The group of students who logged in to Justin Rose’s class on international environmental law in February 2019 were spread out across thousands of miles of ocean. Many were based at the Port Vila campus on Éfaté, a small but mountainous island of vivid tropical green in the middle of Vanuatu’s archipelago of volcanoes, where the University of the South Pacific’s school of law is based. But U.S.P. also had campuses in Fiji, Samoa, Tuvalu, the Cook Islands, Kiribati and other island nations — places that were experiencing some of the most pronounced impacts of the planet’s fast-changing climate.
It was always a tough class to teach, Rose, an Australian expert in Pacific Island law, told me in July. There are few classes in which the profound impacts of climate change feel less theoretical or the power of the students more constrained. As the class began, rising seas meant that villages across the South Pacific were already being compelled to move to higher ground, forcing people to abandon their homes and the livelihoods that once sustained them. Often, the graveyards left behind slid into the sea, scattering bones into the surf. Some countries were so low-lying that they were in danger of erasure. “It’s a pretty grim thing to have to do, year after year — to tell young Pacific Islanders that the best available science says they won’t have habitable sovereign territory within their lifetimes,” Rose says.
Coral reefs were bleaching and dying in the warming water, taking with them the complex communities of fish and other creatures that depend on them for food and shelter — and impoverishing the many people who rely on the ocean for food. Precious fresh water was becoming unusable for farming or drinking as it mixed with rising sea water. Devastating tropical cyclones had become an annual occurrence, flooding cities and destroying homes and infrastructure. Even the U.S.P. campus on Éfaté was badly hit four years earlier, by a Category 5 cyclone that displaced 45 percent of the residents of Tuvalu before slamming into Vanuatu and damaging 90 percent of the buildings in the country’s capital.
“Because we were a small class of students from the Pacific Islands, we had that empathy for each other,” Sulia Makasini, who attended from Tonga, remembers. “Most times when we were discussing, there’s not much words needed because we all know exactly what we all are going through.” She grew up near the Fanga’uta Lagoon, which was once a key source of food but is now polluted and overfished, and watched as sea levels rose, erasing once-familiar beaches. Just a year earlier, a Category 4 tropical cyclone devastated the country, flattening the Parliament building where she worked and cutting off power, internet and water for weeks afterward. In Tonga, she said, anyone could see that “climate change is the most prevalent threat and issue facing us right now.” Makasini applied to law school because she wanted to know what her government’s responsibilities were to her, as a citizen. She also wanted to know what international law had to say about the responsibilities of other countries, especially those doing the most to cause the warming of the planet — unlike Tonga, whose 100,000 people contribute an estimated one-hundredth of 1 percent of global emissions.
The harm was exceedingly clear. What was less clear was what could be done about it.
The class began working through the basics of the international laws and treaties that govern the environment. It was disorienting to be studying laws that were supposed to protect the natural world while living through so much environmental destruction. Or, for that matter, to be teaching those laws. Margaretha Wewerinke-Singh, a legal scholar who was then a lecturer at U.S.P., told me that she convened the first meeting of a class on international climate law inside a classroom with blown-out windows and a floor drenched in storm water.
Tolu Muliaina, a lecturer in the geography department at U.S.P.’s campus in Suva, Fiji, who was originally from Samoa, decided to go back to school so that he would know what to tell his students about their options in a future transformed by climate change. In the environmental-law class, he told me, his voice catching in his throat, “what I was pouring into my assignments was my own worries about the implications of climate change on me as a person but particularly my children.” It was the grave of his young son, buried in Fiji, far from home, that he found himself worrying about the most, a dread that rose to panic any time there was a king tide or a cyclone.
When the class met in 2019, it had been a little more than three years since the adoption of the Paris Agreement, an international treaty negotiated under the United Nations Framework Convention on Climate Change to keep warming from exceeding 2 degrees Celsius above preindustrial levels. “When the Paris Agreement was concluded, the youth of the world looked up to it as an instrument of hope,” Cynthia Houniuhi, a student from the Solomon Islands, later recalled. But that hope was already beginning to fade. The agreement took more than 20 years of negotiation, its commitments were voluntary and studies suggested that even if they were fully met, which was looking unlikely, they would be insufficient to keep warming below the agreed-upon limit. Already, the United States, the world’s largest historical polluter, had, under the first Trump administration, withdrawn from the treaty entirely.
