# The rising Oceanian climate diplomacy 11mai 2023
Working paper to be corrected and included into
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changement climatique', Maison des sciences de
l'Homme/UPF

Géraldine Giraudeau

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Géraldine Giraudeau. The rising Oceanian climate diplomacy 11mai 2023 Working paper to be corrected and included into F.Poirat (dir.), Actes du colloque 'Insularité(s) et changement climatique', Maison des sciences de l'Homme/UPF. 2025. hal-04966766

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The rising Oceanian climate diplomacy

11mai 2023

Working paper to be corrected and included into F.Poirat (dir.), Actes du colloque ‘Insularité(s) et changement climatique’, Maison des sciences de l’Homme/UPF

Géraldine Giraudeau, Paris-Saclay (UVSQ)

Summary

At the forefront of climate change are the Oceanian states and territories that are also leading political and legal developments designed to combat its effects and to make states face up to their obligations. Specifically within the framework of the Pacific Islands Forum (PIF) but not only, considerable regional efforts in this direction can be observed, notably through declarations formulated to push forward legal evolutions or through judicial strategies ("lawfare"). These efforts testify to the strengthening of a genuine climate diplomacy contributing to a notable change within the international community.

Even after decolonization, Oceania, and what has been considered its "confetti of land", has long remained on the fringes of international relations, or at least of the "international system". Indeed, international society has been built upon a Eurocentric model, based on a spatial division of state competences marked by borders, and very often measuring power by the amount of land under state sovereignty. The human sciences, too, have been marked by a Western perspective that values land territory and the power associated with it, often viewing the "blue continent" as an "empty" space. This perception of emptiness is in perfect opposition to the Oceanian vision of a living, sacred, uniting and nourishing ocean. This vision was beautifully described in Epeli Hau'ofa's famous article and, in fact, invited the social sciences to look at Oceania as a 'sea of islands' instead of "islands in a far sea"<fnref n="1" />. This was a more authentic and also fairer description of the region, where states are in reality immense maritime nations.

In general, the word “Oceania” refers to a geographical and political area in the Pacific<fnref n="2" />. However, its meaning can vary. In this contribution, it will be used to describe the space composed of 14 Pacific Island states, all members of the Pacific Forum Islands (PIF), and the remaining dependent territories of France, Britain, New Zealand and US<fnref n="3" />. The expression "Oceanian" diplomacy, although less commonly used in English, is preferred here to "Pacific diplomacy", precisely because it connotes a "whole" (the ocean drawing the link) rather than scattered territories<fnref n="4" />.

<footnote n="1">¹ E. HAU'OFA, « Our Sea of Islands », *The Contemporary Pacific*, vol. 6, n°1, 1994, pp. 148-161.</footnote>

<footnote n="2">² The word “Oceania” is in fact a neologism from the geographer Conrad Malte-Brun (1775-1826) coming from the word “Oceania”, but as we’ll see, it was used by E. HAU’OFA for having the advantage of referring to a “whole”.</footnote>

<footnote n="3">³ These states are namely Cook Islands, Federated States of Micronesia, Fiji, Kiribati, Marshall Islands, Nauru, Niue, Palau, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu, Vanuatu and New Guinea. The dependent territories are New Caledonia, Wallis and Futuna, French Polynesia (all three French territories), Pitcairn Island (Britain), Tokelau (New Zealand), American Samoa, Guam, and the Commonwealth of the Northern Mariana Islands (US). Australia and New Zealand, both PIF members, won’t be considered, as they do not share the same interests at the time of assessing climate change effects.</footnote>

<footnote n="4">⁴ E. HAU'OFA, « Our Sea of Islands », loc. cit.</footnote>
That being said, it is undeniable that the visibility of Oceanian territories and their populations within the international community has recently increased. Some authors have identified a “fundamental shift in the way that Pacific Island states engage with regional and world politics” since 2009⁵, in a “dramatic transformation of regional order” whose importance represents the “equivalent to the move from the colonial to the postcolonial era”<fnref n="6" />. Anote Tong, former president of Kiribati, has used the term “paradigm shift” to describe this phenomenon<fnref n="7" />. Indeed, the voice of Oceania, at least on topics on which there is an emerging regional consensus, tends to be more and more identifiable.

The strengthening of Oceanian diplomacy is in reality due to a series of factors among which climate change has been a key element. It has led to the structuring of political and legal reactions that try to curb its impact and that try to make greenhouse gas emitting states face up to their responsibilities. According to political science, diplomacy involves practices such as dialogue, negotiation, and different forms of representation, whereby entities as a state or a group of states, or even other groups of international actors, defend and promote their interests, and even their values, in their relations with other actors in international society<fnref n="8" />. However, as they are about the climate crisis, these practices can be sectoral: because of the necessity to raise awareness from the international community, because of the negotiations for the emerging climate law, and also because of the need for identifying responses and actions to the challenges involved. Climate diplomacy is thus one of the tools for climate justice. It is particularly meaningful for Oceanian states, which, even if they contribute in a tiny proportion to the global CO² emissions, are at the frontline of climate change effects<fnref n="9" />. Thus, “Oceanian climate diplomacy” can be understood as a wide scope of negotiations practices around climate issues, engagements in political actions, representation as a group in international fora, efforts for institutional creations, and also judicial actions for climate justice.

