The Marshall Islands addresses the International Court of Justice in its Advisory Opinion proceedings on climate change
On Thursday 5 December, the Republic of the Marshall Islands addressed the International Court of Justice (“ICJ”) in the ongoing advisory opinion proceedings on States’ legal obligations with respect to climate change.
The proceedings were referred to the ICJ by the UN General Assembly Resolution 77/276 on 29 March 2023. This marked the first time, in the history of the UN, that a resolution requesting the ICJ render an advisory opinion was adopted by consensus.
Jennifer Robinson acted for the Marshall Islands in relation to its oral statement in these proceedings.
The Marshall Islands, which consists of 29 coral atolls and five islands, is one of the most vulnerable States in the world to the impacts of climate change. The average elevation of the country is less than 2 metres above sea level. Climate change, and sea level rise, are already damaging to the Marshalls, threatening food and water security, and causing serious human rights violations.
Marshall Islands’ Ambassador to the United Nations, John Silk, opened the Marshall Islands presentation to the ICJ, highlighting the impacts climate change is already having on cultural heritage. He also discussed Marshall Islands’ special circumstances:
The Marshall Islands faces uniquely complex challenges because of our colonial and nuclear legacy. The burden left by nuclear testing is now compounded by rising seas. Our people live with mounting anxiety as the dome containing nuclear waste – a remnant of a painful past – faces submersion with the rising seas, threatening further nuclear contamination. Communities which have been displaced because of nuclear testing are now at risk of being displaced a second time because of climate change.
Like our nuclear legacy, climate change is being inflicted on the Marshall Islands and our people by other countries acting for their own benefit and enrichment, while we bear the costs and consequences. As an independent State, climate change threatens our self-determination: our land is once again being stolen from us – this time by rising sea levels caused by other States.
The Special Envoy on Climate Change, Kathy Jetñil-Kijiner delivered a presentation which modelled the impacts of projected sea-level rise, showing disaster inundation events beginning as early as 2070, and set out the urgent finance required for the adaptation measures to ensure the Marshall Islands remains liveable. She said:
We cannot afford this. And we should not have to pay it because we did not create this problem. We continue to advocate, in the UNFCCC, for enough finance to meet the needs of countries like ours, as temperatures continue to rise. But according to all expert analysis, the outcome at this year’s COP – with just US$300 billion committed – falls far short. For many years we have watched as commitments go unmet. As it is, the funding process is so complex and slow that it takes years for funds to reach small island developing States like ours. The lack of climate finance imperils the lives and livelihoods of the Marshallese people. We cannot afford the status quo. As temperatures rise, the damage compounds – along with the costs.
The Deputy Attorney General, Johnathen Kawakami, addressed the Court on the extent of State’s obligations with respect to climate change, including under international human rights law. He spoke about the need for the Court to consider future generations, saying:
The Marshall Islands also underlines the need to consider future generations. This Court recognized the principle of intergenerational equity in the Nuclear Weapons case. The threshold test for its application is indisputably met for climate change. As you heard from my colleague, the best available science tells us, with certainty, that the conduct in question condemns future generations of Marshallese people to an unliveable environment. I think of my 2-year-old daughter and her future children. We submit the Court must consider their rights, too.
He also addressed states’ responsibility for violations of international law, urging the Court to find that major emitting states are responsible for the significant harm being caused to the climate system, giving rise to remedies including cessation and reparation, including restitution, compensation and satisfaction.
The Court has heard from some that the problem is too big and too complex for State responsibility to arise. This cannot be right as a matter of law or principle. Put simply, where there is a right, there is a remedy. Equity cannot suffer a wrong without a remedy. The harm caused to the climate system by the combined emissions of certain States is posing an existential threat to the planet and to all of humanity. How can it be that States will be held responsible for discrete incidents of transboundary environmental harm, but no State is legally responsible for the greatest harm ever caused to the environment? We respectfully submit that this cannot be right – and is not right. We respectfully invite the Court to make this clear.
The Court has now seen how climate change, if unabated, will affect the Marshall Islands. For this reason, we have traveled long and far to impress upon this Court the urgent need for action. The Court has heard stories of our suffering. We are not just here to share our stories; we are here to save our land, our people and the world. Climate change presents an unprecedented threat to us and to all of humanity. This Court has been given an unprecedented mandate to set the precedent that protects us all. We respectfully urge that the Court does so.
Jennifer also represents Vanuatu, which opened the proceedings at the beginning of the week.
Note to editors
