The Euphoria that greeted the landmark advisory opinion given by the International Court of Justice (ICJ) marks hope. The fight against Climate Change has been shot with an additional bullet. This time, the world’s highest court has confirmed that countries must act now to avoid climate catastrophe. Do you know what that means? Come along with me as I reflect on the ICJ opinion.
On the 12th of April 2023, the Secretary-General of the United Nations officially communicated to the Court the decision taken by the General Assembly of the United Nations to submit to it the questions set forth in its resolution 77/276 adopted on 29 March 2023. Check the questions asked below;
(a) What are the obligations of States under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases for States and for present and future generations?
(b) What are the legal consequences under these obligations for States where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect to:
(i) States, including, in particular, small island developing States, which due to their geographical circumstances and level of development, are injured or specially affected by or are particularly vulnerable to the adverse effects of climate change?
(ii) Peoples and individuals of the present and future generations affected by the adverse effects of climate change?
Note that, the ICJ has jurisdiction to give the advisory opinion requested by the United Nations (UN). It was of the opinion that pursuant to Article 96 of the UN Charter and Article 65 of its Statute, the two questions put to it by the General Assembly are legal questions and therefore it has jurisdiction in the matter.
The court assembled these relevant laws to do justice to the questions; Charter of the United Nations, Climate change treaties (UNFCCC, Kyoto Protocol, Paris Agreement), United Nations Convention on the Law of the Sea, Environmental treaties (Vienna Convention for the Protection of the Ozone Layer, Montreal Protocol on Substances that Deplete the Ozone Layer, Convention on Biological Diversity, United Nations Convention to Combat Desertification), Customary international law (duty to prevent significant harm to the environment, duty to co-operate for the protection of the environment), International human rights law (International Covenant on Economic, Social and Cultural Rights, International Covenant on Civil and Political Rights), Other principles (principle of sustainable development, principle of common but differentiated responsibilities and respective capabilities, intergenerational equity, precautionary principle).
Quite extensive laws right? It is worth it. Let’s continue to the crux of the substantive matter.
Obligations of States under the United Nations Framework Convention on Climate Change (UNFCCC)
The court observes that the UNFCCC provides a general framework for addressing the problem of climate change caused by anthropogenic GHG emissions. On Mitigation obligations under the UNFCCC, the Court having identified the mitigation obligations of all parties (see Article 4, paragraph 1) and the mitigation obligations of Annex I parties (see Article 4, paragraph 2), the Court finds it necessary to recall that all mitigation obligations identified above are legally binding upon the parties to which they pertain, regardless of whether the obligation in question is one of result or one of conduct. It notes in this respect that the distinction between these two types of obligations is not necessarily a strict one and that both may result in the responsibility of a State for breach of the relevant obligation.
On Adaptation obligations under the UNFCCC, the Court observes that adapting to the adverse effects of climate change is, along with mitigation, a major area of action for parties under the Framework Convention. The court noted that the obligation incumbent upon all parties to formulate, implement, publish and regularly update national and, where appropriate, regional programmes containing measures to facilitate adequate adaptation to climate change (Article 4, paragraph 1 (b) are legally binding provisions. Also, Article 4, paragraph 4, of the UNFCCC which also provides that developed country parties and other parties included in Annex II, which comprise a subset of parties contained in Annex I, shall assist the developing country parties that are particularly vulnerable to the adverse effects of climate change in meeting the costs of adaptation to those adverse effects as binding obligation on all parties that are listed in Annex II. The Court also pointed out that international co-operation is indispensable in the field of climate change, and that the customary duty to co-operate for the protection of the environment is reflected in several provisions of the climate change treaties, including the UNFCCC.
Obligations of States under the Kyoto Protocol
The court noted that the absence of a new commitment period after 2020 does not deprive Kyoto Protocol of its legal effect and that its provisions may still serve as, inter alia, (i) interpretative aids for the identification of obligations under the climate change treaty framework and (ii) substantive provisions to assess the compliance of Annex I parties listed in Annex B of the Protocol with applicable emission reduction targets during the relevant commitment period. Thus, non-compliance with emission reduction commitments by a state may constitute an internationally wrongful act.
