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- #considerthis
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. It’s a call that could reshape how nations act, and how they’re held to account. On this episode of #ConsiderThis Melisa Idris speaks with Nithi Nesadurai, Director & Regional Coordinator of Climate Action Network Southeast Asia, and President of Environmental Protection Society Malaysia. As well as Redza Zakaria, Senior Lecturer at Universiti Malaya’s Faculty of Law, and Deputy Head of Maritime Law, Governance and Policy at UM’s Institute of Ocean Earth Sciences.
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00:00Hello and good evening. I'm Melissa Idris. Welcome to Consider This. This is the show
00:23where we want you to consider and reconsider what you know of the news of the day. In a
00:28landmark opinion, the International Court of Justice has declared that all countries
00:33have a legal obligation to protect people and the planet from climate harm. This is a
00:40call that could reshape how nations act and how they're held to account. But for Malaysia
00:47and for ASEAN, will this be the moment where decision makers are finally held accountable
00:53and liable for the climate damage their policies cause. Joining me on the show to discuss this
01:00weather, I have Nithi Nesadurai, who is the Director and Regional Coordinator of Climate Action
01:05Network Southeast Asia. He's also the President of the NGO Environmental Protection Society,
01:10Malaysia. I also have with me in the studio Reza Zakaria, who is a Senior Lecturer at University
01:15Malaysia's Faculty of Law. He's also the Deputy Head of Maritime Law, Governance and Policy at
01:21UM's Institute of Ocean Earth Sciences. Welcome to the show, both of you. Thank you so much for
01:28joining me. Thank you. Pleasure. Thank you. This is a big deal that's happened in the climate justice
01:34movement. If I may begin with you, Nithi, talk us through this, the importance of this moment
01:41and maybe you can describe the process which led to this landmark decision. Sure. The first thing to
01:48notice, this is a historical legal breakthrough and especially, you know, at the ruling at the
01:59international level, so this is international law, has been decided on very clear terms. Of course,
02:10it's also important to go back to what led to this decision and, you know, being here with Reza, who is a
02:19senior lecturer in the law faculty, it started with an assignment being given to law students at the
02:26University of South Pacific in Wanuatu. So the Professor, Justin Rose, told his students, you know what the problem is
02:35with climate change, especially with Wanuatu facing an existential threat, you know, of survival.
02:43How would you fix the climate change problem? And so it was an assignment given up to the law students
02:50who then came up with the suggestion that we take this to the International Court of Justice for an advisory
02:56opinion. And I think he was so impressed that he told the students to proceed and they took it to the then
03:03Minister of Foreign Affairs and said, this is what we want to do. And I think they were so impressed,
03:09the government did the due diligence and said, we're going to proceed with this, we're going to take it to
03:13the United Nations General Assembly, which is the first step, and told the students, you go ahead and you also
03:20launch a campaign to get this adopted, the United Nations General Assembly. Yeah, all this was in by mid-2022.
03:30And that's when Climate Action Network, which we are part of, and Cairns Southeast Asia also got
03:37involved in the process towards raising awareness, you know, and mobilizing our respective governments
03:44to support the decision of the United Nations General Assembly. So we then, you know, and it became an agenda
03:50item when we had the Climate Action Network Southeast Asia regional meeting in August 2022. It was an agenda
03:57item. And all our members from all the different countries in Southeast Asia said, go out, raise
04:01awareness, get our governments to support it. Most importantly, it was also to find out, is there any
04:07possibility that any of our governments will object to it? So, you know, then there was the campaign to
04:13get it adopted. And then when it went to the United Nations General Assembly, it was adopted unanimously,
04:21with no objections. And that was phenomenal. And then, so then the United Nations General Assembly,
04:28UNGA said, okay, now we forward it to the International Court of Justice. So the campaign then rolled on,
04:35and there's a very active group called the World Youth for Climate Justice. And they then, you know,
04:40then we started getting, okay, countries need to submit, you know, submit briefs to support the
04:46statement, international organizations contribute briefs. And then all this happened. And then they got
04:53the biggest ever response, the International Court of Justice in terms of contributions, in terms of
05:00petitions from both states, as well as international organizations. And then for only the fifth time in its
05:06history, a unanimous decision was adopted, saying that states are obligated to protect the climate
05:15system and the environment. So it was historic. And what this really, what I really salute is the power
05:21of the youth. Yeah. Phenomenal effort. You know, they mobilized the whole world, salute the youth of
05:28Wanuatu and around the world. Still gives me goosebumps just thinking about how it started from a classroom,
05:34from an assignment. And, you know, this is young people really advocating for their future. Riza,
05:40talk to me a little bit about this. What, what do you think are the most kind of powerful signals
05:46this ruling sends? But what excites you particularly about this advisory opinion? I mean, the aspects
05:52about this advisory opinion, sadly, is actually just an opinion. Okay. By the highest court in the entire
06:01judiciary. But in the aspect of having a bit of a hope in terms of for young people in the future,
06:11or maybe right now, I would say this is a better avenue for us to actually prepare ourselves what is
06:19coming forward. But looking a bit close to home, which is in Malaysia, I would say it's still a bit
06:27far ahead as parliament, Malaysian parliament requires a bit of a reshape in terms of the law.
