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.
Marie Skłodowska-Curie Fellow (H2020-MSCA-IF-2020)nº101031252