Climate change is one of humanity's greatest challenges, generating devastating effects, but also international legal, social, territorial and political conflicts.
Small Island Developing States (SIDS), like Vanuatu, are particularly vulnerable to climate change, having contributed little to global greenhouse gas emissions. Therefore, in international climate change negotiations these states have demanded that their particularities be taken into account and the international community has sought to promote climate resilience as well as the provision of financial resources to increase their adaptive capacities. Precisely, one of the risks faced by these States is the total or partial loss of their territory, which can seriously affect their sovereignty, cause harm to their population and even call into question their statehood.
According to the UN World Risk Report 2021, Vanuatu is a small island state with an area of about 1,300 km2 and a population of less than 300,000, consisting of about 40 islands, located in the southern Pacific Ocean, which has been ranked as the most vulnerable state to the adverse effects of climate change, especially sea level rise. 64% of its population lives one kilometer from the coast and, due to the increase in the average temperature of the planet due to greenhouse gas (GHG) emissions as a result of human activities, the sea level is rising year with year.
In general, issues related to climate change have been discussed mostly through flexible control and monitoring mechanisms, such as the Human Rights Council, resolutions of the United Nations General Assembly, the tools provided for in the Paris Agreement for the monitoring of climate goals by States, through the mechanism known as the global stocktake, among other bodies that have pronounced themselves on climate change, giving scope to this global problem. However, no international jurisprudence with binding legal effects has been developed on this issue.
In these circumstances, an interesting judicial phenomenon has emerged, driven by the judicial activism of national courts, which has encouraged the spread of climate litigation. Such litigation has become a manifestation of the power of the national judge to enforce the obligations of states and even corporations in the face of climate change. Moreover, it is evident that national judges apply foreign laws extraterritorially, or have even referred to international treaties, compelling states and companies to comply with their environmental and climate change obligations.
In the international context, the International Court of Justice (ICJ) is the principal adjudicatory body of the United Nations (UN). According to its Statute, the ICJ adjudicates legal disputes between States parties and renders advisory opinions to the United Nations and its specialised agencies.
The ICJ was created by virtue of the UN Charter, according to which all member states are ipso facto parties to the ICJ Statute, which regulates the procedure before the ICJ, however, the ICJ does not automatically have universal jurisdiction, as each state must express its consent to submit to its jurisdiction. Furthermore, the Charter recognises international jurisprudence as a source of international law, in accordance with Article 38 of the Statute. The ICJ has jurisdiction exclusively to resolve disputes between states, which means that it does not extend to other subjects such as international organisations, individuals or transnational corporations.
The ICJ has a contentious function to resolve disputes and a consultative function, by virtue of which it issues advisory opinions requested by specialised UN bodies. The ICJ is autonomous and is composed of 15 judges elected jointly by the General Assembly and the UN Security Council.
Vanuatu is leading the global campaign to obtain the consensus of the majority of states at the United Nations General Assembly , in order to ask the ICJ to issue an advisory opinion on climate change. So far, the ICJ has not ruled on the issue, as no international legal dispute related to climate change has been submitted to its jurisdiction. With this campaign, the State of Vanuatu aims to clarify the scope of States' obligations to prevent and mitigate climate change.
Specifically, Vanuatu is raising the following question: what are the legal consequences under these obligations for States that, by their acts and omissions, have caused significant damage to the climate system and other parts of the environment?
This question is posed taking into account two main affected. The first, "small island developing States and other States that, due to their geographical circumstances and their level of development, are harmed or especially affected or are particularly vulnerable to the adverse effects of climate change." The second refers to “people and individuals of present and future generations affected by the adverse effects of climate change”.
Although Vanuatu officially presented its proposal at the United Nations General Assembly, held in September 2022, it was at COP27 where it began to lobby and it worked. At least 18 countries expressed their support for the consultation; among them are Germany, Bangladesh, New Zealand, Portugal, Vietnam and Costa Rica. Previously, in 2011, the Marshall Islands and Palau announced a similar initiative, but withdrew from it.
The objective of the ICJ's advisory opinion is to strengthen the international legal framework for the protection of present and future generations from the adverse effects of climate change by clarifying the scope of States' climate obligations, which may have an impact on climate negotiations and the conduct of climate litigation. Only UN bodies and specialised agencies have the competence to request an advisory opinion before the ICJ. Therefore, the strategy of the Republic of Vanuatu is to obtain a majority of votes at the UN General Assembly, securing a minimum of 97 votes in favour in order to approve the request for an advisory opinion on climate change before the ICJ.
Although ICJ advisory opinions do not have binding legal effects, they have moral authority, political impact and legal effects for the interpretation of international law, so an advisory opinion on climate change would be a valuable contribution to the international legal framework that establishes climate obligations and to make the climate crisis visible and, consequently, to promote solutions of real impact for the fight against climate change in the global context.
For the CLIMOVE Project, it is very important to follow up on this initiative of the Republic of Vanuatu, as it is a State affected by climate migration due to its context of high vulnerability to climate change. It is therefore essential to follow closely this important initiative of the Republic of Vanuatu, which, if accepted, can make a paradigm shift in the international climate change regime.
