Thanks to a campaign spearheaded by a group of Pacific law students, the United Nations General Assembly last month supported a resolution asking the International Court of Justice to provide an advisory opinion on a country’s climate obligations. Here Professor Steven Ratuva looks at why the move is so important.
In a typical student talanoa a few years ago, some law students at the University of the South Pacific law campus in Vanuatu dreamt up what appeared to be a far-fetched notion: ask the International Court of Justice to give an advisory opinion on climate change.
Over time, the dream transformed into speculative optimism, which later became elevated to serious political activism. Now, four years later, the dream has reached fruition.
The United Nations General Assembly passed a resolution on March 30 which would enable the International Court of Justice (ICJ) to provide an opinion on the obligation of states in relation to actions which impact on the environment and vulnerable groups.
Specifically, the UN wanted clarification of the legal consequences where states, by their acts or omissions, “have caused significant harm to the climate system and other parts of the environment,” with respect to: (a) states, and small island developing states (SIDS) in particular, that are “specially affected by or are particularly vulnerable to the adverse effects of climate change”; and (b) peoples and individuals of present and future generations affected by such adverse effects.
In other words, states can be held accountable, and can be taken to task, for decisions, policies and actions which are environmentally and socially destructive.
An earlier campaign wasn’t as successful. In 2011, Palau sponsored a similar initiative but the UN didn’t vote on it. In this particular case, the Vanuatu government took the students’ ideas on board and lobbied extensively until 120 countries were prepared to co-sponsor the resolution at the UN General Assembly.
Pacific people were overjoyed with this long-awaited decision. The wheel of justice, it appears, has turned our way, especially so because while the carbon emissions of the Pacific Island states are around 0.03 percent of the total global emissions, these states are disproportionately affected by climate-induced calamities such as cyclones, sea-level rise, coral bleaching, erosion, soil salinisation, loss of biodiversity, infrastructural damage and loss of arable land.
The socio-cultural and psychological threats in the form of collective trauma, loss of cultural heritage, weakening of human security, disruption of wellbeing and loss of communal identity and sense of cosmology, are often deeper and long-term.
At last the call for climate justice by the people of the Pacific has been heeded by the countries of the world, thanks to the power of young minds to think creatively and strategically about the future of the planet and humanity.
This is a lesson for young people of today whose thinking is often captured and subsumed by the controlling, extractive and dehumanising machinations of the cyber world.
While the initiative by the law students may sound like a normal act of youth activism, it has deeper political and ideological resonance, especially in the realm of global power.
Climate narratives have often been dominated by global north states, institutions and scientists. Even the Intergovernmental Panel on Climate Change (IPCC) reports are by and large the assessments of global north scientists, and questions have been raised about the actual relevance of these highly technical reports to the situation of vulnerable and Indigenous communities such as those in the Pacific.
For years, the IPCC reports have been silent on Indigenous and vulnerable communities, until recently when there was symbolic mention of these states, but still no actual inclusion of Indigenous knowledge into the main scientific analysis.
The ICJ project has the potential to be politically transformative. If the court delivers an opinion favourable to vulnerable states, then a lot of other legal and moral windows will open up.
The idea of climate justice will come to the fore, and states could be held criminally responsible for actions which are environmentally destructive. This may involve extending the legal paradigm to include ecocide, and will give moral, political and legal leverage to island states such as those in the Pacific. These states, which have often been at the lowest strata of the global power structure, will be able to exert their will more forcefully.
A favourable decision may also declare that large industrialised polluters are legally liable to pay for the loss and damage they cause. In fact, Vanuatu had proposed a fund for loss and damage at the UN back in 1991. More than 30 year later, in 2022, the idea was eventually endorsed by world leaders during COP27 in Sharm el-Sheikh, Egypt. But still there is no moral and legal force behind the political commitment to pay for loss and damage.
Despite the fact that ICJ advisory opinions are often non-binding, they nevertheless carry legal authority and moral weight. In this case, a favourable decision might open up space and opportunities for litigation against climate rogue states.
ICJ and corporate interests
There are still gaps in the potential ICJ advisory opinion which need to be addressed. A major one is that while states will be declared to be legally and morally accountable and able to face litigation, the big emitting corporations, the real culprits, will be able to get away with their environmentally destructive behaviours.
Fossil fuel companies have a history of paying scientists and experts to falsify or misrepresent scientific interpretation of climate data to suit their climate denial agenda. During the series of climate summits (COPs) over the years, energy companies have been represented in large numbers to lobby states to engineer the global climate agenda towards their self-serving commercial, extractive and predatory interests.
In the past, countries such as Saudi Arabia, Australia, United States and Brazil have fallen prey to these mafia-type corporate lobbyists, and thus have displayed lukewarm commitment to the global decarbonisation agenda.
It’s still too early to celebrate the ICJ opinion. And let’s not forget that some of the grand ideas which were touted to save the planet from climate doom have been terrible disappointments.
An example is the Green Climate Fund (GCF), which was originally intended for climate adaptation and mitigation. There have been criticisms about its bureaucratic, user-unfriendly and neo-colonial way of operating.
