Requesting the ICJ’s advisory opinion: Vanuatu’s recent indications and the sea level rise

On September, after the speech at the opening of the United Nations General Assembly (UNGA), some newspapers reported that the small pacific island of Vanuatu had expressed its desire to take the climate change issue to the International Court of Justice (ICJ).^[1] Vanuatu’s prime minister, Bob Loughman stated to the UNGA that:

“The dire consequences of climate change can no longer be ignored, and the science linking climate change to past and present emissions of greenhouse gases is now beyond question. Climate change is driving sea-level rise, desertification, disease redistribution, floods, unprecedented ‘heat domes’, cyclones, hurricanes, and other extreme weather events.”^[2]

In addition, the Environmental advocacy group “Pacific Islands Students Fighting Climate Change” celebrated the news, referring to it as a “huge milestone” and stating that they were “overjoyed”.^[3] Notwithstanding that, two important questions arise, regardless of whether Vanuatu indeed intends to take the matter to the World Court or not: first, what would it mean for a small pacific island to take such a question to the ICJ; and second, can – and if so, how – a State request the Court’s Advisory Opinion.

In the words of Professor Ann Powers, of the myriad crises facing the world, none has more potential for global damage and long-term impacts than climate change. From coastal land loss in the Gulf of Mexico to rising waters in the Netherlands to drowning Pacific Islands, the impacts of a warming climate and rising seas are obvious.^[4] Specifically, the latter group is among the most concerned about the matter due to the immediacy nature of the threat that the issue represents to them. These islands are directly threatened by a warming climate and a concomitant rise in sea levels.

Although there still exists controversies surrounding the reasons for global warming, and one may politicize the topic more than it should be, the fact is that global sea level rose 15 centimeters in the twentieth century, and the rate of rising is rapidly accelerating.[5] According to Rodrigo More, the risks associated with this rise include challenges to the sovereignty and to the very existence of those States.^[6] Illustrating that, in August 2019, the islands states reunited at the Fiftieth Pacific Islands Forum, considered climate change the greatest single threat to the way of life, safety and well-being of the Pacific people.^[7]

Moreover, these States have a variety of factors that aggravate their inability to cope with the consequences of rising sea levels, including their limited physical size and natural resources; their often fragile economies and social and institutional structures, besides being susceptible to natural catastrophes, such as tsunamis and storms.^[8] These consequences have geographics, humanitarian, legal and economical dimensions.^[9] Here, specifically, the ones related to the law of the sea are going to be highlighted.

To begin with, the changing territorial boundaries caused by sea-level rise and the possible impact this will have on the culture and economy of the islands is a real problem. The economies of these small island developing states (SIDS) rely heavily on coastal resources, therefore delimiting their maritime boundaries – especially the territorial sea and EEZ – is particularly important.^[10] With sea-level rise, the coastal baselines from which these zones are measured will change, rendering harsh consequences for some states.

Tuvalu, for instance, is a party to UNCLOS. However, it cannot formally delineate its EEZ due to a lack of human and financial capacity. Considering that a considerable portion of its GDP comes from fishing activities and  the sale of offshore fishing licenses to foreigners, Tuvalu’s severe lack of enforcement capacity – and the consequent widespread illegal and unreported fishing – will be even more affected by the shifting of its maritime zone.^[12]

While it is true that to some States, this change won’t cause a huge impact, for others, it could be quite consequential, as, for example, if a baseline point such as an exposed rock disappears. Even more, if the shift were substantial enough, areas formerly under the jurisdiction of the state might end up beyond its EEZ, becoming a part of the high seas, open to all.^[13]

That being said, an important question to be made is where the fairness of Countries losing amounts of territory, even when they have contributed little to the global threat and have little capacity for mitigation and adaptation, is.^[14] As Powers points out, this imbalance in power and capacity to mitigate and adapt to climate change starkly demonstrates the gulf between developed and developing states.^[15]

Assuming that the current ambulatory baselines regime is maintained, “not only will many of the smallest contributors to climate change lose control over portions of their most valuable natural resources, but many of the largest contributors to climate change will also be positioned to reap the benefits of these resources as they become part of the ‘high seas.’”^[16] Furthermore, one may argue that this trend allows leading GHG-emitting Countries to explore their resources in a manner that causes environmental damages beyond their jurisdiction – which would contradict, for instance, Principle Two of the Rio Declaration – at the same time that it deprives vulnerable island States of some of their principal sources of revenue.^[17] All of that would be without even mentioning the concept that a right to develop should not compromise the developmental and environmental needs of present and future generations.

