Ideas - Fighting for Climate Justice in The Hague: Payam Akhavan

Episode Date: December 11, 2024

It's the world's most prominent climate case in history. Iranian-Canadian human rights lawyer Payam Akhavan discusses the legal arguments he made before the International Court of Justice (ICJ) on behalf of Bangladesh and small island states. The hearings seek to establish the legal obligations of states to mitigate climate change and the damage done by it — and the legal consequences for states which don’t fulfil those obligations.

Hey there, I'm Kathleen Goltar and I have a confession to make. I am a true crime fanatic. I devour books and films and most of all true crime podcasts. But sometimes I just want to know more. I want to go deeper. And that's where my podcast Crime Story comes in. Every week I go behind the scenes with the creators of the best in true crime. I chat with the host of Scamanda, Teacher's Pet, Bone Valley, the list goes on. For the insider scoop, find Crime Story in your podcast app. This is a CBC Podcast. Welcome to Ideas. I'm Nala Ayyad. 2024 is set to succeed 2023 as the hottest year on record, with an ever-worsening onslaught of catastrophic floods, wildfires, and extreme weather.

And yet, climate change has faded as a political priority in wealthy nations. It's a different story, with developing countries most at risk. The reality is that my beautiful country and its people are victims of a grave injustice. Tariq Mohamed, Bangladesh's ambassador to the Netherlands, at the International Court of Justice in The Hague. Our contributions to historic global emissions are negligible, barely half a percent. Yet, we suffer the worst impacts.

We, therefore, require climate justice now. Two weeks of hearings at the International Court of Justice are nearing a close. The hearings were spurred by Vanuatu, a low-lying island state in the Pacific that could literally be wiped off the map within decades. Vanuatu is one of the most vulnerable countries in the Pacific with the impact of climate change. We face sea level rise that causes saltwater intrusion, coastal erosion and food insecurity. Sea level rise has affected our people and it has pushed our people to move away from their homes,

from their islands, to relocate for a safer place to live. Vanuatu and its allies persuaded the United Nations to ask the court for an advisory opinion on the obligations of rich states with high greenhouse gas emissions, such as compensation to poorer countries for the damage they suffer from climate change, and the consequences that rich countries should face if they fail to reduce their emissions. It is deeply unfair that countries like Bangladesh that have contributed the least to global emissions are paying the highest price, forced to make enormous investments to adapt to the catastrophes caused by high-emitting states. Iranian-Canadian human

rights lawyer Payam Akhavan speaking to the International Court of Justice as legal counsel to Bangladesh. The hearings come on the heels of bitter disillusionment with the UN Climate Conference, COP29, held in Baku, Azerbaijan in November. Wealthy nations committed to only a fraction of the financial aid that poorer countries need to decarbonize and adapt to the ravages of climate change. Ninety-eight countries are at the hearings, from the world's richest countries and biggest oil and gas producers, including Canada, to far less powerful countries that are bearing the brunt of climate change.

You'll hear my interview with Payam Akhavan in a few minutes. But first, here is Tariq Mohamed's statement to the court. It is an honor for me to appear before you today as the agent of the People's Republic of Bangladesh. I start by expressing our solidarity with other specially affected states, including small island developing states, as our fates are linked in the face of increasingly devastating impacts of climate change. For Bangladesh, the consequences of climate change are more than existential threat. They are our lived reality. We have been ranked the seventh most climate affected country based on number of fatalities, climate events and economic losses.

Bangladesh's unique geography and low-lying delta topography have shaped its cities and towns and influenced its culture for nearly 4,000 years. But today they leave us especially vulnerable to climate hazards. Bangladesh is situated between the Himalayas to the north and the Bay of Bengal to the south. More than half of our 170 million residents live in the Ganges Delta, the world's largest river delta, which lies no more than five meters above sea level at its highest points. above sea level at its highest points. And around 29% of the population lives in coastal areas with an average elevation of less than 1.5 meters. As a result, Bangladesh and its people face unprecedented catastrophe. Almost every part of my country is vulnerable to climate change impacts, including increasing

salinity due to sea level rise, floods, cyclone and storm surges, severe weather and drought. The human impact of the climate crisis in Bangladesh is devastating. People are dying as a direct result of climate change impact such as severe storms and floods and because these impacts increase the prevalence of diseases and other health issues. Millions of people have already suffered the loss of their homes, businesses, schools, and in some cases, their entire communities. Millions more are at risk. These impacts are driving an unprecedented displacement crisis in Bangladesh.