Obligations of States parties under the Paris Agreement
The Court noted that the Paris Agreement contains several obligations of conduct and obligations of result which are mutually supportive. As observed earlier, with regard to obligations of conduct under the customary duty to prevent significant harm to the environment, parties are required to act with due diligence. Thus, the compliance of parties with their obligations of conduct under the Paris Agreement is assessed on the basis of whether the party in question exercised due diligence and employed best efforts by using all the means at its disposal in the performance of those obligations.
With regards to mitigation obligation under the Paris Agreement, the Court recalls that mitigation involves human intervention to reduce emissions or enhance carbon sinks. It notes that the mitigation obligations of States parties under the Paris Agreement are set out in Article 4. In accordance with Article 4, paragraph 2, of the Paris Agreement, each party must prepare, communicate and maintain successive NDCs that it intends to achieve. The Court observes that the obligation to prepare, communicate and maintain successive NDCs is procedural in nature and an obligation of result. Given these obligations of result, the failure to prepare, communicate and maintain successive NDCs, to account for them and to register them would constitute a breach of the above-mentioned obligations. The mere formal preparation, communication and maintenance of successive NDCs is not sufficient to comply with the obligations under Article 4.
On Adaptation obligation under the Paris Agreement, the Court considers that the fulfilment of adaptation obligations of parties is to be assessed against a standard of due diligence. It is therefore incumbent upon parties to enact appropriate measures (examples of which are provided in Article 7, paragraph 9) that are capable of enhancing adaptive capacity, strengthening resilience and reducing vulnerability to climate change.
The court also touched on obligations of co-operation, including financial assistance, technology transfer and capacity-building under the Paris Agreement. To this effect, the Court notes that States are free to select the means of co-operating, as long as such means are consistent with the obligations of good faith and due diligence. The Court considers, however, that the principal forms of co-operation prescribed by the Paris Agreement are financial assistance, technology transfers and capacity-building.
Obligations of States under customary international law relating to climate change
The customary duty to prevent transboundary environmental harm, which requires States to “use all the means at their disposal in order to avoid activities which take place in their territory, or in any area under their jurisdiction, causing significant damage to the environment of another State”, also applies to the climate system, which is an integral and vitally important part of the environment and which must be protected for present and future generations. The main elements of the obligation of prevention in the context of protection of the climate system are (a) the environmental harm to be prevented and (b) due diligence as the required standard of conduct.
The Court recalls that there is a duty of states to co-operate for the protection of the environment and this has a customary character. The Court recognizes that the duty to co-operate leaves states some discretion in determining the means for regulating their GHG emissions. However, this discretion cannot serve as an excuse for states to refrain from co-operating with the required level of due diligence or to present their effort as an entirely voluntary contribution which cannot be subjected to scrutiny.
Obligations of States under other environmental treaties
The Court then considers the relevant obligations in the Ozone Layer Convention, the Montreal Protocol, the Biodiversity Convention and the Desertification Convention. It is of the view that the obligations in question contribute to the protection of the climate system and other parts of the environment. The Court considers that the examined environmental treaties, the climate change treaties and the relevant obligations under customary international law inform each other. States parties must therefore take their obligations under these environmental treaties into account when implementing their obligations under the climate change treaties and under customary international law, just as they must take their obligations under the climate change treaties and under customary international law into account when implementing their obligations under these environmental treaties.
Obligations of States under the law of the sea and related issues
The Court observes that the obligation under Article 192 of UNCLOS consists of a positive obligation to take measures to protect and preserve the marine environment and a negative obligation not to degrade it. Measures may include legislative measures, administrative procedures, and enforcement mechanisms necessary to regulate the activities concerned.
On obligations of states in relation to sea level rise and related issues, The Court considers that the provisions of UNCLOS do not require States parties, in the context of physical changes resulting from climate-change related sea level rise, to update their charts or lists of geographical co-ordinates that show the baselines and outer limit lines of their maritime zones once they have been duly established in conformity with the Convention. For this reason, States parties to UNCLOS are under no obligation to update such charts or lists of geographical co-ordinates.
The Court also notes that several participants argued that sea level rise also poses a significant threat to the territorial integrity and thus to the very statehood of small island States. In the view of the Court, once a State is established, the disappearance of one of its constituent elements would not necessarily entail the loss of its statehood.
