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How a small island got world’s highest court to take on climate justice

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Updated March 29, 2023 at 3:04 p.m. EDT|Published March 29, 2023 at 11:48 a.m. EDT

An uprooted tree blocks a road after Cyclone Judy made landfall in 
Port Vila, Vanuatu. (Jean-Baptiste Jeangene Vilmer/AFP/Getty Images)

The small Pacific island nation of Vanuatu won a major victory to advance international climate law Wednesday after it persuaded the U.N. General Assembly to ask the world’s highest international court to rule on the obligations of countries to address climate change.

The request for an advisory ruling from the International Court of Justice is expected to clarify the legal obligations of countries to address climate change — and to create a path for them to be sued if they fail to do so. The U.N. effort was a significant outcome for Vanuatu, an archipelago nation of 320,000 people that is suffering from climate-change-driven natural disasters. In recent weeks, it was hit by two Category 4 cyclones, the severity of which its leaders blamed on global warming. Thousands of people are still living in shelters.

The country has used its moral authority and ability to stage action at the United Nations to achieve outsize results on climate issues. The U.N. General Assembly approved the measure by acclamation, with neither the United States nor China standing in the way of the effort despite uncertainty in advance whether they would seek a formal up-or-down vote.

 Wednesday’s decision was also a measure of how much global attitudes about the urgency of addressing climate change have shifted in recent years. A similar effort in 2011 by two other island nations, Palau and the Marshall Islands, failed at the United Nations. This time, Vanuatu obtained co-sponsorship from more than 120 countries, including Britain, France, Germany and other industrialized nations with a long history of high emissions.

“It is a matter of basic survival for us,” Vanuatu Climate Change Minister Ralph Regenvanu said in an interview. “We can’t do anything economically and politically because we don’t have any power. What we can use is our sovereignty as a United Nations member state.”

What’s an advisory opinion?

The International Court of Justice, which is based in The Hague, typically rules on disputes between countries. But it also issues advisory opinions that interpret how existing international agreements apply to new issues. Those opinions are not binding on national courts, but they can be used to pressure governments and courtrooms and to create pathways for future lawsuits.

“An opinion would assist the General Assembly, the U.N. and member states to take the bolder and stronger climate action that our world so desperately needs,” U.N. Secretary General António Guterres told the U.N. General Assembly on Wednesday ahead of the decision.

“It could also guide the actions and conduct of states in their relations with each other, as well as towards their own citizens,” he said. 

Having the International Court of Justice weigh in creates a “pretty clear pathway to recognizing that states have a duty not only not to violate fundamental human rights, but states have a duty to avoid transboundary harm through activities under their control,” said Carroll Muffett, president of the Center for International Environmental Law, a D.C.-based nonprofit that works to use international law to address ecological issues.

He compared an advisory ruling to consulting a lawyer while being engaged in behavior that falls in a legal gray zone.

“It’s like when you send a note to your lawyer, and you get a lawyer’s note back saying what you’re doing is illegal,” he said. “It puts you on notice that you could be held accountable for your actions.”

“It is hard to overstate the significance of this development as a matter of international law,” he added.
Vanuatu’s campaign

As Vanuatu gained support for the U.N. action, it was careful to try to build consensus, with its leaders saying they are not suing anyone nor seeking to create new international obligations. Instead, they say, they are seeking to clarify how preexisting international agreements apply to climate change.

“We believe the clarity it will bring can greatly benefit our efforts to address the climate crisis, and could further bolster global and multilateral cooperation,” Vanuatu Prime Minister Alatoi Ishmael Kalsakau told the assembly.

Neither the United States, which is the world’s largest historical emitter, nor China — which is soon poised to overtake the United States on that count — opposed the measure. The two superpowers have been competing for influence among Pacific island nations as they seek to project power across that ocean, giving the small countries outsize leverage despite their minuscule economies and populations.

But even as the United States stood aside and allowed the referral to be approved without objection, a U.S. diplomat also said the Biden administration believes diplomacy is a better way to achieve action on climate issues than inside a courtroom.

“Launching a judicial process, especially given the broad scope of the questions, will likely accentuate disagreements and not be conducive to advancing our ongoing diplomatic and other processes. In light of these concerns, the United States disagrees that this initiative is the best approach for achieving our shared goals,” diplomat Nicholas Hill told the General Assembly after the measure was approved, speaking on behalf of the State Department.

Vanuatu’s policymakers said they had tried to craft their work in a way that would win broad acceptance.

“We have deliberately tried to make this as noncontentious as possible,” Regenvanu said. “Once we get the question before the court, then the process of submissions begins, and there might be a slight change of tactic there. Because obviously we want the highest level ambition in that opinion.”

The effort began four years ago in a classroom at the University of the South Pacific in Fiji. Law students there decided that an advisory opinion from the International Court of Justice could be an effective tool to advance climate justice. They worked to convince their governments to follow suit.

Vanuatu has also promoted a global fossil fuel nonproliferation treaty, advocating a total phaseout of oil, coal and gas as quickly as possible. And it has been a leader on international efforts to create a system to compensate the worst-hit countries for “loss and damage” from climate change.


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Alatoi Ishmael Kalsakau

Climate Change

climate law


Ralph Regenvanu

UN General Assembly


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