How a small island nation is taking climate change to the world’s highest court?


By Naveena Sadasivam

More than 30 years ago, the tiny island nation of Vanuatu off the coast of Australia proposed a radical idea: Wealthy, high-emitting nations should compensate poorer, less energy-intensive nations suffering the disastrous consequences of climate change. For Vanuatu, those consequences continue to wreak havoc. The 320,000-person country is more vulnerable to natural disasters than any other nation, according to the United Nations, and it has been devastated by a series of cyclones in recent years. The archipelago is also prone to earthquakes, and sea level rise has pushed residents to move to higher ground. As a result, Vanuatu has been a leader in advocating for climate justice on behalf of Pacific Island nations.

Most recently, the country’s leadership in developing countries’ advocacy for climate reparations culminated in the creation of an international fund to pay for climate-driven loss and damage at the 27th United Nations climate change conference, or COP27, in Egypt last November. While the details are yet to be determined — which countries will pay into the fund, how much they’ll contribute, and who the recipients will be — the creation of the fund was a major win for low-income nations. Vanuatu also recently persuaded a majority of the countries in the United Nations to seek an advisory opinion on the responsibility of states to tackle climate change from the International Court of Justice, or ICJ, the world’s highest court.

Vanuatu’s climate minister, Ralph Regenvanu, recently spoke to Grist about the three-year campaign that led to the United Nations resolution requesting an opinion from the ICJ in March, his frustrations with the infighting among developing countries at the Bonn climate conference earlier this month, and his hopes for COP28.

Q. You are an anthropologist by training and were previously Vanuatu’s minister of foreign affairs. What drew you to the Ministry of Climate Change?

A. My background and my passion are cultural heritage management and trying to make sure that Indigenous communities try to maintain this tradition-based lifestyle that they’ve been leading as much as possible. My very earliest career was doing that kind of work in recognition of the fact that territories governed by Indigenous people have been proven to be the last remaining reserves of biodiversity. So from that background, I got into politics about 15 years ago to change legislation regarding the use of land in my country, which was detrimental to Indigenous peoples’ control of territory. That’s why I got into politics. Since then I’ve been moving to different ministries, and I got into foreign affairs, which is where I initiated the move to take the issue of climate change to the International Court of Justice in 2019.

Q. What prompted you to consider the ICJ as a legal avenue as opposed to other strategies?

A. The idea actually came from the students at the law school of the University of the South Pacific. One of their assignments was to come up with a legal measure that would be one of the most effective to deal with the effects of climate change that the South Pacific is facing. They came up with this idea of seeking an advisory opinion from the ICJ, and they actually got quite passionate about it, as students do, and formed a group called Pacific Islands Students Fighting Climate Change. When their assignment was finished, they sent letters to all Pacific Island states asking if any state was willing to take this up. I was minister of foreign affairs at the time, and I was the only one who said, “Yes, I’m interested.” I recall distinctly they all came and saw me, sat in an office, and we talked about it, and I said, “Look, I’ll do it. Vanuatu will take this on board.”

Q. The first step in the process was to get a resolution passed in the United Nations seeking an advisory opinion on climate change from the ICJ. How did you get the majority of states, many of whom have vastly different interests, on board?

A. One of the very successful diplomatic strategies that we did was to establish a core group of countries representing all areas of the world who would work with us on drafting the actual question that we asked the court. By the end of 2021, we had the ideal question, but then we set up this core group at the beginning of 2022, and we included countries from the EU [European Union]: Germany, Romania, Lithuania, and Portugal.

We said, “Look, we want you to help us refine this question until we can all agree on it.” So the idea was if we get everyone in this core group to agree on the question, they’ll be representing their regions essentially, and then that would mean we get the buy-in.

When I went to COP27 — I was the new climate change minister by then — I remember distinctly trying to negotiate with Germany because Germany was the key. They were the key ones pushing back.

Q. Was there a key moment when Germany came on board? What do you think made the difference?

A. A key difference was Jennifer Morgan. [Morgan was the executive director of the environmental organisation Greenpeace and was subsequently appointed as Germany’s special representative for international climate policy in 2022.] She came on board last year. She was a great help within the German administration. Eventually, we got that agreement by February, which was a great moment.

When we got to the 29th of March, which was the day it was on the agenda of the United Nations General Assembly, I flew to New York for it. Everyone was in the bag except China and the U.S. The evening before, the Chinese ambassador of Vanuatu announced that China would not be objecting to the resolution. And one-week prior the U.S had indicated they would not vote against it either.

Q. What were the negotiations with the U.S like? What were some of their concerns?

A. They were the country that was most against this whole thing. They were just really, really adamantly against it, saying they would lobby against it.

Q. Were you concerned about what might happen if the U.S brought the full force of its lobbying muscle against the resolution?

