Vanuatu, on behalf of a group of 18 countries, has sent a draft resolution to all United Nations Member States to start a consultation process on climate justice.
- Vanuatu has published a draft document requesting an advisory opinion from the International Court of Justice.
- This will start a consultation process with the UN on climate justice.
- It represents a significant step in a historic fight that could have global repercussions.
What is the purpose of publishing the draft document?
Vanuatu has published a draft resolution asking for the International Court of Justice’s (ICJ) opinion on climate change. It was prepared by 18 geographically diverse countries, covering both the Global North and the Global South, and states vulnerable to the climate crisis as well as large historical emitters. It is the result of 12 months of consultations and is supported by over 80 countries.
The Court has been asked to clarify what the obligations of states are to ensure the protection of the climate system and other parts of the environment for present and future generations. It will also ask what the legal consequences under these obligations are for states that, by their acts and omissions, caused significant harm to the environment.
The ICJ advisory proceedings will involve a series of hearings, allowing all countries to provide evidence. Vanuatu, on behalf of the group of 18 countries, stressed this is not a court case, nor is intended to blame or shame any state, and it will not request compensation or reparations.
Even though these advisory opinions are not binding, they carry major authoritative weight, as the ICJ is the judicial organ of the UN. Its opinions have historically contributed to the clarification and development of international law.
Vanuatu’s Minister for Foreign Affairs and External Trade Hon. Jotham Napat said: “The International Court of Justice is the only UN principal organ which has not yet been given an opportunity to address and contribute constructive solutions towards the climate emergency.”
“The support we have received so far gives us every hope the desperate pleas of our youth, our agricultural workers, our women and children are finally being heard.”
He concluded: “The Court will address what has brought humanity to the brink of collapse and threatens the very existence of countries and the human rights of individuals and peoples of present and future generations – climate change.”
The resolution will start a consultation process that will lead to a UN General Assembly vote at the 77th session, likely in early 2023. All UN members will have the opportunity to discuss it.
According to the Center for International Environmental Law (CIEL), all states should now actively support this core group of countries in the negotiations, giving the ICJ “the strongest mandate possible” to develop this important advisory opinion.
What will be the consequences of ICJ advice?
According to the Pacific Islands Students Fighting Climate Change (PISFCC), an ICJ advisory opinion on climate change “could make a substantial contribution to climate negotiations, bolder action as well as intra- and inter-generational equity”.
It is expected to cement consensus on the scientific evidence of climate change, and could complement the Paris Agreement by integrating areas of international law that are not working towards the same goal, such as human rights and the law of the sea. Moreover, it will act as an incentive to accelerate climate action and influence future proceedings before international courts and tribunals.
Conversely, the PISFCC identified some risks arising from seeking ICJ advice, chiefly the lack of international support – opposition could hamper the UN General Assembly vote, although it already counts on the support of 80 countries. The ICJ opinion could also complicate other international processes or even be unhelpful to progressive action on climate change.
Calls for climate justice
The resolution comes amid increased calls for climate justice systems and agreements, which intensified at COP27. Global warming and extreme weather events are disproportionately affecting countries, such as Vanuatu, whose emissions contributions are much lower than others.
The draft also stresses the interests of “present and future generations”, highlighting the importance of including young people in climate action.
Carroll Muffett, president and chief executive of the CIEL, commented: “Despite thirty years of climate negotiations – and universal recognition that the climate crisis is undermining fundamental human rights, damaging the global environment, and jeopardizing both built and natural systems vital to present and future generations – the unfettered production of the fossil fuels driving that crisis has continued to expand.”
He added: “In the face of that inertia, this resolution seeks guidance from the International Court of Justice on two simple, but fundamental questions: What are States’ obligations under international law to ensure protection of the climate system on which both present and future generations depend? And what are the legal consequences for States which have failed to meet these obligations? The answers to those questions could catalyze ambition, and clarify for States that the continued failure to act has legal significance and legal consequences as a matter of international law.”