Pacific Island Country Submissions to the International Court of Justice Climate Change Advisory Opinion Make History
Johanna Gusman, M.Sc., J.D.
Johanna Gusman is the regional adviser for human rights and social development at the Pacific Community (SPC) based in Suva, Fiji. Johanna is an international human rights lawyer with an interdisciplinary background in biophysics and physiology and has been working on ICJ submission coordination in partnership with Pacific governments.
The views expressed in this publication are those of the author(s) and do not necessarily reflect the policies or positions of the Pacific Islands Development Program or the East-West Center.
Featured photo courtesy of the Pacific Community (SPC).
March marked a major moment for the Pacific. After nearly a year since the UN General Assembly adopted a landmark resolution requesting an advisory opinion from the International Court of Justice (“ICJ” or “the Court”) on the obligations of States in respect of climate change[1]—a decision that passed via consensus and was co-sponsored by 132 nations—the deadline for written submissions saw record numbers of Pacific Island countries participate. In the words of Pacific Island Students Fighting Climate Change[2] (the students that begot the idea of taking this issue to the world’s highest court), this advisory opinion has the potential to be transformational because it is the first timethe ICJ is being asked to consider human rights law, climate law, and international environmental law all together to guide the conduct and ambition of states to address the climate crisis.
Now more than ever, the planet needs international law to rise to the level of the climate change threat it faces, and arguably the most important region from which the Court needs to hear, is stepping up to that challenge. Over the course of the past year, Pacific governments have worked collectively to ensure submissions calling for the highest socio-ecological protections. Following two regional “writeshops” held in July and October of last year in a partnership between the Government of Vanuatu and the Pacific Community (SPC) and funded by several high-level donors, over a dozen Pacific governments worked closely with international legal and scientific experts to discuss ways to answer the two questions posed to the Court (paraphrased):
(1) What are the obligations of States to protect the environment from anthropogenic emissions of greenhouse gas; and
(2) What are the legal consequences under these obligations when States, by their acts and omissions, have caused significant harm with respect to:
a. Small island developing States?
b. Present and future generations?[3]
While the nexus between climate change and the protection of human rights is recognized in the preamble of the Paris Agreement,[4] that document has largely failed to limit global warming to 1.5°C or seemingly even curb historically polluting states’ fossil fuel usage behavior. Current ambitions under the Paris Agreement have a trajectory of closer to 2.8°C if emissions do not sharply decline by 2030. That is a mere six years from now, and as many small island developing states have made clear, if the world does not prevent that level of warming, it means existential crises to the Pacific and beyond.
Even under the best circumstances, recent trends in emissions starkly deviate from limiting warming to well below 2°C, which the Intergovernmental Panel on Climate Change (IPCC) has warned will lead to “irreversible loss of the most fragile ecosystems, and crisis after crisis for the most vulnerable people and societies.”[5] The question remains as to how international law can help increase States’ commitment to the urgent mitigation needed in the coming years, but the Pacific is determined to try.
The journey to the Hague has not been easy for the Pacific considering that the ICJ has remarkably archaic depositing rules that, rather ironically, create real barriers in access to justice. It requires that countries drop off physical copies of their submissions (ideally, thirty copies in English and thirty copies in French), with a wet signature from a designated government representative, in person. Few small islands have a permanent diplomatic presence in Europe, let alone the Netherlands, and the cost to fly from the Pacific can be prohibitive, often amounting to significant portions of the limited budgets governments have for voluntary participation in proceedings like this. Despite the plethora of issues these requirements pose, over a dozen Pacific governments and regional bodies endeavored to have their voices heard, making it one of the best-represented regions in this case.
This representation is critical because Pacific Islands, along with other small island developing states, know acutely what is at stake as they daily battle with climate change-related sea-level rise. The science is clear that even the smallest increases in sea-level can have devasting effects on islands, particularly for atoll nations that lack the high ground to prevent going underwater.[6] They do, however, have the moral (and legal) high ground needed to convincingly persuade the Court to address the issue in a manner that protects both their sovereignty and their people—future generations included.
Bringing the “visions and voices of the Pacific” to the ICJ means inclusion of different experiences and perspectives into decision-making at the highest levels with better sociocultural sensitivities and cutting-edge legal perspectives. Take for example, the Pacific Islands Forum’s 2023 Declaration on the Continuity of Statehood and the Protection of Persons in the Face of Climate Change-Related Sea-Level Rise.[7] This document underscores the Pacific’s lived experience of climate change and the disproportionate impacts the region faces despite contributing negligible amounts of greenhouse gas emissions to the climate crises. Notwithstanding being a regional declaration, it is an instrument of climate justice that protects Pacific statehood and sovereignty, and the Court would be well-placed to endorse it as a basis for international law to follow (e.g., affirming the legal presumption of state continuity as settled law).