All of that established, we return to our initial question, what would it mean for a small pacific island to take such a question to the ICJ? Initially, it must be mentioned that Vanuatu’s initiative would not be a first. In 2011, the pacific island state of Palau proposed that the UNGA request an advisory opinion from the International Court of Justice concerning the duties of states to ensure that greenhouse gas emissions from their territory do not harm other states.^[18] In 2016, the International Union for Conservations of Nature (IUCN) adopted a resolution that “[called upon] the  General  Assembly  of  the  United  Nations  (UNGA)  to  request an  Advisory Opinion  from the  ICJ  on  the  legal  status  and  content  of  the  principle  of  sustainable development  taking  the  needs  of  future  generations  into  particular  account”^[19].

Despite these recurrent initiatives, most of the action in international environmental law – including international climate change law – still takes place in the negotiating rather than the adjudicatory realm. However, according to Bodansky, an ICJ opinion on the matter could potentially play a positive role, “both as a prod to the negotiations and by helping to shape and stabilize normative expectations among the wider set of public and private actors engaged in climate-related work”.^[20]

To explain his position, the author makes several points, including that “the U.N. negotiation climate change regime has sought to shield the decision-making autonomy of states from external constraints to an extraordinary degree and epitomizes the state-centric, Westphalian approach to international law” and that the regime is “only lightly legalized”, highlighting that the instruments that have taken a legal form are not legally binding, and that some principles are extremely vague.^[21]

Moreover, he argues that general international environmental law principles such as the duty to prevent transboundary harm, the precautionary principle, and sustainable development, have only played a supporting role in the negotiations process – partially due to their incapability of answering specific questions.^[22]

In a similar view, Rodrigo More advances that international tribunals can have a consultative role and be triggered by states to obtain an orientation on the multilateral negotiations processes. He affirms that an Advisory Opinion can offer useful orientation to prevent and solve contentious cases related to questions regarding the legal obligations that States have under international environmental law, and even suggests a few questions that could be answered by the Court.^[23]

Nonetheless, both authors agree that adjudication should only be utilized as a complement to negotiation.^[24] To support that, Bodansky highlights that at one hand negotiations, despite their normative limitations, are likely to be more effective, as a practical matter, in influencing state behavior and bending the emissions curves, while on the other it is doubtful the extent to which a judicial decision or an advisory opinion would be followed by states such as the United States and China, both of which have their own controversies regarding the implementation of international court’s decisions.^[25]

Notwithstanding that, it cannot be neglected that an international judicial opinion would have its benefits. An ICJ advisory opinion on the matter could help set the terms of the negotiations debate; influence domestic litigations; shape expectations about future litigations internationally; and help define public consciousness.^[26] In sum, an international adjudication:

should not be viewed as a substitute for the U.N. climate negotiations, or come at their expense. It should not be pursued, for example, if it diverted attention away from the negotiations, or exacerbated tensions among countries, making negotiations more difficult, or made countries reluctant to agree to anything, for fear that an agreed provision might be used in litigation. Adjudication should follow the Hippocratic principle, do no harm. It should be undertaken in a manner that complements rather than competes with the negotiations.^[27]

Accordingly, there would still be a second question to be answered. How would a state be able to request the Court’s advisory opinion, and, moreover, what would be the best strategy to be adopted in doing it. As it can be deduced from the ICJ’s Statute, states themselves are not legitimized to request the Court’s opinion on their own behalf. Rather, in accordance with article 65 of the Statute and article 96 of the UN Charter, only the Security Council, the General Assembly, and other UN organs and specialized agencies – authorized by the UNGA – may request the ICJ’s advisory opinion on a legal question.