By 2050, the number of internal climate migrants could reach almost 20 million if temperatures continue to rise. Around 2,000 people are moving to Dhaka, the capital of Bangladesh, every day, which is also susceptible to severe flooding. The financial impact of climate change reflects the scale of the human tragedy. The annual cost of climate-related disasters in Bangladesh is US dollar 3 billion a year. On top of that, it is estimated that investments of more than 400 billion are needed to meet Bangladesh's mitigation goals and adaptation needs. are needed to meet Bangladesh's mitigation goals and adaptation needs.

The reality is that my beautiful country and its people are victims of a grave injustice and fundamental inequity. Our contributions to historic global emissions are negligible, barely half a percent. Yet, we suffer the worst impacts. We, therefore, require climate justice now. We have been resilient in the face of this devastation, but we cannot address these issues alone. Climate vulnerable states require a fundamental shift in the conduct of high-emitter states who are not doing enough to address climate change or its impacts. Recent reports from the World Meteorological Organization indicate that global average temperature exceeded 1.5 degrees Celsius for March of 2024.

We have witnessed the frustration, the lack of progress, in the recently held COP 29. The new collective quantified goal of $300 billion a year in climate finance falls woefully short of the amount needed. The countries which are victims of climate change manifested their frustration by staging a walkout. Even if NDCs are implemented, global temperature is set to rise to 2.8 degrees Celsius by 2100, which is a death warrant for the Mother Earth. The court has an essential role in redressing this injustice and clarifying the obligations of all states, especially the major polluters, in the face of this global crisis. It cannot be the case that international law has nothing to say International law has nothing to say in the face of this existential threat to specifically affected states such as Bangladesh

and to the whole of humanity. Tariq Mohamed, Bangladesh's ambassador to the Netherlands, speaking at the International Court of Justice climate hearings. Payam Akhavan, acting as Bangladesh's legal counsel, told the court that climate change impinges on human rights and the rights of imperiled states to determine their own destiny. Climate change poses an immediate, if not the greatest threat to human rights. In its Resolution 56.8, the UN Human Rights Council expressed extreme concern that climate change poses an existential threat to some countries and has already had an adverse impact on the full and effective enjoyment of human rights. This places climate-vulnerable states such as Bangladesh

in an untenable position where human rights on their territory are adversely impacted by the conduct of other states. Payam Akhavan is a familiar face at the International Court of Justice. He's best known as a former UN prosecutor there. He's currently a senior fellow at Massey College in Toronto. I interviewed him following his statement to the court. So Payam Akhavan, can you talk about that moment? Just how monumental a moment was it to appear at the International Court of Justice to talk about climate justice? International law is integral to our vision of a better world, a just world based on the rule of law rather than violence, oppression, environmental destruction.

And I've been appearing before the International Court for many years now, but I think that this is the most consequential case before the court, because it really implicates the risk of catastrophic harm. And of course, the so-called COP process, the Paris Agreement of 2015, the UN Framework Convention of 1992, in the early years when people began to really take seriously the issue of global warming, all the scientific evidence recognizes that we must keep temperature rise to within 1.5 degrees Celsius to avert catastrophic harm. COP 29 in Baku was, to put it mildly, a huge disappointment, where there is absolutely no willingness to take seriously the fact that we have to phase down and out fossil fuels to prevent a dystopian future