Makasini remembers reading through all the laws and treaties and thinking: “They’re all beautifully laid out, with all these beautiful commitments and obligations that the states should commit to. But it’s like everything was coming to a standstill. Those treaties just exist, and there’s nothing to get those states or companies that are doing a lot of environmental harm to be accountable for their actions.”
Rose kept thinking about the strange fact that the youth climate movement, with a famous face in Greta Thunberg, was getting more attention than ever even as the political ambition to tackle climate change seemed to be faltering. He decided that it might be a useful teaching tool to ask his students, the voices of future generations in a region widely understood to be on the front lines of climate change, to approach their leaders with a suggestion about how to pressure the wider world into tackling the problem. It was unlikely to go anywhere, he thought, but the students would learn by researching and debating which levers might be most effective. There was a meeting of the Pacific Islands Forum that August that they could target, for a start. It was worth a try, Rose decided. “After all, everything in climate is a moonshot.”
In mid-March, Rose sent a note labeled “optional extracurricular activity” to the class’s message board, offering his and Wewerinke-Singh’s help in drafting an open letter, based on a goal of the students’ choosing. The replies came quickly.
“Talking time is over,” Muliaina responded. “It’s time to do something.”
It wasn’t immediately clear what the students should suggest. There was the idea, circulating in academic circles and among civil-society groups, of getting the International Criminal Court to recognize ecocide, the willful destruction of nature, as a crime. Perhaps the Pacific nations could pressure the International Tribunal for the Law of the Sea to classify fossil-fuel emissions as a pollutant that affected the ocean, and thus something that parties to that treaty had an obligation to reduce. Or perhaps one of the Pacific Island nations could file a lawsuit in the International Court of Justice, the branch of the United Nations that adjudicates disputes among countries, against the nations emitting the bulk of the pollution harming their land, seas and people. Solomon Yeo, a student from the Solomon Islands, knew that was tricky. The class was learning that international courts had never really clarified how climate change should be treated under international law — not even which laws would apply. “How can you litigate,” Yeo asked, “when you’re not 100 percent sure about the law?”
In 2011, two Pacific Island states, Palau and the Marshall Islands, tried to seek that clarity from the I.C.J. Though it’s best known for settling contentious cases that countries bring before it, the court also issues advisory opinions — official pronouncements detailing how the court believes specific legal questions should be answered — when requested to by the General Assembly or Security Council. The two nations wanted to ask the court whether the world’s countries have a legal responsibility to ensure that their greenhouse-gas emissions don’t harm other nations. Specifically, they wondered whether the “no harm” rule, which holds that states are duty-bound to keep their activities from causing environmental damage beyond their borders, applied when it came to climate change. But the effort fizzled in the face of opposition from the United States and other countries. By the time the class was meeting in 2019, the idea of getting an advisory opinion on climate change from the I.C.J. “was seen as just too out there, too ambitious, like something that couldn’t be done,” says Ralph Regenvanu, who was then Vanuatu’s foreign-affairs minister and is now its climate minister.
Still, the students in Rose’s class were intrigued. As part of their legal education, many were studying not just environmental law but also the laws that govern human rights. The two are generally treated as separate bodies of law, but to the students that distinction made little sense. Many of the rights enshrined in international treaties — the right not to be arbitrarily deprived of property, for example, or the right to sovereignty or to an adequate standard of living — were the very ones their communities were in danger of losing. “For us, it was quite clear that climate change does impact our basic human rights,” Madeleine Lavemai, a student from Tonga, says. If they asked the I.C.J. for an opinion that took human rights treaties and the I.C.J.’s own previous opinions into account, the results could be groundbreaking.
“We were just merging everything we were learning,” Makasini remembered later. It seemed fairly obvious: If all these laws already existed, shouldn’t they also apply to the huge problem that was climate change?
The I.C.J. was also an appealing venue, Yeo recalls, because theoretically at least, the path to get there was as open to small countries like theirs as it was to the world’s most powerful nations. “Learning about the international process, especially the U.N., you come to understand that, you know, the United States has one vote, not two, not three — one vote. Same as Solomon Islands, same as Fiji, same as Vanuatu.” And he knew there must be many countries, beyond the Pacific, that were also feeling the effects of climate change and looking for accountability. What if they could get them all onboard? Earlier in his legal education, Yeo became obsessed with a previous attempt to reach the I.C.J., in the 1990s. Then, the question was whether the use of nuclear weapons was permissible under international law. (The court eventually answered that it generally wasn’t but didn’t rule out self-defense in extreme cases.) That, too, had been a long-shot attempt, initiated by Pacific Islanders armed only with fax machines, but Yeo had noticed the language of that opinion making its way into new documents and policies — and even an international treaty. Motarilavoa Hilda Lini, a tribal chief who served as Vanuatu’s minister of health and championed the case, became one of his personal heroes.
