Vanuatu takes the stage—Part One

"Why the climate opinion by the World Court is such a Big Deal" 

Last Wednesday, the International Court of Justice (ICJ or World Court ) did not mince words. As I skimmed its advisory opinion on The Obligations of States in respect of Climate Change, I was so enthralled I pulled up the full video recording from the Peace Palace in The Hague on UN-TV and sat for two hours and eleven minutes as Chief Judge Iwasawa Yuji read the Court’s earthshaking decision.

A State does not incur responsibility simply because the desired result is not achieved; rather, responsibility is incurred if the State fails to take all measures which were within its power to prevent the significant harm. In this connection, the notion of due diligence, which calls for an assessment in concreto, is the relevant standard for determining compliance. Thus, a State that does not exercise due diligence in the performance of its primary obligation to prevent significant harm to the environment, including to the climate system, commits an internationally wrongful act entailing its responsibility.

 

This one decision changes the scope and reach of law and justice at a scale comparable to the Code of Hammurabi (1754 BCE); the Athenian notion of citizenship (early 6th century BCE); Corpus Juris Civilis (529 CE); or the Assize of Clarendon establishing trial by jury (1166). Indeed, the international 15-judge panel, in a unanimous decision, references similar milestones—the Charter of the United Nations; the Statute of the International Court of Justice; the Universal Declaration of Human Rights; the Convention on Biological Diversity; the International Covenant on Economic, Social and Cultural Rights; the Law of the Sea; and the list goes on. This decision is the One Ring to bind them all.

In the packed courtroom, thousands of kilometres from home, tension hung in the air. For Houniuhi – one of the original 27 Pacific law students who sparked the global legal campaign that led to the ruling – the moment was overwhelming.

As the judges began to speak, she became teary. Years of hard work and late nights had come down to this.

“I was literally hanging on to each and every word the judge was saying. I was anticipating, waiting for the things I hoped to hear. The more I listened, the more emotional I became,” Houniuhi said.

“When the judges stated that states’ obligations are not limited to the Paris Agreement or the climate regime but also extend to environmental law, human rights law and international customary law, I cried right there in the courtroom.”

The ICJ’s advisory opinion for the first time gives the Pacific and all vulnerable communities a legal mechanism to hold states accountable and to demand the climate action long overdue.

— The Guardian

The highest court in the world

The World Court—the highest court in the world—only hears arguments by nations (“states” in UN parlance), not individuals, so the group of law students from many Pacific Islands who petitioned the UN in 2019 to hear their claim were represented by the tiny island of Vanuatu, about three hours’ flight from Australia.

Australia is a good practical example. It will be one of the first nations to feel the sting of the landmark ruling. In 2022, eight teenagers and an octogenarian nun sought an injunction to prevent then Environment Minister Sussan Ley from approving the expansion of a coal mine, arguing she had a duty of care to protect younger people against future harm from climate change. They won! But an Australian federal appeals court then overruled the decision. If last week’s Hague decision lives up to its promise, that coal mine will now close.

The decision will directly bear on more than 3000 current cases in local courts around the world.

The opinion hit several arteries in the fossil fuel circulatory system:

• The judges found that all states have the obligation to limit global warming to 1.5 degrees Celsius above preindustrial times. Nationally Determined Goals set below this are unlawful.

• The court allowed that countries could sue each other for damages from historical emissions, but only back to the 1980s, when the first international laws governing cross-border pollution began. Nonetheless, guilty parties are responsible for cumulative damage to the atmosphere.

• “While climate change is caused by cumulative greenhouse gas emissions, it is scientifically possible to determine each state’s total contribution to global emissions,” the court said.

• Failure to protect the climate system, including through production, consumption, or subsidies for fossil fuels, amounts to “wrongful acts,” and governments can be held responsible for both national action or inaction and harm caused by corporations or other actors they regulate.

• States do not lose statehood or UN membership if displaced by climate or sea level rise.

• Climate migrants cannot be turned back. “Noting with profound alarm that emissions of greenhouse gases continue to rise despite the fact that all countries, in particular developing countries, are vulnerable to the adverse effects of climate change and that those that are particularly vulnerable to the adverse effects of climate change and have significant capacity constraints,” all states are required to admit refugees by treaty obligations.

The Court considers that conditions resulting from climate change which are likely to endanger the lives of individuals may lead them to seek safety in another country or prevent them from returning to their own. In the view of the Court, States have obligations under the principle of non-refoulement where there are substantial grounds for believing that there is a real risk of irreparable harm to the right to life in breach of Article 6 of the ICCPR if individuals are returned to their country of origin.

— Unanimous Opinion

If you come here, you will be returned… we have returned thousands.
— British Prime Minister Keir Starmer, July 28, 2025

The World Court has issued 29 advisory opinions in its 80-year history, and only four others were unanimous. Still, not all of the judges, although they signed unanimously, felt the decision went far enough. Eleven wrote concurring opinions.

I will excerpt those next week because I think they deserve their own showcase.

New York City Wells Fargo protesters. Anadolu/Getty Images

Fargo: the bank

The day following the order, dozens of protesters stormed the lobbies of Wells Fargo’s corporate offices in San Francisco and New York, disrupting employees by blocking the entrances and calling out what they describe as the bank’s complicity in the climate crisis.
 

