By Nic Maclellan
It began five years ago, as an exercise amongst law students at the Emalus campus of the University of the South Pacific in Port Vila, Vanuatu.
Now, in the Netherlands, the Republic of Vanuatu will open presentations before the International Court of Justice (ICJ) on 2 December, seeking an advisory opinion on climate change and human rights.
The ICJ hearings come just days after the end of the 29th Conference of the Parties (COP29) under the United Nations Framework Convention on Climate Change (UNFCC), held in Baku, Azerbaijan.
For Ralph Regenvanu, Vanuatu’s Special Envoy for Climate Change and Environment, “the lack of progress at UN climate change talks in lowering emissions and slowing down climate change – despite the Paris Agreement – necessitates legal action.”
Last year, Vanuatu championed a successful resolution through the United Nations General Assembly, seeking an advisory opinion from the ICJ on state obligations around human rights, environment and climate change.
Between 02 – 13 December, ICJ president Judge Nawaf Salam will head a panel of judges to hear oral presentations at the Peace Palace in The Hague. As the country that initiated the process at the UN General Assembly, Vanuatu takes pride of place, scheduled to make the first presentation in this case before the world’s highest court.
Vanuatu’s legal counsel is Margaretha Wewerinke-Singh, an international lawyer affiliated to Blue Ocean Law, the Guam-based legal firm led by Julian Aguon.
Wewerinke-Singh explained that “this case addresses the ongoing violation of fundamental legal norms, including human rights, through the destruction of Earth’s climate system. The continuing degradation of our climate system infringes upon established rights to life, health, culture, and self-determination, with the world’s most vulnerable peoples suffering the gravest violations.”
Following a call for states to present their views to the ICJ, 99 governments and 11 intergovernmental organisations have lodged formal submissions and comments to the court.
On 1 September 2023, the ICJ authorised the Organisation of the Petroleum Exporting Countries (OPEC) to participate in the court proceedings. Since then, a range of other regional and international organisations have been authorised to join the case, including the Pacific Islands Forum, Pacific Community, Forum Fisheries Agency and Melanesian Spearhead Group, as well as the African Union and Organisation of African, Caribbean and Pacific States.
“It marks the most extensive participation in ICJ hearings ever,” explains Wewerinke-Singh. “In terms of participation, we can safely say that this is the biggest case in human history. The court faces two fundamental questions about states’ obligations on the international law: their duties to protect the climate system, and the legal consequences when they cause significant harm through their actions or inaction.”
Frustration at COPs
Small Island Developing States (SIDS) and Least Developed Countries (LDCs) are those most affected by the adverse effects of climate change, but who contribute the least to global emissions.
But for Pacific governments and climate justice activists attending COP29 in Baku, the annual UNFCCC climate negotiations were another setback. Developed nations fought hard against calls for an ambitious new target on climate finance from 2025, which could provide new funding for adaptation and loss and damage. However, the ‘New Collective Quantified Goal on Climate Finance’ adopted in Baku – an annual target of US$300 billion by 2035 – relies mainly on loans rather than grants, pushing developing nations further into debt.
At the end of the Baku summit, the Pacific Islands Climate Action Network (PICAN) denounced the outcomes: “Not only did COP29 fail to deliver adequate finance, but progress also stalled on crucial issues like fossil fuel phase-out, Loss and Damage, and the Just Transition Work Plan. The outcomes represent a catastrophic failure to meet the scale of the crisis, leaving vulnerable nations to face escalating risks with little support.”
“The multilateral process has not failed,” PICAN stated. “It is the developed countries within the process that have failed, continuing their decades-long attempts to dismantle global climate cooperation.”
The COP process has been widely criticised by vulnerable states and indigenous organisations, as countries reliant on fossil fuel exports work to delay the transition away from oil, gas and coal. Major energy corporations have mobilised to block stronger action, deploying more than 1,700 lobbyists to Baku. This underpins the agenda for major fossil fuel exporters like COP28 host United Arab Emirates (UAE) and this year’s host nation Azerbaijan, who want to continue exports (it’s notable that Australia, the largest member of the Pacific Islands Forum, is bidding to host COP31 in 2026, even though it exports nearly three times more carbon energy each year than a major oil exporter like UAE).
Every year, the annual COP negotiations are a slap in the face for vulnerable communities, as members of the Alliance of Small Island States (AOSIS) must repeatedly defend gains achieved under the 2015 Paris Agreement on Climate Change.
“The cornerstone of everything the Pacific does is the 1.5 goal,” said SPREP Director General Sefanaia Nawadra. “But countries will delay things until the very last minute. It is all part of the strategy of trying to wear people down. Many of the current agenda items have already been negotiated. There is no need to reopen them, because that is also a tactic. Countries that want to obstruct always try to reopen an issue that has already been discussed and decided.”