06:36The law is somehow most of the laws that we have are outdated. I give you just one example,
06:43the Environmental Qualities Act, which is, some of it has been amended, but not very entirely on
06:50climate change. As what Niti has mentioned, one of the principles here, it's about the, I mean,
06:56the students doing this as a coursework or doing as an assignment, is to actually combat climate change.
07:04And one of the principles that given by the advisory opinion is to make every member state legally
07:11bound to this particular climate issues. But in Malaysia, we need to have local laws,
07:17local laws that actually speak with regards to climate change. We have certain laws that renewable
07:24energy, but doesn't really touch on climate change, or perhaps touches on any biofusil. In terms of
07:32forestry as well, it's not well protected. So we need to have local laws that is updated, that is actually
07:42provide the avenues for climate change to provide the protection, and as well as legal obligation by
07:50the stakeholders, especially companies. Okay, so just let me stop you there and get you to clarify. So when you
07:57said that this is an advisory opinion by the ICJ, it means that it's not legally binding, it's not enforceable.
08:04Correct. Okay. Do you think this will then remain largely symbolic? Or will there be material
08:15repercussions in terms of international accountability? Both of you actually. Reza, what did you think of that?
08:22I mean, coming back to Malaysia perspective, especially right now, we are the chair for ASEAN.
08:29I mean, having this advisory opinion at large is actually a very good, like what it's a landmark,
08:36Niti mentioned the landmark decision. But I think one of the message that we need to get across is that
08:43what is our stand as Malaysia in ASEAN chair, what we actually stand in the global view in terms of how
08:51we actually combat climate change. Take into account Paris Agreement, for example, we need to show how
08:58Malaysia actually takes centre stage in providing how climate change is a serious implication to our world,
09:06not just our country, but our ASEAN and globally. So I think it's a it's a message that we actually
09:13send across, even though there's no legal binding. The signals, the signals, the message. Yeah. Okay. Niti,
09:20what do you think? Yeah, actually, it's a ruling of the highest court in the world. It's the gold standard. And it
09:27really is a very comprehensive legal decision. You know, it's an advisory opinion, yet it's so comprehensive.
09:38And while it may not be legally bound binding, it actually sharpens the legal tools to hold actors
09:46accountable, including governments and corporations. So this isn't just for governments, does it extend to
09:54private entities as well? So fossil fuel companies and corporate polluters? Absolutely. It spells out
10:04fossil fuel companies specifically. And it says that governments have a responsibility to control
10:12greenhouse gas emissions. And of course, the biggest contributor of greenhouse emissions,
10:17greenhouse gas emissions are the fossil fuel companies. And it even goes out to spell out that,
10:22you know, in terms of regulating the production, the provision of licenses, the use, as well as subsidies.
10:35Oh. Subsidies as well. So it says, and so the governments have the responsibility. And then they also,
10:42governments which regulate the corporate world have to ensure that the corporate players also stay,
10:48state also control, are also regulated to reduce greenhouse gas emissions. So it's a very far reaching
10:57opinion. Okay. I want to unpack all the things that you've just said. And looking at what state
11:04responsibility could look like legally, morally, politically, right? When you think about the
11:09challenges that the Malaysian government might have in terms of abiding by this advisory opinion by the ICJ,
11:16could the government then be held accountable? And how would they be held accountable for expanding
11:24fossil fuel projects, like you said, for giving subsidies for around 95 or ensuring that the prices
11:32remain artificially repressed? And in terms of historical admitters, does that cover, does the ruling
11:43cover that? And what is the state's responsibility for that? And who is held accountable when we talk about
11:49the state? Is it the politician who's made that decision to give subsidies or to sign the license of this
11:58new project? Or is it the body, the government of Malaysia? I don't know quite the legal terms of how to say that.
12:05But Reza, what do you think of the government's challenges in abiding by this?