Additionally, presenting the region as a collective “Blue Pacific Continent” (as is often referenced in Pacific Islands Forum remarks)[8] is imperative. Treating the region with the due diligence it needs to survive despite climate change may prove pivotal in impressing upon the Court the myriad of environmental liabilities that must be put in place to preserve it. Concrete interventions with the twinned aim of preservation of culture and ecology will provide the effective legal protections the Pacific needs. And as per the so-called “Pacific Way” these obligations prioritize climate resilience, collective responsibility, and international cooperation. Because where the Pacific goes, the world is sure to follow. If global decisionmakers do not urgently address the needs of those on the front lines of climate change now, they will seal their own fates when grave climate impacts eventually reach their shores.
Getting the Pacific in one room together in the lead up to the March 22 deadline was exceptionally strategic: a united front will be necessary to get what the Pacific needs. Arguments related to respecting self-determination, protecting the environment, preventing transboundary harm, safeguarding the most adversely effected human rights, and addressing both economic and non-economic loss and damage are certain to spark international debate in relation to what they obligate, and even more so to their attached legal consequences. Moreover, many states regard ICJ opinions as non-legally binding, so even with the strongest advisory opinion there is no guarantee of changemaking. Nevertheless, these proceedings are more than mere symbolism. The upcoming climate discourse at the Court will be the basis for litigation to come (most importantly, laying the groundwork for fossil fuel industry accountability).
Given all this, we have seen the most participatory advisory opinion process in the Court’s history with 91 total submissions, which indicates this cases’ consequential nature. It will be even more fascinating to see how the Court’s advisory opinion does (or does not) clarify robust State obligations, and the legal consequences they trigger, when there is significant harm. The Pacific, as specially affected by the adverse impacts of climate change, is already experiencing such injury. All eyes will be on the Hague in the coming months and even more so on the unprecedented nature of the written and oral statements Pacific countries present. Law, by its very nature is not creative; it literally relies on precedent, and it takes a lot—say, social movements in climate justice for instance—to make it create anew. Hopefully, the Pacific will prepare the ICJ advisory opinion to do precisely that.
The views expressed in this article represent those of the author and not that of the Pacific Community (SPC).
Notes
[1] Seventy-seventh Sess., Report of the International Court of Justice, United Nations G.A. Res. A/RES/77/276 ‘Request for an advisory opinion of the International Court of Justice on the obligations of States in respect of climate change’ available at https://www.undocs.org/Home/A/RES/77/276.
[2] Pacific Island Students Fight Climate Change is a is a youth-led organization whose members are students from the Pacific Island countries.
[3] G.A. Res. 77/276: (Apr. 4, 2023), available from https://www.undocs.org/Home/A/RES/77/276.
[4] See Preambular ¶ 11: “Acknowledging that climate change is a common concern of humankind, Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to development, as well as gender equality, empowerment of women and intergenerational equity…”, Paris Agreement to the United Nations Framework Convention on Climate Change, Dec. 12, 2015, T.I.A.S. No. 16-1104.
[5] IPCC, 2018: Summary for Policymakers. In: Global Warming of 1.5°C. An IPCC Special Report on the Impacts of Global Warming of 1.5°C above Pre-industrial Levels and Related Global Greenhouse Gas Emission Pathways, in the Context of Strengthening the Global Response to the Threat of Climate Change, Sustainable Development, and Efforts to Eradicate Poverty [Masson-Delmotte, V., P. Zhai, H.-O. Pörtner, D. Roberts, J. Skea, P.R. Shukla, A. Pirani, W. Moufouma-Okia, C. Péan, R. Pidcock, S. Connors, J.B.R. Matthews, Y. Chen, X. Zhou, M.I. Gomis, E. Lonnoy, T. Maycock, M. Tignor, and T. Waterfield (eds.)]. Cambridge University Press, Cambridge, UK and New York, NY, USA, pp. 3-24, https://doi.org/10.1017/9781009157940.001.
[6] See e.g., sea level rise modelling for Tuvalu available at https://landscapeknowledge.net/funafuti-map/. Tuvalu is predicted to be the first Pacific Island to be submerged if GHG reduction targets are not met.
[7] Pacific Islands Forum, 2023 Declaration on the Continuity of Statehood and the Protection of Persons in the Face of Climate Change-Related Sea-Level Rise, https://forumsec.org/sites/default/files/2024-02/2023%20PIF%20Declaration%20on%20Statehood%20and%20Protections%20of%20Persons.pdf.
[8] Pacific Islands Forum Secretariat, The 2050 Strategy for the Blue Pacific Continent (2024) available at https://forumsec.org/2050.