Obligations of States under international human rights law
The Court is thus of the view that the adverse effects of climate change, including, inter alia, the impact on the health and livelihoods of individuals through events such as sea level rise, drought, desertification and natural disasters, may significantly impair the enjoyment of certain human rights, in particular, the right to life, the right to health, the right to an adequate standard of living, which encompasses access to food, water and housing, the right to privacy, family and home, and the rights of women, children and indigenous peoples.
Now to the next question; LEGAL CONSEQUENCES ARISING FROM STATES’ ACTS AND OMISSIONS THAT CAUSE SIGNIFICANT HARM TO THE CLIMATE SYSTEM AND OTHER PARTS OF THE ENVIRONMENT
The Court considers that the obligations to which question (b) applies are the obligations provided for under the various treaties, in particular the climate change treaties, and rules of customary international law considered under question (a). The rules on State responsibility under customary international law are also applicable to the determination of legal consequences for States that, by their actions or omissions, have breached those obligations.
With regard to primary obligations under the climate change treaty framework, the Court observes that in the absence of special rules to the contrary, the responsibility of a party may be engaged under the rules on State responsibility if there is any breach of the obligations identified in question.
With regard to obligations under customary international law, the Court observes that the most significant primary obligation for States in relation to climate change is the obligation to prevent significant harm to the climate system and other parts of the environment, which applies to all States, including those that are not parties to one or more of the climate change treaties. Under this obligation, as well as under other obligations of conduct identified under question (a), a State does not incur responsibility simply because the desired result is not achieved; rather, responsibility is incurred if the State fails to take all measures which were within its power to prevent the significant harm. In this connection, the notion of due diligence, which calls for an assessment in concreto, is the relevant standard for determining compliance. Thus, a State that does not exercise due diligence in the performance of its primary obligation to prevent significant harm to the environment, including to the climate system, commits an internationally wrongful act entailing its responsibility.
With regard to the question of applicability of the rules on State responsibility under question (b), the Court notes that those rules “do not vary with the nature of the wrongful act in question in the absence of a clearly expressed lex specialis”. It follows that the rules on State responsibility under general international law do not apply where and to the extent that the conditions for the existence of an internationally wrongful act or the content or implementation of the international responsibility of a State are governed by special rules of international law. In order for the lex specialis maxim to apply, there must be “some actual inconsistency or else a discernible intention that one provision is to exclude the other”. Whether States derogated from the general rules on State responsibility by agreeing on special rules is a matter of interpretation for each supposedly special régime. Therefore, the Court considers that a discernible intention to establish lex specialis, varying or excluding the application of the general rules on State responsibility, must be found in the climate change treaty framework itself.
The Court observes that Article 8 of the Paris Agreement encourages parties to adopt a co-operative and facilitative approach with respect to loss and damage associated with the adverse effects of climate change, including recourse to the mechanism established under that provision. The provision does not, however, address issues of liability or compensation of parties for such loss and damage, since the expression “as appropriate, on a cooperative and facilitative basis” emphasizes co-operation rather than compensation or liability. Accordingly, the Court does not find in Article 8 of the Paris Agreement any clearly expressed lex specialis that would exclude the application of the general rules on State responsibility.
Turning to Article 15 of the Paris Agreement, the Court observes that paragraph 1 of that Article establishes the Paris Agreement Implementation and Compliance Committee (PAICC), which has the power to facilitate implementation of and promote compliance with the Agreement. However, the Court observes that this compliance mechanism does not have the power to settle disputes or provide for remedies, and that it therefore does not have the capacity to determine State responsibility. Accordingly, the Court does not find in Article 15 of the Paris Agreement any clearly expressed lex specialis that would exclude the application of the general rules on State responsibility.
The Court, therefore, finds that the text, context, and object and purpose of the climate change treaties do not support the proposition that the parties intended to exclude the general rules on State responsibility.
