With the limited results of the COP 26 climate summit making clear that their cries for help are being mostly ignored by wealthy nations like the United States, the United Kingdom, and Canada, some small island states are looking to the International Court of Justice for protection and redress.
Seeming to anticipate that the COP would once again fail climate vulnerable nations, the South Pacific nation of Tuvalu announced days before the Glasgow Climate Pact was signed that “it was already looking for ways to at least claim maritime rights over the segment of ocean that will ultimately drown its tiny nation of 12,000 people,” writes the Washington Post.
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Tuvalu’s efforts will not end there. The Post writes that while in Glasgow, the country’s climate negotiators, together with their peers from Antigua and Barbuda and Palau, signed an agreement to search for legal avenues “to compel large emitters to pay a price for the destruction in island states.”
These avenues, the Post adds, are “challenging, but not closed.”
Looking ultimately to have the International Court of Justice (ICJ) rule that nations can be “held legally responsible for the impact of their emissions on other countries,” the South Pacific petitioners will need first to be referred to the Court, ideally by the UN General Assembly.
They could also seek a legal opinion from the International Tribunal for the Law of the Sea.
“Though not legally binding, an advisory opinion from either tribunal could be used as leverage both in climate negotiations and further legal challenges in domestic or international courts,” writes the Post.
“You pollute, you pay,” said international lawyer Payam Akhavan of the University of Toronto’s Massey College, summing up the ultimate objective of the newly-formed Commission of Small Island States on Climate Change and International Law, for which he is legal counsel.
But determining just what is owed will not be easy, the Post notes, adding “the biggest questions in any legal fight are likely to be these: How do you put a price tag on a lost society? Does it just includethe cost of relocating inhabitants? Or should the damages be far more?”
What is clear, however, is how urgently damages need to be paid, and small island states protected. The average land elevation in Tuvalu is just six feet, six inches above mean sea level, and the water is rising at almost 0.2 inches each year, writes the Post. In addition to inundation, these nations face profound and escalating threats from salt water incursion into groundwater supplies, drought, coral bleaching, and extreme hurricanes.