The Women and Gender Constituency (WGC) is one of the nine official stakeholder groups of the United Nations Framework Convention on Climate Change (UNFCCC). The WGC established in 2009 and now consists of about 30 women’s and environmental civil society organizations and networks.
The WGC participated in the COP27 in order to achieve a substantive review of progress and challenges in the implementation of the five-year gender action plan (GAP).
The first “Gender Action Plan” (GAP) under the UNFCCC was established in 2017 (Decision 3/CP.23), with the aim to promote “the implementation of gender-related decisions and mandates under the UNFCCC process”. The GAP defines five priority areas for action and contains a set of 16 specific activities for the two years following its adoption.
In 2019, at the COP 25 celebrated in Madrid, Parties agreed a 5-year enhanced the “Lima Work Programme on Gender” (LWPG) and the “Gender Action Plan” (GAP) with the Decision 3/CP.25. This Decision “recognizes that the full, meaningful and equal participation and leadership of women in all aspects of the UNFCCC process and in national and local-level climate policy and action is vital for achieving long-term climate goals” and states that “gender-responsive implementation and means of implementation of climate policy and action can enable Parties to raise ambition”. It is quite noteworthy, because for the first time ever, a COP decision recognizes not only the “procedural dimension” of climate justice, but also the “distributive and intersectional dimension” of gendered climate justice, accepting the intersectional identities that people hold, including indigenous women. Accordingly, it says,
“climate change impacts on women and men can often differ owing to historical and current gender inequalities and multidimensional factors and can be more pronounced in developing countries and for local communities and indigenous people”.
The enhanced GAP sets out objectives and activities under five priority areas contained in its earlier version. These areas aim to advance knowledge and understanding of gender-responsive climate action and its coherent mainstreaming in the implementation of the UNFCCC and the work of Parties, the secretariat, United Nations entities and all stakeholders at all levels, as well as women’s full, equal and meaningful participation in the UNFCCC process.
Unfortunately, the 2019 LWPG and GAP respond timidly to the effective gender-responsive call. There are still significant weaknesses in the GAP. First, gender is often used as a synonym for women, instead of more extensive approach, including gender-non-conforming people, who are increasingly demanding representation and visibility in the UNFCCC process and at the grassroots level. Second, a high share of activities included in the GAP do not go beyond capacity building and information sharing. Second, the GAP still lacks quantifiable indicators and targets for measuring its progress. Third and perhaps most importantly, it is urgent that the financial commitments called upon in the LWPG are rapidly translated into concrete means to implement the GAP, otherwise it will be completely jeopardised. Finally, the current disregard of governments to review its NDCs and accelerate action to implement the Paris Agreement endangers effective gender-responsive climate action altogether. Thus, although all highlighted milestones achieved in this enhanced work program and action plan, the beginnings of the GAP have been discreet towards assuming inequalities and intersectionalities to cope with gendered climate injustices.
Thus, during several years of climate negotiations, the unwillingness of fully incorporating the principles of gender equality and human rights constituted a serious roll back for people-centered and rights-based climate action at large. Although the advances of the “Lima Work Programme on Gender” and the “Gender Action Plan” are welcome, the equal participation of women in climate change processes at all levels continues to be a necessity to address deep-rooted social and cultural inequalities, that can act as limitations for the real inclusion of gender, preventing from participating in a meaningful way. In this sense, true ‘climate gender democracy’ still lacks this effective inclusion at all levels of climate policies and decision-making.
Again this COP27 has been characterised by a lack of progress on gender mainstreaming and the failure of Parties to truly prioritise this agenda and resource the National Gender and Climate Change Focal Points (NGCCPs). This is especially relevant as the most recent IPCC report, which includes a chapter on gender and climate justice that identifies pathways to a just transition, a starting point for any gender-transformative implementation of climate action.
Before such shortcomings, the ‘climate gender democracy’ needs to incorporate the climate justice and the intersectionality approach in policies and laws to overcome vulnerabilities based on women-men and expand the understanding regarding non-binary social intersections, that impact the ways in which people mitigate and build resilience to climate impacts. If climate policies and laws, including the UNFCCC regime, ignore the diverse social and gender dimensions of people's lives, the inequalities will exacerbate and are less likely to contribute to actual sustainable development. Therefore, the real climate democracy will be not possible to achieve in times of climate emergency.
WGC: Download the statement as a PDF here.
#COP27GAPGENDER ACTION PLAN
 UNFCCC Secretariat reports “Executives summary on the implementation of the Lima work programme on gender and its gender action plan” and “Synthesis report on the implementation of the Lima work programme on gender and its gender action plan” accessible here: <https://unfccc.int/topics/gender/events-meetings/gender-in-the-intergovernmental-process/LWPG-and-GAP-review#eq-4>, (accessed 28 August 2022).
 See the Decision 3/CP.25. Available at: <https://unfccc.int/documents/210471>, (accessed 3 June 2022).
 Emphasis added.
 Emphasis added.
 Emphasis added.
Marie Skłodowska-Curie Fellow (H2020-MSCA-IF-2020)nº101031252