Small island states seek climate change justice at top UN court

A major case at the International Court of Justice (ICJ) may pave the way for more climate change litigation and help for poorer and vulnerable states.

Despite the nearly 13,000 kilometres between the Dutch Caribbean island of Curaçao and France’s Indian Ocean territory of Mayotte, the two have been struck by a common and growing crisis.

From rising sea levels and temperatures to more frequent extreme weather events like droughts and hurricanes, small islands like these bear the brunt of worsening climate change.

While there is increasing international attention and funding for developing nations and climate-vulnerable territories — from the freshly-inked $300 billion (€284bn) COP29 deal to a landmark case this week at the UN’s top court — activists from places like Curaçao and Mayotte say that their plight is being widely overlooked and underfunded.

This is because these territories remain under some form of colonial control or influence, which limits their autonomy and representation when it comes to tackling climate change.

Although the ties to their colonisers differ — Curaçao is technically an autonomous part of the Netherlands while Mayotte is an overseas department of France — environmental advocates from both territories shared similar frustrations in interviews with Euronews.

Curaçao and Mayotte are ineligible for international climate funding for developing nations and must rely on central governments for whom they are far from a political priority, all while lacking their own voices on the global stage, the activists said.

They hope that the public hearings starting on Monday at the International Court of Justice (ICJ) — which will examine “the obligations of states in respect of climate change” — and the court’s eventual advisory opinion will lead to far greater recognition, support and funding for small island nations and climate-vulnerable territories.

“The Dutch have not been doing enough … (they) have not taken responsibility for environmental and biodiversity degradation (in Curaçao),” Gilberto Morishaw, a climate activist from Curaçao who is now based in The Hague, told Euronews.

Climate change is hurting Curaçao in myriad ways: from coral bleaching that jeopardises local fisheries and tourism to extreme heat and heavy rainfall, which threatens food security, public health and local infrastructure, according to Morishaw.

Yet consistent cash and concrete commitments from the Netherlands are in short supply, he said.

“The Dutch government has thrown most of the responsibility for climate adaptation into the laps of the territories themselves, and are extremely flaky with regards to funding and implementation,” Morishaw added.

‘Between a rock and a hard place’

Based in The Hague, the ICJ, which is also known as the World Court, will hear arguments until next Friday and is set to deliver a judgement next year.

The advisory opinion it gives, while non-binding, could have a huge impact on domestic climate-related litigation worldwide and influence diplomacy and negotiations at events such as the annual COP conferences, according to environmental experts.

“The ICJ proceedings and the forthcoming advisory opinion the potential to set a strong foundation for accountability and to send a clear message that big polluters cannot negotiate their way out of their legal obligations,” said Nikki Reisch, director of the climate and energy program at the Center for International Environmental Law (CIEL).

The judges will consider two questions, including whether countries that have “caused significant harm to the climate system and other parts of the environment” may be legally responsible for damage done to small island developing states.

Known as SIDS, this grouping of 39 states and 18 associate members (Curaçao is among the latter) are considered by the UN to be particularly vulnerable to the impacts of climate change.

One of these states — the Pacific nation Vanuatu, which requested the ICJ case — will open the proceedings. In total, 98 states and 12 international organisations will present their arguments to the ICJ.

Several SIDS and some small island associations are among them, but Curaçao and Mayotte are not on the agenda. Representatives from the Netherlands and France will participate, and Morishaw and his counterparts in Mayotte hope that the ICJ case will ultimately spur the colonial powers into paying more attention to small island states.

“The ICJ must cover the obligations that states have towards their territories, independent of what internal status they have,” said Morishaw.

“I hope the ICJ and other institutions start recognising the plight of countries like ours who are stuck between a rock and a hard place.”

Criticism of COP29 deal

The ICJ hearings, which were requested by the UN General Assembly in April of last year, are being held just weeks after the COP29 summit in Baku, which culminated in a climate financing deal that was criticised as grossly insufficient by developing nations.

The agreement will see wealthier nations provide $300 billion (€284bn) annually by 2035 to fund emissions reductions and climate adaptation in poorer nations.

While it is triple the amount pledged under a previous climate finance deal, which expires next year, it falls well short of the $500 billion (€474bn) to $1.3 trillion (€1.2tr) range that developing nations had been demanding from leading governments’ public purses.

