
(27:50):
level litigation against states, the litigation against corporates, but also
importantly the positive propositional work that we do when we
support countries in getting the right national climate laws in
place or the right regulations in place. And that's something
that you know, I think often we're not known for.
(28:11):
We're known for our sort of big bang cases when
we sue people, but we do a huge amount, often
below the radar, of supporting governments and authorities and getting
the right regulatory framework in place for the renewable energy transition.
For example, getting the right climate laws in place, and
we're also training prosecutors, judges, working with community groups. And
(28:34):
I suppose this decision it strengthens the if you like,
it's amade, the roof over all that work much stronger,
I suppose is the way I'm thinking of it. You know,
we're sort of building up, but the roof is stronger,
or the foundations are stronger. I'm mixing my metaphors, but
it is. It's hugely authoritative as a statement of international law,
(28:55):
and I'm hopeful and optimistic that as a constucequents of it,
it will both push states to do more, but it
will also strengthen climate litigation.
Speaker 1 (29:07):
But we're also living through a time where, perhaps since
the nineteen nineties, the skepticism of the international order is
at the highest level. You have the US government pulling
out of many international treaties. The Paris Agreement is just
one of them. In such a time where countries seem
(29:29):
to be pulling away, and it's not just the US,
other countries want to be going in that direction too.
How do you think the ICGO opinion actually gives more
weight to international law?
Speaker 3 (29:40):
Yeah, I mean, you're absolutely right. We're living in a
time of extraordinary tensions in the international order, and the
US is you know, there is a lot of US unilateralism.
That doesn't mean you know, that's a real blow to multilateralism,
but it doesn't mean the end of it. And I
was at the UN Ocean's Conference in June and that really,
you know, looked like multilateralism. Absolutely there focus on what
(30:04):
is needed to protect our ocean. But all of this
stuff is contested and it's difficult and one of the
ways that you protect international law is you use it,
you exercise that, you get people involved and engaged, because
the really important thing about any sort of climate action
(30:25):
is not letting it look like it's the preserve of
the elite. It's you know, the government bureaucrats, or it's
you know, civil society organizations. It is you know, reflective
of grassroots mobilization. And I think that's really important and
the significance of this. It's significant in terms of that
statement of international law in relation to climate change, but
(30:49):
it's significant because it comes from such a broad mobilization
of young people, of civil society of states globally, and
that is an articulation then of how many people want
climate action. They want to see changes and that should
bring pressure on states, on businesses, on those who are
(31:13):
in positions of power and make decisions to make decisions
that trends towards a safe and stable climate.
Speaker 2 (31:20):
Yeah.
Speaker 1 (31:21):
I mean, as somebody who thinks about climate change all
the time, and you do too. We just have to
live in this world where there are two seemingly opposite
facts that are both true. You know, China is the
world's largest emitter, but it's also the world's green tech superpower.
That you know, multilateralism is creaking, and yet you had
(31:41):
the European Union and China, the second and the third
largest emitters, put out a statement saying they're going to
try and make COP thirty a success by submitting new
climate goals.
Speaker 3 (31:51):
You have to be able to hold multiple truths in
your hands at the same time. I think that's really
then you have to be able to sit with that complexity.
But you know, you're absolutely right. The international order as
we know it is both under unprecedented pressure and more
important than it has ever been in terms of tackling
these threats to our global commons. Thank you, Laura, thank you,
(32:14):
it's been a pleasure.
Speaker 1 (32:22):
And thank you for listening to zero and now for
the sound of the week. That is the sound of
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(32:43):
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Special thanks to Eleanor Harrison Tengate. Soamersadi, Moses Andim and
(33:07):
Shawan Wagner. I am Akshatrati back soon. Hey, it's Uksha.
Each week you lend me your ears, and now I'd
like to hear from you. Do you have a burning
question about climate, green tech or the future of the planet.
(33:28):
Please send your questions to us in writing or as
a voice memo to zero pod ad Bloomberg dot net
and we'll make an episode answering them. Please do include
your name and where your based. Thank you.
Welcome to zero I am Akshatrati. This week a landmark
court case. Picture the scene. We are in the Peace
(00:24):
Palace of the Hague in a dark wood paneled room.
