For most people in the world, the term “climate crisis” was for many years a distant concept and it is only in recent times that it is dawning on them that it is becoming an existential threat to them. But for states such as Vanuatu, it’s been a chilling reality for decades.
In March 2023, the government of the South Pacific archipelago of Vanuatu declared a six-month state of emergency following a string of extreme weather events and natural disasters: Severe tropical cyclones Judy and Kevin, both category 4, made landfall on March 1 and 3 respectively, bringing about winds of up to 230 km/h. As this was going on, two earthquakes of magnitude 6.5 and 5.4 on the Richter scale struck within areas affecting 13 of the more than 80 islands that make up Vanuatu.
Given the context of the island nation, it can be argued that the term “climate resilience” is a euphemism and an understatement. The meaning of “resilience” in climate lingo includes physical adaptations in the form of seawalls or better infrastructure, financial assistance, and the protection of cultural heritage. Sadly, these measures are terribly lacking in Vanuatu.
So, how does this country safeguard itself in light of the slow pace of action at the global level? In the words of Prime Minister Alatoi Ishmael Kalsakau, in his statement to the United Nations General Assembly (UNGA) on March 29, 2023, it is by “bring[ing] the entirety of international law to bear on this unprecedented challenge”.
And it seemed to have worked because just minutes after he concluded his statement, the Vice-President of the General Assembly (GA) banged the gavel to affirm the adoption by consensus of a resolution initiated by Vanuatu requesting an advisory opinion of the International Court of Justice (ICJ) on the obligations of states in respect to climate change. It should be noted that UN Secretary-General António Guterres was present to give the opening remarks. In fact, it was unusual that the Secretary-General was there at all for this type of resolution adoption.
This moment was both surreal and a startling surprise – much like a wishful thought fulfilled. However, for the people who have in varying capacities supported this initiative from the start, the General Assembly’s decision was the culmination of strategic political advocacy. The political strategy employed by one small state had just proven to be effective against the backdrop of potential political backlash by big and powerful states. Lest we forget, the small state of Palau pursued a similar path in 2011, only to back down when it found out that the political backlash would be too great a sacrifice. Secretary-General Guterres was right: “There is nothing more powerful than an idea whose time has come.”
The journey to this momentous achievement started a little over a year-and-a-half ago, in September 2021, when Vanuatu, through former Prime Minister Bob Loughman, announced that it was going to pursue the initiative to request an ICJ advisory opinion. Taking inspiration from a group of law students from the University of the South Pacific (Pacific Island Students Fighting Climate Change and later joined by the World Youth for Climate Justice), the Vanuatuan government quickly seized the opportunity to harness the momentum that had already been generated by leading voices such as Greta Thunberg, Guterres, and even the Pope, who have all sounded the alarm on the urgency of the climate crisis.
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By the time COP26 took place in Glasgow, Scotland, in November 2021, Vanuatu was ready. Under the auspices of Blue Ocean Law, a small but mighty law firm based in Guam, an international team of legal experts had taken form. The experts accompanied Vanuatu’s delegates to COP26 and, like liquid coursing through the veins of the earth, they collaborated with some of the Pacific students, who catalysed the movement, creating awareness and ultimately the need to support the initiative. During one of Vanuatu’s many side events, members of the legal team were quoted as saying, albeit in their personal capacities, that the initiative needs to be broadly supported by UN member states and be perceived as legitimate, particularly where it concerns the type of legal questions to be asked of the ICJ. No one knew whether the initiative would succeed or not. A lot relied upon assumed luck but Vanuatu and its team had a plan.
It was clear that a lot of work was needed to build broad support. By early 2022, Vanuatu had appointed two special envoys for climate change to spearhead the ICJ initiative. Ambassador Odo Tevi, its Permanent Representative to the UN, would focus on the missions in New York while Bakoa Kaltongga, Caretaker Minister of Agriculture, Livestock, Forestry, Fisheries and Biosecurity, would concentrate on garnering support from Pacific leaders and other regions. Scrolling through the Twitter page of Ambassador Tevi, active only since January 2022, paints a picture of back-to-back engagements on the initiative.