The particular exposure of Oceania to the effects of climate change - including, therefore, the increasing frequency of extreme weather events, ocean warming and sea level rise - can be explained by different factors. Firstly, there are obviously geographical and geological reasons, mainly due to the concentration of island formations and the importance of coral systems in the region. Atolls, made up entirely of coral reefs, which are particularly numerous in the Pacific, are very low-lying islands that are more easily submerged. Four of the world's five atoll nations, i.e. state or sub-state territories entirely made up of low-lying atoll formations, are located in the region<fnref n="10" />. The IPCC already commented on several occasions on the lack of uniformity in the rise in sea level on a global scale: the waters are rising faster and more intensely in the

<footnote n="5">⁵ G. FRY and S. TARTE, “The New Pacific Diplomacy: an Introduction”, p. 3 in G. FRY and S. TARTE (ed.), *The New Pacific Diplomacy*, ANU Press, 2015: 2009 is the date of the suspension of Fiji from the PIF, see *further*.</footnote>

<footnote n="6">⁶ *Ibid*.</footnote>

<footnote n="7">⁷ A.TONG, “’Charting its own course’: a Paradigm Shift in Pacific Diplomacy”, p. 21 in G. FRY and S. TARTE (ed.), *The New Pacific Diplomacy, op. cit.*</footnote>

<footnote n="8">⁸ Classically, in a strict definition, “diplomacy” refers to “the process of dialogue and negotiation by which states in a system conduct their relations and pursue theirs purposes by means short of war”. To refer to the evolutions of diplomacy, lots of authors would “add a prefix”, such as “new diplomacy”, “small states diplomacy”, “NGO diplomacy”, “climate diplomacy”, but above all these categories, diplomacy can be viewed as a changing factor of world politics: O. J. SENDING, V. POULIOT and I. B. NEUMANN, *Diplomacy and the Making of World Politics*, Cambridge, 2015, Introduction, p. 2 and following.</footnote>

<footnote n="9">⁹ According to SPREP, the region produces less than 0,03 % of the global world greenhouse gas emissions: https://www.sprep.org/news/low-carbon-development-shared-the-pacific-island-way.</footnote>

<footnote n="10">¹⁰ These are Tuvalu, Kiribati, Marshall Islands, and Tokelau (last one being a special territory of New Zealand). In the Indian Ocean, the Maldives face up the same risk.</footnote>
South-West Pacific, and have been doing so at least since the 1990s.<fnref n="11" /> In addition to these natural characteristics, there are also existent economic difficulties for these islands, for example in putting in place mitigation measures such as very costly infrastructures capable of minimizing occasional and permanent flooding<fnref n="12" />. Finally, there are also specific legal aspects to be taken into account, such as the diversity of constitutional status of the Pacific territories, and the absence of a regional system for the protection of human rights.

As a result, climate change, the main security threat and even existential threat to the region<fnref n="13" />, catalyzed the need for regional cooperation and international representation of the interests of Oceanian states and territories. This has been achieved through strong political and legal actions, whose effects, while still insufficient to bring about a real reduction in greenhouse gas emissions to the date, have nonetheless had tangible results on the international scene and now constitute a genuine vector for change. Without claiming to be able to draw up an exhaustive list of these actions, this contribution attempts to present the most salient elements of this rising Oceanian diplomacy through presenting its main structures (I) and its main achievements (II).

# I. The polymorphic structuring of the Oceanian climate diplomacy

The emergence of Oceanian climate diplomacy is based on a wide range of manifestations, involving both regional structures and fora designed to promote more globally the interests of island states.

With the exception of Samoa and Nauru, which became independent in 1962 and 1968 respectively, the Oceanian wave of decolonization spread from 1970 (as in the case of Fiji) to 1994 (in the case of Palau, the last State under United Nations trusteeship).<fnref n="14" /> Created in 1971, the “South Pacific Forum”, which became the “Pacific Islands Forum” in 2000, has been the main framework for political cooperation in the region ever since, and also the main vector for regional diplomacy. Its activity was historically structured around decolonization, denuclearization, and environment, but it significantly reduced in the mid-90’s, before intensifying again in the last decade, specifically around climate crisis issues. A set of decisive declarations have been signed by the Forum leaders who meet annually (some of these declarations will be mentioned further). It is also fair to say that the importance of climate crisis helped to overcome certain tensions within the organization, such as the last polemic on the Secretary-General election, a crisis solved “thanks to the ‘Pacific way’ of diplomacy”<fnref n="15" />.