Therefore, states would have to act in their capacity as parties to any of those organs and manage to request such an opinion collectively, in the name of the legitimized organ. Bodansky, for instance, suggests that the World Meteorological Organization might be the best choice for the island’s states, although the General Assembly would still be a viable option.^[28]

To conclude, the World Court might be a place where topics that are left out of the negotiations are addressed. For instance, whether states are entitled to compensation for climate change damages, or whether the big greenhouse gas emitters could potentially face liability for damage to vulnerable states. In a lesser degree, Philippe Sands affirms that “probably the single most important thing [an international court] could do – is to settle the scientific dispute [about climate change]”^[29]. In parallel, the already mentioned boundaries question, or even a dialogue with the ILC’s Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, clarifying the concept of due diligence and ensuring that greenhouse gas emissions do not cause serious damages to other states, could be interesting.^[30]

Irrespective of that, the point is that climate change and sea-level rise are real problems that need to be taken seriously. Although negotiations should not be replaced by adjudication, an ICJ advisory opinion might be beneficial for establishing some grounds and defining some open questions. In the past, the Court has already developed the law through its opinions on other fields, as in the Israeli Wall Opinion, or even on the Nuclear Weapons Opinion. Further, more and more island States can be seen as active international actors that are using instruments, such as the Court, to address contemporary questions that affect them. In 2016, the Marshall Islands attempted to seize the Court in a case involving nuclear disarmament, where nuclear States were taken to the court as respondents. Now, in 2021, maybe it is time for the World Court to entertain the climate change issue and to provide an answer to these disappearing Pacific islands.

By Augusto Guimarães Carrijo, a student at the Federal University of Uberlândia, under the supervision of Dr. Felipe Kern Moreira, IBDMAR’s Director.

^[1] GIGOVA, Radina. Vanuatu will seek International Court of Justice opinion on climate protection. CNN. Atlanta, 26 set. 2021. Available at: https://edition.cnn.com/2021/09/26/asia/vanuatu-climate-change-protection-rights-intl/index.html. Access on: 12 oct. 2021; VANUATU TO SEEK INTERNATIONAL COURT OPINION ON CLIMATE CHANGE RIGHTS. The Guardian. London, 26 set. 2021. Available at: https://www.theguardian.com/world/2021/sep/26/vanuatu-to-seek-international-court-opinion-on-climate-change-rights. Access on: 12 oct. 2021.

^[2] VANUATU TO SEEK INTERNATIONAL COURT OPINION ON CLIMATE CHANGE RIGHTS. The Guardian. London, 26 set. 2021. Available at: https://www.theguardian.com/world/2021/sep/26/vanuatu-to-seek-international-court-opinion-on-climate-change-rights.  Access on: 12 oct. 2021.

^[3] GIGOVA, Radina. Vanuatu will seek International Court of Justice opinion on climate protection. CNN. Atlanta, 26 set. 2021. Available at: https://edition.cnn.com/2021/09/26/asia/vanuatu-climate-change-protection-rights-intl/index.html. Access on: 12 oct. 2021.

^[4] POWERS, Ann. Sea-Level Rise and Its Impact on Vulnerable States: Four Examples. Louisiana Law Review, v. 73, pp. 151-174, 2012. p. 151.

[5]  POWERS, Ann. Sea-Level Rise and Its Impact on Vulnerable States: Four Examples. Louisiana Law Review, v. 73, pp. 152-174, 2012. p. 152.

^[6] MORE, Rodrigo. Mudanças Climáticas e Aumento do Nível dos Oceanos: Uma Proposta para a Adoção de Cláusulas de Mudanças Climáticas em Acordos de Delimitação Marítima. Relações Internacionais, v. 66, pp. 37-55, 2020. p. 38

^[7] Idem. Ibidem.

^[8] POWERS, Ann. Sea-Level Rise and Its Impact on Vulnerable States: Four Examples. Louisiana Law Review, v. 73, pp. 152-174, 2012. p. 153.