Two associations of especially climate-vulnerable nations — the Alliance of Small Island States (AOSIS) and the Least Developed Countries — briefly walked out of the COP29 negotiations in protest, which almost saw the final agreement collapse.

“At COP29, we found ourselves constantly insulted by the lack of inclusion — our calls and requests for action have been totally ignored,” said Flora Vano, Vanuatu Country Manager for ActionAid. She is set to speak on behalf of Vanuatu at the ICJ hearings.

Activists from developing nations said they were not only frustrated by the headline sum but also a failure to build on the previous COP’s promise to transition away from fossil fuels, given the disproportionate impacts of emissions on small and developing nations.

The UN Environment Programme’s annual Emissions Gap report, published in October, found that global greenhouse gas emissions increased by 1.3% between 2022 and 2023. G20 members (minus the African Union) accounted for 77% of emissions last year, while the 47 least developed countries combined were responsible for just 3%, the UN said.

There was also concern among activists and representatives from SIDS that the COP29 deal did not include a commitment to give funding in grants rather than loans. Since 2016, about 70% of public climate finance has been delivered in the form of loans, which is a worry for many developing countries, and SIDS is facing ever-greater debt burdens.

The world’s 58 poorest and most climate-vulnerable states spent $59 billion (€56bn) repaying debts in 2022 compared with $28 billion (€26bn) they received in climate finance, said the International Institute for Environment and Development, a think tank.

“When a drought, flood or major storm hits, the least developed countries and SIDS are forced into a vicious cycle of borrowing more money to support their people and rebuild their infrastructure, further compounding debts,” it said in research published in October.

Catalyst for climate change cases?

Despite the frustrations surrounding the latest COP, representatives from SIDS such as Vanuatu and climate legal experts have expressed optimism that the ICJ hearings could prove a catalyst for more environmental litigation globally, and ultimately, climate justice.

There has been an uptick this year in court and tribunal rulings around the world demanding that states do more to curb emissions and protect the environment.

In May, the International Tribunal on the Law of the Sea, a UN court on maritime law, said greenhouse gases constitute marine pollution and that countries must protect oceans.

The previous month, the European Court of Human Rights (ECtHR) ruled that state inaction on climate change violates fundamental human rights in a case brought by a group of older Swiss women concerned about the health impacts of global warming.

And in January, residents of the Dutch Caribbean island of Bonaire — which is located about 80 kilometres away from Curaçao, and has been a special municipality of the Netherlands since 2010 — filed a lawsuit against the Dutch government requesting that it do more to protect the island from the effects of climate change.

The ICJ proceedings will be closely watched because there is a lack of legal precedent on climate change impacts. Reisch of CIEL said the hearings would not only open the governments of major polluters to public scrutiny of their legal positions on the issue but also galvanise climate-vulnerable territories and communities’ push for accountability.

“The process itself is a vital platform to spotlight the grave impacts and real lives on the line, and a powerful springboard for communities coming together across nations and across generations, under the leadership of youth from the Pacific and beyond, to demand climate justice and a livable future for all,” Reisch told Euronews.

One activist who is striving to do so is Samira Ben Ali, a climate justice advocate from Mayotte in the Indian Ocean. She said climate change was threatening the French territory on multiple fronts, from ocean acidification that could wipe out coral ecosystems within decades to prolonged droughts that are fuelling a water crisis.

“From drinking water to traditional fishing practices, every aspect of life and basic human rights in Mayotte is being affected (by the climate crisis),” said the Paris-based Ben Ali, who works as a coordinator for the World’s Youth for Climate Justice campaign.

While the French government is funding Mayotte’s climate adaptation plan, Ben Ali said more investment is needed in climate solutions such as mangrove and coral planting and building dams to combat coastal erosion, as well as more capacity building generally.

For Ben Ali, an ICJ recognition of the unique vulnerabilities of non-self-governing territories could bolster Mayotte’s case for more robust climate action from France, be it through holding fossil fuel companies to account for their emissions to better recognising the climate needs of local communities and bolstering adaptation measures overseas.

“Mayotte, like other vulnerable territories, deserves more than symbolic promises,” Ben Ali told Euronews.

“France and others that have historically benefited from the production of greenhouse gas emissions causing the current climate crisis, must act with urgency to support those who are on the frontlines and have done the least to create this situation,” she added.

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