For Vanuatu’s Climate Envoy Ralph Regenvanu “the limitations of the UNFCCC process motivate our case at the International Court of Justice.”
He argues that “the ICJ Advisory Opinion has the potential to strengthen the Paris Agreement framework by clarifying the legal obligations of States under international law to act on climate change – obligations which have been disregarded for too long. This includes obligations to finance adaptation and mitigation in vulnerable countries and to address loss and damage. It could help close the glaring gaps in climate finance that COP29 once again left unresolved.”
Angered by the refusal of major industrialised powers to meet their past COP commitments on emissions targets, climate finance and loss and damage, many developing countries are now turning to lawfare, using courts, legal tribunals and UN bodies to strengthen international law and highlight the connection between climate action, human development and protection of biodiversity.
The Republic of the Marshall Islands (RMI), Solomon Islands and other SIDS have been campaigning for the International Maritime Organisation (IMO) to establish a levy on shipping emissions. Through its membership of the UN Human Rights Council, RMI has also been advancing awareness on the nexus between climate, oceans and nuclear contamination (with the Human Rights Council recently adopting an OHCHR report on the effect of historic nuclear testing on human rights).
Following the Port Vila Call to Action in 2023, 11 Forum Island Countries have now endorsed the call for a Fossil Fuel Treaty, pledging to work towards a “Just Transition to a Fossil Fuel Free Pacific” and a global, equitable phase-out of coal, oil and gas.
The Pacific Islands Forum has also called for the transformation of international law to address the effects of the climate crisis on maritime boundaries. The 2021 ‘Declaration on Preserving Maritime Zones in the Face of Climate Change-related Sea-Level Rise’ pledges that “we intend to maintain these zones without reduction, notwithstanding climate change-related sea-level rise.”
ICJ hearings
This week’s ICJ case came after a campaign mounted by the Pacific Island Students Fighting Climate Change (PISFCC) since 2019, who sought to “bring the world’s biggest problem – climate change – before the world’s highest court.”
PISFCC director Vishal Prasad has been a leading member of the civil society campaign for the ICJ advisory opinion.
“With this advisory opinion we are not only here to talk about what we fear losing,” Prasad said. “We’re here to talk about what we can protect and what we can build if we stand together. COP29 has highlighted, more than ever, the urgent need for a clear and authoritative understanding of countries’ responsibilities in addressing climate change.”
He stressed that “the fact that the COP is lagging behind in meeting the needs of those most vulnerable is precisely one of the gaps we see the ICJ advisory opinion working to fill.”
For Pacific SIDS, climate change affects a wide range of internationally protected human rights – as one example, the failure to protect the marine environment against adverse climate effects like ocean acidification violates obligations under the UN Convention of the Law of the Sea. For indigenous peoples, the climate emergency threatens their fundamental right to self-determination and the right to a clean, safe environment, as detailed in the UN Declaration on the Rights of Indigenous Peoples and other international agreements.
Vanuatu’s legal counsel Margaretha Wewerinke-Singh argues that “broadly speaking, the destruction of the Earth’s climate system constitutes an ongoing breach of international law. As such, it demands immediate legal recognition and cooperative measures to cease that unlawful conduct, to repair the harm, and to protect our futures from further destruction.”
For Forum Island Countries, it is important that the debate in The Hague is governed by the science, including reports issued by the Intergovernmental Panel on Climate Change (IPCC). On 26 November, ICJ judges met with a group of past and present authors of IPCC scientific studies “to enhance the Court’s understanding of the key scientific findings which the IPCC has delivered through its Periodic Assessment Reports.”
But as the hearings proceed over the next fortnight in The Hague, it’s a time of real danger in the climate emergency. US President-elect Donald Trump has pledged to undermine US investment in climate action and – as he did in 2017 – may again announce the withdrawal of the United States from the Paris Agreement on Climate Change. With wars raging in Europe and the Middle East, more financial resources are being directed towards arms manufacture than climate action. The looming prospect of a US-China trade war will affect the economies of developing nations, still seeking debt relief after the COVID pandemic and the damaging effects of climate-related cyclones, floods or drought.
For Ralph Regenvanu, the call for ICJ advisory opinion on climate change and human rights “is a pivotal moment in our journey to establish a stronger framework of accountability, one that sets clear international legal obligations for climate action.”
“This marks the first time the ICJ has ever addressed the climate crisis,” he said, “and it’s a turning point in the global fight against climate change. It’s an opportunity to clarify what nations owe to each other and to the generations yet to come.