There are fifteen judges wearing black counts and white products.
The room is filled with people, all gathered to hear
the result of a major climate case.
Speaker 2 (00:39):
The court meets today to deliver its advisory opinion on
that request submitted by the General Assembly of the United
Nations and the question of the obligations of states in
respect of climate change.
Speaker 1 (00:55):
Among the audience is a group of law students from
the Pacific Islands who's six years earlier set in motion
the case that has now made it to the world's
highest court, the International Court of Justice. The students wanted
answers to two important questions, what responsibilities do countries have
to stop climate change? And if countries don't stop polluting,
(01:16):
will they get in trouble. Fifteen judges from fifteen countries,
including one from the US, heard submissions from more than
one hundred countries over the last six months. Then last
week the judges gave a verdict, a unanimous one, and
it was delivered by Judge Yuji Ivasawa.
Speaker 2 (01:35):
The Court unanimously is of the opinion that the Climate
Change Treaties set forth binding obligations for state parties to
ensure the protection of the climate system and other parts
of the environment from anthropogetic greenhouse gas emissions.
Speaker 1 (01:56):
The reading of the entire verdict is about two hours long,
worth listening if you have the time, but here's the
brief version. The court said governments have a legal duty
to act on climate change, whether you're party to the
Paris Agreement or not, and the countries that fail could
be in breach of international law even liable to pay
reparations to the countries most affected. This word sounds like
(02:20):
a big win on paper, is it? And how will
it change the legal fight against climate change. Here to
answer these questions is Laura Clark, CEO of Client Earth,
an environmental NGO that uses law to hold polluters to account.
They are famous for taking organizations like Shell and even
the UK government to court for not meeting their climate obligations. Laura,
(02:47):
welcome to the show.
Speaker 3 (02:48):
Thank you. It's lovely to be with you.
Speaker 1 (02:50):
So I suspect many people are hearing about the International
Court of Justice the ICJ for the first time. What
is the significance of that court is its jurisdiction.
Speaker 3 (03:01):
Well, the ICJ is the most important international court there is.
It's the most senior international court there is, and so
when it issues decisions like this, those decisions apply to
all states in the world. So it's a hugely significant
court and hugely significant decision. It's connected with the United
(03:21):
Nations and it essentially opines on matters of international law
regulating conduct between states. So what are state's obligations under
international law? You know, where there are disputes between individual states,
it can be asked to rule on a particular issue,
to give an advisory opinion on a particular issue, and
(03:44):
in this case, the advisory opinion the decision on States
obligations on climate change. It was asked by a resolution
of the UN General Assembly to give this advisory opinion,
essentially saying what are the obligations of states under international
law to take action on climate change?
Speaker 1 (04:04):
And you described on LinkedIn that this advisory opinion is
a once in a generation legal decision that is going
to shape climate litigation for decades to come. So let's
just start with the basics. Where and when did this
case begin?
Speaker 3 (04:20):
So this is the most extraordinary initiative that started in
a student classroom in Fiji and was driven by the
Pacific Island students fighting climate change. Now, as you and
your listeners know, the Pacific Island countries, like lots of
other small island states, are hugely vulnerable to climate change.
(04:42):
They bear almost none of the responsibility for it, but
they're on the front line of the impacts, whether that's
sea level rise or other impacts. And so the Pacific
Island students decided they wanted to ask the International Court
of Justice, the highest court in the world, for a
you on what the state's obligations to tackle climate change.
(05:04):
Now that was then picked up and championed by Vanuatu
in the first place, and then a number of other states,
which then led to the UN General Assembly passing a
resolution asking the ICJ to consider this question.
Speaker 1 (05:19):
Student projects are really fun, very important, but a student
project that then goes all the way to the highest
court in the world, yeah, is kind of unheard of.
Like what was needed to actually take what was the
student project to that level?