<footnote n="11">¹¹ « For example, in the western Pacific Ocean, rates were about three times greater than the global mean value of about 3 mm per year from 1993 to 2012 », Rapport GIEC AR/5, 2013, p. 1148.</footnote>

<footnote n="12">¹²The UN group of "Small Island Developing States (SIDS)" includes many Pacific states, which form a distinct sub-group, with an average GDP per capita of US$3,626. The world average is 10909 dollars in 2020, according to data from the World Bank: https://donnees.banquemondiale.org/indicator/NY.GDP.PCAP.CD?locations=S2.</footnote>

<footnote n="13">¹³ See the Boe Declaration of Regional Security, 2018: “We reaffirm that climate change remains the single greatest threat to the livelihoods, security and wellbeing of the peoples of the Pacific…” [https://www.forumsec.org/2018/09/05/boe-declaration-on-regional-security/], also Kainaki II declaration for Climate Change Action now, 2019 [https://www.forumsec.org/2020/11/11/kainaki/]. (All quoted websites of this contribution were consulted in December 2023).</footnote>

<footnote n="14">¹⁴To be noted that the decolonization process is not yet complete, with several territories, including two French territories, still on the UN list of non-self-governing territories.</footnote>

<footnote n="15">¹⁵ Following Henri Puna’s election, considered as a breach for the informal turnover on the position between Melanesian, Polynesian and Micronesian groups, the Micronesian states threatened to split with the Organization (Kiribati temporarily did) before reconsidering their position. See W. WAKAVAKATOGA, “How the ‘Pacific Way’ of Diplomacy shored up the PIF”, East Asia Forum, 7 March 2023.</footnote>
According to many observers, it is also paradoxically the story of one of the PIF ruptures that has really given impetus to Oceanian diplomacy. In 2009, for first time in its history, the organization suspended one of its members, a decision taken to sanction Bainimarama's government's failure to allow the return of a democratic system after the 2006 coup d'état, while Fiji was at the same time suspended by the Commonwealth<fnref n="16" />. From then, “(t)he Bainimarama Government enunciated several new foreign policy principles aimed at circumventing its isolation in regional and global diplomacy”, consisting in presenting Fiji as “a Pacific voice that could be heard in global forums”, that would not be “constrained by metropolitan powers (especially Australia and New Zealand)”, and “would include civil society, the private sector, and dependent territories, alongside independent governments, as equals partners in a new kind of ‘network diplomacy’”<fnref n="17" />. This disruption gave rise to the “renaissance” of the Melanesian Spearhead Group (MSG), to the creation in 2013 of the Pacific Islands Development Forum (PIDF) and to the reinforcement of the Pacific Small Island Developing States at the UN<fnref n="18" /> (P-SIDS existing since). It wouldn't be fair though to consider the Fijian impulse as the only source of such shift, which is also the result of a regional effort for building a more efficient system able to complement the PIF's one and in “developing a new diplomatic architecture outside the PIF system”<fnref n="19" />.

All these “extra-PIF” structures now constitute frameworks for climate diplomacy since then, with a special importance for the P-SIDS. At the UN, this group helps to relay the Oceanian voice, which is carried out by the wider SIDS group: 38 UN member states and 20 non-member entities recognized as such by the 1992 UN Conference on Environment and Development in Rio. Such coalition plays a role in the climate negotiations, Pacific countries being actually the first ones in ratifying the 2015 Paris agreement.

Still at a regional level, to be mentioned is the growing role of the Pacific Community (SPC). Although this organization has a scientific and technical vocation, and not a political one, it also plays a crucial role in strengthening climate diplomacy, thanks to its key value expertise and the studies carried out under its aegis, which provide the Pacific Island states with a basis for their declarations and negotiations around climate issues. It is also playing an increasingly important representative role. For example, the organization submitted its observations on behalf of the States Parties in the advisory procedure before ITLOS, and was also accredited to present its observations before the ICJ<fnref n="20" />.

Other key institution is the SPREP, the regional organization established in 1993 to promote cooperation and provide assistance on the protection of environment<fnref n="21" />. Among its activities, it promotes a “One Pacific Voice” during the COPs and has been managing for several years the “Moana Blue Pacific Pavillon”, showcasing numerous side events and helping for Pacific networking during negotiations.

It should be noted, however, that PIF, SPC and SPREP endorse the paradox, regarding the fight against climate change, to count in their members territories that are particularly vulnerable but also major emitters of greenhouse gases, which are also their main financiers (such as Australia and New Zealand for the three of them, United States, UK and France for SPC and SPREP).

<footnote n="16">16 “Pacific Islands Forum suspends Fiji”, *The Sydney Morning Herald*, 2 May 2009: https://www.smh.com.au/world/pacific-islands-forum-suspends-fiji-20090502-aqgt.html.</footnote>

<footnote n="17">17 G. FRY and S. TARTE, "The New Pacific Diplomacy: an Introduction", p. 6 in G. FRY and S. TARTE (ed.), *The New Pacific Diplomacy*, ANU Press, 2015.</footnote>

<footnote n="18">18 *Ibid*.</footnote>

<footnote n="19">19 *Ibid*.</footnote>

<footnote n="20">20 *Infra*.</footnote>

<footnote n="21">21 www.sprep.org.</footnote>
At a wider scale, Oceanian voice on climate also resonates through structures representing the more global interests of island states. To that regard, the Alliance of Small Island States (AOSIS), an international organization founded in 1990, is of particular interest. Although the 44 islands territories members have limited influence and resources, it became a key actor, in the UNFCCC climate negotiation process<fnref n="22" />. They all have small delegations, but such islands put their force in common, and count on a wide support from civil society, including NGO's, able to reinforce their capacity<fnref n="23" />. For Carola Klöck therefore, “AOSIS made use of external sources of power (...) and shaped the negotiations to a remarkable degree, much more so that the a priori power distribution would predict”<fnref n="24" />.