Wells Fargo, currently ranked 33rd in the Fortune 500 list, became the first major bank to abandon its climate commitments – just weeks after the president signed a slew of executive orders to boost fossil fuels and derail climate action. The US bank is among the biggest financiers of planet-warming oil and gas companies, with $39bn in fossil fuel investments in 2024 – a 30% rise on the previous year.

—The Guardian

So I had a plan that I called 333. And the idea was … to create 3 million more barrels of energy equivalent—so oil and gas—before President Trump leaves office, and look, we're full speed ahead.
— Treasury Secretary Scott Bessant, 
The All-In Hill & Valley Forum, July 23, 2025

Since 2021 – the year that the International Energy Agency warned the world that there could be no more fossil fuel expansion – the bank’s investments in fossil fuels have topped $143 billion. Bending the knee to the US felon in chief, Wells Fargo also abandoned its diversity, equity, and inclusion (DEI) goals.

Protesters outside San Francisco Wells Fargo. Bay City News

Kyoto not forgotten

A key benchmark for compliance with international climate targets is the Kyoto Protocol. Negotiated by Vice President Al Gore in 1997, the KP was never forwarded by Bill Clinton to the Senate for ratification, deeming it DOA. Under the first commitment period (2008–2012), the United States agreed in Kyoto to a reduction target of 7% below 1990 levels (93%) for its greenhouse gas emissions averaged over the five years. This target covered the six main greenhouse gases and was part of a legally binding commitment among the 192 countries that ratified the Protocol.

Under the second commitment period (2013–2020), countries that participated committed to reducing their greenhouse gas (GHG) emissions by at least 18% below 1990 levels over these eight years. However, the United States did not participate in the second commitment period, as it had already withdrawn from the Protocol in 2001 and never ratified either the original Protocol or its Doha Amendment. Therefore, the 18% reduction target over 1990 emissions applied to participating developed countries but not to the USA, until this recent ICJ ruling.

Surprisingly, the USA hit its assigned target in the first year of the Covid pandemic. But no worries! It is back closer to its 1990 emissions now.

Cowboys and Contras

It is important to note that the United States does not recognize the jurisdiction of the International Court of Justice over US citizens or corporate citizens like Wells Fargo. On the one hand, the United States uses the international law system against other countries and has been and remains an active participant in cases before the Court, appearing more than any other state, even in recent years.

On the other hand, the United States has never been willing to submit itself to the plenary authority of the Court, and has typically reacted negatively to decisions by the Court that are adverse to it. After being outed for attempting a “regime change” on the elected government of Nicaragua with arms supplied by Iran in exchange for hostages in Lebanon (Iran-Contra—several dozen administration officials were indicted, including the Secretary of Defense), Ronald Reagan withdrew from the ICJ’s compulsory jurisdiction in 1986. Reagan often played the white hat cowboy in films, including a cavalry officer (he really was one before becoming an actor), but for the USA he went down to Wardrobe and chose the black outlaw hat. 

Trump has preferred the villain role all along. In his first term, he imposed sanctions on the International Criminal Court (ICC) officials individually. The Biden administration later rescinded those, but any relief at the ATM in Amsterdam was short-lived.

• In February 2025, President Trump signed an executive order placing asset freezes and visa restrictions on ICC staff and anyone assisting in investigations against the US or its allies.

• In June 2025, the US government sanctioned four ICC judges: Solomy Balungi Bossa (Uganda), Luz del Carmen Ibáñez Carranza (Peru), Reine Adelaide Sophie Alapini Gansou (Benin), and Beti Hohler (Slovenia).

• These judges were targeted for their involvement in a 2020 decision authorizing an investigation into alleged US war crimes in Afghanistan and in the issuance of arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defence Minister Yoav Gallant on the charge of genocide.

• The sanctions include freezing of property and assets in the US and prohibiting US persons from engaging in financial transactions with them.

• Secretary of State Marco Rubio, in announcing the sanctions against the judges, asserted that the ICC is politicized and oversteps its authority by investigating US and Israeli nationals.

Bullies, gang bosses, protection racketeers, and tinpot dictators beware. These jurists are not easily intimidated.

Wells Fargo is about to be beset by the youth of Vanuatu. Shareholders and Wall Street watchers should not underestimate the bank’s financial exposure.

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#RestorationGeneration.

When humans are locked in a cage, the Earth continues to be beautiful. Therefore, the lesson for us is that human beings are not necessary. The air, soil, sky and water are still beautiful without you. So, when you step out of the cage, please remember that you are guests of the Earth, not its hosts.

We have a complete solution. We can restore whales to the ocean and bison to the plains. We can recover all the tremendous old-growth forests. We possess the knowledge and tools to rebuild savannah and wetland ecosystems. Coral reefs rebuilt with biorock build beaches faster than the seas are rising. It is not too late. All of these great works of nature are recoverable. We can have a human population sized to harmonize, not destabilize. We can have an atmosphere that heats and cools just the right amount, is easy on our lungs and sweet to our nostrils with the scent of ten thousand flowers. All of that beckons. All of that is within reach.

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