On November 29th, 2022, the Republic of Vanuatu circulated a document to all UN Member States containing a preliminary draft for a Resolution requesting the International Court of Justice ("ICJ") for an Advisory Opinion on the legal force of international climate change obligations. The aim is to "kickstart the inclusive consultation process" with UN Member States in order to develop a final version which will, hopefully, result in an official Resolution approved by the UN General Assembly ("UNGA") during 2023. This article aims to analyse the embarkment in the judicial path, to assess whether the time is ripe for international tribunals to offer a solid contribution to the development of climate change law and whether Vanuatu's daring endeavour may result in a concrete effect.
A last resort for small-island states
Before proceeding to the merits of the Draft Resolution, an element of interest certainly lies in the very protagonist mentioned above: the Republic of Vanuatu. With a population of circa three hundred-thousand people, the Republic of Vanuatu has been a part of the United Nations since the declaration of its independence from Anglo-French domination in 1980. Despite its small size, it has represented a powerful voice on the international stage for the global challenge to mitigate and adapt to climate change. Most recently, it distinguished itself as one of the first states to strongly advocate for the judicial path in the pursuit of environmental objectives (Fair, 2018).
One reason behind such activism can reasonably be found in the high-risk situation of the small-island state, which, in 2015, ranked as the world's most at-risk country for natural hazards (World Risk Index, 2015) and currently envisions serious imminent risks of displacement by sea-level rise for 25.56% of its population (just under 65,000 people). More generally, Vanuatu acts as a representative of the larger and more diffused category of small-island states, majorly vulnerable to sea-level rise effects, which link to a multitude of interconnected phenomena, such as coral bleaching and salinization of groundwater. The most notable intergovernmental association centred on the safeguard of this category is the Alliance of Small Island States ("AOSIS"), which has most recently played a central role in the "historic" establishment (UNEP, 2022) of the long-awaited Loss and Damage Fund at the most recent Conference of Parties held in Sharm El Sheikh (COP27).
Figure 1: Vanuatu is a small-island state located in the South Pacific Ocean (Arcuri)
The content of the Draft Resolution
As portrayed in the introduction, the aim of the Draft Resolution presented at the UN General Assembly is to forward an official request to the International Court of Justice for the deliverance of an Advisory Opinion. The two legal questions concern "the obligations of States under the above-mentioned body of international law to ensure the protection of the climate system" and "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" (quote from Vanuatu's Draft Resolution, November 29th, 2022).
In the body of the text leading to these two questions, along with mentioning the scientific consensus concerning the harmfulness of the climatic emergency and the instruments already developed at the international level (among all, the Kyoto Protocol and the Paris Agreement), the draft contains a particularly poignant reference to the failed objective of deploying the sum of 100 billion dollars per year to the implementation of mitigation actions, noting such failure with "deep regret". This passage is particularly interesting, considering that the "100 billion pledge" was formulated in 2015 at the Copenhagen Accord and represents the sole punctual reference to a specific international law agreement in the Draft Resolution.
Figure 2: Molwyn Joseph, Chair of the Alliance of Small Island States, speaking at COP 27 (The Herald Journal).
The Advisory Opinion Instrument
Moving a step back, the Advisory Opinion is a legal advice instrument which is attributed to the organs of the United Nations via which guidance is offered in the interpretation of a point of law. Although Advisory Opinions are not legally binding instruments, the stature of the International Court of Justice confers them an undoubtedly strong standing (Aust, 2011). In this sense, if the ICJ were to deliver an Advisory Opinion to certify the existence of binding climate change law obligations, which is the best possible scenario for the States that have subscribed Vanuatu's draft resolution, this would represent a tremendous achievement.
“To strengthen Nationally Determined Contributions, we must strengthen our understanding of what international law already obliges us to do”
Nikenike Vurobaravu, President of the Republic of Vanuatu
Figure 3: Vanuatu's President Nikenike Vurovaravu addressing the UN General Assembly on September 23rd, 2022 (AFP/Smith).