More recently, the creation of the Commission of Small Islands States on Climate Change and International Law (COSIS), although not being a “Pacific” initiative *per se*, was founded by Tuvalu and Antigua-and-Barbuda to seek an advisory opinion from the International Tribunal of the Law of the Sea (ITLOS)<fnref n="25" />. At the time of writing this contribution, it has already been joined by Palau, Niue and Vanuatu.

It therefore appears that while the FIP remains the main framework for political cooperation, the vectors of Oceanian climate diplomacy are in fact multiple and of variable geometry, more or less formal, reflecting the general diversity of the 21st century diplomacy. It can be driven within international organizations, within any type of coalition, or through supporting one state initiative, as will be shown in the second part regarding the fossil out initiative or the consultative procedure in front of the ICJ. As an example, Tuvalu, which, through the symbolic measures taken by its foreign minister Simon Kofe (we recall in particular his speech for the COP delivered with his feet in the water, or the announcement of the creation of a website to ensure the continuity of Tuvalu as a state in the metaverse...) actually contributed to giving visibility to Oceania and impulsed a movement towards the recognition of the continuity of statehood for atoll states threatened by sea level rise.

Its main vectors being identified, it remains to be seen to which extent the “content” of Oceanian climate diplomacy is bearing fruit. Many elements, some of which will be developed below, tend indeed to show that the Pacific voice is more visible. This new visibility is the result of both the growing importance of climate-related issues, for islands states and for others - including in matters of security, territorial integrity, sovereignty and respect for human rights -, the intensification of diplomatic efforts deployed in this direction, but also the new strategic interest of the area identified as the “Indo-Pacific” as a response designed by western countries to face Pekin’s policy. This shift in international relations towards Oceania means that today climate considerations are more than ever linked to security issues.

This conclusion has nevertheless to be put in context. Coexist “the voice” and “the voices of the Pacific”, because unless common interests are shared, national interests are not always similar, and can even be conflicting. Since the 1990’s, trend actually shows a growing amount of individuals submissions within the UNFCCC negotiation process<fnref n="26" />. The problematic resides in establishing common purposes, the objective of the 1,5 °C limit being the most obvious one,

<footnote n="22">²² 39 members and 5 observers : see C. KLÖCK, “Négocier au sein des négociations: les petits Etats insulaires, l’Alliance des petits Etats insulaires et les négociations climatiques”, *Négociations*, 2020/2, n°34, p. 17.</footnote>

<footnote n="23">²³ *Ibid*.</footnote>

<footnote n="24">²⁴ The author is making reference to the 90’s period: C. BETZOLD, “’Borrowing’ Power to Influence International Negotiations: AOSIS in the Climate Change Regime, 1990–1997”, *Politics*, 30(3), p. 131.</footnote>

<footnote n="25">²⁵ *Infra*.</footnote>

<footnote n="26">²⁶ N. GOULDING, “Marshalling a Pacific Response to Climate Change”, p. 192 in G. FRY and S. TARTE, *The New Pacific Diplomacy*, op. cit.</footnote>
whereas difficulties remain on the rest<fnref n="27" />. For Oceanian states and civil society, one of the challenges is to overturn a paradigm that would see them only in terms of a stigmatizing vulnerability in some big power's backyard, and replace it with the narrative of peoples fighting for their rights, including the right to remain on their land, and therefore not to see their territories disappear. "We're not drowning, we're fighting" warns the slogan of the association of climate warriors<fnref n="28" />. Not only it is about raising voice, but also to ensure that this voice contributes to the emergence of real responses and actions in the face of climate change. From this point of view, the tenacity they have shown in recent years is quite unique, and although the timeframe of these diplomatic actions is not yet commensurate with the urgency of the situation, they have nevertheless enabled considerable progress to be made.

## II. The “rising tide” of Oceanian leadership in climate justice<fnref n="29" />

### Negotiating climate efforts and phasing-out fossil fuel

Several examples of the transformative influence of Oceanian climate diplomacy will be here listed. At the time of assessing the effects of such diplomatic efforts, first focus should naturally be put on the results of climate negotiations. Measuring scientifically the proportion is which the Pacific voice has effectively concretized evolutions in the climate regime is though very hard to do not to say impossible, as the progress reached under UNFCC since 1992 result from a very complex dynamic of coalitions and consensus. At the very most, it is possible to note, as many observers have, that the Oceanian States have actively pushed for the emergence of promises on the part of greenhouse gas emitters, or for the creation and then the current endowment of the loss and damage fund (whose creation was suggested by Vanuatu in 1991 on behalf of small islands states). They've been “pilotal players”<fnref n="30" /> and, for President Obama, they even “made enormous difference” in the conclusion of the Paris agreement<fnref n="31" />.