12:09So one of the advisory opinions that they mentioned about this is international law. So that any countries,
12:16any member states that abide to international law, now an international law is actually a climate change
12:24legal obligation under international law. So I just picked one particular area of law, which is the
12:29United Nations Convention of Law of the Sea, UNCLOS, which we are signatories of this UNCLOS. So in that
12:38aspect, whatever that has to do with climate change, now is parked under UNCLOS. So we are now bound to
12:48one of the articles under UNCLOS. So in that aspect, this advisory opinion has stretched the whole
12:55international law, not just on the area of climate change, but of law of the sea, of the climate change
13:03convention. So in that sense, international law now, any particular avenues can be stretched. So this
13:10advisory opinion is a whole stretch to the whole area of international law and mind you, human rights as
13:17well. So this is a human rights issue where it was mentioned by the International Court of Justice
13:24President. He said that, I quote, the full enjoyment of human rights cannot be ensured without the
13:30protection of climate system. So here is a human rights issue. So speaking of like indigenous people,
13:37speaking about youth, so these are the people that we need to protect. And we have a lot of indigenous
13:44people in our areas in Asia, in Malaysia. So we need to protect them. But you did say that
13:50some of the laws in Malaysia are outdated, right? That cannot apply to this. So is this a question of
13:56bringing our kind of archaic laws up to speed to be aligned with this new? Yeah, I would say that we have
14:04climate change bill drafted. That's right. A few years ago in that aspect. So we need to put that
14:13in table, we need to table this in parliament. I think this is a good time for us to actually
14:18demonstrate that we are taking this seriously rather than just putting it under the table.
14:22Do you think the climate change bill, which is still being drafted, will take into account this
14:27landmark ruling? Because it's come just at the kind of nick of time while this bill is being drafted,
14:33right? Oh, absolutely it should. And we've been involved in the process of, you know,
14:38providing inputs to the climate change bill, and for which there's been very little information of
14:43what's in it. We were just given an outline. Beyond that, we really don't know what's in the bill.
14:47No one's seen the draft yet. No one's seen it. And we were told that it was going to be presented in
14:52this sitting of parliament. So I don't know whether that's going to happen yet. This is a golden opportunity.
14:59It's a golden opportunity for the government to incorporate all that is there in the advisory
15:05opinion into the climate change bill. And two aspects of it, you know, the right to an environment,
15:12right to a healthy environment as a binding norm towards the enjoyment of all the other human rights
15:17and equity. You asked a very good question. How does it affect? Because it's not a fair world.
15:25You have the developed countries which have benefited and have taken more than their fair share of the
15:29carbon budget. And this advisory opinion also addresses that. And it says that Annex One countries,
15:35which are the developed countries under the United Nations Framework Convention on Climate Change,
15:41have to take the lead in addressing climate change. So even when we talk about the phase out of fossil
15:47fuels, why we have to be aware that even Malaysia, you know, as an oil and gas producing country,
15:53that the writing is on the wall and that we have to start phasing out production. It has to be done
16:00on a basis of fair shares and equity. That is, those who have benefited the most, especially those in the
16:07developed countries, have to take the lead. And if you look at which countries are expanding the fossil
16:14fuel production the most, all five countries are in the global north. So this is irresponsible,
16:20because they were on saying that developing countries have to do more, you have to decarbonize,
16:25and they are the ones expanding fossil fuel production the most. And they will probably be
16:30the first to face legal challenges. I'd just like to add on that, I think Niti actually brought
16:35out a very, you know, amazing point. But I just want to add also about stakeholders by raising ESG.
16:42A lot of companies actually introduced this ESG as to a social responsibility to combat climate change.
16:50But it's not enough. Like most companies, I would say are the one who, you know, I don't know,
16:56I'm not so sure with regards to the amount of percentage, but they are the contributors to this
17:01whole climate change. And they use this ESG as a way for them to show that they have done something
17:08to combat climate change. But it's just in paper. And mostly, it's not been obligated by the law.
17:16It's not stated in any law to provide them the obligation. It's always been a kind of voluntary basis,
17:21right, with ESG. And so now there could be real benchmarks as to maybe even legislate this into
17:29more than just being voluntary. I am curious to know more about the kind of the climate justice aspect
17:36of the, for climate vulnerable nations versus say, more historical polluters, emitters.
17:43Does this make a better case for compensation under loss and damage?
17:49It does. And it's also an opportunity for developed countries to fill the fund,
17:55for the fund for responding to loss and damage. So it's also very clearly spells out for those
18:01countries which are facing an existential threat through sea level rise together with law of the sea.
18:08That's also spelt out. Vanuatu Tuvalu, even before that, you know, that's also spelt out in their opinion.
18:15So, and it, I think, also gives the provision for communities that are facing existential threats
18:23to take action against those parties which are doing significant harm to the climate system and the environment.
18:32Niti, can I just ask you, because you've been involved in some of these climate negotiations,
18:37are you concerned that these types of legal frameworks might bring about or entrench an
18:47adversarial approach to climate diplomacy?
