Vanishing Yams

The nature of a ‘landmark’ decision is that it creates a narrative ‘before’ and ‘after’. This is as true for the Climate Change Advisory Opinion as for any of the ICJ’s previous ‘historic’ rulings. Indeed, in its concluding remarks, the Court acknowledges the unprecedented nature of these advisory proceedings. However, it hastens to outline the limited role international law plays in resolving this ‘existential problem of planetary proportions.’ (Para 456). The reader is encouraged to be circumspect about the role of the Court; she is reminded that a quest for a ‘lasting and satisfactory solution’ to this ‘daunting, self-inflicted’ problem needs the ‘contribution of all fields of human knowledge’ along with ‘human will and wisdom.’ (Para 456)

This Opinion is an event that makes the quest for climate justice more hopeful, more ambitious —and all the more challenging.  This is particularly the case for small island developing states, who did much of the heavy lifting in the advocacy efforts leading up to the proceedings and who remain the most vulnerable to the ravages of climate change. But there is one monumental contribution on their part that may be overlooked: an archive of narrated microhistories in the corpus of the ICJ. 

Small Island States and Personal Narratives in the ICJ

Narration is central to legal discourse. The law recognises and puts limits on its own narrativity by imposing rules about the kind of narration permitted in the courtroom – what can be said, and by whom. For example, international human rights law and international criminal law explicitly recognise the individual as a legal subject under their frameworks, making the first-person voice and the recounting of personal histories legally significant narrative techniques. However, the ICJ has been limited in this regard by its jurisdictional mandate (ICJ Statute, Article 34; see also the Court’s characterisation of itself in Para 456) and retains the largest share of ‘main character energy’ for States. 

It is remarkable, therefore, that small island states have long been pioneers in using singular personal narratives before the ICJ (see post by Lillian Robb and Vishal Prasad in this Symposium). Notably, in the Nuclear Weapons Advisory Opinion, Marshall Islander Lijong Eknilang participated in the oral proceedings, recounting the horrific effects of the Castle Bravo nuclear tests on the Rongelap Atoll. She stated that her purpose before the Court was to prove that these effects were not abstract predictions, but the concrete everyday lives of Marshall Islanders. Eknilang’s statement finds no mention in the main text of Nuclear Weapons, even as the Court duly recognises that ‘the environment is not an abstraction’ (Nuclear Weapons, Para 29). Nonetheless, her story remains part of the Nuclear Weapons archive, a small yet indelible fragment in the collective cultural memory of international law.  

The contributions of small island states in the Climate Change Advisory Opinion, including the personal narratives of marginalised communities, enrich this epistemic vein even as they (still) do not form part of the Court’s formal reasoning (see Judge Charlesworth’s Separate Opinion, Paras 13-29, for an exception). In this piece, I foreground one such narrative, a ‘microhistory’ in Vanuatu’s extraordinary 736-page ‘Book of Exhibits’, which is absent from the main Advisory Opinion yet has the narrative tools to fill its gaps and throw its limits into relief: the vanishing yam.

The Microhistory of the Vanishing Yam

Microhistory, as a historical method, examines the everyday lives of previously overlooked subjects to gain insight into larger-scale global events and processes (Ginzburg, 1993). It analyses ‘primary documents’- letters, personal accounts etc. – and maps them onto larger structures of history to capture what they might miss, and to add marginalised voices to the ‘grand narrative.’ 

Nothing demonstrates this as clearly as the motif of the vanishing yam in Yakel Village, Tanna, Vanuatu (Exhibits F-N in Vanuatu’s Book of Exhibits). This set of documents narrates the history of how the yam vanished in Yakel through nine personal testimonies. Read together, they give us the rich and complex story of how the loss of the yam struck an unimaginable blow to their everyday lives.  

Through these testimonies, we find out that Yakel is a Kastom village. It lives by the old ways. The yam, or Neok, is integral to Kastom ceremonies and occupies a special place in the political, socio-economic, and cultural life of this community. It is the subject of origin stories, cautionary tales, and myths in a way that is entangled with agricultural practices, food habits, social norms, and economic structures. 

We also learn that Kalbapeng, a God from the mountains, made the yam. We are told the story of the Yam Spirit and the Taro Spirit, of how the Yam came to be king of crops in Tanna because He stayed, while His wife Taro and the other crops went to the Americas. We learn that Wildcane is the Chief of the Yam because the two plants always go together. Mangau Iokai (Exhibit H) is Tupunis of the yam in Yakel, and has an ancestral spiritual connection to it that allows him to oversee the yam crop. The yam is the primary offering in many Kastom ceremonies, which are inconceivable without it.

However, the testimonies agree that four years ago, the yam vanished altogether. After the cyclones (Pam, Kevin, Judy, La Nina, Harold, Lola), the erratic unseasonal rain made the yam crop shrink and die, along with wildcane and banana. Incidentally, Iokai (Exhibit H) has not tasted a banana since 2023. His connection to the yam spirit has been severed, leaving him heartbroken. Nine women in a collective statement (Exhibit I, see also Exhibit P) narrate how the food shortage and dangerous weather have disrupted social and familial harmony. The yam has vanished entirely, they repeat. They can no longer access yam for the ceremonies; this feels wrong, shameful, in ways they cannot explain. 

The reefs are dead too, and so are the fish. (Exhibit G). Yam can no longer be traded for fish with the coastal villages- alternative financial arrangements must be made (Exhibits G and H). The knowledge of the yam can no longer be passed on to the next generation. It will exist only in the past (Exhibit K).  

The microhistory of the yam in Yakel village is absent from the main Advisory Opinion. It might be more relevant before a human rights tribunal or a relevant treaty body, like the Court has implied (Para 111). However, it has a strategic role in this case that goes beyond being formally ‘useful’ information. It is a narrative singularity that can fill gaps in the law and demonstrate its epistemic limits.