The promises of the Paris Agreement and the ones most recently formulated at the COP 28 concerning fossil fuels require binding legal instruments if they are to be properly implemented<fnref n="32" />. In this vein, the call for a fossil fuel non-proliferation treaty, “proposes an end to the exploitation of new deposits, the gradual reduction of existing ones, and the creation of a transition fund to support vulnerable countries in developing more sustainable activities, based on the principle of equity”<fnref n="33" />. Initially carried by the civil society on the model of the NPT, this initiative has been actively supported by Oceanian governments since then. In 2015, the Suva Declaration on Climate Change, issued from the Pacific Islands Development Forum,

<footnote n="27">²⁷ An example of a topic being object of different views is the mechanism REDD+, some of the Pacific countries having forests and other not, see N. GOULDING or C. KLOCK, *loc. cit.*</footnote>

<footnote n="28">²⁸ J. TAHANA, “‘We’re fighting, we’re not drowning’: Pacific Youth Leads Climate March”, RNZ, 27 September 2019.</footnote>

<footnote n="29">²⁹ Title inspired from M. WEWERINKE’s article “The rising Tide of Rights: Adressing Climate Loss and Damage through Rights-Based Litigation”, *Transnational Environmental Law* 12(3), 2023, p. 537.</footnote>

<footnote n="30">³⁰ G. CARTER, « Pacific Islands States and 30 years of Global Climate Negotiations », chapter 5 in C. KLÖCK, P. CASTRO, F. WEILER, L. ØFJORD BLAXSEKJOER (ed.), *Coalitions in the Climate Change Negotiations*, 2020, Routers.</footnote>

<footnote n="31">³¹ “And I was mentioning to the leaders here, we could not have gotten a Paris agreement without the incredible efforts and hard work of the Island nations. They made an enormous difference, and we’re very proud of the work that they did.”, President Obama addressing to the Leaders from the Pacific Island Conference and the ICUN, 1st September 2016, Honululu (Hawaii), Press release from the White House: https://obamawhitehouse.archives.gov/the-press-office/2016/09/01/remarks-president-leaders-pacific-island-conference-leaders-and.</footnote>

<footnote n="32">³² On this, for instance: S. ROBERT, “La transition hors des énergies fossiles adoptée à la COP28 ne pourra se faire qu’avec une réglementation internationale renforcée”, *Le Monde*, 16 December 2023.</footnote>

<footnote n="33">³³ We translate, *Ibid*. See also P. NEWELL, H. van ASSELT and F. DALEY, “Building a Fossil-Fuel Non-Proliferation Treaty: Key Elements”, *Earth System Governance* 14 (2022), 10 p.</footnote>
called for an international moratorium on fossil fuel use and extraction<fnref n="34" />; in 2016, the idea of the treaty was discussed by 14 Pacific states<fnref n="35" />; and in September 2022, Vanuatu was the first nation to formally join and historically called the other governments to do as well, through a speech at the UN General Assembly<fnref n="36" />. In December 2023, the initiative is endorsed by 12 states among which 9 are Pacific states<fnref n="37" />.

## Fighting for the recognition of human rights crisis

Among the numerous illustrations of an effective Oceanian climate diplomacy is also its contribution in the double movement of the “humanization of climate change” and the “climatization of human rights”<fnref n="38" />. As members of the SIDS group, Pacific states were clearly among the initiators of this evolution, notably by signing the Malé Declaration on the Human Dimension of Global Climate Change<fnref n="39" />. They were also well represented in the support organized behind Costa Rica's initiative for a "Geneva Commitment for Human Rights in Climate Action"<fnref n="40" />. More recently, the role played by PIF and its members in the opening of the mandate of a Special Rapporteur on the promotion and protection of human rights in the context of climate change by the Human Rights Council on 8 October 2021 should be highlighted too<fnref n="41" />. At COP 25, the President of the Marshall Islands, H.E. Hilda Heine, publicly called for the creation of such a mandate on behalf of the Climate Vulnerability Forum (CVF)<fnref n="42" />, a call "(...) reiterated by Bangladesh in 2020 as Chair of the CVF, by the Marshall Islands and other developing countries in July 2020, by the Pacific States of Micronesia in October 2020, and by the Foreign Ministers of the Pacific Islands Forum (PIF) in October 2020 and June 2021"<fnref n="43" />. In addition, although they are not the result of a regional diplomatic action, at least two recent landmark decisions of the United Nations Human Rights Committee around human rights and climate change are the result of cases brought by Pacific nationals<fnref n="44" />.

## Shaping the future of the law of sea

<footnote n="34">³⁴ PIDF, Suva Declaration on Climate Change, 4 September 2015: https://d3n8a8pro7vhmx.cloudfront.net/theausinstitute/pages/231/attachments/original/1441668038/PACIFIC_IS_LAND_DEVELOPMENT_FORUM_SUVA Ot CLIMATE_CHANGE.v2.pdf?144166803 8.</footnote>

<footnote n="35">³⁵ “Pacific islands nations consider world’s first treaty to ban fossil fuel”, The Guardian, 14 July 2016.</footnote>

<footnote n="36">³⁶ 77th session of the UNGA, 24 September 2022; see “Vanuatu makes historic call”: https://fossilfueltreaty.org/vanuatu.</footnote>

<footnote n="37">³⁷ Namely, Vanuatu, Tuvalu, Fiji, Solomon Islands, Tonga, Niue, Palau, Samoa, Nauru. Also joined Timor-Leste, Antigua-and-Barbuda, Colombia; and also the European Parliament, and the WHO. See “Pacific Nations push for global backing of fossil fuel non-proliferation treaty”, The Guardian, 17 March 2023.</footnote>