Vanuatu’s strategy was clearly picking up speed. By July 2022, political leaders representing major groups such as the Caribbean Community and Common Market (CARICOM), the Organisation of African, Caribbean and Pacific States (OACPS), and the Pacific Islands Forum (PIF) signalled their support for the ICJ initiative. And the timing could not have been better as the UNGA also adopted the resolution recognising the right to a clean, healthy, and sustainable environment on July 28, 2022. As luck would have it, Costa Rica and Morocco, two states that were core group members of the resolution on the right to a healthy environment, joined the ICJ initiative and were at the forefront during the drafting stage.
Behind the scenes, the Permanent Mission of Vanuatu to the United Nations, in a strategic move, began assembling a core group of 18 states[1], dubbed the ICJAO4 Climate Core Group (Core Group), which represented all UN regions, with their various interests and different levels of development. Their task was to create a zero draft resolution for dissemination to the UN membership. The draft built on the one prepared by Vanuatu and its legal team.
The Core Group, created in August/September 2022, was composed of ambassadors and legal/technical experts who began to work on the zero draft, which would serve as a basis for early consultations and negotiations with the missions in New York. In the last quarter of 2022, the group, led by Ambassador Tevi and his legal adviser, worked to gather much-needed support through countless bilateral meetings and informal consultations with the broader UN membership. With an eye on bringing the draft resolution to the UNGA in early 2023, Vanuatu and its young allies went full steam ahead with their advocacy at every remaining multigovernmental forum, including COP27 in Sharm El-Sheikh, Egypt.
On November 30, 2022, the zero draft resolution was published, thus welcoming feedback from UN member states. On December 9, 2022, several Core Group ambassadors presented it to the UN membership and several days later, on December 13, 2022, followed this up with the group’s first informal consultation on the draft resolution. This was the first opportunity for member states to engage in plenary discussions on the text.
On January 23, 2023, Vanuatu released a revised draft of the resolution, which tried to honour the stake each country has in addressing the climate crisis. Two further rounds of informal consultations were held on February 2 and 3 with UN member states to respond to comments and solicit further feedback. The draft resolution was further amended, incorporating feedback from member states. It was finalised and uploaded to the UN’s e-deleGATE portal for co-sponsorship on February 20, 2023.
The painstaking effort that showed due respect for constructive discourse was handsomely rewarded when the draft resolution was overwhelmingly co-sponsored by 105 states by the deadline of March 1, 2023. This exceeded the simple majority voting requirement for GA resolutions where a vote has been called for, effectively placing the initiative comfortably out of the reach of any spoilers.
On March 29, 2023, the date set for the adoption of the resolution, the Vice-President of the General Assembly opened the floor for the remaining states to add their names to the co-sponsor list. More countries joined in, bringing the total number of co-sponsors to 132. History was made because never before has an advisory opinion request of this nature been adopted by consensus. This should send a clear signal to the ICJ about the will of the UN General Assembly to robustly respond to the questions put to it.
It will likely take a year or two before the ICJ issues its advisory opinion on the obligations of states in respect to climate change. But one can always wish for a progressive and persuasive advisory opinion – landmark case anyone?
Shirleen Chin is an international legal expert who focuses on matters related to the environment, climate, international (criminal) law, human rights, anti-corruption, and organised crime. Through her consultancy, Green Transparency, she uses her skills and experiencesin strategic advocacy to help NGOs and other stakeholders with their initiatives.
Special thanks to Kevin Chand, Legal Adviser to the UN Permanent Representative of Vanuatu, who helped to elucidate the UN process.
[1] Angola, Antigua & Barbuda, Bangladesh, Costa Rica, Germany, Liechtenstein, the Federated States of Micronesia, Morocco, Mozambique, New Zealand, Portugal, Romania, Samoa, Sierra Leone, Singapore, Uganda, Vietnam and the main sponsor of the resolution, Vanuatu.