Speaker 3 (05:37):
It's extraordinary. I mean, firstly to the leadership, the moral
authority of these students, you know, who are I suppose
reflect various elements of climate justice, right first that they're
from very climate vulnerable countries. Secondly that they are the
younger generation. And one of the questions that they wanted
the ICJ to consider is what are the obligations on
(05:58):
states for future generations? And so you have young people
from climate vulnerable countries driving this, but it developed this
massive movement, a massive momentum of states getting involved and
supporting civil society getting involved in an enormous way. Clan
Earth played a very small part in that, but there
were so many others really giving that a sort of
(06:21):
a momentum. And I think where we are now is
a decision that is the most significant development in international
climate law since the Paris Agreement. And it's an extraordinary
victory for these Pacific Island students and for climate vulnerable
communities everywhere.
Speaker 1 (06:39):
And so Januar two takes this request to the United
Nations and the General Assembly say is, yes, we would
like to know what is the legal obligation of states
on climate action? And the ICG holds a hearing and
we understand it's the largest hearing that the ICGA has held.
More than a high hundred countries made legal arguments, some
(07:02):
of them against it, and we'll come to that. And
so now we have this legal advisory. What does the
legal advisory say, what is the verdict?
Speaker 3 (07:11):
Well, let me I mean if I can just pause
a moment on your point around the number of submissions,
because the Court itself said in its press statement in summary,
this was unprecedented in terms of the global engagement. There
were more than one hundred submissions. But there were also
other interventions because sort of civil society organizations like Clan
(07:32):
Earth can't submit in the normal process, and so others
intervened with their own legal opinions, advocacy and so on.
And I think the other interesting thing to say about
the process was the decision was adopted unanimously by the
Court by all the judges. There was no dissent, and
it was I think far more forward leaning than most
(07:55):
people expected. In a nutshell, what does the decision say.
It says that states have binding obligations under international law
to prevent significant environmental harm, to cooperate internationally, and uphold
fundamental rights in the face of escalating climate risks. Now,
(08:15):
there's a lot to unpack there, but I think one
of the really important things is it's very clear that
climate action is not a matter of aspiration or discretion,
but it's a matter of due diligence. There's an obligation
on states, and that's really important.
Speaker 1 (08:33):
And so we can understand when it's an obligation to
a state, what are other obligations of states that we
know already exist in national law and international law, and
how does this verdict add to their responsibilities.
Speaker 3 (08:48):
So there are obligations under international law and relation to sovereignty.
For example, upholding sovereignty is a very good example that
a country's borders and its territory are sovereign. So that's
a very good example. One that this builds on. A
principle of a customary international law is about trans boundary harm,
(09:11):
this sense that a state must not do something that
harms another state. That sense that you're drawing on. The
court looked at all ther relevant international law, not just
the Paris Agreement, but the UN Convention on the Law
of the Sea, the Conventional and Biological Diversity or the
Kyoto Protocol, all this different law that there is out
(09:34):
there as well as customary international law, and reach this
decision that really sets out what states have to do
and then interestingly, the unpack what that obligation means, including
in relation to the private sector.
Speaker 1 (09:49):
And so the Advisory Opinions states that, you know, states
must pursue the highest possible ambition, which under the Paris
Agreement is to limit warming to one point five degree celsius.
It also states that granting for self fuel licenses or
subsidies may constitute an internationally wrongful act, and that countries
could be required to compensate or remedy the damage caused
(10:12):
by their emissions anywhere in the world where the damage
might occur. These are things that on this podcast we've
talked for a long time because the Paris Agreement speaks
to many of those points. The Loss and Damage Fund
that was created speaks to the point of needing compensation
for these But how exactly does this opinion go beyond
Paris Agreement, because it's not just taking the Paris Agreement
(10:36):
and the language underneath it, but also other international laws
and consideration.
Speaker 3 (10:40):
Yeah, I think what you have here is an incredibly holistic,
an authoritative statement and articulation of international law and how
it applies to states' obligations is then authoritative and will
be sort of fronts of mind for any national level litigation,
(11:02):
for example, it sets out very clearly and again I
come back to this point around and NDC is not aspirational.
It is it is an obligation. And as you said,
it was really you know what's really interesting, and I
think you came to that point around it's not just
about you know, setting out NDC's nationally determined contributions and plans.
(11:24):
It's also about looking at what's happening within a state's territory.
