UN considers role of Int’l Court of Justice in climate change

The United Nations General Assembly is scheduled to vote on a resolution proposed by the South Pacific island nation of Vanuatu that would ask the International Court of Justice (ICJ) for its opinion on what legal obligations nations are under to protect climate systems and people affected by climate change.

The court’s opinion would be sought on what the legal consequences should be for states that, “by their acts and omissions”, cause such harm to the climate that it affects others, particularly small island nations and their citizens who are among the most vulnerable to the effects of climatic change.

Co-sponsored by 120 countries at the UN, including Australia, the United Kingdom, New Zealand and many European Union states, the resolution could be adopted on Wednesday by a consensus or pass with a simple majority – which would require at most 97 countries voting yes. Or, it might not be adopted at all.

But if the resolution passes as anticipated, the UN General Assembly will then ask the ICJ to clarify the legal obligations that states are under – and the consequences if they fail – to protect current and future generations from climate change.

Leading the initiative is the Pacific nation of Vanuatu – an archipelago of roughly 80 islands spread across 1,300 kilometres – which was hit by two Category 4 cyclones within three days earlier this month.

“For us [this was] an unprecedented weather event, consistent with what science tells us is a result of climate change,” Vanuatu’s Minister of Climate Change Adaptation Ralph Regenvanu said last week at a press conference.

“We estimate the cost of this disaster will exceed half our annual GDP [gross domestic product],” he said. “We are well and truly in the midst of a continuing climate emergency.”

Addressing the possible outcomes if the resolution is adopted and the ICJ gives an advisory opinion, Regenvanu spoke of such concepts as a “Fossil Fuel Non-Proliferation Treaty” or adding a crime of “ecocide” to international law.

Vanuatu’s campaign to involve the ICJ in climate justice follows after the latest Intergovernmental Panel on Climate Change (IPCC) report delivered a dire warning that “human-caused climate change is already affecting many weather and climate extremes in every region across the globe”.

The global surface temperature has increased by 1.1°C in the past century and is projected to continue increasing. The latest IPCC report details how, if the trend continues, the global surface temperature will “likely” exceed 1.5°C in this century and “make it harder to limit warming below 2°C”.

With increased warming comes rising sea levels, more severe and frequent extreme weather events – such as heatwaves, droughts, rainstorms and flooding – and continued loss of biodiversity, all of which disproportionately affect the poor and more vulnerable.

‘Who will pay?’

Vanuatu, which has net-zero carbon emissions, is consistently ranked as one of the most vulnerable countries in the world to climate change and more than a quarter of its population of more than 300,000 is at risk due to rising sea levels.

Vanuatu has also pushed for more far-reaching policies within international climate negotiations for over three decades, first proposing a fund for “loss and damage” due to climate change to the UN in 1991.

This year, negotiators hailed an historic victory when a fund for loss and damage was finally approved at the COP27 summit in Sharm el-Sheikh, Egypt.

The loss and damage fund aims to create a mechanism to assist low-lying, developing and otherwise vulnerable nations that disproportionately bear the effects of climate change.

A transnational committee charged with figuring out the details of this programme has already been selected and held its first meeting on Monday in Luxor, Egypt.

Over the next year, delegates will be sorting out the difficult questions of how much money will be in the fund and who will pay.

“The fund is an essential part of building back trust after 30 years of failed acknowledgement of the need for finance specifically allocated to address loss and damage resulting from unmitigated emissions and inadequate adaptation support,” Vanuatu’s lead climate negotiator Christopher Bartlett said.

While a loss and damage fund would work retroactively, attempting to compensate for what has already been lost due to climate change, the request for an advisory opinion from the ICJ is directed at shaping national policies in the future, and opening up new avenues within international law.

The campaign first began as a project at the University of the South Pacific school law school in Vanuatu in 2019.

Cynthia Houniuhi, a law student at the time, remembered working with two dozen other classmates for a course about climate change and human rights.

The idea to ask the ICJ for an advisory opinion, she said during last week’s press conference with Vanuatu’s climate minister, stood out because “it was the most ambitious idea on our list”.

They were also inspired, she noted, by a similar initiative that had been undertaken by the nearby island nation of Palau.

In 2011, Palau announced plans to ask the ICJ for an opinion on the responsibilities nations had regarding climate change. The resolution was never voted upon at the UN.

But, the government of Vanuatu endorsed the students’ proposal, Houniuhi said, and then advanced the idea to a regional level.

“From there it was history in the making,” she added.


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