Pacific Island leaders have tried almost everything—from giving speeches in knee-deep seawater, to shouting and crying—to draw attention to the impacts of climate change on their nations.
But as their attempts to spark drastic action have been met by slow-moving international climate negotiations and the continued use of fossil fuels, interest in using legal levers to force large polluters to take action—or pay up—has grown.
For nearly a year now, Vanuatu has been trying to build a coalition to get the world’s highest court to issue a legal statement, or an advisory opinion, on climate change. And on Monday, the climate justice movement made important headway when Pacific Island nations threw their weight behind Vanuatu’s efforts. After the Pacific Islands Forum, held in Suva, Fiji on July 14, more than 12 countries and territories from the Pacific region (including Australia and New Zealand) made their support public.
These developments come amid a surge in domestic litigation in recent years around the world, which has increased interest in using international courts to tackle the climate crisis. To help countries determine their obligations under international law and to hold polluters accountable, the Commission of Small Island States, (COSIS) is aiming to be the first case brought to the U.N. International Tribunal for the Law of the Sea. Vanuatu, meanwhile, is hoping it can compel the International Court of Justice (ICJ) to issue an opinion on the obligations countries have to protect the rights of “present and future generations” from the harmful impacts of climate change.
Vanuatu must get sufficient United Nations General Assembly members (UNGA) to support its proposal to compel ICJ action to achieve this. Today’s announcement makes it increasingly likely that Vanuatu may be able to muster enough support to make that happen. While an ICJ opinion isn’t binding, it could go a long way in holding nations accountable for protecting human rights, from the right to food to the right to life itself, which are becoming increasingly vulnerable as climate change worsens.
“This really signals to the whole world that the region that has the most significant moral voice in the climate crisis is demanding an advisory opinion on climate change,” says Vishal Prasad, a campaigner at the Pacific Islands Students Fighting Climate Change (PISFCC), which is advocating for the ICJ advisory opinion. “Hopefully that will signal to the world to listen.”
Here’s what to know about the campaign, and what an advisory opinion on climate change from the ICJ might mean.
Who’s supporting the initiative?
More than 20 students from the University of South Pacific, Vanuatu came up with the idea of getting the International Court of Justice to issue an advisory opinion regarding climate change. Bob Loughman, the Prime Minister of the tiny island nation Vanuatu—which is made of some 80 islands stretching across 800 miles of the South Pacific Ocean—announced in September 2021 that he would build a coalition of countries to take the push forward.
It has steadily grown in number of countries that support the movement. The Caribbean Community (CARICOM), which is a collection of 14 Caribbean countries and dependents, stated support for Vanuatu in March. Organisation of African, Caribbean, and Pacific States, an 79-country group, said in June that it endorses Vanuatu’s initiative. Radio New Zealand reported that around 1500 civil society organizations support the campaign.
Pacific Island Forum (PIF) members, like Fiji, Palau, Papua New Guinea, and Samoa, endorsed Vanuatu’s push on July 18. So did Australia—one of the world’s largest exporters of fossil fuels—which is trying hard to shore up its relationship with Pacific Island nations as China also courts the region. This not only increases the support for the initiative but also gives it moral weight.
Australia’s Prime Minster Anthony Albanese (front), takes a selfie during the Pacific Islands Forum, (PIF), in Suva on Jul 14, 2022.
William West—POOL/AFP/Getty Images
Climate change has long been a top priority for Pacific Island countries, which are among the world’s most vulnerable places to the impacts of rising global temperatures such as rising sea levels that threaten the existence of some islands, and worsening storms. In recent years, Vanuatu has suffered from a string of devastating cyclones. The strongest ever storm to hit the Southeast Pacific in 2020 was Cyclone Harold. It decimated homes and schools as well as medical facilities. In 2015, Cyclone Pam caused $450 million in economic losses, wiping out 64% of the country’s GDP.
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What does an ICJ advisory view mean for climate action
The U.N. Charter allows the U.N. General Assembly to request an advisory opinion from the ICJ on legal questions that concern the international community.
Although the exact question that will be posed to the ICJ is not yet clear, leaders of the PIF said in a statement following the meeting that they looked forward to close collaboration in the development of the question that will be posed to the ICJ to ensure “maximum impact in terms of limiting emissions to 1.5 degrees, including obligations of all major emitters past, present and future.”
Although advisory opinions aren’t legally binding, the court says they carry “great legal weight and moral authority.” As its website explains: “Advisory opinions also contribute to the clarification and development of international law and thereby to the strengthening of peaceful relations between states.”
“You are essentially first talking about putting human rights at the center of climate change discussions,” says 26-year-old Prasad, who is from Fiji. “When you have the court clarify what the obligations of states are, what the state needs to do at minimum to protect the rights of its people and those to come, it will also help strengthen existing mechanisms and processes that seek to address the climate crisis.”
Large emitters could be impacted by an advisory opinion. Tim Stephens, a professor of international law at the University of Sydney Law School, tells TIME that it’s unlikely that the ICJ would be asked to directly address the responsibility of or liability of large emitter states for climate damage. But, he says, “even if the [ICJ] deals with wider legal issues such as the general obligations of states to protect the rights of future generations against the adverse effects of climate change it will carry implications for all governments … that continue to make a significant contribution to the climate crisis either through their own domestic emissions or to the emissions of other countries as a result of fossil fuel exports.”
But an advisory opinion that strongly says that countries have concrete duties under existing law to take urgent action, or that historic polluters are liable for the loss and damage suffered by the rest of the world could be “a big blow to politics as usual,” says Douglas Guilfoyle, a professor of international law and security at the University of New South Wales’ Canberra campus.
“The battle will ultimately be won or lost at the national level,” he says, but “the ICJ can arm national courts with a powerful precedent they can refer to or draw on to develop their own national law.”
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The next steps?
To vote in Vanuatu’s UNGA meeting, which begins September 1, the UNGA needs a simple majority. This will give the ICJ a mandate.
“Nothing is ever certain in a U.N. vote, but I’d be optimistic for Vanuatu’s chances,” says Guilfoyle, pointing out that there are 38 small island developing state members of the U.N. alone, that many sub-saharan African countries are likely interested in the question, and that places like India, which haven’t yet voiced support for the initiative, have suffered severe heat waves in recent months and could potentially be swayed.
Stephens of University of Sydney Law School says that Vanuatu must craft a question which can draw majority support at the UNGA. This will allow the ICJ to address the issue.
“This will be a challenge as any question that involves issues of responsibility or liability is unlikely to receive widespread support,” he says. The promise of $100 billion per annum to poorer nations in order to combat climate change has been broken by wealthy countries. In June, rich countries blocked the inclusion of “loss and damages”—or, compensation from historically high-emitting countries for the harm caused by the resulting carbon pollution—from the agenda of the COP27 climate meetings in November.
“On the other hand,” says Stephens, “a question that is too broad and general may not give the ICJ an opportunity to make a constructive contribution on this vitally important topic.”
Prasad is hopeful that Monday’s endorsement is an important step forward for the movement, and that it will have global ripple effects. “We’re hoping to see a groundswell of support coming from this announcement,” he says.
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