Consider This: ICJ Climate Ruling — Holding Nations to Account

[00:00:00][Music] [Music] Hello and good evening. I'm Melissa Idris. Welcome to Consider This. This is the show where we want you to consider and then reconsider what you know of the news of the day. In a landmark opinion, the International Court of Justice has declared that all countries have a legal obligation to protect people and the planet from climate harm. The court, this is a call that could reshape how nations act and how they're held to account. But for Malaysia and for Azan, will this be the moment where decision makers are finally held accountable and liable for the climate damage their policies cause? Joining me on the show to discuss this weather, I have Niti Nisaduray who is director regional coordinator of Climate Action Network Southeast Asia. He's also the president of the NGO Environmental Protection Society Malaysia. I also have with me in the studio Raza Zakaria who's a senior lecturer at University Malaya's faculty of law. He's also the deputy head of maritime law governance and policy at M's Institute of Ocean Earth Sciences.

[00:01:25]Welcome to the show both of you. Thank you so much for joining me.

[00:01:28]>> Pleasure. Thank you.

[00:01:29]>> This is a big deal that's happened in um in the climate justice movement. I if I may begin with you Niki um talk us through this this the importance of this moment and maybe the proc you can describe the process which led to this landmark decision.

[00:01:47]>> Sure. The first thing to note is this is a historical legal breakthrough and especially you know um at the ruling at the international level. So this is international law uh has been u um decided on very clear terms. Of course u it's also important to go back to what led to this decision and you know being here with Rzza who's a senior lecturer in the law faculty. It started with an assignment being given to law students at the University of South Pacific in Wanuatu. So the professor Justin Rose told his students you know what the problem is with climate change especially with Wanuatu facing an existential threat you know uh of survival says how would you fix the climate change problem and so it was an assignment given up to the law students who then came up with the suggestion that we take this to the international court of justice for an advisory opinion and I think he was so impressed that he told the students to proceed and they took it to the then minister of foreign affairs and said this is what we want to do and I think they were so impressed the government did the due diligence and said we're going to proceed with this we're going to take it to the United Nations General Assembly which is the first step and told the students you go ahead and you also launch a campaign to get this adopted the United Nations General Assembly.

[00:03:25]>> Yeah. All this was uh in by mid 2022 >> and that's when climate action network which we are part of and can Southeast Asia also got involved in the process towards raising awareness you know and mobilizing our respective governments to support the decision at the United Nations General Assembly. So we then you know and it became an agenda item when we had the climate action network Southeast Asia regional meeting in August 2022. It was an agenda item and all our members from all the different countries in Southeast Asia said go out raise awareness get our governments to support it. Most importantly it was also to find out is there any possibility that any of our governments will object to it. M >> so you know then there was the campaign to get it adopted and then >> when it went to the United Nations General Assembly >> it was adopted unanimously with no objections >> and that was phenomenal and then so then the United Nations General Assembly UNGA said okay now we forward it >> to the international court of justice so the campaign then rolled on that there's a very active group called the world youth for climate justice >> and they Then you know then we started getting okay countries need to submit you know submit briefs to support the statement international organizations contribute briefs and then all this happened and then they got the biggest ever uh response the international court of justice in terms of contributions in terms of petitions from both states as well as international organizations and then for only the fifth time in its history a unanimous decision was adopted ed saying that states are obligated to protect the climate system and the environment. So it was historic and what this really what I really salute is the power of the youth.

[00:05:22]>> Yeah.

[00:05:23]>> Phenomenal effort you know they mobilize the whole world salute the youth of Wuatu and around the world. still gives me goosebumps just thinking about how it started from a classroom, from a an assignment and you know this is young people really advocating for their future. Rissa, talk to me a little bit about this. What what um do you think are the most kind of powerful signals this ruling sends? But what excites you particularly about this advisory opinion?

[00:05:50]>> I mean the aspects about this advisory opinion sadly is actually just an opinion.