<footnote n="38">³⁸ The expression is quoted from Ch. Cournil and C. Perruso, “Réflexions sur ‘l’humanisation’ des droits de l’homme et la ‘climatisation’ des droits de l’Homme. Emergence et pertinence”, La Revue des droits de l’homme, 14/2018.</footnote>

<footnote n="39">³⁹ 14 November 2007, https://www.ciel.org/Publications/Male Declaration Nov 07.pdf.</footnote>

<footnote n="40">⁴⁰ 13 February 2015. Among the 17 signatories are the Marshall Islands, Kiribati, the Federated States of Micronesia, Palau, and Samoa.</footnote>

<footnote n="41">⁴¹ A/HRC/RES/48/14.</footnote>

<footnote n="42">⁴² Video and transcription available here: https://thecvf.org/our-voice/statements/president-heine-statement-to-the-cvf-partners-leaders-event-at-unfccc-cop25/.</footnote>

<footnote n="43">⁴³ We translate. C. BILLARD SCHACHTER, F. MINGRONE, “Un rapporteur spécial de l’ONU sur les droits de l’homme et les changements climatiques ? Perspectives regionales”, FRIEDRICH-EBERT-STIFTUNG, January 2021, p. 2, a report explicitly built “on the call by the Climate Vulnerability Forum and the Pacific Island States for a UN Special Rapporteur on Human Rights and Climate Change”.</footnote>

<footnote n="44">⁴⁴ Namely United Nations Human Rights Committee, Views on Communication No. 2728/2016, Ioane Teitiota v. New Zealand, 24 October 2019 and United Nations Human Rights Committee, Views on Communication No. 3624/2019, Daniel Billy at al. versus Australia ("Torres Strait Islanders case"), 23 September 2022.</footnote>
Other key issue where Pacific Islands states are playing a decisive role is the coming evolution of international law of the sea in the sense of the recognition of preserved maritime limits and boundaries despite of climate change induced sea level rise<fnref n="45" />. Indeed, because it raises new and important legal issues, the impact of sea-level rise on maritime limits and boundaries was officially included in the International Law Commission's 2020 work programme<fnref n="46" />. Unsurprisingly, an important proportion of the fifteen UN members which requested this inclusion during the 6th Committee's debates in the General Assembly in 2017 were Pacific states<fnref n="47" />, and they have been particularly active in the Commission's work since then.

The ILC study group on sea-level rise in relation to international law early identified specific Pacific states actions responding to the climate-induced threat to maritime rights. These states made notable efforts in defining the base points, baselines and outer limits of their maritime spaces, notably since the Framework for a Pacific Oceanscape initiative initiated in 2010⁴⁸. Once such geographical coordinates are deposited with the General Secretariat of the United Nations, although these deposits do not freeze the boundaries, they do provide a degree of stability. At the same time, a growing number of bilateral boundaries have been delimited, thanks in particular to the Pacific Island Maritime Boundaries Project<fnref n="49" />, a real challenge, given that the geographical configuration of the region multiplies the number of shared boundaries for each state<fnref n="50" />. According to data from the Pacific Community (SPC), 38 of the 45 bilateral boundaries had been demarcated by July 2020⁵¹.

Oceanian states also expressed a collective support for the preservation of maritime zones despite sea level rise through a set of decisive declarations, such as the Samoa Pathway (2014)<fnref n="52" />, the Taputaputea Declaration (2015)<fnref n="53" />, the Delap Commitment (2018)<fnref n="54" />, the 49th Pacific Islands Forum PIF Secretariat Communiqué (2018) annexed to the Boe Declaration<fnref n="55" />, and the PIF Secretariat Communiqué of the 50th Pacific Islands Forum (2019)<fnref n="56" />.

On the basis of this evidence, the International Law Association's (ILA) Committee on Sea-Level Rise and International Law had already recognized in 2018 the existence of a *prima facie* evidence of a regional practice by Pacific Island states to maintain maritime limits and boundaries, with their situation as particularly affected States also constituting "a significant element with regard to the establishment of a general practice in the formation of a new rule of

<footnote n="45">⁴⁵ For a global overview, G. GIRAUDEAU, “Is the Pacific Shaping the Future of Maritime Limits and Boundaries?”, ASIL Insight, Vol. 25, Issue 23, 19 October 2021.</footnote>

<footnote n="46">⁴⁶ *Official Records of the General Assembly, Seventy-third Session, Supplement No. 10* (A/73/10), ¶ 369.</footnote>

<footnote n="47">⁴⁷ The 15 States that initially applied for inclusion are: Indonesia, the Marshall Islands on behalf of the Pacific SIDS (Fiji, Kiribati, Marshall Islands, Federated States of Micronesia, Nauru, Palau, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu and Vanuatu), Peru, Romania, Tonga: First issue paper prepared by Bogdan Aurescu and Nilüfer Oral, Co-Chairmen of the Study Group on Sea-Level Rise in Relation to International Law, A/CN.4/740, note 5. Four States were opposed: Cyprus, Slovakia, the Czech Republic and Greece.</footnote>

<footnote n="48">⁴⁸ https://www.forumsec.org/wp-content/uploads/2018/03/Framework-for-a-Pacific-Oceanscape-2010.pdf</footnote>