A. Obviously, it was a huge, huge concern for us. The U.S. was the country most actively opposing it. China was kind of silent, but we learned at the end that they were lobbying behind the scenes as well against it.

We got to the vote, and I remember turning up at the United Nations that morning just hoping no one was going to object, and it happened like that. It went through with no objection. It was a huge moment. [The resolution passed by voice vote, and the U.S. and China did not oppose the measure or call for a formal up-or-down vote.]

Q. How did you feel in that moment?

A. I was in tears. It was an amazing feeling. The vote went through in the morning first thing, and then the rest of the whole day, I was sitting there listening to all states comment on it. Many states — China, the U.S., Saudi Arabia — were against it. That was important for them to make those statements.

Q. Assuming the ICJ issues a favourable opinion, what would it mean for the Pacific Islands, but also the rest of the world?

A. Well, an ICJ advisory opinion is not binding. It’s just persuasive. But it is persuasive universally at all levels. It’s persuasive in terms of all negotiations about international legal instruments. It will have a bearing on how we talk at the United Nations Framework Convention on Climate Change. We hope it’ll help with negotiations. It’ll help make certain arguments untenable. And we hope that it will assist the litigation that is already ongoing everywhere.

I hope it will also clarify issues of climate finance. There’s a current push right now to say it’s not states that should be financing this global problem, it should be private companies, banks, and so on. So maybe the ICJ finds states actually have an obligation to finance. That’s a key one. Especially, what’s happening in Bonn right now with the argument increasingly coming up that it’s not states that actually have to put forward the public finance and that should be obtained from other sources.

We would have never said this during the lead-up to the advisory opinion getting approved, but we are also definitely looking at litigation as a state. I imagine it would happen as a torts case against fossil fuel companies.

Q. You’ve been following the climate change conference that took place in Bonn, Germany. The negotiations were tense with states unable to agree on even the agenda for the conference until the day before the two-week conference was due to close. What are your takeaways from the Bonn conference?

A. It’s very, very disappointing. It’s a real pity that these new arguments are coming up now that the loss and damage fund has been agreed upon. There’s a failure by a number of middle-income developing countries to recognize the particular vulnerabilities of the very vulnerable countries. They are basically holding the needs of very vulnerable countries hostage to other agendas.

[At COP27, the loss and damage fund was set up to benefit developing countries that are “particularly vulnerable” to climate change — as opposed to middle-income countries like India and China that are now major emitters — in recognition of the challenges faced by low-income countries that have contributed the least to global warming.]

We were able to get loss and damage over the line at the last minute at COP27 because we argued that that loss and damage should be a fund that targets the most vulnerable, the most needy. That’s how at the last minute we got the EU and everyone to agree to the loss and damage fund.

So now at Bonn, it seems there’s an attempt to reopen that whole thing, and that’s disappointing. We have a group of countries that are not the most vulnerable, that are using the developing country banner or grouping to argue that [historically low-emitting] developing states should be funding the development of countries like India and China, and Saudi Arabia, for example. For a country like Vanuatu, that’s very disingenuous, and it’s almost reprehensible.

Q. With Bonn behind us, what are your expectations for COP28, which will be held in December in Dubai?

A.This COP is going to be instrumental, but it’s not looking good. We want fossil fuel phase-out language coming out of this COP. But the way it’s going, it doesn’t look like we will get it. We really need to shift to saying, “fossil fuels have got to stop,” because what’s happening now is that people have started talking about carbon markets. I don’t want to talk about carbon markets. It’s a cop out. The United Arab Emirates presidency has come up with “fossil fuel emissions phase-out.” That’s very dangerous language.

It’s just talking about carbon capture. It’s not talking about stopping taking fossil fuel out of the ground. The big thing that has to happen is the world has to stop subsidising fossil fuels and stop giving money to fossil-fuel extraction. That’s the money we need for loss and damage and for just transition.

Q. You mentioned the COP28 presidency. The United Arab Emirates selected Sultan Al Jaber, the head of the country’s oil company, to lead the climate talks. What effect has that decision had on the credibility of COP28?

A. When the presidency was announced, we gave them the benefit of the doubt. We’re waiting to see what actually happens. So far, it hasn’t been good. “Fossil fuel emissions phase-out,” for example, that’s definitely wrong. The fossil fuel companies are the problem — full stop. They need to stop fossil-fuel extraction. You cannot be at the table if you’re continuing to extract fossil fuels. If you don’t stop plans for new extraction, then you’re not part of the solution. You are part of the problem.

It’s looking more and more like the fears about the UAE COP presidency are being realised by the way things are going. We continue to entertain the hope that there will be a different outcome, a change, a paradigm shifts in the attitude to fossil fuels coming out of COP28. That’s all we can do. We just hope for the best