By Ralph Regenvanu, Minister of Climate Change Adaptation, Meteorology and Geo-Hazards, Energy, Environment and Disaster Management of Vanuatu
Climate justice is not an issue exclusive to small island development States (SIDS) like Vanuatu, but it is particularly pressing for us given the existential threat to our nations brought by the climate emergency. The international climate change regime has provided an important platform for global cooperation, but has failed to prevent the harm we are already suffering as a result of climate change. In fact, despite the climate catastrophe unfolding around the world, greenhouse gas (GHG) emissions continue to rise.
In international negotiations and climate activism, much attention is given to ‘1.5 to stay alive’ and the dystopian world awaiting us based on the latest projections. Despite the imperative of preventing such harrowing scenarios from unfolding, the focus on preventing future harm risks is overshadowing questions around accountability for loss and damage and human rights violations that have already occurred, and the legal and moral obligations of States to address them. The new Fund for Responding to Loss and Damage under the Paris Agreement on climate change is a positive step towards addressing loss and damage. However, it still falls short of providing real accountability for the impacts of climate change that SIDS and climate-vulnerable States are already experiencing and passing on to our future generations.
Historical polluters, specifically developed States whose development was achieved through industrialization and colonization, are responsible for the majority of cumulative anthropogenic GHG emissions. This reality should inform both mitigation ambition and contributions to the loss and damage fund, which should be urgently scaled up to meet the pressing needs of climate-vulnerable nations. In sum, grappling with the past is an essential component of climate justice.
Justice generally requires laws to protect people from harm and to ensure that when harm does occur, remedial action is taken. It requires that in accessing justice, people are treated impartially, fairly, and with respect for their rights.
Climate justice likewise requires prevention of harm, access to justice, and meaningful remedies for human rights violations. The international climate change regime provides limited avenues for remedial action. Its failure to deliver climate justice is precisely why citizens, organizations, and States are increasingly taking to the courts to seek accountability and redress. Vanuatu’s initiative to seek an advisory opinion from the world’s highest court must be seen in this context: it aims to clarify States’ obligations under international law within the context of the climate emergency, including obligations arising for States that have caused the climate catastrophe vis-à-vis the victims of the resulting harm. Clarity about these obligations will bolster international law’s capacity to serve as a robust system for remedial action.
The legal questions in the UN General Assembly (UNGA) resolution requesting the advisory opinion specifically refer to “States, including small island developing States (SIDS), which, due to their geographical circumstances and level of development, are injured or specially affected by, or are particularly vulnerable to, the adverse effects of climate change.” These ‘geographical circumstances and level of development’ are no less a factor challenging our equitable and effective participation in the advisory proceedings as they are in the context of climate action.
Vanuatu’s geographical circumstances, our distance from the International Court of Justice (ICJ), and the absence of any representation in The Hague, are a significant challenge. Logistically, it takes a minimum of three flights over two to three days to travel each way from Port Vila to The Hague, at a significant expense – both financial and in terms of our carbon footprint. We are fortunate to have an embassy and an excellent diplomatic team in Brussels, however, they are a team of two responsible for managing Vanuatu’s foreign affairs for the EU and the UK. Our Brussels mission is one of ten missions that Vanuatu has globally. We have no diplomatic legal counsel in all of Europe, and yet we are in a better position than some of our Pacific Island neighbors that have no representation, legal or otherwise, in all of Europe.
The simple task of filing written submissions has seen Pacific SIDS investing in cross-continental travel carrying in their suitcases, or finding a local printer to print, their 30 hard copies to hand over in person to the Court. The irony of 30 hard copies for each of the 91 submissions amounting to forests in paper in a case on climate change has not escaped many involved in the proceedings.
Vanuatu’s level of development and that of many other SIDS, in terms of capacity to participate effectively in the advisory proceedings, is more complex. Most of the Pacific SIDS participating in the advisory proceedings are doing so with the support of pro bono external legal counsel for capacity reasons. Vanuatu, for example, has no dedicated international law unit in either the Ministry of Foreign Affairs or the Office of the Attorney-General, and only a handful of government lawyers with international law expertise. Given our population of approximately 320,000, it is not surprising that we have on average less that 20 law school graduates each year, which is not enough to sustain our own domestic legal needs as our government legal offices struggle with shortages of lawyers.
The importance for the Global South of addressing the climate emergency quickly saw the proceedings grow into “the world’s biggest case,” and an opportunity for States and legal counsel alike to benefit from the experience at the world’s highest court. Offers of pro bono legal assistance to SIDS and other developing States continued until after the deadline for the submission of written statements, and an interesting mix of connections was observed with States’ selections of independent international law specialists or international law firms with varying rankings on the 2024 Climate Accountability Scorecard.
Despite the capacity constraints, there is an opportunity for all States from the Global South to participate in the upcoming oral hearings. This opportunity is unique as it allows political leaders and even youth representatives – who may be called as witnesses – to engage directly with the judges. The cultural aspects of communication are an important factor. Vanuatu and many of the Pacific SIDS are oral, storytelling cultures in a sense that our history, traditions, and education have been passed along orally for generations. The opportunity to have our voices heard before the ICJ is unique in advocacy, shaping the legal proceedings by building on our cultures and traditions.
The Court has thoughtfully requested States to inform the Registrar of their intention to participate in the oral proceedings three months prior to the commencement date. With 91 submissions from 94 States and organizations, and even more States planning to participate in the oral proceedings, the Court now faces the challenge of ensuring the effective participation of States, given its own capacity constraints.
In light of these structural inequities and challenges, the Court’s ongoing efforts to engage with SIDS represent an important step towards ensuring the effective participation of its newest active members, particularly given the high numbers of SIDS taking part in ICJ proceedings for the first time.
The unprecedented participation of States from across the globe in these proceedings marks an historic moment in international law. This case not only highlights the urgent need for climate justice but also exposes the structural inequities that have long hindered the voices of those most affected by climate change. As the world watches, the ICJ has an opportunity to set a new standard for inclusive international legal processes. The outcome of these proceedings could reshape our approach to climate accountability and pave the way for a more equitable global response to the climate crisis. Ultimately, the true measure of success will be whether this process amplifies the voices of the most vulnerable and translates legal clarity into tangible action for climate justice.
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This Guest Article is part of a project that seeks to raise awareness and build momentum and knowledge around the ICJ advisory opinion on obligations of States in respect of climate change and to promote a better understanding of the implications of the advisory opinion among sustainable development decision makers.