Climate Change May Finally Get Its Day at The Hague

Climate Change May Finally Get Its Day at The Hague
In this Saturday, May 30, 2015, photo, children play on the beach in the town of Takara, on Efate Island, Vanuatu. The town was damaged during Cyclone Pam. (Photo: Nick Perry, AP)

The country of Vanuatu, a small island nation in the South Pacific, will seek a ruling from the International Court of Justice to push forward action on climate change.

“In response to the catastrophic levels of climate change loss and damage faced by this small Pacific nation, Vanuatu recognises that current levels of action and support for vulnerable developing countries within multilateral mechanisms are insufficient,” Vanuatu’s government said in a statement Saturday, as reported by Reuters.

The nation, which has a population under 300,000 spread across more than 80 islands, also said it would look to “drastically expand its diplomacy and advocacy” with other small island nations ahead of the major international climate meeting in Glasgow this fall known as COP26.

There’s no question that extreme weather and climate change have gravely impacted Vanuatu. In April 2020, Tropical Cyclone Harold slammed into four Pacific islands, hitting Vanuatu when the storm was at its strongest. The island nation was pummelled with winds up to 145 mph (233 kph), the equivalent of a Category 4 hurricane. The storm hit in the early days of the coronavirus pandemic, when tourism was largely shut down in the region. Just five years earlier, Cyclone Pam devastated Vanuatu and damaged 90% of the buildings in the nation’s capital of Port Vila; the country’s economy had just managed to recover when the pandemic closed borders and Harold wreaked further damage.

“For us and other small island developing states especially, our biggest threats are global — most notably climate change, the management of our oceans and of course the Covid-19 pandemic,” Vanuatu’s Prime Minister Bob Loughman said in a speech before the United Nations General Assembly on Saturday. “Therefore, our solutions too must be global.”

The ICJ, which sits in the Hague, “is the so-called ‘world court.’ It’s the highest international tribunal,” said Michael Burger, the executive director of the Sabin Centre for Climate Change Law at Columbia University. “Its primary function is to be the venue for when one country wants to sue another under international law.”

The court can also issue what are known as advisory opinions — nonbinding rulings that can help build precedent for further international law. This approach has been tossed about for years as a possible route to drive climate action and give smaller nations on the frontlines of climate change a tool to advocate against big polluters damaging the climate.

“The movement for an advisory opinion for ICJ, and the question whether the ICJ could hear a case brought by, say, small island nations, against the U.S., the EU, Japan, and Russia, has long been discussed,” Burger said.

Vanuatu isn’t the first small island nation to try the ICJ route. In 2011, Palau led an effort to generate support for an ICJ advisory opinion, asking the UN General Assembly to pass a resolution asking for a ruling from the ICJ. It’s one avenue of many for getting an opinion, but the effort ultimately fizzled out a few years later.

Vanuatu has said it is pursuing this avenue as well. While it’s not clear if Vanuatu’s campaign will look like Palau’s request, a lot has changed in the intervening years, scientifically and societally.

“Certainly the science has advanced, and the recognition of the immediacy of the threat and the extent of the threat, and the dire need to take ambitious action in the very near term, that’s all very different than 2011,” Burger said. “Ultimately, this is a political thing — whether or not to support an ICJ ruling is ultimately something that falls into international affairs and UN world.”

It’s one of a growing number of international and domestic pushes to use the courts and other legal bodies to address the world’s failure to reduce carbon pollution. In recent years, kids have sued various governments and even filed a case with the UN asking it to declare climate change a children’s rights crisis. Landmark suits in the U.S., the Netherlands, and elsewhere have also looked to force polluters to wind down emissions.

Were Vanuatu to successfully get the General Assembly to ask the ICJ for a climate resolution, and were the court to pass one, it wouldn’t mean countries were mandated the next day to take action. Advisory opinions are nonbinding, and there are no enforcement mechanisms. But it could have a direct impact on the future of climate law at large. Burger pointed out that there are an increasing number of climate cases brought in front of international tribunals that could be subject to an ICJ opinion, as well as some domestic legal cases that rely on international law for their arguments.

“I think a clear statement from the ICJ could inform decisions made by all those courts,” he said.