Vanuatu has published a draft UN resolution requesting an advisory opinion from the International Court of Justice (ICJ) on states’ legal obligation for climate action and the consequences of causing harm.
While the court, which is the UN’s main judiciary arm, has no binding authority, its opinion could inform lawsuits around the world and strengthen vulnerable countries’ position in international negotiations.
Vanuatu is facing sea level rise and increasingly powerful cyclones that periodically cripple its economy. As emissions rise and the world remains off track to meet its climate goals, overheating is threatening the archipelago’s ecology, livelihoods and infrastructure.
The draft resolution aims to establish the legal avenues for climate justice for present and future generations. It was prepared with a broad coalition of 17 countries, including Angola, Bangladesh, Germany, Mozambique, New Zealand, Portugal and Vietnam and a number of small island states.
Kevin Chand, a legal advisor to Vanuatu’s permanent mission at the UN, told Climate Home more than 100 countries have indicated they will support the resolution – over the simple majority threshold of countries needed to give the ICJ a mandate in a vote at the UN general assembly. But he is not stopping there. “We are looking for a larger majority because this is a signal to the court,” Chand said.
The draft resolution is out! This has been a long time coming for the #ICJAO4Climate camp and we look to the next steps. Thank you to the core group 🇦🇴🇦🇬🇧🇩🇨🇷🇫🇲🇩🇪🇱🇮🇲🇦🇲🇿🇳🇿🇵🇹🇷🇴🇼🇸🇸🇱🇸🇬🇺🇬🇻🇳🇻🇺 for your incredible engagement and efforts over the past few months, still more work ahead 🌏 https://t.co/XlDdInN7mo
— Ambassador Odo Tevi (@odo_tevi) November 30, 2022
The draft resolution poses two questions to the court.
Obligations and consequences
It requests the ICJ’s opinion on “what are the obligations of states… to ensure the protection of the climate system and other parts of present and future generations” based on a number of global treaties and principles of international law. These include the UN Charter, the UN climate convention, the Paris Agreement and the UN Convention of the Law of the Sea.
The last establishes that “states have the obligation to protect and preserve the marine environment” and must “take all measures to best reduce and control pollution of the marine environment from any source” including from land-based sources.
Secondly, the document asks the court: “what are the legal consequences under these obligations for states which, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment”? The question is asked in respect to small island developing states and other nations “specially affected by or particularly vulnerable to the adverse effects of climate change” and the people affected now and in future generations.
Margaretha Wewerinke-Singh is a lawyer specialising in arbitration of international disputes, who serves as lead counsel for Vanuatu. “The draft resolution strikes a careful balance between a climate justice-focused dimension and a forward-looking dimension. It recognises that we must draw lessons from the past to build a just and sustainable future and that international law has a role to play in correcting our current trajectory,” she said.
‘The ICJ making a pronouncement on this will really bolster the negotiation position of developing countries.”
Experts have argued that the ICJ’s opinion could give prominence to the question of support for victims of climate disaster, known as “loss and damage”. The issue dominated this month’s Cop27 climate summit, where nations agreed to create a bespoke loss and damage fund.
The resolution doesn’t explicitly ask the court whether countries have a duty to provide loss and damage support – leaving it to the court to decide whether to weigh in on the issue.
Instead, the resolution “notes with utmost concern… that human-induced climate change… has caused widespread adverse impacts and related losses and damages to nature and people”. It acknowledges that temperature rise, climate and weather extremes and slow-onset events such as sea-level rise and desertification “will pose an ever-greater social, cultural, economic and environmental threats”.
Earlier this year, in its updated 2030 climate plan, Vanuatu set out $178 million worth of measures it wants to take to respond to loss and damage. These include affordable micro-insurance, essential healthcare, protecting displaced people and the possible relocation of communities away from threats. Vanuatu says most of the funding would need to come from international donors.
Vanuatu’s president Nikenike Vurobaravu used the Cop27 climate summit in Sharm el-Sheikh to consolidate support for the initiative.
The nation’s permanent mission to the UN said it will begin consultations with other member states over the next few weeks, with a vote expected early 2023.
One of the key targets is the EU, which the core group of backers hopes will formally endorse the resolution.