Symposium: Climate Change in an Unequal World: Does International Law Matter?
Climate Justice Demands a World
Beyond International Law
Dylan Asafo*
Published on 12 September 2022
To Indigenous peoples across Te Moana Nui a Kiwa (more commonly and colonially known as the Pacific Ocean), the answer to the big question ‘does international law matter?’ lies in the answer to the question “do we matter to international law?’. This is because our richly diverse but mutually collectivist worldviews require us to pay attention to whether there is reciprocity in our relationships with all peoples and things – even this thing called ‘international law’.
On the side of Indigenous peoples across Te Moana Nui a Kiwa, there has been a lot of nurturing of this relationship. From our activists consistently showing up to international law negotiations (against many and all odds) to our governments signing up to agreements in good faith to be a part of the international community, Indigenous peoples have worked hard to try make international law live up to its promises of peace, security and equality for all.
However, on international law’s side, there has not been much beyond systematic exclusion, genocide, dispossession and subjugation. So, to put it bluntly, Indigenous peoples across Te Moana Nui a Kiwa don’t matter to international law and never have. From Kiribati to Tuvalu and from the Torres Strait to Aotearoa New Zealand, our ancestral stories and everyday realties evidence international law’s incessant violence as the Global North’s tool for stabilising and strengthening its unjust global order characterised by the globally interconnected systems of white supremacy, capitalism and heteropatriarchy. There are too many examples of this violence to mention here – from the doctrine of discovery’s continued legitimisation of settler-colonisation in Australia and Aotearoa New Zealand to the ongoing failure of the UN General Assembly (UNGA) to intervene and put an end to genocidal violence in West Papua. The climate crisis, as many have noted, continues to provide more opportunities of international law’s violence against Indigenous peoples across Te Moana Nui a Kiwa and Black, Indgenous Peoples of Colour (BIPOC) of both the Global South and Global North. Specifically, international law does important work in constructing a thin mirage of progressive climate action to actively protect the unjust global order from any attempted challenge or disruption from BIPOC.
This active protection is evident in the UN Human Rights Committee’s 2020 decision in Ioane Teitiota v. New Zealand. The decision concerned a communication made by Ioane Teitiota, a man from the Pacific nation of Kiribati who was deported from New Zealand in 2015 after failed attempts to seek protection from climate change-related displacement. Teitiota’s claims for protection were made under New Zealand’s Immigration Act 2009, and included claims for ‘refugee’ status (as defined in the Refugee Convention and for ‘protected person’ status as defined in the International Covenant on Civil and Political Rights (ICCPR). After Teitiota’s claim failed at all levels in the New Zealand court system, he was arrested and deported back to Kiribati in 2015. Teitiota’s last resort was to then to file a claim to the UN Human Rights Committee alleging that New Zealand had violated his right to not be arbitrarily deprived of life per Article 6(1) of the ICCPR by deporting him.
By a 16-2 majority, the Committee dismissed Teitiota’s communication. Among the majority’s dubious reasons for its dismissal was the assertion that even though sea level rise is likely to render Kiribati uninhabitable in 10-15 years, that timeframe was sufficient time for ‘intervening acts by the Republic of Kiribati with the assistance of the international community, to take affirmative measures to protect and, where necessary, relocate its population’. In making such a boldly optimistic prediction, the majority didn’t only fail to examine the Kiribati government’s capacity to adapt to climate change. It also failed to acknowledge the international community’s long -standing failure to protect the people of Kiribati from the effects of climate change. More concerningly, the majority’s reasoning suggests that mass relocation is a viable and just solution to climate change-related displacement, despite Pacific Islands governments and Indigenous advocates making it clear that relocation cannot be proposed by governments in the Global North as a way to evade their obligations to reduce emissions and support Indigenous peoples from adapting and live on their ancestral lands and waters for as long as possible.
The Teitiota decision therefore affirmed what many of us have known for a long time – Indigenous peoples of Te Moana Nui a Kiwa and BIPOC around the world do not matter at all to international law. We are disposable and always have been. As Carmen Gonzalez points out, our lives, lands and waters are simply ‘sacrificial zones’ for the survival of the Global North’s unjust global order. Therefore, because we do not matter to international law, international law should not matter to us. This is not in the sense that we should immediately reject and abandon international law’s advocacy tools and pretend they do not exist. Rather, it means that we need to radically rethink our expectations, goals and strategies in using international law in our fight for climate justice so that we can create and imagine a better world beyond it.
At the moment, Vanuatu is leading an inspirational campaign for an advisory opinion from the International Court of Justice (ICJ) on the rights of present and future generations to be protected from climate change. However, if we don not already, we must accept the outset that even if an advisory opinion is obtained, it will never succeed in getting governments in the Global North to take meaningful steps to divest from its unjust global order. Even on the off chance that the ICJ’s opinion is scathing and powerful in its calls for climate justice, opinions are non-binding and there are a range of laws and legal norms in place at international and domestic levels to allow the unjust global order to continue uninterrupted. For example, the everyday ecological violence of Transnational Corporations (TNCs) will be unaffected by any ICJ opinion due to the willful failure of states in the Global North to effectively regulate TNCs both domestically and at international law.