And finally, the politics of climate change had shifted radically since 2011. Climate-driven disasters were becoming bigger and more deadly, displacing millions around the world and transforming how the public understood the urgency of the threat. The scientific consensus on the mechanisms and dangers of climate change had advanced considerably, as had the science necessary to attribute specific harms to specific emissions. It was looking increasingly likely, as Tim Stephens, a professor at the University of Sydney Law School, wrote in 2019, that the I.C.J. would be called in anyway when states started suing one another over failure to comply with climate treaties. And then there was the growing international frustration with the limitations of international climate negotiations, which were dominated by large emitters.
Rose consulted with friends who were experts in international law, some of them the same people who previously cautioned against going to the I.C.J. “They were now saying, ‘Well, you know, this spaceship is about to crash,’” Rose remembers. “Time to pull all the levers we haven’t pulled yet.”
The students wrote a letter and a brief to the leaders of the nations in the Pacific Islands Forum. “We look to an intervention by the I.C.J.,” they wrote, “to endorse at the highest level our fundamental moral and legal rights; to live with dignity without fear of climate change denying us and our children of that freedom.” It wasn’t easy, especially given the end-of-semester stress, to gather everyone’s signatures in person. Muliaina, who was traveling to the Tonga campus for lectures, tracked down the students there, sometimes sneaking into the rooms where they were taking exams. In the end, they attached two pages of signatures from 27 students.
It felt a little silly, Lavemai remembers: “At the time, we didn’t think the adults would take the youth, or young people, seriously.” Makasini looked down at the page and laughed a little to herself. “These little names! I didn’t think anyone’s going to care who we are and what our names are.”
While the students were working on the letter, Rose added a video to the class’s online platform. It showed a presentation Regenvanu made to the Climate Vulnerable Forum, an association of 74 countries, home to 1.4 billion people, that work together to push for climate action. “The climate loss and damages ravaging Vanuatu will not go unchallenged,” he said. “My government is now exploring all avenues to utilize the judicial system in various jurisdictions, including under international law, to shift the costs of climate protection back onto the fossil-fuel companies, the financial institutions and the governments that actively and knowingly created this existential threat to my country.” The students knew that they needed to find a country to lead the process of making a request to the U.N. Vanuatu had been at the forefront of advocating for climate justice ever since it helped form the Alliance of Small Island States in 1990 and began lobbying for industrialized nations to help pay for the “loss and damage” vulnerable countries faced in a changing climate. They asked to set up a meeting.
Regenvanu remembers the students’ nervousness as well as their passion. They stressed that they had considered a number of options but were strongly in favor of approaching the I.C.J. Though still skeptical, Regenvanu didn’t think it was his role to say no to these hopeful students. “I said: ‘Look, let’s try. Let’s put it on the agenda and see if we get the support.’”
When the Pacific Islands Forum, at its August meeting, noted the proposal but failed to endorse it, the students dug into advocacy. They had already formed an organization, with Yeo as president and Lavemai as vice president — a promise to themselves to keep pushing no matter the outcome. They called it Pacific Island Students Fighting Climate Change and adopted a slogan: “We are taking the world’s biggest problem to the world’s highest court!” Vishal Prasad, a U.S.P. student who joined the organization in the first few months and later became its campaign director, saw a family home in Fiji destroyed in 2016 by Cyclone Winston, then the most destructive tropical cyclone to hit the southern Pacific. “The goal was immense,” he said later. “But the plan that we developed was one that seemed possible, because we had broken down the whole journey, the whole mountain that we had to climb, into bite-size steps that needed to be taken.” Belyndar Rikimani, a Solomon Islander who originally applied to law school so she could help her family with land disputes, joined the campaign shortly after arriving at the U.S.P. Vanuatu campus in the fall of 2019. She remembers the work being a strange but exciting mix: sometimes it meant making tuna or egg sandwiches for events, sometimes moderating panels of visiting experts.
