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What the ICJ’s ruling on climate change could mean
Members of the United Nations General Assembly unanimously voted in favour of Vanuatu’s submission to request an advisory opinion from the ICJ on the matter of climate change responsibility and accountability. Their ruling has the potential to shape the future of climate change litigation in countries across the world, while also pushing states to strengthen their climate change action and mitigation strategies.
👉 In this article we’ll explore what Vanuatu is asking from the ICJ, and what a favourable ruling could mean for the future of climate change action and legal accountability.
First up, what is the ICJ?
The ICJ stands for the International Court of Justice. It is one of six principal organs of the United Nations and is the main judicial branch, charged with settling disputes between countries and giving advisory opinions on matters of international law.
The ICJ replaced the Permanent Court of International Justice (PCIJ) which was created by the League of Nations in 1920. In the aftermath of the Second World War the League of Nations and the PCIJ were succeeded by the UN and the ICJ. However, the decisions of the now defunct court, the PCIJ, remain valid and the Statute of the ICJ leans heavily on that of the PCIJ.
The ICJ exists as the sole international court capable of overseeing general disputes between states, and the rulings of the ICJ become sources of international law. All UN member states are subject to the jurisdiction of the ICJ and may bring a case before the court, however, it should be noted that advisory proceedings can only be initiated by select UN bodies and agencies.
In terms of the ICJ’s ruling panel - ie. the judges who preside over cases - this is made up of 15 judges who are elected by the UN General Assembly and the Security Council. The ICJ judges serve for a period of 9 years, and no two judges can have the same nationality at the same time. The idea is that the judges reflect different communities and legal systems from across the world.
Why is Vanuatu seeking an advisory opinion?
Vanuatu is a small island nation, made up of around 280,000 people spread out across 80 islands in the Western Pacific Ocean. Given its geological make-up, it’s hardly surprising that climate change is at the forefront of its people’s minds.
Global warming is resulting in rising sea levels across the globe, with an increase of between 6 and 10 inches projected to occur by 2030 alone (vs. the 1992 average sea level).
This rise in sea levels is being driven by two impacts of climate change. The first is that rising global temperatures are causing mountain glaciers and polar ice sheets to melt, releasing excess water into the world’s oceans. The second mechanism that is being driven by climate change is the warming of our ocean waters which leads to an expansion in volume, thereby causing sea levels to rise.
By the end of the century our oceans could be as much as 61 inches higher, which would be devastating for low lying island nations such as Vanuatu. Sea level rises not only result in permanent flooding of coastlines, but can also change coastal ecosystems - something that provides food and income for many coastal communities.
Vanuatu is one of the world’s most vulnerable countries when it comes to the impacts of climate change, and not only due to the growing threat of rising sea levels. Vanuatu is also predicted to experience increasing tropical storms, more extreme rainfall, and increased incidences of flooding and storm surges. In fact, we’re already seeing the impacts of climate change on this small island nation.
In 2020 Cyclone Harold caused over 700 million USD worth of damage and destroyed homes, schools, medical facilities, crops and fresh water infrastructure.
From law school to the ICJ
The story behind Vanuatu’s journey to the ICJ is an inspiring one, and shows that you don’t have to be in a position of power to affect meaningful change in the fight against climate change. In fact it was a group of law students at the University of the South Pacific who got the ball rolling on the legal action.
A group of 27 students who were part of a student society called the ‘Pacific Island Students Fighting Climate Change’, came up with the idea of seeking an advisory opinion on climate change from the ICJ - specifically what are the obligations of states when it comes to addressing climate change.
The students initially approached the Vanuatu Government with the idea. Much to their amazement, the Vanuatu Government was receptive to the plan, and formed a coalition alongside 18 other Pacific Island nations and vulnerable countries.
The previous Prime Minister of Vanuatu, Bob Loughman, called for global action on climate change, stating that “the dire consequences of climate change can no longer be ignored, and the science linking climate change to past and present emissions of greenhouse gases is now beyond question. Climate change is driving sea level rise, desertification, disease redistribution, floods, unprecedented ‘heat domes’, cyclones, hurricanes, and other extreme weather events.”
Then Prime Minister Bob Loughman highlighted the need for international cooperation, stressing that individual nations cannot fight climate change alone. This is why the ICJ’s support is so crucial.
How can Vanuatu get an advisory opinion from the ICJ?
As we’ve already touched on, advisory opinions from the ICJ can only be initiated by certain UN bodies and agencies. According to the Statute of the ICJ, the UN General Assembly and the UN Security Council have the power to request advisory opinions on any legal matter. Other UN agencies may also request advisory opinions regarding legal issues that are within the scope of their activities.
This meant that the only recourse for Vanuatu was to ask the UN General Assembly for its backing in seeking an advisory opinion from the ICJ.
The General Assembly is the main policy making body of the UN and is made up of all 193 UN Member States. On March 29 2023, more than 130 states lent their support and backing to Vanuatu’s request to seek an ICJ advisory opinion, granting a resolution that means the UN General Assembly will seek the opinion of the ICJ with regards to countries’ obligations to address climate change. Additionally, the General Assembly will also seek the ICJ’s legal opinion regarding consequences for states that, either through their acts or omissions, damage the climate in a way that impacts other countries.
What does the General Assembly resolution mean?
The backing of the General Assembly to request an advisory opinion from the ICJ is a significant development. It is the first time that the world’s highest court has been asked to consider a country’s obligations when it comes to climate change, and to determine what the legal consequences are where they fail, either through acts or omissions, to prevent climate harm.
Another interesting aspect of the UN General Assembly resolution is that it asks the court to look beyond the Paris Agreement and to consider human rights statutes and laws. The ability to live in a clean, healthy, and sustainable environment is seen as a human right - and legally recognised in 156 different countries around the world. The expanded scope of the court to consider these additional legal instruments opens up the possibility of greater accountability.
What happens next?
The ball is now with the ICJ. It will need to assemble and consider all relevant sources and documents that pertain to the case. It’s also likely that they’ll want to conduct public hearings . Given all these elements, its advisory opinion can be expected in early 2024.
What will the ICJ ruling mean?
The ICJ’s advisory opinions don’t have any binding force, however, they are still seen to carry significant legal weight and authority in the international community. Therefore, its ruling will undoubtedly push states to speed up efforts to cut emissions and to bolster their climate change adaptation and mitigation strategies.
An additional benefit of the ICJ ruling is that it can also be cited in domestic legal cases. This means that those who bring legal action against countries or businesses for their climate related acts or omissions, will be able to reference the advisory opinion, adding weight to their legal arguments.
An ICJ opinion that leans strongly in favour of climate change action and accountability will help to shape the future of climate justice for current and future generations.
Why climate justice is crucial
Climate justice is a concept based on principles of equality, non-discrimination, fairness and transparency, accountability and justice. These principles are essential if we are to fairly progress through (and hopefully out of) the climate crisis.
The Paris Agreement adopts this idea of responsibility, but highlights that it's a case of differentiated responsibilities. What this means in effect is that every country in the world has a responsibility when it comes to climate change, but what this actually consists of will vary on a case by case basis. This reflects the reality that different countries are affected differently by the impacts of climate change and that different countries will have varying degrees of responsibility - take Vanuatu for example, despite contributing very little to the issue of global warming it is one of the most severely affected countries.
Climate justice seeks to provide redress to those who are unfairly affected by climate change, and to hold those responsible for climate change to account. The ICJ ruling has the potential to provide weight to this principle and to support climate change litigation across the world, while also motivating countries to take faster and stronger action in the fight against global warming.
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