[00:05:57]>> Okay. by the highest uh court um in the entire um judiciary. But in the aspect of having a bit of a hope in terms of for young people in the future or maybe right now, I would say this is a better avenue for us to actually prepare ourself what is coming forward. But looking a bit close to home which is in Malaysia I would say it's still a bit far ahead as um parliament Malaysian parliament requires a bit of a reshape in terms of the law. The law is somehow most of the laws that we have are outdated. uh I give you just one example the environmental qualities act which is some of it has been amended but not very entirely on climate change as what niti has mentioned one of the principle here it's about um the I mean the students uh doing this as a coursework or doing as an assignment is to actually combat climate change and one of the principles that given by the advisory opinion is to make every member states legally uh bound to this particular climate issues. But in Malaysia, we need to have local laws, local laws that actually speak with regards to climate change. We have certain laws that renewable energy but doesn't really touch on climate change or perhaps touches on any uh bofusel in terms of uh forestry as well is not well protected. So we need to have local laws that is updated that is actually provide the avenues for climate change to provide the protection and as well as legal obligation by the stakeholders especially companies.

[00:07:53]>> Okay. So so just let me stop you there and get you to clarify. So when you said that this is an advisory opinion by the ICJ it means that it's not legally binding. It's not enforceable. Right.

[00:08:04]Okay. Um do you think this will then remain largely symbolic um or will there be material repercussions in terms of international accountability?

[00:08:20]Um both of you actually rais what did you think of that?

[00:08:22]>> I mean coming back to Malaysia perspective especially right now we are the chair for ASEAN. I mean having this advisory opinion at large is a actually a very good like like what it's a landmark niti mentioned the landmark decision but I think one of the message that we need to get across is that what is our stand as Malaysia in Assean chair what we actually stand in the global view in terms of how we actually combat climate change um take into account Paris agreement for example we need to show how Malaysia actually take center stage in providing how climate change is a serious implication to our world not just our country but our assean and globally >> so I think it's a it's a message that we actually send across even though there's no legal binding >> the signal >> the signals the message yeah >> okay ni what do you think >> yeah actually it's a ruling of the highest court in the world it's the gold standard and it really is a very comprehensive uh legal decision. You know, it's an advisory opinion yet it's so comprehensive and while it may not be legally bound uh binding, it actually sharpens the legal tools to hold actors accountable including governments and corporations.

[00:09:50]>> So, so this isn't just for governments.

[00:09:52]Does it extend to private entities as well? So fossil fuel companies and corporate uh polluters.

[00:10:01]>> Absolutely. Uh it spells out uh fossil fuel companies specifically and it says that governments have a responsibility to control greenhouse gas emissions. And of course the biggest contributor of greenhouse gas emissions uh greenhouse gas emissions are the fossil fuel companies. And it even goes on to spell out that you know in terms of regulating the production, >> the provision of licenses >> uh the use as as well as subsidies.

[00:10:35]>> Oh, >> subsidies as well. So it says and so the governments have that responsibility and then they also governments which regulate the corporate world have to ensure that the corporate players also stay also control are also regulated to reduce greenhouse gas emissions. So it's a very farreaching uh opinion.

[00:10:57]>> Okay. I want to unpack this all the things that you've just said. Um and looking at what state responsibility could look like legally, morally, politically, right? Um, when you think about the challenges that the Malaysian government might have in terms of abiding by this advisory opinion by the ICJ, um, could the government then be held accountable and how would they be held accountable for expanding fossil fuel projects like you said for giving subsidies for run 95 or ensuring that the the prices remain uh artificially uh repressed? Um, and in terms of historical admitters, does that cover does the ruling cover that is the the state's responsibility for that? And who is held accountable? When we talk about the state, is it the politician who's made that decision um to give subsidies or to sign the license of this new project? Or is it the body, the government of Malaysia? I I don't know quite the legal terms of how to say that. But Raza, what do you think of the government's um challenges in abiding by this?

[00:12:09]>> So one of the advisory opinion that they mentioned about this is international law. So that any countries any member states that abide to international law now and international law um is actually a climate change um legal obligation under international law. So I just pick one particular area of law which is the United Nation convention of law of the sea enclaus which we are a signitories of this enclaus. So in that aspects um whatever that has to do with climate change now is parked under an clause. So we are now bound to one of the articles under an clause. So in the aspects this advisory opinion has stretched the whole international law not just on the area of climate change but of law of the sea of the uh climate change convention. So in that sense international law now any particular avenues can be stretched. So this advisory opinion is a whole stretch to the whole area of international law and mind you human rights as well.

[00:13:18]>> Wow.

