Seeking Answers from the World Court: Why it was important for African States to Support Vanuatu’s Draft Resolution

"Boats damaged in Cyclone Vanuatu" by amanderson2 is marked with Public Domain Mark 1.0.

We live in a world where all of us, and the natural world that sustains us, are immensely, and radically connected. The Covid-19 pandemic showed us that people from widely dispersed societies are more connected than ever before.

Observers and experts alike can identify the numerous ways in which actions in one part of the world have far-reaching consequences elsewhere on the planet. This truism is more resounding in the face of the climate change crisis the world is facing today. Indeed, the climate change crisis is an existential threat that must awaken us to our interconnectedness.

As greenhouse gas emissions rise and the world battles to meet its emissions targets, overheating is threatening the existence of island states, such as Vanuatu, which is one of the nations most vulnerable to climate change. Given the gravity of the situation, this State decided to bring the issue before the United Nations (UN).

On 20 February 2023, Vanuatu and the 18 other States formally uploaded the final draft resolution requesting an advisory opinion on climate change from the International Court of Justice (ICJ). For a while, the draft resolution was open for co-sponsorship until its adoption by the General Assembly (UNGA).

On 29 March 2023, the 18 ICJ Champions Nations, and 132 co-sponsors successfully saw the adoption by consensus of the resolution and Resolution A/77/L.58 officially set in motion the advisory proceedings.

Against this backdrop, this article describes the nature of a resolution under international law, justifies the adoption of Resolution A/77/L.58, provides a brief overview of the ICJ’s advisory function, and concludes with the potential benefits that the advisory opinion will provide for African States.

From draft resolution to resolution

A draft resolution is a proposal submitted by a Member State representing a group (called the “sponsors”) for consideration and adoption by the UNGA while a resolution is a formal expression of an opinion and will of the UN organs.  A draft resolution generally has three distinct sections - the heading and the preamble followed by the operative clause. In the operative clause, the UN requested the ICJ to render an advisory opinion on two crucial questions:

(a) What are the obligations of States under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases for States and for present and future generations;

(b) What are the legal consequences under these obligations for States where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment?

To elucidate the above questions, the ICJ will have to clarify the various States’ obligations under international law in the face of the climate crisis, and the legal consequences of failing to meet those obligations vis-à-vis; (a) vulnerable nations faced with the devastating impacts of climate change, and (b) the concept of intergenerational equity.

In this regard, the resolution aims to establish legal avenues for climate justice not only for vulnerable States but also for present and future generations.

Why it was important for African States to support the resolution?

Extreme weather events linked to global warming are not selective about a nation’s developmental status, income, or Gross Domestic Product (GDP). In 2022, Earth.org recorded some of the catastrophic natural disasters caused by climate change.

Amongst these, a category 4 hurricane “Ian” in Florida killed many people and left several displaced. Furthermore, cataclysmic floods affected one-third of Pakistan. Despite contributing minimally to global gas emissions with 0.8 % of the worldwide emanations, Pakistan bears the brunt of most global warming disasters.

Parties to the United Nations Framework Convention on Climate Change  (UNFCCC) have recognized that ‘low-lying and other small island countries, countries with low-lying coastal, arid and semiarid areas or areas liable to floods, drought and desertification, and developing countries with fragile mountainous ecosystems are particularly vulnerable to the adverse effects of climate change’.

A case in point, as of 14 March 2023, cyclone Freddy hit Malawi, Mozambique, and Madagascar affecting thousands and displacing many. These African States are not the only ones at risk. As outlined in the Africa chapter of the Intergovernmental Panel on Climate Change (IPCC), Africa as a whole is one of the most vulnerable continents due to its high exposure and low adaptive capacity.

While States with a higher GDP generally have better adaptive capacity because they are equipped with resources to deal with the unavoidable impacts of climate change, States with a lower GDP do not. This is the most compelling justification and rationale behind why the African States had to support Vanuatu by co-sponsoring and voting for the resolution.

“Reducing global temperatures is of paramount importance. To this end, all avenues must be explored including requesting the ICJ to clarify and develop the laws pertaining to climate change.”

What potential benefits will the advisory opinion provide?

The role of the ICJ is twofold. On the one hand, the Court is tasked to settle contentious cases between States under international law and, on the other, to render advisory opinions on legal questions referred to it by any UN organ and affiliated organizations (see Article 65 of the ICJ Statute as read together with Article 96) of the United Nations Charter).

While an ICJ advisory opinion has no binding authority, it may have significant persuasive authority about the content of international law; carry great legal weight and moral authority. In this regard, the impact of a positive advisory opinion will be substantial.

If the ICJ decides to address all the questions posed by the applicants, such an advisory opinion would strengthen the positions of vulnerable countries in international climate change negotiations, and possibly define issues pertaining to climate justice at an international level.

Climate justice is intricately related to the issues of loss and damage, a matter of great importance on the continent, since Africa is vulnerable to the adverse impact of climate change. Due to Africa’s weak adaptive capacity caused predominantly by economic factors, a favourable opinion will spearhead further talks on the loss and damage fund.

The loss and damage fund is a response to climate injustice and climate debt, owed by the rich countries to the poor. This fund will certainly assist African States to cope better with climate change impacts. Although significant work still needs to be done to finalise the details of the loss and damage fund, the initiative is a tentative measure toward addressing issues surrounding climate justice.

Apart from defining issues of climate justice, an advisory opinion setting out States parties’ obligations in detail will create further pressure on regional governments to strengthen their domestic climate change regulatory frameworks and ensure compliance with international standards.

In Africa, climate change issues tend to have less prominence in public discourse and government policy. Addressing this matter before the ICJ may shift the public’s conscience on the subject. Better yet, a positive opinion may lead to changes in national climate policies.

A favourable opinion could also serve as a basis for domestic climate litigation. Experts note that this is of course ‘to the extent a country’s domestic courts defer to ICJ opinions about international law’.

The United Nations Environmental Program (UNEP) observed that climate change litigation in the Global South is less common, low-key, and has attracted less attention when compared to the North. In this regard, and perhaps most importantly, the advisory opinion could empower citizens and non-governmental organisations in holding recalcitrant States to account before regional courts and domestic courts.

Conclusion

Now that the UNGA has adopted the ‘landmark resolution’ on the back of Vanuatu’s initiative, African States stand to gain more from the ICJ advisory opinion request.

Climate change is not a problem of a few vulnerable States; it is a humankind problem. Indeed, the adoption of the resolution was a huge task for a small island nation to bear alone. There is still a need for a concerted effort from all States to help navigate the storm that is climate change, even those with the highest greenhouse gas emissions who are apprehensive about being held liable for climate change damages in the future.

It is important to reiterate that the advisory opinion is not binding, and the exercise of requesting one is not designed to win reparations for victims of climate disasters. Regardless of whether climate damage liability develops as part of that body of law, such an evolution is essential for achieving the global sustainable development goal number 13 on climate action: an urgent action to combat climate change and its impacts.

Reducing global temperatures is of paramount importance. To this end, all avenues must be explored including requesting the ICJ to clarify and develop the laws pertaining to climate change. To Vanuatu, we say tinotenda (thank you) for initiating a monumental win for climate justice.