Pacific island leaders have tried almost everything – from 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 trigger drastic action have been met with slow international climate negotiations and the continued use of fossil fuels, interest in using legal levers to force big polluters to act – or to pay – has increased.
For nearly a year now, Vanuatu has been trying to form a coalition for the world’s highest court to issue a legal declaration, or advisory opinion, on climate change. And on Monday, the climate justice movement made significant strides when Pacific island nations backed Vanuatu’s efforts. More than a dozen countries and territories in the Pacific region, including Australia and New Zealand, announced their support for the initiative shortly after the Pacific Islands Forum meeting in Suva, Fiji, which ended on July 14.
It comes amid an explosion of domestic litigation in recent years across the world, and interest in trying to leverage international courts to address the climate crisis has grown. For example, the Commission of Small Island States (COSIS) on Climate Change and International Law aims to be the first to take a case to the United Nations International Tribunal for the Law of the Sea to help determine the obligations of countries in under international law and hold polluters accountable. Vanuatu, meanwhile, is hoping to compel the International Court of Justice (ICJ) to deliver an opinion on countries’ obligations to protect the rights of “present and future generations” from the adverse effects of climate change.
To achieve this, Vanuatu needs to get enough members of the United Nations General Assembly (UNGA) to vote in favor of its idea to compel the ICJ to act. Today’s announcement makes it increasingly likely that Vanuatu will be able to muster enough support for this to happen. Although an ICJ opinion is not binding, it could go a long way in holding nations accountable for the protection of human rights, from the right to food to the right to life itself, which become increasingly vulnerable as climate change worsens.
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“It really sends a signal to the world that the region with the strongest moral voice in the climate crisis demands an advisory opinion on climate change,” says Vishal Prasad, an activist with Pacific Islands Students Fighting Climate Change (PISFCC), which pleads for the advisory opinion of the ICJ. “I hope this signals the world to listen.”
Here’s what to know about the campaign and what an ICJ climate change advisory opinion could mean.
Who supports the initiative?
The idea of getting the International Court of Justice in The Hague to issue an advisory opinion on climate change was conceived in 2019 by more than 20 students from the University of the South Pacific in Vanuatu. Bob Loughman, the Prime Minister of the small island nation Vanuatu – which is made up of some 80 islands spanning 800 miles of the South Pacific Ocean – announced in September 2021 that he would form a coalition of countries to advance the things.
The list of countries supporting the movement has continued to grow. In March, the Caribbean Community (CARICOM), a group of 14 Caribbean nations and dependencies, said it supported Vanuatu. The Organization of African, Caribbean and Pacific States, a bloc of 79 countries, said in june endorse Vanuatu’s initiative. And around 1,500 civil society groups are also backing the campaign, according to Radio New Zealand.
Members of the Pacific Islands Forum (PIF), such as Fiji, Palau, Papua New Guinea and Samoa, endorsed Vanuatu’s July 18 push. Australia, one of the world’s largest exporters of fossil fuels, is working to cement its relationship. with Pacific island nations as China also woos the region. Not only does this increase the number of countries supporting the initiative, but it also adds some moral weight to the initiative.
Australian Prime Minister Anthony Albanese (front) takes a selfie with other leaders during the Pacific Islands Forum (PIF) in Suva on July 14, 2022.
William West—POOL/AFP/Getty Images
Climate change has long been a top priority for Pacific island countries, which are among the most vulnerable places in the world to the effects of rising global temperatures, such as rising sea levels that threaten the existence of some islands, and worsening storms. Vanuatu, for example, has been hit by a series of devastating cyclones in recent years. In 2020, Cyclone Harold, the strongest storm on record in the Southeast Pacific, wiped out homes, schools, medical facilities and damaged crops. In 2015, Cyclone Pam caused $450 million in economic losses, wiping out 64% of the country’s GDP.
Read more: Imagine if the rich countries that caused climate change actually took responsibility
What would an ICJ advisory opinion mean for climate action?
Under the United Nations Charter, the United Nations General Assembly (UNGA) can request the ICJ to give an advisory opinion on any legal question of interest to the international community.
Although the exact question that will be put to the ICJ is not yet clear, PIF leaders said in a statement after the meeting that they looked forward to close collaboration in crafting the question that will will be posed to the ICJ to ensure “maximum impact in terms of limiting emissions to 1.5 degrees, including the obligations of all major past, present and future emitters.
Although advisory opinions are not legally binding, the court says they have “great legal weight and moral authority.” As its website explains: “Advisory opinions also contribute to the clarification and development of international law and thus to the strengthening of peaceful relations between States.
“You basically talk first about putting human rights at the center of climate change discussions,” says Prasad, 26, from Fiji. “When you ask the court to clarify what the obligations of states are, what the state must do at a minimum to protect the rights of its people and those to come, it will also help to strengthen existing mechanisms and processes that seek to tackle the climate crisis. .”
An advisory opinion could have a significant impact on large emitters. Tim Stephens, professor of international law at the University of Sydney Law School, told TIME that the ICJ is unlikely to be asked to deal directly with responsibility or liability of large emitting states for climatic damage. But, he says, “even if the [ICJ] deals with broader legal issues such as the general obligations of states to protect the rights of future generations from the adverse effects of climate change, this will have implications for all governments…that continue to make a significant contribution to the climate crisis either through through their own or other countries’ emissions resulting from fossil fuel exports.
But an advisory opinion that says strongly that countries have concrete obligations under current law to take urgent action, or that historical polluters are responsible for loss and damage suffered by the rest of the world could be “a blow for politics as usual”. says Douglas Guilfoyle, professor of international law and security at the Canberra campus of the University of New South Wales.
“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 that they can refer to or rely on to develop their own national law.”
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What happens next?
Vanuatu needs a simple majority of members to vote at the UNGA meeting which opens in September, to give the ICJ a mandate for action.
“Nothing is ever certain in a vote at the UN, but I would be optimistic about Vanuatu’s chances,” Guilfoyle said, pointing out that there are 38 small island developing states members of the UN, which many countries in sub-Saharan Africa are probably interested. in the question, and that places like India, which have not yet expressed support for the initiative, have suffered severe heat waves in recent months and could potentially be influenced.
It will be important for Vanuatu to craft an issue that can attract majority support at the UNGA and which the ICJ can usefully address, says Stephens of the University of Sydney Law School.
“It will be a challenge because any issue involving issues of responsibility or liability is unlikely to receive broad support,” he said. Rich countries have broken their promise to provide poor countries with $100 billion a year to help them deal with climate change. In June, rich countries blocked the inclusion of “loss and damage” – or compensation of historically emitting countries for damage caused by the resulting carbon pollution – on the agenda of meetings on the climate of COP27 in November.
“On the other hand,” says Stephens, “too broad and general a question may not give the ICJ the opportunity to make a constructive contribution on this vitally important subject.”
Prasad hopes Monday’s approval is an important step forward for the movement and will have global ripple effects. “We hope to see a wave of support coming from this announcement,” he says.
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