So stopping fossil fuel production, the granting of fossil fuel
exploration licenses, the provision of fossil fuel subsidies, all of
those could constitute an internationally wrongful act. So it's hugely interesting,
(11:45):
I think in terms of the question about what could
this look like in terms of reparations or further litigation
at the international level, I think, you know, we, along
with the rest of the international legal environmental community, is
still diving into the implications and really understanding them. But
there is of course precedent for cases before the ICJ
(12:09):
on trans boundary harm, and so you could well see
more like that. I mean, I don't want to go
too far in terms of you know, setting out how
it will work. But as a ruling it gives a
real shot in the arm to climate vulnerable communities looking
for justice for climate litigation generally. But it's also a
really really important advocacy tool in terms of, you know,
(12:33):
pushing states to increase their ambition, increase their action in
what is the critical decade.
Speaker 1 (12:42):
One thing that stood out for me which I did
not see coming, was that this advisory opinion says that
countries that may be affected by climate change, especially climate
vulnerable small island countries that may lose their territories altogether
as a result of rising sea levels will be able
(13:03):
to retain their statehood even after the lands are sunk.
Now you have represented the UK for these small island nations.
What does life like on those islands and why does
keeping statehood matter so much?
Speaker 3 (13:19):
I mean, it's a hugely important element of the of
the decision, which perhaps has not been had as much
pick up so far. But yes, when I when I
lived in in New Zealand, as High Commisions to New
Zealand and the High Commission at Asamoa, I spent a
lot of time in the South Pacific. You know, it's
really clear climate change is an existential threat to these communities.
(13:41):
It's a day to day lived reality, and that's about
both their way of life but also the existential threat
to their territories and therefore their sovereignty and their statehood,
you know, And the ICJ was very clear about that.
It said that I under the UN Convention on the
(14:01):
Law of the Sea, if sea level rise affects the
sort of outline of your state, if you like, that
doesn't mean that you then have to revise your maritime boundaries.
Your statehood is your statehood, even if your territory change
just shape as a result of climate change. So that's
really important in terms of international law because as you
(14:26):
can imagine, this is an area where geopolitics and climate
change interact very very strongly.
Speaker 1 (14:34):
It empowers these countries to keep fighting even if it
gets to the level where they may lose their land.
I mean, we are seeing some of these islands already
starting to act. So Australia now has a climate visa
that people from Tuvalu can apply to, and Australia says
they can eventually give enough of them for all of
(14:57):
the people living on those islands to move to Australia
if they so choose or they are forced to. But
going back to the point of the implication here, because
as much as this is a big legal event, it
is an advisory opinion. Yes, it comes from the world's
(15:18):
highest court. But when you say that it's a once
in a generation legal decision, what do you think changes
as a result of this.
Speaker 3 (15:28):
So I think it's it's a very very clear you know,
you're right, there is no enforcement mechanism, right, there's no one,
No one's going to come along, you know, following this
advisory opinion from the you know, ICJ and sanctioned states
for not doing the right thing. That's that's clear. There
is no enforcement mechanism, but it is extraordinarily authoritative articulation
(15:52):
of legal obligations of states under international law. And I
think the opportunity now is using it as an advocacy tool. Firstly,
so in the run up to COP thirty and Belem,
we've got lots of countries still haven't produced their nationally
determined contributions, others you know, not doing enough, so it
(16:13):
will really push states to do more. It will help
guide national courts. That's hugely significant because we are going
to see even more climate litigation as you know, has
been increasing exponentially over the past couple of decades. It
will increase even further. And every time a national court
here's a court case, it will have the ICJ decision
(16:36):
in front of mind in hearing that case. And so
I suppose, you know, really it's a very clear message
to states everywhere the action can't be deferred and legal
systems have to reckon with climate duties. So international law
has to be interpreted in the current context of the
(16:57):
climate crisis.
Speaker 1 (17:03):
More from my conversation with Laura Clark, CEO of Client
Earth after the shortbreak. Also, we're still looking to get
a few more questions from listeners for an episode we
are making this summer. Do you have a burning question
about climate, green tech, or the future of the planet,
Please send it to us in writing or as a
voice memo to zero Pod at Bloomberg dot net by Monday,
(17:24):
August fourth. Thank you to everyone who's sent there so far.
