VANUATU AND THE CLIMATE VICTORY AT THE UN: THE INTERNATIONAL COURT OF JUSTICE WILL RULE ON THE CLIMATE CRISIS

29th of March was an important day for the state of Vanuatu, which succeeded in getting Resolution A/77/L.58 adopted at the UN General Assembly. The Pacific Island achieved a great victory, but to better understand what happened, we need to take a few steps back.

Scenario

According to Article 96 of the UN Charter, the General Assembly is one of the UN bodies that may request the International Court of Justice – the principal judicial organ of the United Nations – for a non-binding opinion on any legal matter (so-called advisory opinion). Such a request must be formulated in a resolution that spells out in detail the question to be addressed to the Court (Art. 65 of the Statute of the Court) and must be voted on and adopted by a simple majority of the members present and voting in the General Assembly.

During the intense days of negotiations at COP27, ICN had followed the appeal that Vanuatu’s President Nikenike Vurobaruvu had made to all world leaders to allow the ‘highest court in the world’, the International Court of Justice, to rule on the climate crisis. In particular, the aim was to clarify, under international law, the obligations of states to protect the rights of present and future generations from the negative impacts of climate change.

At the Sharm El-Sheik negotiations, Vanuatu had informally shared a draft resolution, initiating several informal consultations. In those days, already 80 states had decided to support the cause pending the publication of the official draft resolution, which then arrived on 20 February 2023. For a month, all UN member states were able to show their support by becoming ‘co-sponsors’ of the resolution, i.e. pledging to support it during its adoption process. On 1 March 2023, 50 states, including Italy, confirmed their support and over 220 civil society organisations from around the world called on their foreign ministers to endorse the Resolution at the General Assembly. When the decision was taken in the General Assembly Hall on 29 March 2023 at 10 a.m. (New York Times), more than 130 states supported the Resolution and allowed its adoption by consensus, without the need for further voting.

A historic victory

This is an unprecedented step forward. The Resolution is an achievement, especially for a state like Vanuatu which, only a few weeks ago, was hit by two cyclones in the space of 72 hours.

The adoption of the Resolution by consensus is, in fact, a strong and unequivocal message that underlines the will of the majority of states to tackle climate change. While it mattered little procedurally that China, the United States and India, the world’s largest CO2 emitters, and the Gulf States, the most important oil producers, voted against the Resolution, it made the position of some states in terms of climate responsibility even more obvious. More than 130, on the other hand, agreed with the words of UN Secretary-General Antonio Guterres that: ‘exacerbating climate injustice fuels divisions and threatens to paralyse global climate action’. Vanuatu, therefore, deserves general thanks (in our own small way, also from ICN) for leading a process that made it possible to adopt such an important initiative for unanimity.

 What will be the developments?

Once approved, the UN Secretariat will now have to prepare all additional documents and information on the issue under discussion to be provided to the International Court of Justice. The latter will then issue a procedural order inviting states and certain intergovernmental organisations to submit written statements on the legal question posed by the General Assembly. This procedure usually takes place in two stages: the first approximately 6 months after the adoption of the resolution; the second 3 months after the first. Non-governmental organisations are not allowed to participate directly in the proceedings, but their statements and documents can be considered “readily available publications” and cited by participating states and intergovernmental organisations. Three to four months after the expiry of the second round of declarations, hearings will take place lasting from three days to two weeks during which each state and intergovernmental organisation will have the opportunity to intervene. This lengthy procedure will end 6-12 months after the end of the hearing when the President of the Court will read the opinion in public.

“We have never been so well equipped to solve the climate crisis”

(UN Secretary-General, Antonio Guterres)

Remember that the Court’s opinion is not binding, but has substantial legal authority, especially in such cases. This pronouncement will help to significantly delineate the obligations of states in climate matters. It will clarify the state legal consequences of acts or omissions that have caused significant damage to the climate and environment, with particular regard to small island developing states that are highly vulnerable to climate change and the people of present and future generations affected by these effects. Pressure from international obligations will require states to strengthen national regulatory frameworks, particularly in high-carbon sectors. 

An advisory opinion on climate change obligations is a first for the jurisprudence of the International Court of Justice, which also sets an important precedent for other national and international courts and tribunals. Considering the support so far, it is also expected that there will be great social involvement that will echo the proceedings before the Court. It will be an opportunity for civil society, youth movements and academics to discuss the issue, stimulating a diverse and constructive debate on human rights and climate justice. 

There will be time to talk more about this. For now, Vanuatu together with more than 130 states has made history.

Article by Camilla Pollera, Climate and Rights Section Co-coordinator