18:54It's, I mean, or is it needed? Do we need more of this, this approach or is it about talking out,
19:02getting people in the room and discussing? The, the, the way things are happening at the moment,
19:07may, may appear to be adversarial, you know, the global north versus the global south,
19:11developed versus the developing countries. Whereas this advisory opinion is based on justice and equity
19:20and rights. So it's the gold standard. You know, it shows who's responsible, who needs to do,
19:27everyone needs to do their part. Some need to do their part more, their part more than others. So in a
19:32way, it also reaffirms the importance of the multilateral system. At the moment, you know, when we look at the
19:39geopolitics of the world, it's very depressing. We have a genocide going on, being live streamed,
19:44and, and the countries which have the ability to stop it, are not doing anything. And then people are
19:51now questioning the existence of the multilateral system. This advisory opinion has actually
19:58strengthened the need for a multilateral system, because instead of resorting to legal actions,
20:05why don't we resolve it through negotiations? So the COP 30, the 30th Conference of Parties of the
20:12Climate Change Convention, which is taking place in November in Belém in Brazil, provides an opportunity
20:18to set it right. You know, we had the previous COP, which didn't turn out too well, it failed. And now
20:25there's an opportunity to fix it. And Malaysia also can do its part, because apart from the Climate Change Bill,
20:31we also have to present our nationally determined contributions, which is our climate action plan,
20:37before September. Yep. So if we can incorporate all this, you know, have a more ambitious,
20:43nationally determined contributions, it will show that we are already on the path towards adopting
20:49the landmark decisions of the advisory opinion. Well, the clock is ticking if we have to do this before
20:55September. You mentioned ASEAN just now, Reza. Can I just ask you in terms of regional approach to this?
21:03What would you like to see Malaysian ASEAN chair, but also other ASEAN member states take into account
21:13this landmark ruling? I would say that these ASEAN member states actually, they are pulling all their
21:19strings together. And one of the examples is how, you know, the current Prime Minister,
21:25Dato' Sri Anwar Ibrahim actually had demonstrated how Malaysia can be a centre of negotiations between
21:32Cambodia and Thailand. But in that aspect, I think Malaysia can be a focal point for us to discuss
21:40this whole issue. Like what Niti mentioned that, you know, to have an adversarial system,
21:44why not we go for negotiation process, trying to help each other in terms of how to combat this
21:51whole climate change issue. Rather than going through the legal route, I would say find the
21:57centre area where we can actually look at it in the win-win situation, how climate change, because
22:05it's not something that we need to act in the future, it's actually right now.
22:09It's now. We're seeing it. The haze, the drought, the heat waves, the floods, everything's happening
22:15today, isn't it? Exactly. So ASEAN, I would say it's the moment that Malaysia is the chair. So I say that
22:23we need to get all our people together, all the experts, all the policy makers, all the scientists,
22:30the legal aspects as well. This advisory opinion is the not, I would say not the initiate point. It's
22:38already started like way, way back then. But it's a good wake up call. Yes. Yes. And I think Malaysia
22:45has a, now as the chair of ASEAN, with the theme of inclusivity and sustainability, has a role to now
22:53advance this discussion. We have the ASEAN ministers of environment meeting happening in September.
22:58We have the ASEAN ministers of energy meeting have taking place in October. Yeah. We should start
23:05taking the lead to, to get outcomes from these two meetings, which are more in line with the advisory
23:13opinion. Can I ask you, how civil society is approaching this? I mean, this is a huge win. How might that
23:21empower civil society organizations? What will they do with this, this moment? Absolutely. So civil
23:28society is very energized, very motivated all over the world. And you know, we are thinking, we're
23:34writing policy briefs, we're writing action plans. Some are even developing legal toolkits all over the
23:42world. Yeah. And then amplifying the message, you know, it came up when it came out, there's a lot of
23:48news and then it seems to have dissipated subsequently. You're right. So we need to amplify, we need to keep the
23:53energy going. And then we will be engaging and working with governments and then trying, you know,
24:01and providing policy papers, action plans on how these things can be mainstreamed at the national
24:06level. Well, both of you, thank you so much for shedding some important light on this. I think
24:12you're right. It should be celebrated and talked about more. This has been such a turning point for our,
24:18for the fight of climate justice, right? Thank you both for being on the show. I appreciate it.
24:21Thank you so much. That's all the time we have for you on this episode of Consider This.
24:26I'm Melissa Idris signing off for the evening. Thanks so much for watching. Good night.
24:39Bye.
24:47Bye.
24:49Bye.
24:51Bye.
24:53Bye.
24:55Bye.
24:56Bye.
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