Could the World’s Highest Court Bolster Calls for Loss and Damage Funding?

Small island states are vulnerable to the most severe impacts of climate change. Litigating loss and damage at the International Court of Justice could help countries build international consensus.

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A historic breakthrough opened the final day of COP27 at Sharm El-Sheikh when climate Minister Ralph Regenvanu, representing the Republic of Vanuatu, launched a new multinational initiative to submit a draft proposal to the United Nations General Assembly. The draft proposal requests an advisory opinion from the International Court of Justice to clarify nations’ responsibility to address climate change, under existing treaties addressing human rights and environmental protection.

Vanuatu released the initiative amidst widespread demands to establish a new, independent loss and damage fund to finance both disaster recovery and climate adaptation efforts. Although the proposed text will evolve in the coming weeks, conclusively establishing state responsibility for climate action would fundamentally change the climate landscape in two ways: it would provide a concrete foothold to climate litigators suing to hold Paris Agreement signatories accountable to their prior commitments, and it would create diplomatic leverage for future COP negotiations.

A Pacific Island nation, the Republic of Vanuatu emits virtually 0% of the world’s carbon. Yet Vanuatu’s society, environment, and economy are highly vulnerable to climate change and disaster risks, including rising sea levels, earthquakes, and severe storms. Further, Vanuatu is committed to developing sustainably across all sectors, but the government lacks the financial capacity to rebuild repeatedly after climate disasters.

By translating its vulnerability into political legitimacy, Vanuatu built a global coalition calling for clarity from the ICJ on how existing international legal norms may be applied to respond to climate change and protect humanity.

The ICJ’s advisory opinions are judicial statements on legal questions submitted to the court by the UN and other authorized legal bodies, such as the UN General Assembly. Advisory opinions are within the court’s jurisdictional activities, and the court exercises its advisory function not to settle interstate disputes but rather to offer legal advice to the institutions requesting the opinion.

Advisory opinions carry legal weight and moral authority due to the status of the ICJ as the principal judicial organ of the UN. They are, however, not legally binding and have in the past failed to concretely change state behavior.

For example, the 2004 Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory called on Israel to cease its construction of the wall, to dismantle the sections already built, and to make reparations for the damage caused. Yet 18 years on, Israel has continued to build the wall while failing to make reparations for the extensive destruction of Palestinian land and property. Influential actors like the European Union have maintained their position that the wall contravenes international law, but have failed to exert meaningful pressure on Israel to align its policies with the ICJ’s ruling.

Further, the United States and China, two of the highest CO2 emitting countries, have both ignored the ICJ’s verdicts in the past, and the global community remains divided in climate response. Within this context, it is unlikely that an advisory opinion alone will decide whether parties uphold commitments made in the Paris Agreement.

Even without being legally binding, an advisory opinion linking human rights, environmental protection, and climate finance would bolster the Paris Agreement in two ways. First, national courts in several developed countries have already referenced international law when adjudicating climate-related disputes, drawing on customary norms and commitments in treaties addressing human rights and environmental protection to substantiate their country’s obligations. An advisory opinion by the world’s highest court offers the possibility of a strengthened climate litigation regime by providing legal clarity and persuasive precedent.

Second, an advisory opinion could support UNFCCC negotiations by affirming, authoritatively, that decarbonization is not a matter of discretion. As Minister Regenvanu highlighted during a high-level briefing at COP, the worst outcome would be “that the most vulnerable countries come to COP and demand loss and damage, to no avail.”

Vanuatu needs a simple majority of nations to support the referral before the question can be submitted to the ICJ. With over 85 member states already pledging their support, the General Assembly is highly likely to approve the submission. The UN General Assembly is scheduled to vote on the proposed text on December 14, 2022.

Alara Hanci

Juris Doctor Student, Carey School of Law
Born and raised in Istanbul, Turkey, Alara Hanci is a second-year student at University of Pennsylvania’s Carey Law School.

CeCe Coffey

Student Advisory Council Member
CeCe Coffey is a member of the Kleinman Center’s Student Advisory Council and a student at the University of Pennsylvania’s Carey Law School.