for our children and grandchildren. On the current trajectory trajectory with the current greenhouse gas emissions, by the year 2100, which is when we were supposed to be at 1.5 degrees Celsius, and we are there now already in 2024, we will now be at possibly three degrees Celsius. And the scientists will tell you that that will have absolutely devastating consequences for the future of humankind. And for me, standing up there representing Bangladesh, as other colleagues represented other climate vulnerable states, it's really a moment of speaking truth to power. truth to power. And, you know, I have appeared before in cases dealing with crimes against humanity, genocide, fundamental human rights, and those are incredibly important. But even if you look at something as terrible as genocide, which affects this or that minority population in some corner of the world, which we could choose to ignore if we don't have empathy or conscience, we cannot ignore climate change because what's happening to Bangladesh, what's happening to the of the world, which we could choose to ignore if we don't have empathy or conscience. We cannot

ignore climate change because what's happening to Bangladesh, what's happening to the small islands that are going under the water, what's happening to them today is going to happen to all of us tomorrow because there's one climate system and it encompasses the planet and it does not recognize any of the boundaries that we have created in our imagination. Tariq Mohamed, who spoke for Bangladesh just before you at the court, called for climate justice. It's a term we hear a lot, you know, we hear a lot more these days, and it seems self-evident. But what would climate justice look like to you as a human rights lawyer working in international law? Well, the first aspect of climate justice is the prevention of harm. Stop doing what is hurting others. And there is a principle of trans-boundary harm,

a principle of transboundary harm, which basically says that a state cannot allow its activities on its territory that cause significant harm to others. So that is the principle which climate vulnerable states are applying here. First of all, climate justice is about preventing transboundary harm. And of course, first and foremost, the developed states and the states with the highest emissions of greenhouse gas are responsible for mitigating it rapidly and dramatically so that these other countries don't suffer harm, massive floods and desertification, and one could go on and on to discuss all of the harm that's being done. And if they refuse to prevent this harm, then they have to pay compensation. There is a basic, basic rule, it's called the polluter pays principle if you pollute you pay if you come and dump oil in the sea or toxic waste or whatever well you have to pay to clean it up

so what's the difference between greenhouse gas emissions as a form of pollution and other forms of pollution yes it may be somewhat different in terms of cause and effect. Greenhouse gases go high up into the stratosphere and they spread around the globe and the harm sometimes is done many years later. But if you are knowingly causing harm to others, well, you have to accept the responsibilities and the aspect of climate justice which is important is that of course the developed states have the biggest carbon footprint because they have been emitting greenhouse gas emissions from the 19th century the time of the industrial revolution and that those gases have been accumulating in the climate system. And one can say, well, no one knew in the 19th century about global warming. But by the 1960s and 70s and certainly by the 1980s, the science was very clear that the planet is heating up

and that this is going to cause harm. So the developed states have a particular responsibility because of their historical contributions to the accumulation of greenhouse gases. And currently, a lot of developing states also are having a big footprint, China in particular, which is responsible for 30% of greenhouse gas emissions, the United States for about 15%. Then you have countries like India, Russia. So there needs to be a global scheme for apportioning responsibility to determine who has to mitigate how much of their greenhouse gas emissions so that collectively we can prevent the overheating of the planet and that's simply not being done and the the biggest

victims are the states that contribute the least to the problem, like Bangladesh. One can give the example of, let's say, Caribbean island nations that are facing unprecedented extreme weather events. So when some catastrophic hurricane destroys the island of Barbuda or Dominica or what have you. And they have to invest literally the equivalent of their entire GDP to rebuild the islands, knowing that in a few years it will be destroyed again. So what you have is a sort of debt trap. it will be destroyed again. So what you have is a sort of debt trap. You have to borrow more and more to rebuild and you sink more and more into debt. Or in the case of Bangladesh, when you have potentially millions of climate migrants, where that's a cost that someone has to pay for their

housing, for their health care, for the loss of land that was used to produce food. And then you look at islands like Tuvalu, Kiribati, that are literally going to disappear. They're going to go under the water because of rising sea levels. How do you put a price on the loss of the ancestral territories of these indigenous people in the Pacific for whom being part of that island is inseparable from their very identity? You speak to the people in Tuvalu and the word in their language for womb and for island is the same. This is the womb within which they were created. So it's not just a question of dollars and cents. That's one big part of it. But it's also the loss of entire cultures and ways of life. And the sad thing is all of this is being done in the name of this really twisted idea we have about progress, happiness, prosperity. So we need to really pause and reflect really hard on this materialistic civilization that has brought us to the brink of self-destruction.

