Small island countries have repeatedly shown exceptional leadership in matters relating to climate change, calling out laggards failing to adhere to their pledges to reduce greenhouse gas emissions and standing strong in international negotiations.
In what may prove one of the most consequential actions, Vanuatu successfully led a coalition of 132 nations requesting the International Court of Justice deliver a non-binding advisory opinion to clarify precisely what obligations countries have to protect people and the environment from catastrophic consequences of climate change. The request came via the UN General Assembly, essentially asking for a judgement on efforts to reduce their greenhouse gas emissions, resulting mainly from fossil fuel usage.
The 2015 Paris Agreement set a goal of keeping global average temperature rise to no more than 1.5 degrees Celsius. Yet 2024 was the hottest on record and has surpassed this threshold for the first time. And Donald Trump has again led the United States, the second-largest global emitter, out of the Paris accords, a promise he made to his fossil fuel friends.
The ICJ is the principal judicial organ of the United Nations – also called the World Court – and while its ruling or opinions cannot be enforced, it carries weight. In March 2023, the court received an unprecedented 91 written statements filed by developed and developing countries alike, the highest number ever. Deliberations have continued since with a decision expected in early 2025.
The push for an advisory opinion on state obligations is not surprising, and maybe even overdue. It stems from 30 years of inaction on decisive climate change mitigation from the largest producers and consumers of fossil fuels. In fact, Vanuatu’s Special Envoy for Climate Change, Ralph Regenvanu, told the ICJ that “a handful of readily identifiable states” can be blamed for the climate crisis.
High-profile Australian human rights lawyer Jennifer Robinson is acting on behalf of Vanuatu, known for her generous pro bono work in the Juliane Assange case and representing Amber Heard in the case against Johnny Depp.
Such legal fire power is undoubtedly necessary as global progress has been slow to non-existent, despite the knowledge that fossil fuels are mainly responsible for most of the consequences of climate change. The fossil fuel lobby is strong and the same states continue to hinder action.
It was only in 2023 at the climate change negotiations in Dubai where countries agreed to transition away from fossil fuels. A year later, Saudi Arabia tried to reverse this landmark decision and further talks on shifting away from fossil fuels stalled – the kind of play for time that has contributed to the decades delay in action.
A non-favourable outcome would basically be a “get out of jail free” card for major polluters and undermine the weight of UN climate negotiations.
A favourable outcome by the ICJ might prevent delaying strategies and provide more negotiating power at the global climate talks. It might also pave the way for more successful court cases, hence obliging governments to reduce fossil fuel consumption and greenhouse gas emissions as the only option to mitigate the impacts from climate change. Major corporations are also likely to being held to account.
The inclusion of the right for compensation under the United Nations Climate Change Convention and the Paris Agreement has been ruled out but sympathy from the World Court would provide leverage for monetary compensation through other legal pathways. In the face of ever-increasing severity and frequency of extreme weather globally, it could deliver a certain degree of justice.
While economic losses from these events are relatively easy to quantify, many losses are and will be irreversible, intangible and without monetary value. Whether money can provide a sense of justice for all, specifically on an individual level or when one’s home becomes uninhabitable, remains questionable.
There is hope, however, that the advisory opinion will guide future domestic legislative development by parliaments and at a minimum, push for stronger political action and commitments.
But it’s not without risk. A non-favourable outcome would have detrimental consequences. It would basically be a “get out of jail free” card for major polluters and undermine the weight of UN climate negotiations that, like other multilateral processes, have been criticised for their inefficiencies and inability to generate change that is needed to solve the complex problems of today.
And even a favourable outcome is not enforceable. The international rule of law might just not have the significance it once enjoyed given the manner in which respect globally is in short supply and malicious action is the current prevailing language. For the planet’s and for people’s sake, let’s hope it goes the other way.
