ICJ
By Julian Aguon and Margaretha Wewerinke-Singh
A small miracle happened in New York on March 29. A humble campaign that began three years ago on the Vanuatu campus of the University of the South Pacific culminated in the adoption of a UN General Assembly resolution requesting an advisory opinion on climate change from the International Court of Justice.
The resolution was a diplomatic feat of Herculean proportions on the part of the government of Vanuatu. The significance of the achievement lies in the unique contribution that the world’s highest court could make to global action on climate change. By providing authoritative advice to all nations, the court could unlock the power of international law to bring about the kind of transformations that the climate crisis requires.
The UNGA has asked the court to clarify the legal obligations of countries in regards to climate change as well as the legal consequences for countries that have caused significant harm to the climate system. The UNGA has asked that these questions be answered with regard to a wide range of rules of international law, not just the United Nations Framework Convention on Climate Change or the Paris Agreement.
For the first time in history, the court could set out in well-defined and transparent terms the responsibilities of states to protect both the climate system and the rights of present and future generations from climate-induced harms. Further, the court could recognize that those harms are disproportionately felt by those least responsible for them—small-island developing states and other countries considered particularly vulnerable, owing to geographic circumstance, a history of colonization, or other factors. And it could spell out the specific ways states should correct these inequalities and repair climate harm.
The court could do all of this in a way that integrates human rights considerations with climate responsibilities, thereby operationalizing the demand set forth in the Paris Agreement that states “should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights.” Such an opinion could put the nexus between climate change and human rights on firm international law footing.
To take one example, a progressive advisory opinion could help ratchet up mitigation ambition across the board. We all know that the level of ambition under current Nationally Determined Contributions (NDCs) is far from what is needed to achieve the globally agreed-on limit for temperature rise. An ICJ advisory opinion could emphasize that, under international law, raising NDC ambition is a matter not of “discretion” but of “diligence” and, more specifically, the kind of diligence that is legally required under both the Paris Agreement and other applicable rules of international law, such as the duty of due diligence and the principle of prevention of significant harm to the environment.
We need this advisory opinion now more than ever. As confirmed by the latest IPCC report, the window in which to avoid climate catastrophe is closing. One of its most sobering findings is that there is now a more than 50 percent chance that global temperatures rise will reach or surpass 1.5°C between now and 2040.
For the people of Vanuatu, indeed for Pacific peoples in general, this is akin to a death sentence. As such, it is unacceptable. It is also not inevitable. As the authors of the report took pains to point out, technically speaking, there is still time to limit global warming to 1.5°C, assuming that states commit themselves to the task (among others) of quickly and dramatically reducing their greenhouse gas emissions in the near term.
That’s where the court comes in. By providing an objective yardstick with which to assess states’ compliance with their legal obligations as concerns climate change, the court could provide specific guidance for states that are grappling with the need for greater ambition on mitigation, adaption, and financial support.
From our vantage point as the leads of the legal team assisting Vanuatu in this effort, we see the country’s success as a testament to its tremendous determination in the face of adversity. Vanuatu is one of the most climate-vulnerable countries in the world; last month, it was hit by two Category 4 cyclones in two days.
Not only is Vanuatu leading the campaign for an ICJ advisory opinion on climate change, but it’s also calling on all states to sign up to a fossil fuel nonproliferation treaty to phase down coal, oil, and gas production in line with 1.5°C. Vanuatu may be small, but its emancipatory vision is huge, and it is committed to solidarity and collective action.
The present decade, in some ways the most turbulent in the history of the human race, is our last chance to get it right. And now we are one step closer to success by virtue of the question that Vanuatu, flanked now by the rest of the world, has asked the International Court of Justice. To be sure, it’s an epic question. Epic in the truest sense of the word, meaning it asks the court to bring the entirety of international law to bear on the conduct that has driven our planet to the brink of catastrophe.
The court’s answer could turn the tide.
Source: https://www.thenation.com/
By Julian Aguon and Margaretha Wewerinke-Singh
A small miracle happened in New York on March 29. A humble campaign that began three years ago on the Vanuatu campus of the University of the South Pacific culminated in the adoption of a UN General Assembly resolution requesting an advisory opinion on climate change from the International Court of Justice.