<footnote n="49">⁴⁹ Supported by SPC and Australia.</footnote>

<footnote n="50">⁵⁰ For example, Kiribati shares 9 borders with 6 different States. In Wallis and Futuna, the waters under French jurisdiction are demarcated with 5 States.</footnote>

<footnote n="51">⁵¹ See Figure 1 in SPC, *Pacific Islands Regional Boundaries*, https://gem.spc.int/projects/pacific-maritime-boundaries-programme.</footnote>

<footnote n="52">⁵² A/Res/69/15 du 15 décembre 2014.</footnote>

<footnote n="53">⁵³ Signed by Polynesian leaders on 16 July 2015 : https://www.samoagovt.ws/wp-content/uploads/2015/07/The-Polynesian-P.A.C.T.pdf.</footnote>

<footnote n="54">⁵⁴ Declaration of 2 March 2018: https://www.pnatuna.com/sites/default/files/Delap%20Commitment_2nd%20PNA%20Leaders%20Summit.pdf.</footnote>

<footnote n="55">⁵⁵ 6 September 2018: https://www.forumsec.org/2018/09/06/forty-ninth-pacific-islands-forum-nauru-3rd-6th-september-2018/.</footnote>

<footnote n="56">⁵⁶ 16 August 2019: https://www.forumsec.org/wp-content/uploads/2019/08/50th-Pacific-Islands-Forum-Communique.pdf.</footnote>
customary international law"<fnref n="57" />. The ILC's study group on sea-level rise in international law went even further in their first issue paper, attesting to the existence of a practice in the Pacific and South-East Asia for the preservation of the baseline and outer limits that meets the requirements of the material element of a customary rule<fnref n="58" />, as well as for maritime delimitations and boundaries<fnref n="59" />. Although it was then considered premature to recognize the existence of an *opinio juris*, the first issue paper notes: "the fact that the States concerned generally rely on their practice (as mentioned) for reasons of legal stability and certainty is an indication in this direction"<fnref n="60" />.

Since then, was signed in 2021 the emblematic PIF Declaration on Preserving Maritime Zones in the Face of Climate-Change Related Sea-Level Rise<fnref n="61" />, which is not a simple iteration of previous regional declarations as it provides for a useful clarification of the legal basis for the above-mentioned Pacific practice<fnref n="62" />.

*Mobilizing the advisory jurisdiction of international tribunals*

Last but not least is the mobilization of original legal tools in a strategic way (lawfare of legal statecraft)<fnref n="63" />, namely the advisory jurisdiction of the ICJ and the ITLOS. The procedures for requesting an opinion from these two international jurisdictions are not regional initiatives, but they have, in fact, received broad support from Oceania.

On 29 March 2023, the United Nations General Assembly adopted by consensus a resolution requesting the opinion of the International Court of Justice (ICJ) on climate change and human rights. The submission of the text, sponsored by Vanuatu, supported by a group of 18 States, and co-sponsored by 132 States, including members of the European Union, marked a decisive step from both a legal and political point of view. From a legal point of view, resolution A/77/L58⁶⁴ poses two very general questions to the ICJ, the principal judicial organ of the United Nations. Unless it exercises its discretion not to respond, which is very unlikely, the Court will be called upon to rule on the obligations of states to combat climate change "for the benefit of states and future generations", but also on the legal consequences for those who have violated these obligations. In other words, the request raises the delicate issue of the responsibility of greenhouse gas emitters for the damage caused to other states, in particular small island developing states, and to the peoples and individuals affected by their effects.

Politically, the collective support for the text is a strong signal, albeit with its limits, and is also emblematic of the new visibility of Oceania as a region, and of a shift in the narrative: those

<footnote n="57">⁵⁷ Sydney Report of the Committee on International Law and Sea-Level Rise (2018), p. 18: «(...) *a prima facie* evidence of the development of a regional State practice in the Pacific islands – many of which are the most vulnerable to losses of territory and, consequently, baseline points from sea level rise. The Pacific Island States would of course be among those "States whose interests are specially affected", a significant attribute regarding the establishment of a general practice in the formation of a new rule of customary international law (...) The emergence of a new customary rule will require a pattern of State practice, as well as *opinio juris* ».</footnote>

<footnote n="58">⁵⁸ First issue paper by Bogdan Aurescu et Nilüfer Oral, *loc. cit.*, §104, (g)-(i).</footnote>

<footnote n="59">⁵⁹ *Ibid.*, § 141.</footnote>

<footnote n="60">⁶⁰ *Ibid.*, §§ 104 et 141.</footnote>

<footnote n="61">⁶¹ Declaration on Preserving Maritime Zones in the Face of Climate-Change Related Sea-Level Rise, 6 August 2021.</footnote>

<footnote n="62">⁶² For more details, G. GIRAUDEAU, “Is the Pacific Shaping the Future of Maritime Limits and Boundaries?”, *loc. cit*.</footnote>

<footnote n="63">⁶³ See on this point D. GUILFOYLE, “Small states, legal statecraft and opening submissions in the ITLOS climate change advisory proceedings”, EJIL: talk!, 18 September 2023.</footnote>

