What’s going down in the International Courts?

George Monbiot’s Restoration Story is playing out in the hallowed half of the International Court of Justice. The narrative structure he says we see in every great story humanity tells itself goes like this; ‘the land has been thrown into disorder by powerful and nefarious forces working against the interests of humanity. But the ‘hero’ of the story — who might be one person or a group of people or even an institution — will take on, against the odds, the powerful and nefarious forces, overthrow them and restore order to the land’. It has framed Narnia, the Lord of the Rings and now the gargantuan and potentially tectonic shift in the legal landscape, a shift which reflects wider societal changes, many of them driven by young people. 

Four years ago in the midst of the first covid lockdown, I awoke early one late August day - so early that the morning was still untouched by bird song - and logged onto a zoom call. After a moment of fuzzy inference Belyndar Rikimani burst onto the screen. She was calling from the South Pacific which was 11 hours ahead and, because she had no signal or connection of her own, the call was being managed by the PISFCC (Pacific Island Students Fighting Change).

Belyndar, a law student, had grown up in the Solomon Islands, a nation of hundreds of islands in the South Pacific. Her province, Malaita, would fulfil an average European’s definition of paradise; fine powder beaches, sighing blue seas lapping at the roots of palm trees. However, a small section in the 2018 IPCC report on 1.5°C warming undermines this paradisiacal illusion, warning that without drastic emissions cuts Pacific Island nations will disappear.

I was interviewing Belyndar, asking her about the PISFCC’s core campaign which she originally started alongside 26 other law students from The University of the South Pacific and which has now culminated in the most significant climate case before the International Court of Justice (ICJ); the world's highest court. It looks at state obligations to develop international law, create legal obligations around environmental treaties and basic human rights, and clarify state responsibility for climate harm. 

As a result of this campaign the UN General Assembly passed a resolution in 2023 asking the ICJ to clarify states' legal obligations to protect the climate. The court must determine the consequences of state inaction or environmental harm, particularly in relation to those most affected; small island nations and future generations.

Then, between the 2nd and 13th December 2024, 96 States and 11 international organisations had an unprecedented opportunity to plead before the Court in The Hague on States’ climate obligations under international law and human rights. 

Right now the ICJ is in the deliberation phase and will deliver its response later this year. The ruling will be an advisory opinion, not a binding judgement. However, the advisory opinions of the ICJ have historically transformed the landscape of legal norms. In 1966 the ICJ deliberated and issued its advisory opinion on nuclear opinions. Even though the opinion wasn’t legally binding, it set a global baseline on thinking around nuclear disarmament. This led to a strengthened resolve and treaties such as the 2017 Treaty on the Prohibition of Nuclear Weapons.

This attitudinal shift that precedes a ratified legal shift is because there is law as a system of rules, providing the ability to prosecute inaction or blatant destruction, but there is also law as an accepted ideology and as a lever that must be pushed to create new ways of seeing the living world around us.

Law holds cultural authority and in a moment when lots of my generation are looking around frantically and confusedly for an authority figure, vying for social order in a world that seems increasingly disordered, we should find ways for law, rather than an autocratic dictator, to become that reified voice we look to for collective reason.

I was heavily involved in the climate activism scene a few years ago and have watched - and been part of - the exodus as we all try and figure out how to work in the system whilst also carving out the malignancy that hinders action and progress within it. This trust in youth calls for action is monumental. Philosopher Laozi’s maxim “to give no trust is to get no trust” is reflected in democracy and law. In a political system that doesn’t trust youth voices, we see retaliation, and in a legal system that doesn’t trust youth voices, we see retaliation. In a legal system which youth voices are allowed to participate in shaping, we see progress as the system evolves with society’s maturation.

I spoke to David Boyd briefly a few days ago. He was, for six years, the UN special rapporteur on human rights and the environment and one of the people to successfully push ‘The Right to a Healthy Environment’ through the General Assembly in 2021, adding it to the library of internationally recognised rights. He was optimistic and passionate about the zeitgeist we’re grasping at, what he calls a ‘legal revolution’. He was squeezing me into a moment he had before a lecture he was giving at The University of British Columbia and excitedly told me how the legal and economic environmental revolution has become an irrepressible force, citing the Urgenda vs Netherlands decision, the Held V state decision, the Neubauer et al vs Germany decision. The effect of law and litigation goes far beyond the courtroom and is instead like a mirror being held up to the public sentiment; showing the strength of the pushback against environmental inaction. This is a man who has had his hands on the very helm of the global legal revolution, and has come out not only unscathed, but optimistic. 

We are about to see a cascade of cases which will fundamentally shift the legal landscape. As law creates ideology and vice versa, this could be the antidote to political inertia and the warped cultural perception of our relationship with nature.