The Long Road Ahead
Three main steps stand between the current stadio and the attainment of the aforementioned best case scenario: firstly, a favourable vote by the UNGA that approves a final Resolution requesting the ICJ for an Advisory Opinion; secondly, a positive evaluation by the judges of the Hague of its own competence to deliver an official position on the subject requested; in third instance, a positive evaluation by the judges on the merits of the requests forwarded by the UNGA, with a recognition of (some sort of) bindingness connected to climate change related international law obligations.
A projection concerning the first of these three questions inevitably involves some political speculation and, therefore, it exceeds the scope of the present article. What can be said on the subject, however, is that the UNGA vote on the preliminary draft presented by Vanuatu has been scheduled for December 14th, 2022, and that a "priority question" has already been officially directed to the European Council by one of its members, requesting the communitarian body to ensure that the European Union presents itself with a common position in the occasion. Considering the fact that the Resolution would be likely to require a simple majority vote to pass, the united vote of all European members may be decisive.
"Given the importance of this issue, can we expect the Council of the EU to come up with a common and coordinated strategy with the Member States to ensure that this resolution passes?"
Nacho Sánchez Amor, Member of the European Parliament (S&D)
Figure 4: The European Parliament will be called to take a position on the Draft Resolution (Rambaldi).
For what concerns the second question, regarding adjudication, the International Court of Justice possesses a certain discretion as to the acceptance of a request for an Advisory Opinion, for article 65(1) of the ICJ Statute merely provides that the ICJ "may give an Advisory Opinion on any legal question" (emphasis added). However, it has to be mentioned that the International Court of Justice has rarely ever declined a request for an Advisory Opinion and only once it has done so for reasons of jurisdiction (Aust, 2011). In this particular occasion, even more so, it is hard to envision strong grounds for the Court to decline its jurisdiction on the matter, as international environmental law undoubtedly rests within the scope of the Court's jurisdiction. Perplexities may arise with reference to the generic nature and width of the question encompassed in the present Draft Resolution (Mayer, 2022), but it is rare to see Advisory Opinion requests formulated with a high degree of specificity. The complexities inherent in the formulation of a question to the ICJ, especially in the context of a request for an Advisory Opinion, are notable (Savaresi et al., 2021), involving a necessary balance between the need for a judicial response which can be globally impactful and that for a judicial response which affirms a legally well-defined position. Such a balance is hard to strike and, with particular reference to the climate change challenge, it rapidly summons the same complexity (Vinuales, 2011) that has been an obstacle to the efficient framing of policy-making processes on the subject for years before the Paris Agreement (Falkner, 2016). To close on this second part, however, it is highly unlikely that the Court will resort to the excessive vagueness of the question to decline its jurisdiction on such an urgent subject.
Nonetheless, the phrasing of the question posed to the judges may well be decisive for the third step of our analysis: the substantial content of the potential Advisory Opinion. The text of the current Draft Resolution does not play in favor of a powerful response by the Court, especially for what concerns the first of the two enquiries put forward. The mere call for an illustration of the existent climate change law-related obligations encumbering on States may foster a delusional result, with the judges limiting themselves to an enumeration of the most notable legal agreements setting objectives and contributions, with no real added value to what is already known. Similarly, the Court may be able to resort to the same typology of response with reference to the second, and most important, question concerning the legal consequences of climate law related violations. If the Court were to merely enumerate the existent legal sources on climate change law, nothing would prevent it to also replicate the answer also for the legal effects which derive from the breach of these sources, adding none to the discussion already present in international climate change law (Mayer, 2022).
Figure 5: Outside view of the Peace Palace in the Hague, home of the International Court of Justice (UN-ONU PHOTO/Van de Beek)
Are the odds favourable?
On the basis of the current text of the Draft Resolution, expectations for the ICJ to deliver a truly decisive response lie entirely in the possibility that the judges themselves will decide to answer more than what is requested. Is the Court likely to do so?