A big part of the strategy was casting an advisory opinion not as something legal and wonky, but as a basic question that affected everyone. If the I.C.J. ruled that all of international law had bearing, not just the narrow agreements set out in Paris, then climate change wouldn’t be about some esoteric negotiations by bigwigs a world away but about the simple right to keep living in your own home.
The group reached out to prominent legal experts to add to what eventually became a long list of endorsers. They made music videos, collaborated with artists and enlisted civil-society groups, small and regional as well as large and international, as supporters. By December, Rikimani and Yeo were lobbying Pacific Island leaders at the international climate talks in Madrid. There, they also met youth campaigners from other countries, who started another organization, World’s Youth for Climate Justice, to push the idea to their own leaders. They knew that getting an advisory opinion would require a majority vote of the General Assembly. For that, they would need support from dozens of countries, reaching far beyond the Pacific.
For a long time, Yeo says, this felt next to impossible. The Covid pandemic pushed most organizing online. It was hard to get new country delegations onboard. At international climate negotiations, he watched grand public talk about international responsibility come to nothing. “If I had a penny for every time I’ve been talked down to, ridiculed, ignored and sidelined,” Yeo says. “Just a few people managed to keep this thing alive.” He moved to New York for two years, working with the Vanuatu delegation at the U.N.
Eventually, things began to shift. In March 2022, CARICOM, an alliance of Caribbean nations, announced that it supported Vanuatu. In June, the Organization of African, Caribbean and Pacific States, a bloc of 79 countries, signed on. And in July, three years after the students’ first attempt, the Pacific Islands Forum announced its support. By then, some of the students involved in the campaign had finished law school and gotten jobs in the very governments they were trying to persuade to go to the I.C.J.
Vanuatu convened a core group of 18 countries, with representatives from regions around the world, to shepherd the resolution through the General Assembly and carefully frame the specific legal questions. Finally, in March 2023, four years after Rose proposed his extracurricular assignment, the General Assembly took its vote. Yeo, who usually sat with the Vanuatuan delegation, got permission to sit this time with his home country, the Solomon Islands. (He also shook hands with Tuvalu’s ambassador to the U.N., the father of one of the other 26 signatories.) By then there were 134 cosponsors, and the resolution passed, not with the split vote that Yeo had expected but by consensus.
In the resolution, the nations of the world asked the court to weigh in on two simple questions. Under international law, what obligations did countries have to protect the climate system from being harmed by greenhouse gases? And if countries, either by their actions or by failing to act, did not protect the stability of the climate and caused harm to other states and to future generations, what should the legal consequences be?
Last December, Cynthia Houniuhi, wearing a blue blazer and a beaded headband with a striking pink fringe, stood at a lectern in an oak-wood-paneled room, facing a large wall of stained-glass windows and a row of 15 judges in black robes.
“My people understand the continuous duty of past and present generations to protect the environment for the future generations: Kiramo,” she said. “This duty — Arata ni Noni O’oanaha — is our understanding of the legal principle of intergenerational equity. Climate change is undermining our ability to uphold this sacred contract.”
It was the first day of oral arguments in what one lawyer later described to me as “literally the largest legal proceedings ever in human history.” Over the next two weeks, representatives from 96 countries and 11 international organizations would make statements inside the Great Hall of Justice, the courtroom in The Hague where the I.C.J. presides. (A similar number also sent written statements.) Speakers included prime ministers and ambassadors, lawyers and government ministers. But some of the first words went to Houniuhi, in recognition of the role she and the other students had played. Prasad spoke later in the hearings, and Lavemai was in attendance as well — as a lawyer in the office of Tonga’s attorney general, she had worked on her nation’s submission to the court.
On the second day of hearings, the representative for the United States, Margaret L. Taylor, took the lectern. She argued that the I.C.J. didn’t need to look at human rights treaties or the no-harm rule or any other law to understand what countries owe to one another when it comes to climate change, because the voluntary reductions promised under the Paris Agreement offered “the best hope for protecting the climate system for the benefit of present and future generations.” (A little more than six weeks later, Donald Trump took office and once again withdrew the United States from the treaty.)