My purpose is not at all to criticise Vanuatu’s campaign or to suggest that advisory opinions and climate litigation efforts are completely useless. In fact, these advocacy efforts can do critical work in inspiring more fundamental and urgent forms of social and cultural change that legal advocates can pay little attention to when we are too focused on initiating futile legal and political changes within the unjust global order. One way that advocacy efforts can initiate these forms of change is by shining a light on the injustices of the Global North through storytelling – that is allowing BIPOC at the forefront of the climate crisis to tell their stories of intergenerational pain and remarkable resilience on their own terms. With targeted media campaigns, protests and radical education within institutions and communities, these efforts can then inspire the building of ‘people power’ that is capable of anything and everything – including overcoming the seemingly permanent unjust global order. The key will be focusing resources and energy in changing the hearts and minds of people, rather than on the impossible task of changing the immovable hearts and minds of the majority of international law’s decision makers and the powers that be in the Global North.
This building of people power will require and mean different things for different groups depending on how we are positioned. For example, for many BIPOC, these advocacy efforts have the potential to inspire more of us to take action to protect our lands and our people whose existence are threatened by the climate crisis. For many of us, this means reclaiming our collective power by remembering who we are in relation to one another, and our lands and waters. This will be an immensely difficult and painful task, because the unjust global order has worked hard to make so many of us to forget these sacred relationships that can bind us together. For a few white and not so wealthy and powerful people in the Global North, there is a slim chance that advocacy efforts can have radicalising effects by influencing them to divest from the unjust global order to non-performative acts of solidarity and allyship with BIPOC.
In my view, this building of people power will then allow us to work towards what climate justice truly demands – full decolonisation in the form of returning lands, oceans and power back to Indigenous peoples. As the climate crisis makes clear, governments and corporations of the Global North have proven that they are only capable of destruction, so land, oceans and power must be returned back to Indigenous peoples who actually know how to heal (and not destroy) the earth. However, the reality is that states and corporations in the Global North will never give these things back through advocacy efforts at international law. As scholars in the Third World Approach to International Law (TWAIL) movement have long noted, international law is specifically designed to stop such a just and transformative redistribution from taking place. However, contrary to the reformist approach that underpins a lot of TWAIL work (as aptly observed by Luis Eslava and Sundhya Pahuja), I argue that when we are using international law’s advocacy tools to build and reclaim people power, we must do so with the ultimate aim of creating a world beyond it. In other words, we need to acknowledge that currently international law is beyond repair or reform, dismantle it and reimagine a new system(s) premised on decolonial justice.
To be clear, I am not calling for a violent rebellion against the great powers that be. While it often feels like a full-scale bloody revolution would be the only way for BIPOC to achieve justice and liberation, as Derrick Bell noted, it is inevitable that if such a revolution were to take place, we as BIPOC will lose and suffer the most. Instead, I argue it is urgent that we adapt Bell’s ‘racial realism’ approach (proposed in the context of racial justice for Black communities in the US) to global climate justice. This approach requires that we accept the unavoidable truth that international law-based strategies will result only in ‘temporary peaks of progress and short-lived victories’ in fundamentally unjust orders that will only ‘slide into irrelevance as racial patterns adapt in ways that maintain white dominanc’. Such acceptance will allow us to finally be ‘free to imagine and implement racial strategies that can bring fulfilment and even triumph.’ In the context of climate justice, a racial realism approach will require us to radically shift our focus from worrying about how can we use international law to achieve climate justice, to thinking about how we can reimagine and create a whole new global system that is capable of achieving our demands of climate justice.
This radical shift that will then allow us to grapple with bold ideas that will always be well beyond the parameters of international law but are undeniably necessary for our collective survival and flourishing. One of these ideas is for governments and corporations of the Global North to give climate reparations to BIPOC of the Global North and South who bear the brunt of the climate crisis and the racial and colonial injustices. As Maxine Burkett proposes, climate reparations have three essential elements: (1) an apology (2) some form of compensation and (3) the guarantee of non-repetition. For us Indigenous peoples of Te Moana Nui a Kiwa, the fact that climate reparations go beyond monetary compensation and centre the restoration of relationships damaged by the unjust global order make it an idea that deserves our deepest consideration.
Of course, even the most creative and radical dreamers among us will have to admit that climate reparations poses many conceptual and practical challenges and barriers that will seem impossible to overcome. However, as Burkett poignantly remarks: ‘…[I]nstead of asking whether reparations are appropriate or feasible, the operative question becomes: Is remotely adequate climate action even possible without collective action? And, if not, can collective action of this scale emerge within current relationships? And, if not, what would facilitate this repair?’
* Dylan Asafo (he/him) is a lecturer in the Faculty of Law at the University of Auckland, New Zealand. He is Samoan from the villages of Salani, Siumu, Satalo, Moata’a and Leufisa.