On 29 November 2022 the ICJ Core Group of Nations, led by the Republic of Vanuatu, submitted a Draft Resolution to all UN Member States, entitled, Request for an advisory opinion of the International Court of Justice on the obligations of States in respect of climate change, for further and broadening consultation. The Vanuatu ICJ Initiative seeks to have the UN General Assembly (UNGA) vote on the adoption of the resolution at the 77th Session of the UNGA, likely in early 2023. The draft question to be submitted to the ICJ would adopt a cross-cutting and systemic approach to the body of international law concerning climate change and protection and preservation of the climate system. Thus, while law of the sea elements cannot be viewed in isolation, they are an integral part of the preambular paragraphs and operative paragraphs.
The operative paragraph of the Draft Resolution would provide:
Decides, in accordance with Article 96 of the Charter of the United Nations, to request the International Court of Justice, pursuant to Article 65 of the Statute of the Court, to render an advisory opinion on the following question:
“Having regard to the applicable treaties, including the Charter of the United Nations, the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, the United Nations Framework Convention on Climate Change, the Paris Agreement, and the United Nations Convention on the Law of the Sea, and rules of general international law, including the duty of due diligence, the rights recognized in the Universal Declaration of Human Rights, the principle of prevention of significant harm to the environment, and the duty to protect and preserve the marine environment,
(1) What are the obligations of States under the above-mentioned body of international law to ensure the protection of the climate system and other parts of the environment for present and future generations;
(2) What are the legal consequences under these obligations for States which, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect to:
(a) Small island developing States and other States which, due to their geographical circumstances and level of development, are injured or specially affected by or are particularly vulnerable to the adverse effects of climate change?
(b) Peoples and individuals of the present and future generations affected by the adverse effects of climate change?”Draft UNGA Resolution: Request for an advisory opinion of the International Court of Justice on the obligations of States in respect of climate change
In related but distinct developments in possible advisory opinion proceedings, on 2 December 2022 Vanuatu acceded to the Agreement for the Establishment of the Commission of Small Island States on Climate Change and International Law.