The resolution was a diplomatic feat of Herculean proportions on the part of the government of Vanuatu. The significance of the achievement lies in the unique contribution that the world’s highest court could make to global action on climate change. By providing authoritative advice to all nations, the court could unlock the power of international law to bring about the kind of transformations that the climate crisis requires.
The UNGA has asked the court to clarify the legal obligations of countries in regards to climate change as well as the legal consequences for countries that have caused significant harm to the climate system. The UNGA has asked that these questions be answered with regard to a wide range of rules of international law, not just the United Nations Framework Convention on Climate Change or the Paris Agreement.
For the first time in history, the court could set out in well-defined and transparent terms the responsibilities of states to protect both the climate system and the rights of present and future generations from climate-induced harms. Further, the court could recognize that those harms are disproportionately felt by those least responsible for them—small-island developing states and other countries considered particularly vulnerable, owing to geographic circumstance, a history of colonization, or other factors. And it could spell out the specific ways states should correct these inequalities and repair climate harm.
The court could do all of this in a way that integrates human rights considerations with climate responsibilities, thereby operationalizing the demand set forth in the Paris Agreement that states “should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights.” Such an opinion could put the nexus between climate change and human rights on firm international law footing.
To take one example, a progressive advisory opinion could help ratchet up mitigation ambition across the board. We all know that the level of ambition under current Nationally Determined Contributions (NDCs) is far from what is needed to achieve the globally agreed-on limit for temperature rise. An ICJ advisory opinion could emphasize that, under international law, raising NDC ambition is a matter not of “discretion” but of “diligence” and, more specifically, the kind of diligence that is legally required under both the Paris Agreement and other applicable rules of international law, such as the duty of due diligence and the principle of prevention of significant harm to the environment.
We need this advisory opinion now more than ever. As confirmed by the latest IPCC report, the window in which to avoid climate catastrophe is closing. One of its most sobering findings is that there is now a more than 50 percent chance that global temperatures rise will reach or surpass 1.5°C between now and 2040.
For the people of Vanuatu, indeed for Pacific peoples in general, this is akin to a death sentence. As such, it is unacceptable. It is also not inevitable. As the authors of the report took pains to point out, technically speaking, there is still time to limit global warming to 1.5°C, assuming that states commit themselves to the task (among others) of quickly and dramatically reducing their greenhouse gas emissions in the near term.
That’s where the court comes in. By providing an objective yardstick with which to assess states’ compliance with their legal obligations as concerns climate change, the court could provide specific guidance for states that are grappling with the need for greater ambition on mitigation, adaption, and financial support.
From our vantage point as the leads of the legal team assisting Vanuatu in this effort, we see the country’s success as a testament to its tremendous determination in the face of adversity. Vanuatu is one of the most climate-vulnerable countries in the world; last month, it was hit by two Category 4 cyclones in two days.
Not only is Vanuatu leading the campaign for an ICJ advisory opinion on climate change, but it’s also calling on all states to sign up to a fossil fuel nonproliferation treaty to phase down coal, oil, and gas production in line with 1.5°C. Vanuatu may be small, but its emancipatory vision is huge, and it is committed to solidarity and collective action.
The present decade, in some ways the most turbulent in the history of the human race, is our last chance to get it right. And now we are one step closer to success by virtue of the question that Vanuatu, flanked now by the rest of the world, has asked the International Court of Justice. To be sure, it’s an epic question. Epic in the truest sense of the word, meaning it asks the court to bring the entirety of international law to bear on the conduct that has driven our planet to the brink of catastrophe.
The court’s answer could turn the tide.
Source: https://www.thenation.com/
International Court of Justice and the Chagos Archipelago Advisory Opinion
Vanuatu Daily Post – On 25 February 2019, the International Court of Justice (ICJ) delivered a resounding Advisory Opinion on the legality of the UK’s administration of the Chagos Islands as part of the British Indian Overseas Territory, finding that the UK’s administration of the islands is a continuing unlawful act, that the UK has an obligation to bring to an end its administration of the Chagos Islands “as rapidly as possible” and that all member States must cooperate with the UN to complete the decolonisation of Mauritius.