How do you put a price on the losses that you're describing? Let's say a small island like Vanuatu becomes uninhabitable because of sea level rise and the whole population had to be repatriated. What would climate justice look like in such a scenario? Well, the scale of the injustice is such that there can be really no true justice. of the injustice is such that there can be really no true justice. But one still has to have at least some justice, even if it's impossible to repair the harm. So the reason why these climate vulnerable states have turned to international law is out of desperation. It's because the COP process after 30 years has failed. We are set to hit three degree Celsius temperature threshold by the year 2100 instead of 1.5 because the system of states voluntarily assuming the responsibility has not been taken seriously. An international law is a way of saying, first and foremost, prevent the

harm because those of you who lecture us about the rule-oriented international order are not taking your own obligations seriously. And if you're not willing to mitigate the harm, then you must provide at least compensation so we can take adaptation measures. So, for example, in Tuvalu, which on average is only 1.5 meters above sea level, they are now engaged in land reclamation projects because you need to really increase the elevation of the island. Well, land reclamation is very costly. Who's going to pay for that? Well, who is going to pay?

Like, how do you decide even which countries should be responsible for paying for that? Well, this is part of the discussion on loss and damages in COP at the recent meeting as well in Baku. of loss and damages, let's say, by scientific bodies, the Intergovernmental Panel on Climate Change, which is the most authoritative expression of scientific evidence, tells us that the cost is something to the effect of $1.3 trillion. And the states with resources, the developed states, the petro-states, were willing to pledge just $300 billion of the $1.3 trillion. And it's not even clear if the monies that are pledged will ever actually be delivered to the climate-vulnerable states.

So there is, to put it mildly, foot dragging, if not cynical indifference to this unfolding global catastrophe. front of the damages, which the rest of us will have to deal with later, perhaps because we have greater financial and technical capabilities, we can more readily take adaptation measures, which they cannot. So it's really a unique moment in human history where we have a quintessentially global problem that requires global cooperation, where our common survival is at stake. And if we don't get it right, we will be forced to do what is necessary after we pay a very, very high and catastrophic price. Payam Akhavan is a renowned human rights lawyer. He's serving as legal counsel to both Bangladesh and the Commission of Small Island States

at the climate hearings happening now at the International Court of Justice. Ideas is a podcast and a broadcast heard on CBC Radio 1 in Canada, on US Public Radio, across North America on Sirius XM, on World Radio Paris, and in Australia on ABC Radio National and around the world at cbc.ca slash ideas. Find us on the CBC News app and wherever you get your podcasts. I'm Nala Ayed.

Hey there, I'm Kathleen Goltar, and I have a confession to make. I am a true crime fanatic. I devour books and films and, most of all, true crime podcasts. But sometimes, I just want to know more. I want to go deeper. And that's where my podcast, Crime Story, comes in. Every week, I go behind the scenes with the creators of the best in true crime. I chat with the host of Scamanda, Teacher's Pet, Bone Valley, the list goes on.

For the insider scoop, find Crime Story in your podcast app. 195 countries are parties to the Paris Agreement on Climate Change. The richest, most powerful countries committed to voluntary targets for reducing their greenhouse gas emissions. Few of them, though, are on track to reach those targets. Many of the states most vulnerable to climate change feel the whole COP process has become a sham. That rich countries and major oil and gas producers negotiate in bad faith and try to scale back emission reductions. Those climate vulnerable states are arguing at the International Court of Justice that it's fundamentally unfair that they've caused only a tiny amount of climate change, but they're the ones being punished the