Filling the Gap of the in Concreto Assessment

The narrative boundaries of Advisory Opinions are drawn by the Court’s reading of the questions posed to it. While clarifying the scope of question (b), the Court has drawn such a boundary (Paras 101-111). It does not speculate on questions of responsibility that, in its view, require an in concreto assessment (see contribution by Juan Auz in this Symposium). The motif of the ‘in concreto assessment’ comes up in the following observations of the Court:

(i) That international responsibility of a State/group of States requires an in concreto assessment, and that the Court is only called upon to establish in general the applicable legal framework of state responsibility (Para 106, Para 423).

(ii) That ‘specially affected’ or ‘vulnerable’ States are entitled to the same remedies as other injured States. Whether there are any specific legal consequences to any particular injured State would be a question for an in concreto assessment (Para 107).

(iii) That causal links between wrongful acts and omissions of a State and the damage arising from climate change, though tenuous, are not impossible to draw, but must be established through an in concreto assessment (Para 438).

(iv) That the forms of reparation may be difficult to determine in a climate change context and must be assessed on a case-by-case basis (Paras 449-454), but that once the general conditions of state responsibility, including a direct and certain causal nexus, are established, the injured state is entitled to ‘full reparation’ (Operative Clause 4c). 

Judge Nolte observes that the Court has ‘not elaborated much’ on the limits of climate-change related claims, leaving the deliberation of these limits to in concreto assessments. He cautions that this might lead to ‘false expectations’ (Declaration of Judge Nolte, Para 14).

The irony that these in concreto assessments take place in the abstract future is not lost. However, the vanishing yam enables us to map this abstract-future ‘in concreto assessment’ onto the landscape of Yakel village. The ravages of the cyclones, the disappearance of the yam, and the resulting hunger and heartbreak of the inhabitants of Yakel are as ‘in concreto’ as it gets. As such, the vanishing yam becomes a metonym for everything that the Court has deferred for ‘in concreto’ assessments. It foreshadows the problems of ‘concrete’ assessments of state responsibility. Reading this microhistory makes us do the complex imaginative work of drawing the causal nexus between the worsening cyclones in Vanuatu, the disappearance of the yam, the resulting damage to the State of Vanuatu, and state responsibility. It nudges us to ask whether the reparations regime in operative clause 4 (c) may be entirely unsuited to the harm arising from climate change.

The Court, in its advisory function cannot speculate (Nuclear Weapons, Para 15). The presence of the yam in the Climate Change archive, however, gives the reader tools to speculate. This Opinion carries history and futurity, both of which involve narration and speculation. The vanished yam becomes a narrative point of departure into the past and the future. It enables Vanuatu to demonstrate that its past is already the future that the Opinion is attempting to improve.

The vanishing yam, therefore, fills the gap left by the narrative limits of the Advisory Opinion by giving us a microscopic window into what an ‘in concreto assessment’ might look like for the people of Yakel, Vanuatu. It even goes beyond this; it puts the Opinion in conversation with our present. If the yam has a microhistory, so do the olive tree, the sorghum, the tuna. The reader is pushed to consider other contexts of hunger (and starvation) in international law.

Demonstrating the Epistemic Limits of the ICJ

Nonetheless, some might ask why we bother with personal narratives before the ICJ when they are superfluous to the Court’s formal reasoning. After all, the Court did not need the microhistory of the yam to come to its conclusions. Of course, we are bound to lose something when we translate particular stories into the totalising language of international law. This is not a bad thing in itself; totalising language is sometimes necessary to maintain the law’s legitimacy and norm-making capacity. 

The vanishing yam becomes, in the language of international law, something else. It is either subsumed into the register of rights or ignored altogether in the face of the State as protagonist.  But having it in the corpus of the Court plays an important function: it is proof of this epistemic translation, the erasure that results from it, and of the gaps that it leaves and fills. Its function is to make the gap, the lacuna, a part of the historical account instead of setting it outside the account (Ginzburg, 1993).

It is not so important, therefore, for the ICJ to use microhistories like the vanished yam in its legal reasoning, the way it has used science (see Katalin Sulyok’s contribution to this Symposium) or economics (see for example Joint Declaration of Judges Bhandari and Cleveland, Paras 5-10) . It is crucial, however, for them to be present in the Court’s corpus anyway: to signal the places where international law cannot go, and to build narrative bridges for these places to exist in the cultural memory of the discipline nonetheless. Their absent-present nature makes the narrative limitations of international law clear for the reader to encounter. Even if incommensurable with modernist framings of law, their presence de-necessitates a totalising ‘theory of everything’ in which only one truth or reality is possible (Salmond, 2014). It opens the window for plurality and interweaving. 

Concluding Remarks

International courts and tribunals are obliged to curate their narration to be in line with their mandates, and to abide by the unspoken rules of the interpretive community to stay within the ‘grand narratives’ of progress, state-centrism, etc. My attempt here is not to reiterate ‘postmodern’ skepticism towards these narratives. Their historical and ongoing misuse by powerful actors is hardly new information. This is perhaps why the Court concludes the Opinion by cautioning us that international law can only do so much, and that climate change can only be combatted through collaboration. (Para 456)

The ‘Book of Exhibits’ of the Republic of Vanuatu subverts our expectations of what such collaborations might look like. Having less utility for the ICJ in normative terms, it poses less risk of being distorted by those in power for their benefit. At the same time, it pushes the epistemic and narrative boundaries of international law. It is this unique paradox that makes the vanishing yam a quiet motif of resistance in the archive of the Climate Change Advisory Opinion.