By Sir Ronald Sanders
Efforts by small states to seek justice for damage and existential threats to their countries, caused by the world’s major environmental polluters, moved a step further at the United Nations General Assembly (UNGA) on March 29.
By consensus, the UNGA adopted a resolution seeking an International Court of Justice (ICJ) advisory opinion on climate change.
The resolution asks the ICJ to clarify states’ obligations regarding climate change, including their human rights obligations to reduce greenhouse gas emissions. It also asks the court for guidance on questions of accountability for “states that have caused significant harm to the climate,” and too small island states.
The adoption of the resolution demonstrates the soft power of developing states when they act collectively in international fora. While the resolution was proposed by the Pacific Island of Vanuatu which did remarkable diplomatic work to build the consensus that eventually led to UN GA adoption, 18 other countries formed a core group in advancing it. Antigua and Barbuda was the only Caribbean country in the core group.
By the time of the UNGA’S adoption of the Resolution, the core group had secured co-sponsorship by more than 130 states.
Antigua and Barbuda is also a co-founder of another UN-registered Commission which is utilizing the international legal system and its institutions to seek climate justice. This body is the Commission of Small Island States on Climate Change and International Law (COSIS) which is seeking an advisory opinion from the International Tribunal of the Law of the Sea (ITLOS).
Unlike the Vanuatu initiative, which will now have to await formalities from the ICJ about the procedures for the submission of memoranda and a date for hearings, COSIS has already received confirmation from ITLOS for a first hearing on September 12 in Hamburg, Germany. Vanuatu is one of the six core members of COSIS which is co-chaired by the prime ministers of Antigua and Barbuda and Tuvalu, Gaston Browne and Kausea Natano, both of whom will attend the ITLOS hearing in Hamburg.
These efforts by small island states to use the international legal system for climate justice arise from the failure of meetings of the UN Conference of the Parties (COP), which have produced little or no benefits for them.
Small Island states are the greatest victims of climate change and global warming, although they collectively contribute less than 0.1 percent of Global Green House Gas emissions – CO2.
The latest UN report is clear that human activity is responsible for virtually all global heating over the last 200 years; the rate of temperature rise in the last half-century is the highest in 2,000 years; and concentrations of carbon dioxide are at their highest in at least two million years.
Thirteen countries are currently responsible for 68 percent of the world’s CO2 emissions. Of the 13 countries, 4 of them – China, the United States of America, India and Russia – account for 55 percent.
Much irreversible damage has already been done to many countries and millions of people. The planet Earth – our one homeland – has also been wounded with consequences for all. Communities in many countries have been displaced by extreme weather events.
In Antigua and Barbuda, all the inhabitants of Barbuda were dislocated in 2017 by hurricane Irma. Similarly, in 2019, hurricane Dorian decimated the Abacos Islands, in The Bahamas, dislodging the entire community. Effectively, these persons were “Climate refugees” – a classification which has not yet been accepted in international law or in international provisions.
Economies of developing states, especially small island states, are repeatedly set back by extreme weather events. All of these small economies have incurred burdensome debt to rebuild destroyed countries and to try to build resiliently for the future.
Current global financial flows for adaptation, including from public and private finance sources, are insufficient and constrain implementation of adaptation options in developing countries.
A World Bank report recently revealed that “richer countries, which significantly expanded their economies over the last decades, were the largest contributors of CO2 emissions, while small states are the most affected and face the most significant costs of adaptation.” While the polluting nations get richer, the suffering nations get poorer. The injustice cannot be more blatantly obvious.
The plea for compensation for loss and damage by small countries was only reluctantly considered at COP27 and appears to have been pushed off into a committee to make recommendations to COP28 that might amount to little. The sense of hopelessness in small states is rising even as temperatures and the level of the sea rise.
In nine months, world leaders will gather at COP28 in Dubai. The leaders of the most powerful nations – and the biggest polluters – should go to Dubai to deliver climate justice to those countries caught in the vortex of crises none of them caused; they should be prepared to compensate those, that they have harmed most, for loss and damage They should also deliver on the financial commitments made at COP meetings in Copenhagen, Paris and Glasgow. But there is no sign that this will happen. Hence the resort by small island states to seek redress in the international legal system.
The arbitrations and the judgements of ITLOS and the ICJ are not binding on states, but they carry legal authority and moral weight that cannot be ignored. Favourable opinions from each or either of them, showing that international law is not on the side of the polluters, would be a boost to the negotiating strength of small states at COP28.
Hopefully, the consensus resolution by the UNGA, that resulted from developing states working together, will embolden them to do more to advance their joint interests.