Determination of State responsibility in the climate change context
The Court recalls that climate change is a highly complex and multifaceted phenomenon involving possible responsibilities for multiple States over long periods of time. The unprecedented nature and scale of harm resulting from climate change give rise to particular issues in relation to the application of the customary rules on State responsibility. That is so because concentrations of GHG emissions are not produced by a single activity or group of activities identifiable or associated with a certain State or States. Moreover, it is the collective and aggregate effects of GHGs, anthropogenic as well as from natural sources, that cause damage to the climate system. Among the issues raised by the special features of climate change to the application of the customary rules on State responsibility are questions relating to attribution and causation, because, under the rules on State responsibility, only an action or omission attributable to a State can give rise to international responsibility. Furthermore, in cases where reparation is claimed, it must be shown that the damage for which reparation is claimed has been factually and legally caused by a State. The Court also observes that the issue of the temporal scope of the international obligations of States pertaining to the protection of the climate system from anthropogenic GHG emissions, and the related issue of breach of those obligations, comprise elements of an in concreto assessment for the determination of State responsibility, which is beyond the scope of this Advisory Opinion.
In conclusion, lets recap the court’s decisions;
- 1. Is of the opinion that the climate change treaties set forth binding obligations for States parties to ensure the protection of the climate system and other parts of the environment from anthropogenic greenhouse gas emissions. These obligations include the following:
(a) States parties to the United Nations Framework Convention on Climate Change have an obligation to adopt measures with a view to contributing to the mitigation of greenhouse gas emissions and adapting to climate change;
(b) States parties listed in Annex I to the United Nations Framework Convention on Climate Change have additional obligations to take the lead in combating climate change by limiting their greenhouse gas emissions and enhancing their greenhouse gas sinks and reservoirs;
(c) States parties to the United Nations Framework Convention on Climate Change have a duty to co-operate with each other in order to achieve the underlying objective of the Convention;
(d) States parties to the Kyoto Protocol must comply with applicable provisions of the Protocol;
(e) States parties to the Paris Agreement have an obligation to act with due diligence in taking measures in accordance with their common but differentiated responsibilities and respective capabilities capable of making an adequate contribution to achieving the temperature goal set out in the Agreement;
(f) States parties to the Paris Agreement have an obligation to prepare, communicate and maintain successive and progressive nationally determined contributions which, inter alia, when taken together, are capable of achieving the temperature goal of limiting global warming to 1.5°C above pre-industrial levels;
(g) States parties to the Paris Agreement have an obligation to pursue measures which are capable of achieving the objectives set out in their successive nationally determined contributions; and
(h) States parties to the Paris Agreement have obligations of adaptation and co-operation, including through technology and financial transfers, which must be performed in good faith.
- Is of the opinion that customary international law sets forth obligations for States to ensure the protection of the climate system and other parts of the environment from anthropogenic greenhouse gas emissions. These obligations include the following:
(a) States have a duty to prevent significant harm to the environment by acting with due diligence and to use all means at their disposal to prevent activities carried out within their jurisdiction or control from causing significant harm to the climate system and other parts of the environment, in accordance with their common but differentiated responsibilities and respective capabilities;
(b) States have a duty to co-operate with each other in good faith to prevent significant harm to the climate system and other parts of the environment, which requires sustained and continuous forms of co-operation by States when taking measures to prevent such harm
- 3. Is of the opinion that States parties to the Vienna Convention for the Protection of the Ozone Layer and to the Montreal Protocol on Substances that Deplete the Ozone Layer and its Kigali Amendment, the Convention on Biological Diversity and the United Nations Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, have obligations under these treaties to ensure the protection of the climate system and other parts of the environment from anthropogenic greenhouse gas emissions.
- 4. Is of the opinion that States parties to the United Nations Convention on the Law of the Sea have an obligation to adopt measures to protect and preserve the marine environment, including from the adverse effects of climate change and to co-operate in good faith.
- Is of the opinion that States have obligations under international human rights law to respect and ensure the effective enjoyment of human rights by taking necessary measures to protect the climate system and other parts of the environment.
As regards question (b) put by the General Assembly;
Is of the opinion that a breach by a State of any obligations identified in response to question (a) constitutes an internationally wrongful act entailing the responsibility of that State. The responsible State is under a continuing duty to perform the obligation breached. The legal consequences resulting from the commission of an internationally wrongful act may include the obligations of:
(a) cessation of the wrongful actions or omissions, if they are continuing;
(b) providing assurances and guarantees of non-repetition of wrongful actions or omissions, if circumstances so require; and
(c) full reparation to injured States in the form of restitution, compensation and satisfaction, provided that the general conditions of the law of State responsibility are met, including that a sufficiently direct and certain causal nexus can be shown between the wrongful act and injury.
Source: By James Deku
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