most by it. I want to take a moment and talk about that COP meeting in Baku. There was, as you say, a lot of anger and disappointment because of the amount of money, as you say, the foot dragging that rich countries were demonstrating about helping poor countries adapt to climate change. But what about, specifically, what about reparations for damage that's already happened because of climate change? Is that on the table at all? Well, this was the whole fight over the question of loss and damages, which, you know, after many years of struggle by climate vulnerable states, there was a recognition, yes, we need a loss and damages fund. But the fund is really minuscule compared to what is really required. And there is a difference between framing something as loss and damages as opposed to, let's say, climate finance. So climate finance, you provide a loan and that loan is used for, I don't know, land reclamation or whatever other projects are required. But ultimately, you become indebted, which goes back to the example I gave of, let's say, the Caribbean nation that is being devastated by regular hurricanes of unprecedented ferocity.

They may receive climate finance to rebuild, but they are sinking into unsustainable debt. And in any event, this should not be a matter of climate finance, it should be a matter of justice, loss and damages, which brings me back to the international law principle of the polluter pays. So if you have knowingly caused harm to another nation, well, then you have to pay compensation, not give them a loan. And this, I think, is the real problem. Developed states, the petro-states and others are not willing to mitigate greenhouse gas emissions to prevent harm, and they're not willing to pay compensation for the damage that they're causing. So it's really extraordinarily irresponsible and even reckless behavior, because the consequence isn't just that we live in an unjust world,

that there is going to be increasing suffering, but also that we are sleepwalking into our own destruction. And we need to wake up because nature doesn't really care what we think or do. Nature has its own laws. And this is what I love about the Pacific Islanders, the indigenous people who basically say, as the Attorney General of Vanuatu said in court, if you respect nature, nature will respect you. They understand that in a contest between humankind and the earth, the earth will definitely win. And that might mean that we all lose. I just want to go back at you on the question of how do you decide what that reparation might look like? And I know that's partly, as you say, what you're

trying to parse in these hearings, but is there even an imagining of what factors would come into play in terms of deciding which country is obliged to pay and to whom and how much their responsibility is worth? We're in the early days of developing this area of international law, and we're simply now establishing the basic principles in the coming months and years. There will be a lot more activity, I'm sure, in terms of developing and elaborating the practical application of those principles to specific situations. But there are ways in which scientists and economists quantify harm. So, for example, we've always had hurricanes, we've always had flooding, but those events have become far worse as a result of climate change.

So the question is, how do you scientifically determine how much of that harm is simply because of nature, and how much of it is because of human activities that have contributed to the dramatic intensification of those natural disasters. The amounts are, you know, staggering when you think about, you know, let's say the floods in Pakistan that by some estimates caused, you know, $100 billion worth of damage. Massive, massive flooding, because in the mountainous regions, the glaciers are melting, and if you live downriver, you have also, you know, rising sea levels. And one has to think about to what extent are these unprecedented events the result of climate change? There is a significant volume of scientific evidence in this respect. And then there are different ways in which economists can determine what the cost is,

for example, of building a seawall of a land reclamation project and so on and so forth. In the ideal state, and I know a lot of this is hypothetical, but in the ideal state, would the obligations increase for states that are, you know, delinquent or backsliding on reducing their greenhouse gas emissions? Certainly. The harm does not stop. The harm is accumulating. It's exacerbated. It's made worse. It goes back to temperature rise. We have this thing called the climate system. It regulates temperature. And greenhouse gas emissions, which have accumulated now over a couple of centuries, are increasing the temperature. And that explains how, let's say, ocean currents begin to shift. You know, this year, it snowed in Saudi Arabia before it snowed in Toronto.

Extraordinary. Just think about that. And that's just a foretaste of the climate chaos that we're going to witness in the coming years. This is the relationship between the choices that we make in terms of phasing out fossil fuels, transitioning to green energy, and on the other hand, the accumulating harm. We know with certainty that this harm is going to become exponentially worse in the coming years unless

we dramatically change our patterns of consumption and economic activity and production and what have you. I want to go back to something you mentioned at the beginning and that you spoke about in your statement, this so-called principle of prevention, a cornerstone, you called it, of international environmental law that demands that states must take every measure to avoid damaging the environment of another state. The suggestion is that large, rich countries and their greenhouse gas emissions actually infringe on the sovereignty and the right of self-determination of developing countries and small island states. Can you explain how?

