Vanuatu Leads Recent Initiatives in the International Push for Environmental Justice
By San Kwon
Public domain map of Vanuatu, courtesy: https://ian.macky.net/pat/map/vu/vu_blu.gif
Vanuatu, a Small Island Developing State (SIDS) in the South Pacific Ocean, has spearheaded two major developments on the international level concerning the Rights of Nature and climate justice.
It led a process in which the United Nations General Assembly (UNGA) passed a resolution requesting an advisory opinion by the International Court of Justice (ICJ) to clarify the legal obligations of States concerning climate change. In addition, Vanuatu, along with Fiji and Samoa, have asked the International Criminal Court (ICC) to consider ecocide an international crime.
This blog post details these important developments and their significance for the international community.
ICJ Advisory Opinion on Climate Change
In March of 2023, the UNGA adopted a resolution, led by Vanuatu and with consensus by all 193 UN Member States, asking the ICJ (the principal judicial organ of the UN) to draft and deliver an advisory opinion clarifying the legal obligations and consequences of States with respect to climate change and its harms.
An advisory opinion is a legal opinion provided by the ICJ to the UN or a specialized agency, with perhaps the most notable example being the 1996 ICJ advisory opinion on the legality of the threat or use of nuclear weapons. While not legally binding, an advisory opinion may have significant impact on the development of international law, which in turn may influence how domestic laws and litigations are shaped and determined.
The UNGA resolution posed the following two fundamental questions:
What are the obligations of States under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases for States and for present and future generations?
What are the legal consequences under these obligations for States where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect to
States, including, in particular, small island developing States, which due to their geographical circumstances and level of development, are injured or specifically affected by or are particularly vulnerable to the adverse effects of climate change?
Peoples and individuals of the present and future generations affected by the adverse effects of climate change?
The UN adoption of the resolution calling for an ICJ advisory opinion has been called a “landmark” event and a “turning point in climate justice.” As Dr. Wewerinke-Singh of Leiden University notes, “there is always a risk that the Court will deliver an underwhelming or an unhelpful opinion.” Yet there are clear reasons to be excited about the progress that the ICJ advisory opinion may bring.
The advisory opinion may, for instance, break new ground in international law in recognizing the rights of future generations. The advisory proceedings may also set precedent for how the international community engages with climate science, which is particularly significant for developing countries that have comparatively fewer resources for scientific expertise. Other potential benefits may include fostering ambition in States to mitigate greenhouse gas emissions, advancing international climate negotiations, and providing clearer insight into international obligations with respect to losses and damages suffered by States particularly vulnerable to climate change.
The advisory proceedings are currently ongoing. The written proceedings ended in August 2024, with a record high number of 91 written statements, as well as 62 written comments on the statements submitted, both by States as well as various NGOs. The oral proceedings, consisting of public hearings, are set to begin December 2, 2024, providing the opportunity for States and organizations to elaborate upon and respond to questions regarding their written statements, as well as testify on the issues at hand directly in front of the ICJ. Once the oral proceedings are over, the court will begin its deliberation. And finally, the ICJ will deliver its advisory opinion in open court, which is expected to occur in early 2025.
As we look forward to this new horizon in international environmental jurisprudence, it is important to keep in sight how this global movement came to be in the first place––largely through youth activism. We can trace its roots to 2019, when a group of students from the University of the South Pacific began to advocate and campaign for the Pacific Islands Forum to take the issue of climate change and human rights to the ICJ. With effort, the campaign grew in numbers and spread across the Pacific.
ICC and the Criminalization of Ecocide
The etymological roots of the word ecocide come from the Greek words oikos (from which the word ecology comes from), meaning home, and cadere (from which the word genocide comes from), meaning to kill. Ecocide, in other words, can be understood in the broadest sense as the killing of home, or the human-willed destruction of the environment. A more formal definition for the term was proposed by an independent panel convened by Stop Ecocide International:
“‘Ecocide’ means unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.”
And it is precisely under this definition that Vanuatu, Samoa, and Fiji have proposed to the ICC to consider ecocide as an international crime. (A previous ELC blog post explores the implications of this definition.)