During the hearing, we did hear from countries opposing the
(17:48):
view that states will be bound by climate action. We
heard from Australia, from Saudi Arabia, from the United States,
from China arguing that their obligations limited to the Paris Agreement,
but they've lost. What was it that they were arguing
for and why did they not succeed?
Speaker 3 (18:09):
You know, there's a lot to that question, but it
really comes to this point around discretion versus due diligence,
and so this idea that actually, you know that what
you say you're going to do under an NDC as
aspirational is that your discretion rather than being something that
you absolutely have to do and you have to compel
private actors to align and so on, which is where
(18:31):
the court came out. So, you know, so I think
that's an important distinction. I think, you know, one thing
I would say is, you know, this is not a
new law or anything like that. This is just a
confirmation or an explanation of existing law. So you know, obviously,
(18:54):
then each each state will sort of take its own
view on what it wants to do as a result
of it, and it won't be we won't be surprised
that some states won't do anything different.
Speaker 1 (19:03):
As a consequence, there are some sixty countries that have
national climate laws right now, which means the majority of
the world does not have national climate laws. Even when
a country does have a national climate law to actually
make the country do what the climate law says it
should do is hard. Client Earth has fort this case
in the UK, which was among the first countries to
(19:25):
get a climate law, to actually get the country to
deliver on those promises. And I know that you're waiting
on this labor government to actually put out their steps
to meet the obligations that they have. So how does
it affect countries that do not have national climate laws
in the first place, and how would enforcement work for them?
Speaker 3 (19:47):
A couple of things to unpack their I suppose I
think it adds to the imperative to have national climate laws.
And at Client Earth we have been pushing and advocating
and supporting for a while for climate laws as the
kind of missing link between international commitment and real world
(20:07):
domestic action and delivery. And so we've supported a number
of countries their climate laws. But how you know, you're saying,
how would if you have litigation in a country that
doesn't have a climate law, how does this decision help? Well,
it absolutely helps, because there are any number of ways
in which cases can be brought, and one of the
(20:28):
ways that's very very clear is when communities bring cases
related to human rights and climate change, where they say,
my government is not doing enough to protect my human
rights from the impacts of climate change. And if I
give you an example of a case we supported in Australia,
the indigenous Torres Strait Islanders, who we supported to take
(20:52):
a case to the UN Human Rights Committee essentially saying
that Australia's inaction on climate change was a violation of
their human rights, violation of their right to indigenous right
to culture, and the UN Human Rights Committee agreed with
us and ordered the Australian government to do more and
to pay compensation. We've also had the European Court of
(21:14):
Human Rights issue it's binding judgment on Switzerland in the
case of the Kimas senior in and so the sweet
senior Swiss women who said that by virtue of their
age and gender, they are much more vulnerable to climate impacts,
to extreme heat, for example, and the government wasn't the
Swiss government was not doing enough to protect their rights.
(21:37):
So that's just one avenue whereby these climate cases can
be brought regardless of whether there's national climate legislation in place.
And as these cases are brought, the plaintiffs will have
in mind this decision from the ICJ, which is also
(21:57):
really clear on the human rights where it says a
healthy environment is the foundation for human life and human rights,
and you know, and that's a really sort of remarkable statement.
It says a clean, healthy and sustainable environment is a
precondition for the enjoyment of human rights, and the rights
(22:19):
were an environment. So it helps to such an environment
results from the interdependence between human rights and the protection
of the environment. So that's really, really, really important because
most states are very clear on their obligations to their
citizens from a human rights perspective, and so it's taking
that across.
Speaker 1 (22:37):
It's interesting to have these legal judgments. The Swiss women
case is very interesting. You had the Human Rights Court
say that yes, you're right, Switzerland needs to do more
on climate and yet the Switzerland government rejected it and
did not change anything as a result. Now, if we
even go and focus on the ICG itself, it released
(23:00):
an advisory opinion in July twenty twenty four stating that
Israel's occupation of the Palestinian territories is unlawful and that
Israel should put an end to this occupation. The UN
General Assembly adopted a non binding resolution to enforce that
advisory opinion. But of course here we are nothing has
changed as Weel's attack on Kaza continues. So why should
(23:27):
we take this ICGA advisory opinion seriously because things don't
change that often.