And so it went. Australia, Britain, Russia, Saudi Arabia, Kuwait, China and others joined the United States in arguing that the Paris Agreement was the only law that mattered. Many other countries followed Vanuatu’s original argument, citing human rights law and past decisions on transboundary harm: Greenhouse gases were no different than, say, the sulfur dioxide at the heart of a 1930s dispute between the United States and Canada over a lead-and-zinc smelter near the border. “Harmful gases are harmful gases whether or not they are visible to the naked eye,” argued Kiribati’s representative, the law professor Eyal Benvenisti, now at Yale. “If the atmosphere belongs to none, no state may appropriate parts of it at will.”
If customary international law applied, the nations committing harm were responsible for stopping the wrongdoing, guaranteeing it wouldn’t be repeated and making restitution. Countries laid out what these actions might look like in practice: ending fossil-fuel subsidies, canceling debt, paying for loss and damage, sharing clean tech, restoring ecosystems, continuing to recognize the statehood of island nations whose territory will be lost to sea-level rise.
On July 23 of this year, the court reconvened in the Great Hall of Justice to announce its opinion. The crowd came to its feet as the judges, wearing lacy white cravats and sweeping black robes, filed in one by one and took their places at a long table. The room was quiet as Judge Yuji Iwasawa read aloud from the opinion, which ran to more than 130 pages and was rich in legalese. When it became clear that the court was taking into account human rights and customary international law, Houniuhi, in the audience, began to cry.
In its ruling, the I.C.J. found, just as the students had hoped, that the full gamut of international law applies to climate change. This means that countries have a duty to prevent the environmental harm caused by emitting greenhouse gases, and that those that harm others with their emissions can be held legally accountable for their actions — even if, like the United States, they are not party to climate treaties. Climate commitments made during international negotiations are binding, and so are obligations under broader international law. Unusually for the court, its decision was unanimous.
The I.C.J.’s advisory opinions, unlike its judgments, aren’t binding; they simply express how the court believes existing law should be interpreted. In a world where many of the world’s polluters already fail to fulfill the climate commitments they’ve made, could the court ruling make a significant difference?
Legal experts describe the potential impact in various ways. Some frame the decision as possibly incremental — not transformative, but another piece of legal infrastructure on which to build arguments and agreements going forward. Vicente Paolo Yu, a longtime climate negotiator who has represented the G77, a bloc of 134 developing nations, told me that 20 years of international climate work taught him that change is often less like a lightbulb turning on and more like the slow emergence of a field of fireflies. Others argue that the court’s ruling carries greater weight than it might seem, because its power lies in the respect it commands from courts around the world. Maria Antonia Tigre, who tracks global climate-related lawsuits for Columbia University’s Sabin Center for Climate Change Law, points out that there are already more than 3,000 such lawsuits working their way through courts around the world. These seek, for example, to hold fossil-fuel companies financially responsible for the costs of responding to the changing climate or to protect the rights of various groups, like children, that face harm from those changes. The courts hearing those arguments are likely to look to the I.C.J. opinion in making their own, binding decisions.
Joie Chowdhury, a senior lawyer at the Center for International Environmental Law, told me that past advisory opinions have had concrete and even rapid real-world effects, and that their influence can, in some ways, be broader than in rulings on disputes. “It is not just one set of facts affecting a few different countries,” she says. “This is interpretation of the law that can be taken forward in domestic courts, that can be taken forward in climate negotiations, that can be taken forward in policies and laws in ways that isn’t always as easy if it is a one-off precedent in a contentious case.”
And the ruling wouldn’t stand alone. Last year, the International Tribunal for the Law of the Sea issued its own advisory opinion, the same one the U.S.P. students considered asking for in 2019: that signatory states have a legal duty to prevent greenhouse-gas pollution from harming the oceans. Then, in July of this year, the Inter-American Court of Human Rights issued an opinion that, in order to uphold their obligations under its founding treaty, countries must protect the climate system on which human rights depend. A petition for a similar opinion is currently before the African Court on Human and Peoples’ Rights. We were, I kept hearing, at a turning point.
When the I.C.J.’s ruling was announced, Yeo was in the Solomon Islands. His phone lit up with messages from other students: “It was worth it.” One text said “thank you” in Tongan; another was just the word “Solomon” with a long string of Ns. When we spoke the next day, Yeo had not slept. I asked him if he had ever worried about the alternate outcome: one in which the court gave a narrow ruling that restricted, rather than expanded, the possibilities for countries like his.
No, he told me. The law had always seemed so clear. “You do not ask a question to the I.C.J. that you do not already know the answer to.”
Read by Kirsten Potter
Narration produced by Tanya Pérez
Engineered by Jeremy McLennan
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