Well, some of the small island states basically speak about the right of self-determination, which emerged really in the context of decolonization. The idea being that a people has sovereignty over its natural resources, has the right to self-determine on its own territory. And the argument there is that when you have not just some significant degree of harm, but harm that is now creating an existential threat to the very survival of a nation, which is losing its territory, It's going to go under the water. It will no longer have a territory. Well, then how is that affecting the right of that people to self-determination, the right of that people to existence? So this argument is

being championed in particular by indigenous nations from the Pacific. And it remains to be seen whether the court will accept this, what some would say is a rather creative interpretation of this international law principle, which is now being applied in the context of the harm caused by climate change. So when you say creative, how convinced are you that it's a good argument? Well, I can understand it's a reasonable argument because it's a fundamental principle of international law that a people has a right to their natural resources, has a right to self-determination.

And if you are knowingly causing harm, the foreseeable consequence of which is to deny those people the right to meaningfully self-determine, in fact, you're denying the right to exist as a state. Because once you lose your territory, you haven't just lost your natural resources, but you have lost the little piece of earth which allows you to have a country. And this is unprecedented in international law, that entire states may go under the water. And in fact, one of the definitions of a state in international law is that there is a territory with a population and a government. So if you have no territory, can you continue to

exist? And now academics are beginning to think about these issues. Can you, for example, have a virtual state? Tuvalu now has a project to do a 3D scan of all of its islands so that the people will, in virtual reality, continue to have the exact contours of their islands once it is fully submerged. And that is just so profoundly tragic. That is extraordinary. And what's the legal utility of doing that? Well, legally, one of the debates now is whether a state which disappears or loses its territory can continue to exist. And the position of the small island states, especially in the Pacific, is that they can continue to have their maritime entitlements. So under international law, time entitlements. So under international law, you have a right to territorial sea of 12 nautical miles from your coast, and then a 200 mile, what's called exclusive economic zone, in which you have

sovereign rights over natural resources such as fisheries. So let's say you're a small island state, and one of your main sources of revenue is to issue fisheries licenses for tuna. And of course, there is a great demand for it. It's very lucrative. So you want to maintain the rights even after you lose your territory to still benefit from those fisheries resources. So now there is increasing recognition that these small islands, even if their territory is subject to erosion or complete disappearance, should continue to have the right to exercise jurisdiction, let's say, over fisheries in their maritime areas. And these are, you know, issues for international law that, you know, 10, 20 years ago were unimaginable. And now they're becoming real problems. So international law has to be reimagined in light of these unprecedented situations.

You know, we've seen climate lawsuits launched recently, spearheaded by young people who argue that climate change jeopardizes their right to a safe and secure future. Is there such a thing in international law as legal obligations to future generations? It's a good question, Nahla, and that is one of the issues before the court. Do generations yet unborn have rights that must be respected? international law as being the expression of the consent of sovereign states will say, well, listen, you know, states haven't accepted this. It's a great idea for some activists and for academics, but there is no basis for it. Because at the end of the day, the source of international law is what states accept it to be. But at the same time, there are principles of international law, including the no harm principle. So if you should not domberg moment when, you know, the trials against the Nazis for the Holocaust and all these atrocities became the basis for international

criminal law, the Universal Declaration of Human Rights, and a period of unprecedented legal developments. I think we are at the same Nuremberg moment when it comes to international environmental law. And the principles which today are just emerging may become crystallized as binding international law in the very near future, including the principle that we cannot forget that our actions have consequences for future generations, for generations yet unborn. That must be very exciting for an international human rights lawyer. Well, it's a time both of despair and hope. The despair comes from the unwillingness of the major polluters to take seriously the future of humankind. But at the same time, you see that there is also resilience,

in particular among youth, among indigenous peoples, among civil society. There is a new consciousness, new awareness of our place in the universe, of the need to live in harmony with nature. So I think we are really at a civilizational, cultural, seismic shift. And we will be forced one way or the other to learn to live in harmony with nature and to redefine the very idea that we have about progress and the pursuit of happiness. And that invariably will be reflected in the ideas that we have about progress and the pursuit of happiness. And that invariably will be reflected in the ideas that we have about international law and institutions. One of the things you hear from the indigenous nations in the Pacific is this idea that the law is determined by nature.

