Calls for climate justice: Small Island states vs climate change

Small Island Developing States (SIDS) are extremely vulnerable to the impacts of climate change, despite being responsible for a comparatively low percentage of global greenhouse gas emissions. We have seen increasing calls for climate justice systems and agreements, which intensified at the United Nations Climate Change Conference (COP27) in Sharm el-Sheikh in November 2022 with the agreement on the new 'Loss and Damage' fund for vulnerable countries, which was seen as a key achievement of the conference.

Calls for climate justice

On 29 March 2023, the UN General Assembly ('UNGA') will vote on a historic draft resolution, the 'UN Climate Justice Resolution', requesting an advisory opinion on climate change from the International Court of Justice ('ICJ').

At the end of 2022, a core group of 18 States published the draft text of the UN Climate Justice Resolution. Also termed the 'Vanuatu ICJ Initiative', the group was led by the small island State of Vanuatu in the South Pacific Ocean, which is at acute risk from rising sea levels, rising ocean temperatures and increasingly extreme weather conditions. Since then, many States have declared their support for the Vanuatu ICJ Initiative, bringing the total count of co-sponsors of the Resolution to more than 120 UN Member States. More than 220 civil society organisations have called on States to endorse the Resolution.

What is the Climate Justice Resolution?

The Draft Resolution recognises "that climate change is an unprecedented challenge of civilizational proportions and that the well-being of present and future generations of humankind depends on our immediate and urgent response to it".¹ It recognises the risks associated with climate change, noting "with profound alarm that emissions of greenhouse gases continue to rise despite the fact that all countries, in particular developing countries, are vulnerable to the adverse effects of climate change and that those that are particularly vulnerable to the adverse effects of climate change and have significant capacity constraints, such as the least developed countries and small island developing States, are already experiencing an increase in such effects […]".² 

The sole operative provision of the Draft Resolution contains the UNGA's decision to request that the ICJ render an Advisory Opinion under Article 65 of the Statute of the Court. Specifically, it invites the ICJ to opine on two points: 

1. the obligations of States under international law to "ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases for States and for present and future generations"; and
2. the legal consequences under these obligations for States which have "caused significant harm to the climate system and other parts of the environment" with respect to States, peoples and individuals who are injured/ affected. 

The UN Climate Justice Resolution's draft wording has changed as a result of diplomatic negotiations since its initial publication last year. Its final proposed text has been tabled for a vote at the UNGA on 29 March 2023, at 10am New York time. To be adopted, the Draft Resolution requires the support of a majority of present and voting UN Member States. It is expected that the Vanuatu ICJ Initiative will be successful during the vote as more than 50% of UN Member States currently sponsor it. 

What will happen at the ICJ?

In simple terms, an ICJ Advisory Opinion is a piece of legal advice provided to the UN by the ICJ. Advisory proceedings are different from contentious proceedings between disputing States on account of their special, advisory nature. Subject to the discretion of the Court, States and organisations usually participate in advisory proceedings by way of written statements and might in addition be invited to provide written comments on others' statements or to present oral statements at a hearing. In the present case, it may therefore be that all UN Member States will be given an opportunity to make submissions to the ICJ.

Whilst Advisory Opinions are not legally binding, they carry great legal weight and moral authority. If the ICJ gives an Advisory Opinion on climate change, this is likely to be very influential as an authoritative declaration of States’ international law obligations on climate change by the principal judicial organ of the UN. An Advisory Opinion can be expected to impact domestic law and regulation, with wide-ranging ripple effects for businesses and other stakeholders. 

Global growth of climate litigation

The Vanuatu ICJ Initiative is one of three initiatives currently seeking advisory opinions from international courts and tribunals. The other initiatives are before the International Tribunal for the Law of the Sea ('ITLOS') and the Inter-American Court of Human Rights ('IACtHR'). A group of SIDS led by Antigua & Barbuda and Tuvalu signed an agreement establishing a commission with the power to request an advisory opinion from ITLOS on 31 October 2021, with the commission requesting an advisory opinion on States’ obligations in relation to climate change impacts on the marine environment on 12 December 2022. Chile and Colombia requested an advisory opinion from the IACtHR on the human rights implications of climate change on 9 January 2023. 

These international proceedings are taking place alongside increasing climate change litigation globally. With over 2000 cases filed in national courts around the world, climate change litigation (which we discuss further in our article here) continues to gather pace as it is used to enforce climate commitments and hold governments and corporates to account.

To discuss the issues raised in this article, contact Emma Lindsay, Robert Kovacs or Tessa Schrempf.