Pacific Small Island Developing States and other developing nations are mobilising to call for new international legal norms, to ensure that industrialised nations meet their obligations on climate, development and oceans protection.
As governments gather in France for this month’s UN Conference on the Ocean, Vanuatu and other PSIDS have been seeking international court rulings on the responsibility of states for climate action.
From 2021, Vanuatu led an international campaign calling on the UN General Assembly to request an advisory opinion from the International Court of Justice (ICJ) on climate change and human rights. In March 2023, the General Assembly formally asked the ICJ – the world’s highest court in The Hague, Netherlands – to clarify states’ obligations around climate change and the consequences of breaching these obligations.
Laat year, the court received submissions from nearly 100 governments and international organisations, then held hearings and arguments over two weeks in December. The ICJ judges are now considering their ruling, which will be released this year – possibly in coming months.
During the case, several industrialised countries and fossil fuel exporting nations – including Germany, Australia, Saudi Arabia and the United States – argued that they had no legal obligations on climate action beyond the voluntary commitments adopted under the 1992 UN Framework Convention on Climate Change (UNFCCC).
However Vanuatu and other Small Island Developing States (SIDS) and Least Developed Countries (LDCs) have sought rulings from a range of international legal tribunals, to provide legal guidance on the obligations of states regarding climate change. Such rulings can then potentially impact national and regional court cases and the annual UNFCCC climate negotiations.
Vanuatu’s Minister of Climate Change Adaptation, Meteorology and Geo-Hazards, Ralph Regenvanu, stresses that Pacific states have much to gain from stronger international law.
“We are at a turning point where worsening climate impacts are meeting growing calls for legal action and real change,” he said. “We are witnessing a dangerous acceleration in sea-level rise in ocean temperatures. The scientists tell us we have less than five years to take action to stop unstoppable climate change.”
Over many years, the annual UNFCCCC Conferences of the Parties (COP) have failed to accelerate global emissions reduction and provide the necessary funding for adaptation, mitigation and loss and damage. Every year, Pacific governments and communities lobby for stronger action to “keep 1.5 alive”, but industrialised nations repeatedly fail to turn voluntary pledges into action.
Recent COPs have also been captured by major fossil fuel exporting nations like UAE and Azerbaijan. Australia is currently bidding to host COP31 in South Australia in 2026, even though the largest Forum member exports nearly three times as much carbon energy as UAE, a major oil exporter.
For this reason, many Pacific nations are turning to international law structures, to clarify the legal obligations around climate obligations, ocean protection and human rights.
From ITLOS to ICJ
In May 2024, the International Tribunal for the Law of the Sea (ITLOS) issued a landmark advisory opinion, confirming that greenhouse gas emissions are marine pollution.
ITLOS is an independent judicial body established by the United Nations Convention on the Law of the Sea (UNCLOS), as a forum to resolve disputes arising from the interpretation of the Law of the Sea. Last year, ITLOS ruled that all states have obligations under UNCLOS to reduce, prevent, and control both domestic and global carbon emissions. This opinion means that protecting our oceans from climate change is not optional, but is a binding duty under international law.
Following the significant ITLOS ruling, the looming advisory opinion from the ICJ will address two inter-connected questions, on states’ responsibilities under international law, and the legal consequences for breaches of those responsibilities.
Margaretha Wewerinke-Singh is an international lawyer with Blue Ocean Law, and as serves as Vanuatu’s legal counsel before the ICJ. She said the court will likely address “what duties do states already owe under the UN Charter, International Human Rights treaties, UNCLOS and general international law to protect the climate system and the wider environment from anthropogenic greenhouse gas emissions for present and future generations?”
Wewerinke-Singh explained the ICJ ruling will also address the need for concrete responses by governments: “It’s very well established under international law that if a state breaches its obligations, then legal consequences are triggered, including the obligation to cease the wrongful conduct and an obligation to make full reparations. They’re very well-established principles of international law, but they have not really been applied to climate change.”
Although the ICJ ruling will be advisory, Vanuatu’s legal counsel hopes that a strong ruling will create new momentum for more domestic litigation that can bind companies and governments on climate action.