[00:13:18]>> So this is a human rights issue where it was mentioned by the uh international court of justice president um he said that I quote the full enjoyment of human rights cannot be insured without the protection of climate system. So here is a human rights issue. So speaking of like indigenous people speaking about youth. So these are the people that we need to protect >> and we have a lot of indigenous people in our areas in ASA in Malaysia.

[00:13:47]>> So we need to protect them.

[00:13:49]>> But you did say that some of the laws in Malaysia are outdated, right? That cannot apply to this. So is this a question of bringing our kind of archaic laws up to speed to be aligned with this new ruling?

[00:14:02]>> Yeah. Yeah. I I would say that we have climate change bill drafted. That's right.

[00:14:08]>> A few years ago in that aspect we need to put that in table. We need to table this in parliament. I think this is a good time for us to actually demonstrate that we are taking this seriously rather than just putting it under the table.

[00:14:22]>> Do you think the climate change bill which is still being drafted will take into account this landmark ruling because it's come just at the kind of nick of time while this bill is being drafted. Right. Oh, absolutely it should. And we've been involved in the process of, you know, um providing inputs for the climate change bill and for which there's been very little information of what's we were just given an outline.

[00:14:46]>> Beyond that, we really don't know what's in the bill.

[00:14:48]>> No one's seen the drop.

[00:14:49]>> No one's seen it. And we were told that it was going to be presented in this sitting of parliament.

[00:14:54]>> Uh so I don't know whether that's going to happen yet. This is a golden opportunity. It's a golden opportunity for the government to to incorporate all that is there in the advisory opinion into the climate change bill and two aspects of it you know the right to an environment uh right to a healthy environment as a binding norm towards the enjoyment of all the other human rights and um equity you ask a very good question how does it affect because it's not a fair world you have the developed countries which have benefited have taken more than a fair share of the carbon budget and this advisory opinion also addresses that and it says that NX1 countries which are the developed countries uh in under the United Nations framework convention on climate change have to take the lead in addressing climate change. So even when we talk about the phase out of fossil fuels, why we have to be aware that even Malaysia, you know, as a oil and gas producing country that the writing is on the wall and that we have to start phasing out production.

[00:15:59]>> It has to be done on a on a basis of fair shares and equity that is those who have benefited the most especially those in the developed countries have to take the lead. And if you look at which countries are expanding the fossil fuel production the most, all five countries are in the global north.

[00:16:19]>> So this is irresponsible because they go around saying that developing countries have to do more. You have to decarbonize and they are the ones expanding fossil fuel production the most and they will probably be the first to face legal challenges.

[00:16:32]>> Just like to add on that. I think um Niti actually brought out a very you know amazing point but I just want to add also about stakeholders by raising ESG a lot of companies actually introduce this ESG as to a social responsibility um to combat climate change but it's not enough >> like most companies I would say are the one who uh you know I don't I'm not so sure with regards to the amount of percentage but they are the contributors to this whole climate change And they use this ESG as a way for them to show that they have done something to combat climate change, but it's just in paper.

[00:17:12]>> Yeah.

[00:17:12]>> And mostly it's not been obligated by the law. It's it's it's not stated in any law to provide them the >> it's always been a kind of voluntary basis, right, with ESG. And um so now there could be real benchmarks as to maybe even legislate this into more than just being voluntary. Um I am curious to know more about the kind of the climate justice aspect of the >> for climate vulnerable nations >> versus say more historical polluters emitters. Um is that does this make a better case for compensation under loss and damage?

[00:17:50]>> It does and it's also an opportunity for developed countries to fill the fund for the fund for responding to loss and damage. So it's also very clearly spells out um for those countries which are facing an existential threat for through sea level rise together with law of the sea that's also spelled out to even before that you know that's also spelled out in the in their opinion so and it >> I think also gives the provision uh for >> uh communities that are facing existential threats uh to take action against those um parties which are doing significant harm to the climate system and the environment.

[00:18:33]>> Niti, can I just ask you because you've been involved in some of these climate negotiations um are you concerned that these types of legal frameworks um might bring about or entrench an um adversarial approach to climate diplomacy?