From one point of view, the first assessment shall be done regarding whether it may be convenient for the judges to do so. Naturally, it is unadvisable for such a powerful organ to take a political stance of a "controversial" matter (Aust, 2011), despite the recognition that, especially with reference to international law, resort to a judicial organ is typically related to issues over which a political agreement could not be found otherwise (Kolb, 2016). Anyway, the subject of climate change can hardly be considered a "controversial" one: worldwide leaders have recognized the urgency and the global risks for future generations with no notable exceptions. The same can not be said, however, with reference to an agreement on the international responsibilities connected to conducts which do not fall into compliance of international environmental legal obligations. Global accordance on this aspect is far from being reached and economic and political assessments obviously play a role in the context of such splits, something which inevitably triggers the legal endeavor to obtain satisfactory responses on the subject (Lefebre, 2012).
Figure 6: The Court in session, September 2019 (De Jong).
On the other hand, the question is whether the Court is in some way legally required to deliver an emphatic statement. The answer, as it stands, is no. There are multiple ways the Court would be able to avoid the central question about the bindingness of current legal instruments, all the more reason when the question framed does not make mentions to any specific obligation. An element of specificity present in the Draft Resolution lies in the explicit mention to the increased vulnerability of small-island states, in regard to which scientific evidence is granitic. This may optimistically lead to a notation by the judges on the imminent human rights threats that revolve around the reality of small island states, but it still is unlikely to stimulate a voluntary assessment by the tribunal of an international responsibility for climate change law violations.
As said, however, Vanuatu's proposed resolution is still a preliminary draft, and the General Assembly will have the possibility to play its cards effectively framing the request in more specific terms. The Advisory Opinion instrument allows for a general effect to be produced (Bodansky, 2017) and, if well composed, it may produce important results regardless of its non-binding effect. An interesting path proposed, which clearly aims to "shooting for the stars to land on a cloud", would be that to ask the judges whether climate change law may ever develop into jus cogens (Cervantes et al., 2022). If such a question were to be accepted by the ICJ, the outcome would inevitably be ground-breaking, one way or another. In the meantime, eyes open towards the outcome of the first UNGA assembly, December 14th.
Aust, A. (2010). Advisory Opinions. Journal of International Dispute Settlement. 1(1).
Bodansky, D. (2017). The Role of the International Court of Justice in Addressing Climate Change: Some Preliminary Reflections. Arizona State Law Journal, 49.
Cervantes M. A. et al. (2022). Global Climate Change Action as a Jus Cogens Norm: Some Legal Reflections on the Emerging Evidence. Environmental Policy and Law.
Fair, H. (2018) Not Drowning but Fighting': Faith, Activism, and Climate Change Narratives in the Pacific Islands. UCL University Press, 24-27.
Falkner, R. (2016) The Paris Agreement and the New Logic of International Climate Politics. International Affairs, 92(5), 1107-1125.
Field, C. B., Barros, V. R., Dokken, D. J., Mach, K. J., Mastrandrea, M. D., Bilir, T. E., & White, L. L. (2014). Intergovernmental Panel on Climate Change (Eds.). (2014). Climate change 2014: impacts, adaptation, and vulnerability: Working Group II contribution to the fifth assessment report of the Intergovernmental Panel on Climate Change.
Freestone, D., Barnes, R., & Akhavan, P. (2022). Agreement for the Establishment of the Commission of Small Island States on Climate Change and International Law (COSIS). The International Journal of Marine and Coastal Law, 37(1), 166-178.
Garschagen, M., Mucke, P. et al. (2015). World risk report 2015. Report, United Nations University Institute for Environment and Human Security and Bündnis Entwicklung Hilft. In https://www.dw.com/en/exposed-why-vanuatu-is-the-worlds-most-at-risk-country-for-natural-hazards/a-18319825 (ISBN 978-3-9814495-9-4).
Gordon, E. (2012). The ICJ: On Its Own. Denver Journal of International Law and Policy, 74.
Kolb, R. (2016). The Elgar Companion to the International Court of Justice (Elgar Companions to International Courts and Tribunals series) (Reprint). Edward Elgar Publishing.