Natural law isn't a philosophical concept. It's actually literally the laws of Mother Earth. And while sophisticated intellectuals and lawyers may look to that idea as being unsophisticated and what have you, I think that is exactly where we are headed, where we will realize that the laws imposed by creation are the mightiest of laws, and we have no choice but to respect them, because the consequence will be our self-destruction. If the laws of nature are what will determine how we deal with climate change, what does climate justice look like in that scenario? What's the overriding principle? look like in that scenario? What's the overriding principle?

From a purely legal perspective, the first and foremost principle is transboundary harm. Do not cause harm to others. And if you cause harm to others, you must pay compensation. Another important dimension of justice is respect for human rights, the right to a clean, healthy, and sustainable environment, which in a sense is the mother of all human rights, because it makes sense of all the other rights that we enjoy, the very right to life, the right to freedom of expression and belief, and all of those things are impossible if we cannot exist as a species on this planet. So I think even our idea of human rights and the idea that we have of global justice is evolving and being reimagined. Speaking of rights, as you know well, the rights of migrants are under attack throughout,

you know, around the world. You've talked a little bit about this, how in the Bangladesh context, we could be seeing 20 million people on the move because of climate change. What would be the obligations, do you think, ideally, of rich states that are big emitters to climate refugees and the country that they flee to? One of the debates is whether the definition of a refugee should now include climate refugees,

people who are fleeing because of rising sea levels, floods, and other catastrophes. And, of course, the refugee definition, which goes back to the 1951 convention adopted after the Second World War, is based on a well-founded fear of persecution on political, religious, and similar grounds. So I don't really think that the refugee definition can so easily be stretched. One will have to come up with a new paradigm to deal with climate refugees. But I think when you see the tragic stories of people freezing to death on the Canada-US border because they're trying to come to a country to start a new and better life, or the migrants that are drowning in the Mediterranean Sea or the English Channel,

and when you realize that when people are desperate, they will risk death in order to reach distant lands where they think they will have a better life, you once again begin to see this catastrophe unfolding in slow motion. the idea that the reason why people are leaving their countries is because we don't have global justice. We don't have a global system that allows people in the global self to stay in their own countries and have a decent life. People are leaving and risking death because they are desperate, because they've lost everything. So if we think that we have a refugee and migrant problem now, just wait and see what's going to happen in the coming decades. We will have to literally erect, you know, 10 meter high walls across our entire border to keep these desperate people out. You know, we could speak in a romantic sense about the global village, about the inextricable interdependence of humankind,

and this idea that, you know, the welfare of one part is inextricably connected to the welfare of the whole. But that romantic idea is now an inescapable reality. If we ignore the suffering of those beyond our shores, if we do not create a just world in which these billions of people in the global south can have better lives, then we are going to witness a very, very difficult future in terms of the hundreds of millions knocking at our doors, trying to escape the horrors that will be unfolding in their countries. But, you know, here we kind of come up with the question that we always run up against with international law is just how enforceable it is.