In order to bring the Advisory Opinion to the Court, Vanuatu voted in favour of a resolution at the UN General Assembly to refer the question concerning the legality of the UK’s administration of the Chagos Islands to the ICJ. The Prime Minister of Mauritius, Pravind Kumar Jugnauth, then wrote to Prime Minister of Vanuatu Charlot Salwai in early 2018 requesting Vanuatu to make oral submissions in the ICJ case in support of Mauritius. Vanuatu agreed, appearing before the Court last year for the first time since independence. Ultimately, Vanuatu’s oral submissions were almost entirely reflected in the findings of the ICJ in this historic Advisory Opinion.
The issue at stake in this case was whether the United Kingdom’s division of its former colony into two separate territories, Mauritius and the Chagos Islands, ensured that the people living in the Chagos Islands were able to exercise their right to self-determination. The UK divided Mauritius, a colonial territory, in 1965 in order to lease the main island of the Chagos Islands – Diego Garcia – to the United States for its military purposes. Diego Garcia is a key strategic military base for the US and UK. As a consequence of this lease, which has been repeatedly renewed, the UK forcibly removed all the inhabitants of all of the islands of the Chagos Islands from their homes and sent them to Mauritius and other locations. They have never been allowed to return. The ICJ was asked by the United Nations General Assembly whether these actions were lawful under international law.
The ICJ had three issues to decide. First, whether it would accept the request by the General Assembly to give an Advisory Opinion. Second, whether there was a rule of international law that protected the Chagossian’s right to self-determination in 1965. Third, if so, whether there were implications for the UK’s current administration of the Chagos Islands as part of the British Indian Overseas Territory.
Vanuatu supported the position of Mauritius, along with a number of small island states and the African Union, because the facts in this case raised broader issues affecting many other States around the world, including in the Asia-Pacific region. In particular, Vanuatu argued that international law protected the rights of the Chagossians to freely and genuinely decide their future – i.e. their right to self-determination – and that the fact of this case showed that the Chagossians had so far been deprived of that right. Vanuatu has long taken a principled position on the right to self-determination, including with respect of East Timor and West Papua. Its action is also consistent with the words of Father Walter Lini, the first Prime Minister of an independent Vanuatu:
“[The] Pacific is one of the last regions of the world where the heavy hand of colonialism continues to be played. […] These remnants of the past must be lifted from our ocean, for, in all truth, and as I have remarked before, until all of us are free, none of us are.”
Vanuatu was among a number of states which made their first appearance before the Court, in recognition of the importance of this case and for the right to self-determination. The African Union, Botswana, Kenya and Zambia also appeared for the first time.
After the hearings in September 2018, Foreign Minister of Vanuatu, Ralph Regenvanu, said Mauritius was “thrilled” with Vanuatu’s submissions and reported that Prime Minister of Mauritius Jugnauth – who was in Court observing the proceedings and who personally congratulated the Vanuatu delegation – called Vanuatu’s oral intervention “one of the best of the week”.
After the historic decision of the Court this week, Foreign Minister Ralph Regenvanu said:
“Vanuatu appeared in this case to have a voice on the international stage to clarify the right to self-determination – and the International Court of Justice has listened. Vanuatu has long been committed to standing up for self-determination and to ending colonisation, wherever it occurs – including in our own region. Vanuatu is pleased to have supported Mauritius and the African Union in this case. The principles set down by the ICJ in this case will contribute to the resolution of ongoing disputes beyond the Chagos Islands, including in our negotiations with France over Matthew and Hunter Islands, and for the people of West Papua. We reiterate that all States have the obligation to refrain from any action that deprives people of their right to self-determination.”
Vanuatu was represented in these proceedings by Professor Robert McCorquodale of Brick Court Chambers, Jennifer Robinson of Doughty Street Chambers, Nicola Peart of Three Crowns LLP, and Mr. Noah Patrick Kouback, Permanent Mission of Vanuatu in Geneva.
