While developing nations could not get developed nations to agree in Bonn, Germany, for a facility for loss and damage to be included in the agenda for the World Climate Summit, COP 27, in November in Egypt, Vanuatu has come off it with a positive outcome as multiple nations have agreed to support Vanuatu’s initiative of getting an advisory opinion from the International Court of Justice (ICJ).

The show of support has come, thanks to Vanuatu’s attendance and awareness at the Conference in Germany from June 6 to 16 and in side events related to the conference. One of these side events, a workshop on Climate Litigation, International Negotiations and Legal Claims for Loss and Damage, was attended by Mr Christopher Tavoa, Director of the General Counsel’s Unit at the State Law Office.

This event, which took place on June 13, 2022, was hosted by the International Centre for Climate Change and Development (ICCCAD), Centre for Climate Justice - Bangladesh and Climate Litigation Accelerator (CLX) of the New York School of Law.

The workshop was hosted in the context that the international climate negotiations on loss and damage have yielded some progressive wins, like the establishment of the Warsaw International Mechanism and the Santiago Network.

Th Warsaw International Mechanism was established at the United Nations Framework Convention on Climate Change (UNFCCC) in November 2013 to promote the implementation of the approaches to address loss and damage associated with the adverse effects of climate change.

The Santiago Network was established in 2019 during COP 25 in Madrid, Spain, of which one of its functions is to contribute to the effective implementation of the functions of the Warsaw International Mechanism, in line with the provisions in paragraph 7 of decision 2/CP.19 and Article 8 of the Paris Agreement, which Vanuatu ratified and acceded in 2016.

Loss and damage refer to when the impacts of climate change are greater than the ability of a community, ecosystems or country to adapt.

The workshop attended by Mr Tavoa brought together climate negotiators, scientists, lawyers and civil society activities to closely examine the possibilities for climate litigation to address the myriad of issues relating to loss and damage as well as arrive at a concrete strategy for possible uses of climate litigation and how it interfaces with and inform ongoing international negotiations.

Director Tavoa gave the opening remarks on behalf of the Vanuatu delegation and Government on the intervention in the International Court of Justice (ICJ).

In his remarks Mr Tavoa raised the issue of urgency of climate action.

“We are surrounded by the biggest ocean in the world which is the Pacific Ocean. We depend on it for our daily living.

“Our land mass is very small but we also depend on our small land mass for our survival.

“Our concern is about our existence and the existence of our future general. That is the reason why climate change is the single greatest threat to our small Pacific Island states.

“Now, the findings of science are of great concern to us because the impacts of climate change are irreversible and that we are now in the climate emergency.

“What is even more of concern is that the Paris Agreement has not yet fully implemented.

“Basically, actions and progress are currently hindered by roadblocks through mechanism that only defeat the spirit and objective of the Convention and the Paris Agreement,” Mr Tavoa stated.

He told the workshop participants in Germany that it is on such basis that Vanuatu, supported by grassroots efforts and youth initiatives, has begun a movement advocating for an Advisory Opinion from the International Court of Justice (ICJ) to set out with clarity the obligations of States with respect to climate change and to climate vulnerable nations and peoples.

“In September 2021, my Prime Minister, the Hon. Bob Loughman Weibur, formally launched the campaign, and alongside a coalition of the willing, is now seeking support from UN Member States in order to reach the requisite majority for the adoption of a UN General Assembly Resolution at this year’s 77th session. “The initiative seeks an Advisory Opinion from the International Court of Justice on climate change as it specifically affects developing countries particularly exposed to the adverse effects of climate change.

“This will be an opportunity to raise awareness about the impact of the climate crisis and its impact on vulnerable and marginalised populations.

“An Advisory Opinion would recognise that climate change is disproportionately felt by persons in vulnerable situations, particularly those living in geographically vulnerable developing countries.

“An Advisory Opinion from the ICJ would therefore provide a baseline for achieving climate justice by linking human rights and development to achieve a human-centred approach, safeguarding the rights of the most vulnerable and sharing the burdens and benefits of climate change and its resolution equitably and fairly.

“This clarification of international law related to climate change would help achieve climate justice by safeguarding the rights of the most vulnerable, and enabling States to share the burdens and benefits of climate change and its resolution equitably and fairly.

“Such an Advisory Opinion also aims to integrate human rights considerations with climate responsibilities by considering climate agreements in the wider context of other human rights instruments, such as human rights covenants and conventions, and legal developments, such as all the work done by the Human Rights Council.

“An advisory opinion of the ICJ would foster ambition in the pledges made by States, which is crucial for the success of the process set in motion by the Paris Agreement and a key outcome of COP26.

“This is crucial for implementation of existing pledges, for increasing the ambition in revised pledges, and for ramping up climate finance. “Scientific research suggests that, if all conditional and unconditional pledges are implemented in full and on time, warming can be kept just below 2C, although still exceeding 1.5C.

“More pressure is therefore needed to ensure countries effectively cooperate under the Paris Agreement framework to fully implement their existing NDCs (Nationally Determined Contributions), increase the ambition of their revised NDCs, and ramp up climate finance to enable the implementation of developing countries’ conditional pledges. “On implementation, the need to authoritatively reaffirm that decarbonising is not a matter of discretion under the UNFCCC and the Paris Agreement but one of due diligence,” Mr Tavoa said.

One of the expected outcomes of the workshop is the establishment of a close network among participants for continued collaboration and work at the intersection of climate litigation on loss and damage.