At the outset, there is a patronising attitude towards applicants such as Pacific Island states, which are in dire need of funding. The money is often disbursed through accredited institutions such as the World Bank, Asian Development Bank, International Monetary Fund and other international agencies, and not directly to recipient countries. These institutions would then provide further funding through loans, which have added extra layers of debt for the recipient countries.
In addition, the process is cumbersome and reinforces the power of global capital, even when survival and humanitarian issues are at stake. This is a clear case of using the suffering and vulnerability of poor countries as corporate and political capital by powerful countries and institutions.
Meanwhile, the high expectations of the global south countries after the public pledging of US$100 billion by 2020 turned to disappointment as many countries such as the US failed to honour their side of the deal.
The disappointment doesn’t stop here. A significant portion of the climate-related money earmarked for vulnerable global south countries ended up in the pockets of corporations and private contractors involved in building energy infrastructures and other climate mitigation projects.
A case in point is the Tina River Hydropower project in the Solomon Islands, which is operated by THL, a company owned by the Korea Water Resources Corporation and Hyundai Engineering Corporation. ADB (Asia Development Bank), the accredited institution in this project, has an agreement with Hyundai regarding its long-term climate projects in the Asia-Pacific region. Two of the direct beneficiaries of the project are Hyundai, which is able to siphon off millions of dollars, together with some smaller Australian contractors, and, indeed, ADB for the interest it receives from the extra project loans it gave to the Solomon Islands government. Meanwhile, the people of the Solomon Islands languish in poverty and debt.
A common criticism of climate funding is that Indigenous communities are usually ignored or used as legitimising tools for climate projects.
While the Paris Agreement talks about the need to use Indigenous knowledge systems in understanding the climate crisis, as well as in protecting vulnerable Indigenous communities, the reality leaves much to be desired. In addition, climate funds are not direct grants, as is often assumed, but also have significant loan components which further lock recipient countries into perpetual debt.
ICJ and responsibility for climate mobility
Another area which we hope will open up debate in relation to the ICJ opinion is moral responsibility for displacement, or climate mobility. Big emitting states should be held responsible for relocating people within island states and even between states. Many low-lying atoll islands in Kiribati, Tuvalu, Marshall Islands and Federated States of Micronesia may not be habitable or even above water for too much longer, and the issue of mobility becomes one of survival.
The question is, where do they relocate to? Kiribati has already bought 6,000 acres of land in Fiji with the thought that it can be used for resettlement. But there is debate as to what should happen. The current government of President Taneti Maamau is arguing against mobility, contrary to the narrative of the previous government of Anote Tong, whose approach was based on climate emergency and the need for drastic action, including mobility.
It is a complex problem. There are a number of mobility strategies to consider.
The first is, people move as individuals or families over time and get absorbed into the destination societies. This is a normal migratory pattern which has been happening over time. There are Tuvaluans and i-Kiribati communities in Fiji and other parts of the Pacific and in other countries who migrated this way.
The second is for the whole nation to migrate and resettle elsewhere, when living on the islands become untenable. This is problematic in many respects because of the size of the relocating group and how they will be accommodated in the receiving society. There have been models of group relocation in the past, such as the people of Banaba (part of what is now Kiribati), whose land was mined for phosphate by the British. They were relocated to Rabi Island, in Fiji, in 1945.
Here in Aotearoa New Zealand, there have been informal discussions on giving responsibility to Māori iwi to host Pacific climate migrants as a way of making cultural connections and ensuring they feel at home.
Serious questions still remain. Who has both the land and political will to resettle 11,000 Tuvaluans or 130,000 i-Kiribati if ever we reach a stage of total mobility? If the state itself is also relocated with the people, what will a “state-within-a-state” set-up (such as the Vatican) look like — and is it even viable in this day and age?
And what will happen to the original “sunk state” and its 200-mile Exclusive Economic Zone (EEZ)? The United Nations Convention on the Law of the Sea (UNCLOS) is silent on this, but countries have often cited this legal instrument to talk about the potential disappearance of the EEZ if islands disappear below the waves.
The Pacific Islands Forum has flexed its muscles and stated that no member country will lose its EEZ, no matter what happens. But will the big powers such as the US and China recognise this declaration, or will they interpret UNCLOS simply to suit their geostrategic interests? China has already been manoeuvring itself in the South China Sea by building airports on reefs and claiming the EEZ.
It’s disconcerting that discussions on these long-term issues have not even started, not at the UN level, not at the Forum level, not even at the national level.
Optimistically, we hope that the ICJ opinion will be the starting block on which these discussions will start. The science is settled, and we all know that the climate crisis will worsen, and that it’s time to act, politically and strategically, to save our Pacific and our planet.
The humble dreams of those young law students, although perhaps not as philosophically articulated as Dr Martin Luther King’s dream, should be part of our collective dream as people of the ocean and as citizens of the planet.
Steven Ratuva is an award-winning interdisciplinary Fijian scholar. He is Distinguished Professor and Pro-Vice Chancellor Pacific at the University of Canterbury, and the director of the Macmillan Brown Centre for Pacific Studies. He also chairs the International Political Science Association research committee on climate security and planetary politics, and has other international, regional and national research leadership roles.
The opinions expressed in this article do not express the views of the University of Canterbury.
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