Symposium: Small States, Legal Argument, and International Disputes
Small States and international litigation
to minimise climate insecurity
by Shirley V. Scott
Published on 17 July 2023
The amount of climate litigation is increasing. Indeed, litigation holds the promise of adding impetus to action in a world in which efforts to mitigate climate change have been so patently inadequate and the scale of necessary adaptation would appear to be on an almost unfathomable scale, for example, the possibility of needing to relocate large populations from areas at risk of increased flooding or due to sea levels rise. This is true at both at domestic and at the international level, and certain small island States have been active in examining and using the potential of litigation and quasi-judicial processes to address climate-related wrongs.
For instance, Vanuatu has for some time been working for an International Court of Justice (ICJ) advisory opinion regarding the obligations of States to protect the climate system, while on 1 November 2022 Antigua & Barbuda and Tuvalu established a Commission of Small Island Developing States on Climate Change and International Law (‘the Commission’) with a view to requesting an advisory opinion from the International Tribunal on the Law of the Sea (ITLOS) on climate change, sea-level rise, protection of the marine environment, and international responsibilities. Vanuatu’s request for an advisory opinion was adopted by consensus at the United Nations (UN) General Assembly on 1 March 2023; ITLOS received the Commission’s request on 12 December 2022 and the Tribunal has set a deadline for written submissions on 16 June 2023.
Meanwhile, a group of Torres Strait Islanders and their children from the islands of Boigu, Poruma, Warrabar and Masig in September 2022 succeeded in their claim against Australia before the United Nations Human Rights Committee. The actions taken by Australia to address the impacts of climate change on the Torres Strait Islands were found to have been inadequate and Australia to have thereby violated their rights under the International Convenant on Civil and Political Rights, including their right to enjoy their minority culture and to be free from arbitrary interference with their private life, family and home.
The UN Security Council is generally regarded as a political body; indeed this feature is widely regarded as a fundamental distinction between that organ and the ICJ. Judge El-Kosheri noted in his dissenting opinion in respect of the provisional measures ordered during the Lockerbie case: `the Court […] is the principal judicial organ of the United Nations and thus exercises a function fundamentally different in nature and operating methods from that conferred upon the Security Council by Article 24 of the Charter’.
Nonetheless, the UN Security Council is known to have a quasi-judicial function, and hence it is another potential forum for international climate change ‘litigation’ (in a broad sense). Under Article 35 of the UN Charter, a small island developing State could bring a dispute before it pertaining, for example, to a disappearing State still exercising its rights in relation to its exclusive economic zone vis-à-vis another State exploiting the natural resources in that zone. The UN Security Council might not respond directly but it could facilitate the resolution of such a dispute through others peaceful means like mediation, fact-finding, or arbitration, in which normal UN Security Council politics would not necessarily intrude.
In our chapter forthcoming in the Edward Elgar Research Handbook on Climate Change Litigation, Professor Charlotte Ku and I re-imagine the UN Security Council as being not only a quasi-judicial body but a dispute resolution body in its own right. This organ provides a forum for discursive disputation; views may have legal implications even where the argument is not couched in legal terms. And, while we may often think of the UN Security Council as a small, emergency, decision-making body, it also makes use of meeting formats, including open debates, in which smaller States may advance their perspectives on cross-cutting thematic issues. For example, on 30 July 2015, under the presidency of New Zealand, the UN Security Council held an open debate on the peace and security challenges facing small island developing States. In its concept note introducing the debate, New Zealand noted that while tackling climate change `is not, on its own, sufficient to eliminate all the challenges that small island developing States are facing, … failure to act on climate change will undoubtedly make their future less secure.’
If the UN Security Council engagement to date is viewed through a litigation lens, debate to date could be conceived of as having been one long hearing on jurisdiction and admissibility, as there is a difference of views as to whether it is an appropriate forum to respond to climate change. As I have outlined elsewhere, the UN Security Council has already taken significant strides towards accepting its need to address climate insecurity, although China and Russia have been reluctant to see its mandate extended further. Nevertheless, the UN Security Council would have the legal authority to take wide-ranging action. Possibilities include for example, deciding provisional measures under article 40 to be taken by all Member States to implement specific legal obligations in respect of climate security.
A long-standing legitimate concern has been that the UN Security Council consideration of climate insecurity might pave the way for inappropriate use of military personnel. However, this concern may now be viewed in a new light given the widespread use by governments of military forces to respond to climate-related emergencies, including natural disasters and pandemics. Whether small States call on the UN Security Council to play a quasi-judicial role in relation to climate disputes or whether it acts as a dispute resolution body in its own right, there is as yet unrealised legal potential for the UN Security Council to assist small States in their broad dispute with the developed world over the urgent action needed to minimise the harms they are increasingly encountering from climate-related insecurity.
Shirley Scott is Professor of International Law and International Relations at UNSW Canberra and the immediate past president of the Asian Society of International Law. Her chapter `The United Nations Security Council as a Climate Litigation Body’, authored joint with Professor Charlotte Ku, is forthcoming in Francesco Sindico, Kathryn McKenzie, Gaston Medici Colombo and Lennart Wegener, eds. Edward Elgar Research Handbook on Climate Change Litigation. The handbook is due to be launched at COP28.