Currently, the Rome Statute, the foundational treaty that established the ICC, recognizes the following crimes:
the crime of genocide
crimes against humanity
war crimes
crimes of aggression
Indeed, under the current Rome Statute, ecocide is, to an extent, considered a crime––but only as an instance of war crime, or as the text states, “widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.” The new proposal, in contrast, asks the ICC to consider ecocide as a crime in and of itself, a move aligned with recognizing the Rights of Nature.
There are clear benefits to the criminalization of ecocide. For one, as noted by Steven Donziger (an American environmental attorney who famously engaged in a legal battle with Chevron over its reckless pollution in the Ecuadorian Amazon), the criminalization of ecocide would make it easier to hold the big oil industry liable for its often reckless destruction of the environment. For another, the criminalization of ecocide at the international level would be a major step forward in recognizing that the protection of Nature is something desirable in and of itself, not solely because of its benefits to humans.
The move to criminalize ecocide, specifically as a key step toward holding the world’s biggest polluters accountable, however, is not without significant challenges––the biggest of which being the somewhat limited scope of the ICC’s jurisdiction. Even if the ICC does successfully codify ecocide as an international crime, it is only able to prosecute individuals, not States or corporations. (In contrast, the ICJ deals solely with disputes between States.) And even then, it is not the easiest task to identify which individuals are responsible for environmental disasters––which is, of course, not to say that climate change and other environmental catastrophes are blameless. In addition, major States that contribute the most to pollution and environmental destruction, such as the US, China, and India, are not signatories to the Rome Statute, which prohibits the ICC from prosecuting individuals from such countries.
The process to get the ICC to consider the proposal on ecocide has not been straightforward. The campaign was first initiated by Stop Ecocide International in 2017. In 2019, Vanuatu first asked the ICC to recognize ecocide as a crime. And finally, in 2024, an official proposal was made to the ICC by Vanuatu, along with the other island states Samoa and Fiji.
Most recently, on September 9, 2024, the proposal was tabled before the ICC in New York, and will be discussed in full at a later date that is yet to be determined. Jojo Mehta, one of the co-founders of the Stop Ecocide campaign, predicts that the entire process for the proposal to pass––which requires a two-thirds majority vote, with no country possessing the power to veto––may take anywhere from three to seven years,. So far, no countries have been willing to publicly oppose the proposal, but strong opposition is to be expected from, in particular, companies who are major polluters.
It should be noted, however, that the international push to criminalize ecocide is not a movement that emerged out of isolation. As recently as 2024, Belgium has recognized ecocide as an international crime; the European Parliament extended its list of environmental crimes; and Mexico has proposed a bill to criminalize ecocide. In short, a growing number of countries around the world are increasingly becoming invested in the problem of ecocide, which should give us hope for a positive outcome.
Concerning whether he believes the ICC proposal will pass, prominent international lawyer and law professor Philippe KC Sands remarks, “The only question is when. I was skeptical at first, but now I am a true believer. There has already been real change, as some countries have put it in domestic law. I think this is the right idea at the right time.”
Vanuatu in the Spotlight
At the center of both developments in international environmental law has been Vanuatu. And it is not difficult to see why this small island nation is so urgent in advocating for change on the international level. Island states and developing countries, including Vanuatu, Sri Lanka, Fiji, and others, contribute the least to greenhouse gas emissions, yet suffer most on the frontlines of climate catastrophe. Just in 2023, for instance, Vanuatu suffered two category-four cyclones within 72 hours, which was unprecedented in the island’s history. Vanuatu is acting on the obvious and unjust imbalance of global power with respect to climate change and environmental catastrophe.
There is reason both to be hopeful and somewhat skeptical concerning the outcomes of the ICJ advisory opinion and ICC proposal. But one thing is certain. As Vanuatu’s Minister of Climate Change Adaptation notes, “Ultimately, the true measure of success will be whether this process amplifies the voices of the most vulnerable and translates legal clarity into tangible action for climate justice.”