Speaker 3 (23:33):
I suppose this goes to the point of how hard
it is to affect change generally, right. You know, it's
sort of quite a philosophical question, isn't it. And you know,
how do you affect change? Where does power actually lie?
How do you change terrible things that are happening stop
terrible things that are happening? There is no silver bullet.
You can have the most perfect ruling, but ultimately you
(23:56):
need the state to take action. And I suppose my
answer then is that these legal avenues, your litigation, your
advisory opinions or decisions, even getting the right laws in place,
are only part of the picture because you need political
will and action. You need societal mobilization, you need behavioral change,
(24:19):
you need businesses pulling in the right direction, and so on.
You're absolutely right that when this decision, this decision is
now out there, that doesn't mean that states everywhere next
week are suddenly going to transform their work, but it
will definitely push in that direction, and it equips those
(24:40):
that want to see more action, advocacy groups, lawyers, climate
vulnerable communities. It equips them with another tool to push
for that sort of action.
Speaker 1 (24:51):
Much of the work that land Earth has done has
also focused on companies. You as a shareholder sued a
Polish goal company from building a call power plant and
you succeeded. How does this opinion, which is very much
focused on international law on countries, affect corporations, which are
the places where most of the emissions are generated.
Speaker 3 (25:13):
It's a great question. And of course the ICJ is
about state responsibilities and state obligations, so it can't directly
hold companies or businesses to account. But what it did say,
and I talked earlier about this question of states having
a due diligence requirement take action, that states have an
(25:35):
obligation to regulate private actors. You know, if a private
company is producing huge amounts of emissions, then the state
has a responsibility to regulate them and stop that harm.
So I think that's a really important development. So if
for example, you have a fossil fuel company that's polluting
(25:55):
with abandon, the country has to underwe international law regulate
them and stop that. It's again, it's just another tool
I suppose to drive corporates to do the right thing.
Speaker 1 (26:07):
So you're not a lawyer. I am not a lawyer,
but I am married to one and you work.
Speaker 3 (26:11):
With so am I I'm married to one and I
work with them. I'm surrounded there you go.
Speaker 1 (26:16):
Yeah, And one of the things that people tend to
think of lawyers, and I think we should do some
mythbusting here is that they are not creative people. But
actually they are. And if anything, climate litigation is proof
of what being creative with the law can enable. Because
the number of climate lawsuits have been growing and the
impact from them is starting to add up. How exactly
(26:39):
do you think Client Earth's work changes as a result
of the ICGO opinion.
Speaker 3 (26:44):
Yeah, let me just pause on your point about creativity,
because you're absolutely right, and that's what's one of the
most exciting things about Client Earth and other organizations like this.
You've got these brilliant, committed, clever people who are using
the law creatively to affect change. And I think sometimes,
you know, often the law is seen as a tool
(27:06):
to defend the bested interests of the status quo, right,
but actually it can be used in the right way
for radically progressive means, and that's hugely exciting. So you know,
at Clan Earth we've long taken law at corporate and
financial law, human rights law, you know, others, and say
how can we use that for better environmental outcomes? So
(27:29):
that's hugely exciting and I think that's often why we
get such great support from the music and culture industries,
because they're attracted to that creativity. How does it change
our work as Clan Earth, Well, we're obviously deep into
the implications for our work. It really provides an even
stronger framework for the work that we're doing, the national
(27:50):
level litigation against states, the litigation against corporates, but also
importantly the positive propositional work that we do when we
support countries in getting the right national climate laws in
place or the right regulations in place. And that's something
that you know, I think often we're not known for.
(28:11):
We're known for our sort of big bang cases when
we sue people, but we do a huge amount, often
below the radar, of supporting governments and authorities and getting
the right regulatory framework in place for the renewable energy transition.
For example, getting the right climate laws in place, and
we're also training prosecutors, judges, working with community groups. And
(28:34):
I suppose this decision it strengthens the if you like,
it's amade, the roof over all that work much stronger,
I suppose is the way I'm thinking of it. You know,
we're sort of building up, but the roof is stronger,
or the foundations are stronger. I'm mixing my metaphors, but
it is. It's hugely authoritative as a statement of international law,
(28:55):
and I'm hopeful and optimistic that as a constucequents of it,
it will both push states to do more, but it
will also strengthen climate litigation.
