Pacific Island Countries Make Historic Submissions to the International Court of Justice Climate Change Advisory Opinion

by | Apr 16, 2024

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About Johanna L. Gusman

Johanna Gusman is the Regional Adviser for Human Rights and Social Development at the Pacific Community (SPC) based in Suva, Fiji. The views expressed in this article represent her own and not that of the organisation’s. Johanna is an international human rights lawyer with an interdisciplinary background in biophysics and physiology. She has served as a Visiting Research Scholar at Australian National University, Georgetown University Law Centre, and Oxford University, where she examined novel ways to facilitate access to justice where there is a perceived power imbalance in civil liability systems, among other human rights-related topics. She served as a Fulbright Public Policy Fellow in Samoa and has been working on ICJ submission coordination in partnership with Pacific governments.  

March marks a major moment for the Pacific. After nearly a year since the General Assembly adopted a landmark resolution requesting an advisory opinion from the International Court of Justice (ICJ) on the obligations of States in respect of climate change—a decision that passed via consensus and was co-sponsored by 132 nations—the deadline for written submissions saw record numbers of Pacific Island countries participate. In the words of Pacific Island Students Fighting Climate Change (the students that begot the idea of taking this issue to the world’s highest court), this advisory opinion has the potential to be transformational because it is the first time the ICJ is being asked to consider international human rights law, climate law, and environmental law all together to guide the conduct and ambition of states to address the climate crisis.

Now more than ever, the planet needs international law to rise to the level of the climate change threat it faces, and arguably the most important region from which the Court needs to hear is stepping up to that challenge. Over the past year, Pacific governments have worked collectively to ensure submissions calling for the highest socio-ecological protections to answer the questions before the Court (paraphrased):

  • What are the obligations of States to protect the environment from anthropogenic emissions of greenhouse gas (GHG); and
  • What are the legal consequences under these obligations when States, by their acts and omissions, have caused significant harm with respect to:
    1. Small island developing States?
    2. Present and future generations?

While the nexus between climate change and the protection of human rights is recognised in the preamble of the Paris Agreement, that document has largely failed to limit global warming to 1.5°C or seemingly even curb historically polluting states’ fossil fuel usage behaviour. Even under the best circumstances, the Intergovernmental Panel on Climate Change (IPCC) has warned that levels of warming above 2°C will lead to “irreversible loss of the most fragile ecosystems, and crisis after crisis for the most vulnerable people and societies.” Current ambitions under Paris have a trajectory closer to 2.8°C if emissions do not sharply decline by 2030. That is a mere six years from now, and as many small island developing states (SIDS—although self-determination movements have called for a nomenclature change to ‘Large Ocean States’) have made clear, that level of warming could lead to existential crises.

Pacific Islands, along with other Large Ocean States (LOS), know acutely what is at stake as they battle daily with climate change-related sea-level rise. The science is clear that even the smallest increases in sea level can devastate islands. Take, for example, the SLR modelling for Tuvalu —the Pacific Island predicted to be the first to be submerged if  GHG reduction targets are not met. Atoll nations like this lack the high ground to prevent going underwater. They do, however, have the moral (and legal) high ground needed to convincingly persuade the Court to address the issue in a manner that protects both their sovereignty and their people—future generations included.

This exceptional inclusion of Pacific voices to the ICJ advisory opinion process will allow different socio-ecological experiences into decision-making at the highest levels, including cutting-edge legal perspectives. Take, for example, the 2023 Pacific Islands Forum Declaration on the Continuity of Statehood and the Protection of Persons in the face of Climate Change-related Sea-Level Rise. This document underscores the Pacific’s lived experience of climate change and the disproportionate impacts the region faces despite contributing negligible amounts of GHG emissions to the climate crises. Notwithstanding being a regional declaration, it is an instrument of climate justice that protects Pacific statehood and sovereignty, and the Court would be well-placed to endorse it as a basis for international law to follow (e.g., by affirming the legal presumption of state continuity as settled law).

Given all this, it will be interesting to see the total number of state submissions, which ones submit, and exactly how many support the LOS’ needs, and the entire planet for that matter. It will be even more fascinating to see how the Court’s advisory opinion does (or does not) clarify robust State obligations, and the legal consequences they trigger, when there is significant harm. The Pacific, being especially affected by the adverse impacts of climate change, is already experiencing such injury.

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