Australia has long tried to be two things at once: a trusted friend to Pacific nations to contain China’s influence and a huge exporter of fossil fuels. This diplomatic balancing act is becoming increasingly difficult as Pacific nations view climate change as an existential threat.

This week the Australian government had to make a decision in a very public forum. The decision was made to use fossil fuels.

Disappointed by the slow pace of United Nations climate negotiations, Vanuatu and other Pacific nations have filed a case at the International Court of Justice in the Netherlands to clarify countries’ obligations to prevent damage to the Earth’s climate system for current and future generations.

While international climate negotiations are often conducted behind closed doors, this case is being broadcast publicly. We can clearly see the arguments Australia has made and the countries it has allied with.

In the courtroom on Monday, Australia sided with major fossil fuel emitters and exporters such as Saudi Arabia, the United States and China in an attempt to minimize their legal liability for contributing to climate change.

What is at stake in this case?

This week marks a milestone in a five-year legal campaign that has stretched from a university seminar in Vanuatu’s capital Port Vila to the halls of the United Nations in New York to the World Court in The Hague. The International Court of Justice is the only international court that can resolve disputes between United Nations member states.

In 2019, 27 University of the South Pacific law students faced the challenge of finding the most ambitious legal paths to climate justice. They decided that filing a lawsuit with the World Court met the requirements.

In 2023, Vanuatu and other nations managed to pass a resolution in the UN General Assembly calling on the World Court to issue an opinion on two questions – what obligations do states have under international law to protect the climate from greenhouse gas emissions, and which ones What legal consequences does this have for states that “significantly damage” the earth’s climate?

Ahead of the hearing, the World Court received a record number of written submissions. The justices will hear oral arguments for two weeks. They will then produce a report that is expected to set a new benchmark in international law by clarifying countries’ legal obligations to combat emissions.

Although an opinion is not binding, the court’s findings will be incorporated into national legal proceedings and UN climate negotiations.

For Australia, this case represents a direct challenge. There are no plans to gradually restrict fossil fuel exports. In fact, an expansion is planned.

If the court’s ruling draws clear lines between fossil fuel exporters and climate damage, it could have serious consequences for Australia. For example, it could pave the way for claims for damages due to climate damage.

Since 2000, Australia has approved more than 700 oil, gas and coal projects. Dozens more are in the approval pipeline. Just this week, the federal government cleared the way for three new coal mines.

Australia is now one of the world’s largest exporters of coal and gas. This is relatively new. While coal has been exported since 1801, large-scale export of liquefied natural gas began only a decade ago.

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When burned overseas, emissions from Australia’s fossil fuel exports are now more than twice those of the entire domestic economy. These emissions damage our global climate and increase the risk of harm to people in Australia and around the world.

What did Australia argue in The Hague?

In bringing the case, Vanuatu argued that actions causing climate change were unlawful under a range of international obligations, including the law of the sea, human rights and environmental law.

Australian delegates praised Vanuatu’s leadership in bringing the case and reiterated Australia’s commitment to working with the Pacific on climate.

But after the diplomatic finer points, Australian Attorney General Stephen Donaghue got to work. He told the court that when it comes to curbing climate change, only the Paris Agreement, which requires countries to set targets to reduce domestic emissions, should apply.

Donaghue also argued that greenhouse gas emissions are different than, say, one country’s toxic waste damaging another country’s environment. This is because emissions have many sources, he argued.

Donaghue and the Australian delegation argued that the court should frame emissions reduction obligations narrowly and suggested that responsibility for damage caused by climate change should not be shifted to individual states.

Australia has also argued that human rights protections do not extend to commitments to combat climate change.

In 2022, Torres Strait residents told a UN human rights committee that their human rights would be violated if they did not act on climate change. In response, the Australian government used very similar arguments, claiming that climate change could best be addressed through UN climate negotiations.

What does that mean?

The court’s opinion will be issued next year.

Despite Australia’s arguments, recent rulings from other courts suggest that the court may not rule in our favor.

For example, the International Tribunal for the Law of the Sea found in May that greenhouse gas emissions constitute a form of marine pollution (because they acidify and heat the ocean) that countries have an obligation to prevent. The tribunal rejected arguments that state obligations were limited to the implementation of the Paris Agreement.

A decision by the Inter-American Court of Human Rights in a similar case is expected later this year.

Relations with the Pacific states are likely to come under pressure as a result of the proceedings in The Hague.

The matter could come to a head next year when the court releases its opinion.

A decision on whether Australia will join the Pacific island nations in hosting COP31, the 2026 UN climate talks, is still pending.

If our COP application is successful, it could give Canberra the chance to signal a shift away from fossil fuel exports towards environmentally friendly exports such as critical minerals and green iron. This would align Australia’s interests with those of the Pacific – and present the country much more clearly as a preferred partner.