You know, if countries don't feel compelled to live up to the obligations they agree to, for example, under the Paris Agreement, how is international law going to make them accountable? First of all, international law and national law are not entirely separate. So in Canada, under the English common law system, what's called customary international law applies directly before Canadian courts. So perhaps the emergence of this jurisprudence at the international level will also shape jurisprudence before Canadian courts. Beyond that, I think that although we don't have, strictly speaking, an enforcement mechanism at the global level, international law has a certain power of legitimacy. The reason why we have an international

legal order to begin with is because states realized, especially after the unprecedented violence of the Second World War, that it is in our self-interest to have some element of consistency, predictability, to allow global trade, to allow civil aviation, to allow all sorts of other activity. And as I said earlier, when it comes to the environment, when it comes to climate change, we, I think, are at a turning point where the realization of the importance of a proper global mechanism to regulate greenhouse gas emissions that has teeth is going to become increasingly accepted. And international law and the language of binding obligations, I think, will over time begin to change the parameters, let's say, of the negotiations that are taking place at COP every year and the understanding that we have of what is discretionary and what is obligatory. These are advisory opinions which means they are not binding. The court is asked to spell out in authoritative terms what the obligations of states are. But who is to say that the next step will

not be adversarial litigation, including before international courts and tribunals. And the countries that have championed the idea of the rule-oriented international order, if they don't take sufficient action, could be exposed to litigation before international courts and tribunals. So then when you think about the ideal outcome from this advisory opinion that will come eventually from the International Court of Justice, what do you see practically? What will be possible? At the very least, it has helped raise the consciousness of the international community. There are all sorts of elements, whether it is youth groups, civil society, indigenous peoples, people who are simply concerned global citizens.

So one aspect of bringing these matters before the International Court of Justice is you give them prominence and you help engage the international community and to change perceptions and ideas. I think that we cannot litigate climate change out of existence. Ultimately, the major polluters and climate vulnerable states will have to go back to COP 30, COP 31, and so on and so forth, and negotiate. But they must negotiate in good faith. They must take seriously their binding obligations not to do harm and to compensate the victims of the harm that they've caused. Because if we don't do that, then we begin to unravel the international system. You know, the glue that keeps us together as a community is a sense of justice. And while there will always be some element of injustice, when that injustice becomes so gross, so intolerable, then we cannot expect to continue business as usual without consequences. So I'm optimistic that in the coming years, as we feel the pain

of the consequences of our inaction, new generations of leaders, civil society and others will begin to change the conversation, our conduct will begin to change. The question is, how much pain do we have to suffer before we do what is necessary? Is what's coming also a roadmap, you know, for a flurry of lawsuits that could, as you say, shape how we look at climate justice? Certainly, there has been already a flurry of lawsuits. And this is a somewhat unprecedented problem for law in the sense that the principle that we should not harm others is clear enough. So is the principle that the polluter pays. The complexity is how do you attribute responsibility when it's a global problem? So can you begin to say that this state or that energy company is responsible for this share or this percentage of the problem? And then to say that in light of that apportionment

of blame, this is how we would quantify the harm that has been caused to a particular victim. There's a remarkable case before the German courts now against a coal company by some farmers in Peru who are worried about flooding because of melting glaciers in the Andes. And their claim is that this coal company in Germany is responsible, I don't know, for 20,000 euros equivalent of harm. That is their share of the contribution to the harm that these farmers halfway across the world are suffering. So in the coming years, I think we will really see a development of practice and experience in relation to the attribution of responsibility. And there's a whole field of attribution science, in fact,

which is trying to determine who can be held responsible and in what quantities for the harm that's been caused. But this court is going to provide a roadmap to something far more, it's going to be generative, probably, of lawsuits, is what I'm saying, because it is going to help determine how to assign blame. Certainly, but the significance of this case coming before the International Court of Justice, the principal judicial organ of the UN, is that it has a certain prominence at the center of the global legal order. So what it has to say will affect all nations and not just a specific legal system. Payam, you've been so patient. Thank you very much.

Thank you, Nala. Payam Akhavan is a renowned human rights lawyer. He's serving as legal counsel to Bangladesh and the Commission of Small Island States at the International Court of Justice. He was also the 2017 Massey Lecturer on Ideas. This episode was produced by Chris Wadzkow. Our technical producer is Danielle Duval. Our web producer is Lisa Ayuso.

Senior producer, Nikola Lukšić. Greg Kelly is the executive producer of Ideas. And I'm Nala Ayyad. For more CBC Podcasts, go to cbc.ca slash podcasts.