[00:18:54]It's I mean um >> or or is it needed? Do do we need more of this this approach or is it about talking out getting people in the room and discussing >> the the the way things are happening at the moment may may appear to be adversarial you know the global north versus the global south developed versus the developing countries. Whereas this advisory opinion is based on justice and equity and rights.

[00:19:22]>> So it's the gold standard you know it shows who's responsible who needs to do everyone needs to do their part. Some need to do their part more their part more than others. So in a way it also reaffirms the importance of the multilateral system at the moment. You know when we look at the geopolitics of the world it's very depressing. We have a genocide going on being live streamed >> and and the countries which have the ability to stop it are not doing anything >> and then people are now questioning the existence of the multilateral system.

[00:19:56]This advisory opinion has actually strengthened the need for a multilateral system because >> instead of resorting to legal actions why don't we resolve it through negotiations. So the COP 30 the 30th conference of parties of the climate change convention which is taking place in November in BM in Brazil >> provides an opportunity to set it right.

[00:20:19]>> You know we had the previous COP which didn't turn out too well. failed >> and now there's an opportunity to fix it and Malaysia also can do its part because apart from the climate change bill we also have to present our nationally determined contributions which is our climate action plan before September.

[00:20:38]>> Yeah.

[00:20:39]>> So if we can incorporate all this you know have a more ambitious >> nationally determined contributions it will show that we are already on the path towards adopting the landmark uh decisions of the advisory of clock is ticking if we have to do this before September. Um you mentioned Azan just now Raza. Can I just ask you in terms of um regional approach to this? What would what would you like to see Malaysian Aan Malaysia Aan chair but also other AEAN member states um take into account this landmark ruling?

[00:21:15]>> I would say that this ASEAN member states actually they are pulling all their strings together. Um and one of example is how you know the current prime minister Dr. Ibrahim actually had demonstrate how Malaysia can be a center of negotiations between um the Cambodia and um Thailand. But in that aspect, I think Malaysia can be a focal point for us to discuss this whole issue like what Niti mentioned that you know to have an adversarial system why not we go for negotiation process trying to help each other in terms of how to combat this whole climate change issue rather than going through the legal route. I would say find the center area where we can actually look at it in the win-win situation. how climate change because it's not something that we need to act in the future. It's actually right now.

[00:22:09]>> It's now we're seeing it.

[00:22:10]>> Yes.

[00:22:11]>> The haze, the drought, the heat waves, the floods, everything is happening today, isn't it?

[00:22:15]>> Exactly.

[00:22:16]>> So, Asean, I would say >> it's the the moment that Malaysia is the chair. So, I I say that we need to get all our people together, all the experts, all the policy makers, all the scientists, the legal aspects as well.

[00:22:32]This advisory opinion is the not I would I would say not the initiate point. It's already started like way way back then but it's a good wakeup call.

[00:22:43]>> Yes. Okay.

[00:22:44]>> And I think Malaysia has a now as the chair of ASEAN with the theme of inclusivity and sustainability >> has a role to now advance this discussion. We have the ASEAN ministers of environment meeting happening in September. We have the ASEAN ministers of energy meeting taking place in October.

[00:23:04]>> We should start taking the lead to >> to get outcomes from these two meetings which are more in line with the advisory opinion.

[00:23:14]>> Can I ask you how civil society is um approaching this? I mean this is a huge win. H how might that empower civil society organizations? What will they do with this this moment?

[00:23:26]>> Absolutely. So civil society is very energized, very motivated all over the world and you know we are thinking we're writing policy briefs, we are writing action plans.

[00:23:38]>> Uh some are even developing legal uh toolkits >> all over the world you know to and then amplifying the message you know it it came out when it came out there was a lot of news and then it seems to have dissipated subsequently. So we need to amplify, we need to keep the energy going and then we will be yeah uh engaging and working with governments and then trying you know and providing policy papers action plans on how these things can be mainstream at the national level.

[00:24:07]>> Well both of you thank you so much for shedding some important light on this. I think it you're right it should be celebrated and talked about more. This has been such a turning point for our for the fight of climate justice. Right.

[00:24:20]Thank you both for being on the show. I appreciate it.

[00:24:22]>> Thank you so much.

[00:24:23]>> That's all the time we have for you on this episode of Consider This. I'm Melissa Idris signing out for the evening. Thanks so much for watching.

[00:24:29]Good night.

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