Speaker 1 (29:07):
But we're also living through a time where, perhaps since
the nineteen nineties, the skepticism of the international order is
at the highest level. You have the US government pulling
out of many international treaties. The Paris Agreement is just
one of them. In such a time where countries seem
(29:29):
to be pulling away, and it's not just the US,
other countries want to be going in that direction too.
How do you think the ICGO opinion actually gives more
weight to international law?
Speaker 3 (29:40):
Yeah, I mean, you're absolutely right. We're living in a
time of extraordinary tensions in the international order, and the
US is you know, there is a lot of US unilateralism.
That doesn't mean you know, that's a real blow to multilateralism,
but it doesn't mean the end of it. And I
was at the UN Ocean's Conference in June and that really,
you know, looked like multilateralism. Absolutely there focus on what
(30:04):
is needed to protect our ocean. But all of this
stuff is contested and it's difficult and one of the
ways that you protect international law is you use it,
you exercise that, you get people involved and engaged, because
the really important thing about any sort of climate action
(30:25):
is not letting it look like it's the preserve of
the elite. It's you know, the government bureaucrats, or it's
you know, civil society organizations. It is you know, reflective
of grassroots mobilization. And I think that's really important and
the significance of this. It's significant in terms of that
statement of international law in relation to climate change, but
(30:49):
it's significant because it comes from such a broad mobilization
of young people, of civil society of states globally, and
that is an articulation then of how many people want
climate action. They want to see changes and that should
bring pressure on states, on businesses, on those who are
(31:13):
in positions of power and make decisions to make decisions
that trends towards a safe and stable climate.
Speaker 2 (31:20):
Yeah.
Speaker 1 (31:21):
I mean, as somebody who thinks about climate change all
the time, and you do too. We just have to
live in this world where there are two seemingly opposite
facts that are both true. You know, China is the
world's largest emitter, but it's also the world's green tech superpower.
That you know, multilateralism is creaking, and yet you had
(31:41):
the European Union and China, the second and the third
largest emitters, put out a statement saying they're going to
try and make COP thirty a success by submitting new
climate goals.
Speaker 3 (31:51):
You have to be able to hold multiple truths in
your hands at the same time. I think that's really
then you have to be able to sit with that complexity.
But you know, you're absolutely right. The international order as
we know it is both under unprecedented pressure and more
important than it has ever been in terms of tackling
these threats to our global commons. Thank you, Laura, thank you,
(32:14):
it's been a pleasure.
Speaker 1 (32:22):
And thank you for listening to zero and now for
the sound of the week. That is the sound of
a gas boiler being removed from a home. In the
first half of this year, sales of heat pumps in
Germany surpassed gas boilers for the first time, as the
(32:43):
country moves towards cleaner forms of home heating. Read more
about it on Bloomberg dot com. If you like this episode,
please take a moment to rate and review the show
on Apple Podcasts and Spotify. Share this episode with a
friend or with a creative lawyer. This episode was produced
by Oscar boyd Our. Theme music is composed by Wonderly
Special thanks to Eleanor Harrison Tengate. Soamersadi, Moses Andim and
(33:07):
Shawan Wagner. I am Akshatrati back soon. Hey, it's Uksha.
Each week you lend me your ears, and now I'd
like to hear from you. Do you have a burning
question about climate, green tech or the future of the planet.
(33:28):
Please send your questions to us in writing or as
a voice memo to zero pod ad Bloomberg dot net
and we'll make an episode answering them. Please do include
your name and where your based. Thank you.
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Does hearing about a true crime case always leave you scouring the internet for the truth behind the story? Dive into your next mystery with Crime Junkie. Every Monday, join your host Ashley Flowers as she unravels all the details of infamous and underreported true crime cases with her best friend Brit Prawat. From cold cases to missing persons and heroes in our community who seek justice, Crime Junkie is your destination for theories and stories you won’t hear anywhere else. Whether you're a seasoned true crime enthusiast or new to the genre, you'll find yourself on the edge of your seat awaiting a new episode every Monday. If you can never get enough true crime... Congratulations, you’ve found your people. Follow to join a community of Crime Junkies! Crime Junkie is presented by audiochuck Media Company.
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