<footnote n="64">⁶⁴ RES UNGA/A/77/L58, 1st March 2023.</footnote>
who are experiencing "climate hell", in the words of the UN Secretary General at the opening of the session<fnref n="65" />, are also the actors who are pushing for change. The General Assembly's approval is first and foremost a victory for civil society, as everything actually began four years before in a classroom at the University of the South Pacific, on the campus of Port-Vila, the capital of Vanuatu. A few students, with the help of their supervisors, took up the aborted project of Palau and the Marshall Islands, who had already tried in 2011 to bring the case before the ICJ<fnref n="66" />; but; a decade later, the context was more favorable and, above all, the Pacific Islands Students Fighting Climate Change (PISFCC) association's campaign was particularly active. Vanuatu then took up the young people's petition at interstate level, and, at their 51st meeting in Suva (Fiji) in July 2022, the PIF members officially supported the request<fnref n="67" />, and eventually won the support of the majority of the world's states.

This is the first time that a resolution requesting an ICJ opinion has been adopted by consensus, and at a time of crisis for multilateralism, this cohesion is not insignificant. The ICJ opinions have no binding legal force, but are not without legal effect. They have very high moral authority and contribute to the development of the law by providing essential elements of interpretation. The opportunity is huge for the judges to clarify states obligations towards climate change, and in particular to provide substance for their obligation to cooperate. The challenge will therefore be about giving enough substance to the answers, so the court's opinion could then become a useful tool of negotiation, and an effective tool into national and international climate justice actions. The SPC, the PIF, and the AOSIS made specific demands to intervene in the procedure for the islands' voices to be heard<fnref n="68" />.

Very innovative too was the almost concomitant request for an opinion from the International Tribunal for the Law of the Sea (ITLOS) from the Commission of Small Island States on Climate Change and International Law (COSIS), an international organization which was specifically created by Tuvalu and Antigua-and-Barbuda<fnref n="69" /> in order to be able to seek for such opinion<fnref n="70" />. The December 2022 request submits two broad questions to the judges regarding obligations of UNCLOS states parties on preventing, reducing and controlling pollution of the marine environment, and on protecting and preserving marine environment, both in relation with the effects of climate change<fnref n="71" />. Here again, even to being *per se* a regional imitative, Oceanian support was important, notably through the participation of the SPC<fnref n="72" />.

***

<footnote n="65">⁶⁵ UNGA, 77th Session, 64th Plenary Meeting.</footnote>

<footnote n="66">⁶⁶ See « Palau seeks UN World Court opinion on damage caused by greenhouse gases», 22 September 2011, UN News: https://news.un.org/en/story/2011/09/388202.</footnote>

<footnote n="67">⁶⁷ See Communique of the 51st PIF Leaders Meeting, 14 July 2022 : https://www.forumsec.org/2022/07/17/report-communique-of-the-51st-pacific-islands-forum-leaders-meeting/.</footnote>

<footnote n="68">⁶⁸ See https://www.icj-cij.org/case/187.</footnote>

<footnote n="69">⁶⁹ Agreement for the establishment of the Commission of Small Island States on Climate Change and International Law. Edinburgh, 31 October 2021, UN Treaties I-56940.</footnote>

<footnote n="70">⁷⁰ According to Article 21 of the ITLOS Status, the tribunal has jurisdiction for any request submitted “whenever expressly provided for in any other agreement conferring jurisdiction on the Tribunal” (completed by art. 138 of the Rules of the Tribunal), so, to be able to ask for such opinion, an international organization would have to mention this possibility in its constitutive treaty. Even like this, some authors have questioned the ITLOS jurisdiction, see A. MIRON, “COSIS Request for an Advisory Opinion: A Poisoned Apple for the ITLOS?”, *International Journal of Marine and Coastal Law*, 2023 38(2).</footnote>

<footnote n="71">⁷¹ COSIS Request for advisory opinion, 12 December 2022: https://www.itlos.org/fileadmin/itlos/documents/cases/31/Request_for_Advisory_Opinion_COSIS_12.12.22.pdf.</footnote>

<footnote n="72">⁷² See ITLOS webpage for the case: https://www.itlos.org/en/main/cases/list-of-cases/request-for-an-advisory-opinion-submitted-by-the-commission-of-small-island-states-on-climate-change-and-international-law-request-for-advisory-opinion-submitted-to-the-tribunal/.</footnote>
It is clear from all these actions, both political and legal, that far from admitting defeat in the face of the climate crisis, far from locking themselves into a victimized narrative, the governments of Oceania have chosen to use the diplomatic and strategic tools at their disposal to fight, not just for their interests, but for their very existence. This contribution to climate justice and to progress towards a world without fossil fuels, owes a great deal to civil society, to associations, to various community representatives, and perhaps most of all to the young leaders of Oceania, whose courage and tenacity compel admiration. They are the ones who first pushed their governments to the forefront of a global movement, and who continue to be its useful critics, when considering things are far too slow, and reminding that empty promises would just leave islands nations "with flowers on the graves"^73.

<footnote>^73 See Brianna Fruean, Samoan climate activist, conclusion after COP28: https://news.sky.com/video/cop28-pacific-islands-climate-activist-laments-lack-of-progress-13029420.</footnote>