“We can expect that domestic courts will rely on the ICJ opinion when interpreting states’ international obligations as they translate into domestic law,” Wewerinke-Singh said. “So a clear articulation of the duty of prevention of human rights-based obligations and of differentiated responsibilities will provide litigants and judges with a robust legal compass.”
The oceans-climate nexus
The link between ocean protection, climate action and states’ responsibility for adaptation and mitigation will also be discussed at this month’s third UN Conference on the Ocean.
Following previous summits in New York (2017) and Lisbon (2022), the third global Oceans Conference will be hosted by France in Nice from 9-13 June. The meeting will be preceded by a major global conference on ocean science and a summit in Monaco on finance for the Blue Economy.
Vanuatu’s Ralph Regenvanu will join a range of other Forum island leaders in France, to push for strong declarations from the conference and an action plan to implement these pledges.
“As we head towards the UN Ocean Conference in Nice, the message is clear: voluntary pledges are not enough”, he said. “The Nice Ocean Action Plan must be built on the rule of law, and it must be in line with the new legal standards already set by ITLOS in its advisory opinion last May.”
“Ocean protection cannot be a side issue,” Regenvanu stressed. “It must be central to our global climate response. Despite the multidimensional threats facing the oceans of the world, Sustainable Development Goal 14 continues to receive the least funding of any of the SDGs. This is a critical moment for small island states and all ocean-dependent communities.
The oceans-climate nexus will also be debated at the 30th UNFCCC Conference of the Partes (COP30), to be held in Belém, Brazil, in November.
The ICJ legal ruling should be released before COP30, so Margaretha Wewerinke-Singh said the inter-governmental political debate in Brazil should be informed by the court’s legal opinion.
“A clear authoritative opinion can raise the floor beneath political ambition,” she said. “It can embed human rights considerations, and it can strengthen demands for adequate finance, technology transfer and reparations. At COP30, negotiators should not be able to advocate for pathways that fall short of the court’s reading of international law.”
“If the court confirms that significant harm triggers remedial obligations, then this will strengthen the moral and legal case for a well-resourced Loss and Damage Fund and for just transition finance that reaches the most vulnerable first.”
Global Oceans Conference
Vanuatu’s Climate Minister Ralph Regenvanu also stresses the connection between the ITLOS and ICJ rulings and rapidly deteriorating biodiversity and ocean health.
“Last year broke global records, with unprecedented sea surface temperatures and alarming ocean heat content,” Regenvanu said. “Of course, this is having devastating consequences for marine life, pushing many species to the brink of extinction. Our oceans are increasingly hostile to the very creatures that rely on them. The consequences of this will ripple through the entire food chain, impacting, of course, us at the end of it.”
However this year’s global summits come at a time when OECD nations like Germany, the United Kingdom and United States are slashing their aid budgets, and diverting resources towards military spending and the modernisation of nuclear arsenals. Governments like Australia have drawn their climate finance from their Official Development Assistance (ODA) budget, rather than develop innovative sources of climate finance.
Although they’ve endorsed Australia’s COP31 bid, Forum island countries says Canberra should transfer multi-billion-dollar fossil fuel subsidies towards targeted funding for climate adaptation, disaster response and loss and damage.
Regenvanu argues that it is possible to increase the financial resources desperately needed by developing nations.
“Clearly, this funding has to come from the billions of dollars being enjoyed by the fossil industry, being provided as subsidies to the fossil industry,” he said. “We were arguing at the International Maritime Organisation for a universal fuel levy on international shipping. If there’s strong legal statements about the obligations of states, we can get them to redirect current subsidies going to the global fossil industry towards loss and damage and adaptation.”
For Vanuatu’s Climate Minister, the ICJ initiative shows the potential for wider legal norm-setting by Pacific Small Island Developing States.
“For many states in the Pacific, it was their first time ever to appear before the ICJ,” Regenvanu said. “We were working together to advocate for our common interests and working together to influence how the rules are applied and interpreted, free of the constraints of the veto of the five members of the UN Security Council, and free of the compromised consensus decision making of the UNFCCC process.”