Lefeber, R. (2012). Climate change and state responsibility. In: International Law in the Era of Climate Change. Rayfuse, R., & Scott, S., V. Edward Elgar Publishing.
Mayer, B. (Forthcoming in 2023) International Advisory Proceedings on Climate Change, Michigan Journal of International Law, 44.
Neumann, J. E., Yohe, G., Nicholls, R., & Manion, M. (2022). Sea-Level Rise. Climate Change: Science, Strategies, and Solutions: Pew Center on Global Climate Change, 43.
Pekkarinen, V., Toussaint, P., & van Asselt, H. (2019). Loss and Damage after Paris: Moving Beyond Rhetoric. Carbon &Amp; Climate Law Review, 13(1), 31–49. https://doi.org/10.21552/cclr/2019/1/6;
Pill, M. (2022). Towards a funding mechanism for loss and damage from climate change impacts. Climate Risk Management, 35, 100391.
Sands, P. (2016). Climate Change and the Rule of Law: Adjudicating the Future in International Law. Journal of Environmental Law, 28(1)
Savaresi, A., Kulovesi K. (2021) Beyond COP26: Time for an Advisory Opinion on Climate Change? EJIL: Talk! https://www.ejiltalk.org/beyond-cop26-time-for-an-advisory-opinion-on-climate-change/.
United Nations. (1946) Statute of the International Court of Justice.
United Nations Environment Program (2022). COP27 ends with announcement of historic loss and damage fund. https://www.unep.org/news-and-stories/story/cop27-ends-announcement-historic-loss-and-damage-fund
United Nations Office of the High Representative for the Least Developed Countries. (2017). Small Island Developing States in numbers. https://www.un.org/ohrlls/sites/www.un.org.ohrlls/files/sids_biodiversity_and_oceans_2017.pdf.
Republic of Vanuatu. (2022) Draft Resolution: Request for an advisory opinion of the International Court of Justice on the obligations of States in respect of climate change for the Seventy-seventh session (Agenda item 70: Report of the International Court of Justice).
Vanuatu warns fossil fuel companies could be sued over climate change. (2018). Greenpeace Australia Pacific. https://www.greenpeace.org.au/news/vanuatu-warns-fossil-fuel-companies-could-be-sued-over-climate-change/.
Vinuales, J. E. (2011). Balancing Effectiveness and Fairness in the Redesign of the Climate Change Regime. Leiden Journal of International Law, 24(1), 223–252. https://doi.org/10.1017/s0922156510000701.
Cover Image and Figure 1: Vanuatu. Author: Alex Arcuri. Retrieved 9.12.2022 from Pasifika News. https://pasifika.news/2022/11/vanuatu-to-announce-at-cop27-its-draft-proposed-unga-resolution-on-rights-of-people-against-the-adverse-impacts-of-climate-change/
Figure 2: Molwyn Joseph at the 27th Conference of the Parties. Author: The Herald Journal. Retrieved 12.12.2022 from: https://www.hjnews.com/world/cop27-climate-summit/image_418401ab-ff46-544e-93fd-09bbea7ab420.html
Figure 3: 77th UN General Assembly. Author: Bryan A. Smith - AFP. Retrieved 10.12.2022 from: https://www.sciencesetavenir.fr/nature-environnement/a-l-onu-le-vanuatu-lance-la-bataille-pour-un-traite-de-non-proliferation-des-energies-fossiles_166566
Figure 4: European Parliament in session. Author: Davide Rambaldi. Retrieved 12.12.2022 from: https://www.eurochild.org/news/the-european-parliament-will-vote-a-motion-that-includes-eurochilds-amendments/
Figure 5: Outside view of the Peace Palace of the Hague. Author: Capital Photos/Frank van de Beek. Retrieved 10.12.2022 from: https://www.icj-cij.org/public/files/multimedia-galleries/icj/10.jpg
Figure 6: The International Court of Justice in Session. Author: Peter De Jong. Retrieved 10.12.2022 from: https://www.timesofisrael.com/us-iran-to-battle-over-sanctions-at-international-court-of-justice/