^[9] Exploring each one of them, Rodrigo More points out: A dimensão geográfica comporta, por exemplo, o alagamento de áreas costeiras agricultáveis e urbanas, a submersão definitiva de baixios a descoberto, o desaparecimento total ou parcial de pequenas ilhas. A dimensão humanitária, no deslocamento de populações, na acentuação da pobreza e nos impactos à saúde não apenas dos povos deslocados, como daqueles em cujos territórios os deslocados procurarão refúgio. A dimensão jurídica, na alteração de pontos de base e linhas de base que são utilizados para se medir o mar territorial e, consequentemente, todos os demais espaços marítimos com impactos sobre a exploração e aproveitamento econômico de recursos, inclusive na pesca e aproveitamento econômico de hidrocarbonetos. A dimensão econômica, em condições mais severas de marés e ventos nos portos com impactos negativos no fluxo de comércio marítimo, bem como em impactos no turismo, fonte de renda e meio de vida para a grande maioria de pequenos Estados insulares em desenvolvimento. MORE, Rodrigo. Mudanças Climáticas e Aumento do Nível dos Oceanos: Uma Proposta para a Adoção de Cláusulas de Mudanças Climáticas em Acordos de Delimitação Marítima. Relações Internacionais, v. 66, pp. 37-55, 2020. p. 39.

^[10] POWERS, Ann. Sea-Level Rise and Its Impact on Vulnerable States: Four Examples. Louisiana Law Review, v. 73, pp. 152-174, 2012. p. 153

[11] Idem. p. 155.

^[12] Idem. p. 155-156.

^[13] Idem p. 162.

^[14] To illustrate this, in 2007 Maldives was responsible for just .003% of the world’s CO2 emissions.

^[15] Idem p. 166

^[16] Idem p. 167.

^[17] Idem p. 168.

^[18] BODANSKY, Daniel. The Role of the International Court of Justice in Addressing Climate Change: Some Preliminary Reflections. Arizona State Law Journal, v. 49, pp. 689-712, 2017. p. 689.

^[19] INTERNATIONAL UNION FOR CONSERVATIONS OF NATURE. Request  for  an  Advisory  Opinion  of  the  International  Court of  Justice  on  the principle  of  sustainable  development  in  view  of  the  needs  of  future  generations. WCC-2016-Res-079-EN, 2016. Available at: https://portals.iucn.org/library/sites/library/files/resrecfiles/WCC_2016_RES_079_EN.pdf.

^[20] BODANSKY, Daniel. The Role of the International Court of Justice in Addressing Climate Change: Some Preliminary Reflections. Arizona State Law Journal, v. 49, pp. 689-712, 2017. p. 691-692.

^[21] Idem p. 695-696.

^[22] Idem p. 697.

^[23] MORE, Rodrigo. Mudanças Climáticas e Aumento do Nível dos Oceanos: Uma Proposta para a Adoção de Cláusulas de Mudanças Climáticas em Acordos de Delimitação Marítima. Relações Internacionais, v. 66, pp. 37-55, 2020. p. 45-46.

^[24] MORE, Rodrigo. Mudanças Climáticas e Aumento do Nível dos Oceanos: Uma Proposta para a Adoção de Cláusulas de Mudanças Climáticas em Acordos de Delimitação Marítima. Relações Internacionais, v. 66, pp. 37-55, 2020. p. 46; BODANSKY, Daniel. The Role of the International Court of Justice in Addressing Climate Change: Some Preliminary Reflections. Arizona State Law Journal, v. 49, pp. 689-712, 2017. pp. 705-707.

^[25] For instance, China’s reaction to the South China Sea Arbitration and United States’ response to ICJ’s Avena and Nicaragua cases. BODANSKY, Daniel. The Role of the International Court of Justice in Addressing Climate Change: Some Preliminary Reflections. Arizona State Law Journal, v. 49, pp. 689-712, 2017. pp. 705.

^[26] BODANSKY, Daniel. The Role of the International Court of Justice in Addressing Climate Change: Some Preliminary Reflections. Arizona State Law Journal, v. 49, pp. 689-712, 2017. p. 707.

^[27] Idem Idem.

^[28] Idem p. 712.

^[29] SANDS, Philippe. Climate Change and the Rule of Law: Adjudicating the Future in International Law. Journal of Environmental Law, v. 28, n.1, pp. 19-35, 2016. p. 29.

^[30] BODANSKY, Daniel. The Role of the International Court of Justice in Addressing Climate Change: Some Preliminary Reflections. Arizona State Law Journal, v. 49, pp. 689-712, 2017.