For the first time in the history of Vanuatu, last week the Government made submissions in a case before the International Court of Justice (ICJ), the principal judicial organ of the United Nations (UN). The purpose of this ICJ case is to provide an Advisory Opinion in respect of the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965. Vanuatu is appearing to argue its principled position on the right to self-determination, consistent with its long history of support for peoples struggling for their freedom from colonisation, including East Timor and West Papua. As Walter Lini said in 1982:
This issue was referred to the ICJ for an advisory opinion by the UN General Assembly by the adoption of resolution A/RES/71/292 which requested the ICJ give an advisory opinion on the following questions:
(a) “Was the process of decolonization of Mauritius lawfully completed when Mauritius was granted independence in 1968, following the separation of the Chagos Archipelago from Mauritius and having regard to international law, including obligations reflected in General Assembly resolutions 1514 (XV) of 14 December 1960, 2066 (XX) of 16 December 1965, 2232 (XXI) of 20 December 1966 and 2357 (XXII) of 19 December 1967?”;
(b) “What are the consequences under international law, including obligations reflected in the above-mentioned resolutions, arising from the continued administration by the United Kingdom of Great Britain and Northern Ireland of the Chagos Archipelago, including with respect to the inability of Mauritius to implement a programme for the resettlement on the Chagos Archipelago of its nationals, in particular those of Chagossian origin?” Vanuatu voted in favour of the resolution at the UN General Assembly and on the 25th May this year the Prime Minister of Mauritius, Pravind Kumar Jugnauth, wrote a letter to Prime Minister Charlot Salwai requesting Vanuatu to make oral submissions in the ICJ case to support Mauritius.
The letter and the request was conveyed to Minister of Foreign Affairs, Ralph Regenvanu, by Minister of Agro-Industry and Food Security of Mauritius, Mahen Kumar Seeruttun in a bilateral meeting on the margins of the 107th and 43rd ACP and ACP/EU Joint Council of Ministers in Lome, Togo, on the 28th May. Minister Regenvanu assured Minister Seeruttun at the time that Vanuatu would support Mauritius and make submissions in the case as requested. Vanuatu joined twenty-one States and the African Union participating in the oral proceedings. These States were, in alphabetical order: Argentina, Australia, Belize, Botswana, Brazil, Cyprus, Germany, Guatemala, India, Israel, Kenya, the Marshall Islands, Mauritius, Nicaragua, Nigeria, Serbia, South Africa, Thailand, the United Kingdom of Great Britain and Northern Ireland, the United States of America, Vanuatu and Zambia. Vanuatu addressed the Court on the morning of Thursday 6th September (late Thursday evening Vanuatu time) and the presentation of Vanuatu’s arguments by our lawyers can be viewed online at: https://www.icj-cij.org/en/multimedia/5b8ce181a12d880415cfb4f7 Vanuatu was represented at the hearing by Professor Robert McCorquodale, an international expert on the law of self-determination, Jennifer Robinson, a barrister specialising in international law who has also advised the United Liberation Movement of West Papua, Nicola Peart, a barrister specialising in international law who has worked on a range of high profile international disputes, and Mr. Noah Patrick Kouback from the Permanent Mission of Vanuatu in Geneva. Minister Regenvanu says Mauritius was “thrilled” with Vanuatu’s submissions, with Prime minister Jugnauth calling them “one of the best of the week” and coming to personally congratulate the Vanuatu delegation after their submissions. It is expected that the ICJ will issue its decision in this case (the Advisory Opinion) in between six to twelve months. Minister Regenvanu said, “We are anticipating that the Opinion will establish favorable legal principles that will assist Vanuatu in our negotiations with France over Matthew and Hunter Islands and also in our advocacy for the decolonization of West Papua”.
Procedure
The advisory procedure is open to five United Nations organs and 16 specialized agencies and related organizations of the United Nations system. It enables them to request opinions from the Court on legal questions. On receiving a request for an advisory opinion, the Court itself draws up a list of those States and organizations that may be able to furnish relevant information. It then organizes the written and/or oral proceedings pursuant to Articles 66 of its Statute and 105 of its Rules. Unlike judgments handed down in contentious proceedings between States, the Court’s opinions have no binding effect as such. However, the authority of the Court as the principal judicial organ of the United Nations attaches to them. Since 1946 the Court has given 27 Advisory Opinions, concerning, inter alia, the conditions of admission of a State to membership in the United Nations, reparation for injuries suffered in the service of the United Nations, the international status of South West Africa (Namibia), certain expenses of the United Nations, certain judgments rendered by the United Nations administrative tribunal, Western Sahara, the applicability of the obligation to arbitrate under Section 21 of the United Nations Headquarters Agreement, questions relating to the privileges and immunities of human rights rapporteurs, the legality of the threat or use of nuclear weapons, the legal consequences of the construction of a wall in the occupied Palestinian territory and the unilateral declaration of independence in respect of Kosovo.