Written statement of Barbados | INTERNATIONAL COURT OF JUSTICE (2025)

INTERNATIONAL COURT OF JUSTICE
OBLIGATIONS OF STATES IN RESPECT OF CLIMATE CHANGE
ADVISORY PROCEEDINGS
(REQUEST FOR AN ADVISORY OPINION)
WRITTEN STATEMENT OF BARBADOS
22 March 2024
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TABLE OF CONTENTS
I. SUMMARY OF WRITTEN STATEMENT...................................................... 4
II. INTRODUCTION .............................................................................................. 10
III. JURISDICTION AND ADMISSIBILITY ....................................................... 12
The Court has jurisdiction over the Request ........................................... 12
The Request is admissible ....................................................................... 16
IV. FACTUAL BACKGROUND ............................................................................ 18
From the 1850s onwards, the harmful impacts of anthropogenic carbon
gas emissions have been known and confirmed ...................................... 18
Current scientific observations confirm past predictions: anthropogenic
gas emissions are harming all States and areas outside national jurisdiction
................................................................................................................. 42
(i) Anthropogenic gas emissions cause rising temperatures of land
and ocean and affect air quality .................................................. 48
(ii) Anthropogenic gas emissions cause rising sea levels ................. 50
(iii) Anthropogenic gas emissions cause extreme weather events .... 51
(iv) Anthropogenic gas emissions harm wildlife and ecosystems..... 53
(v) Anthropogenic gas emissions acidify and deoxygenate oceans . 55
(vi) Like many other States and their peoples, Barbados and its citizens
are already experiencing loss and damage due to climate change
.................................................................................................... 57
V. THIS COURT SHOULD ANSWER THE REQUEST ON THE BASIS OF
INTERNATIONAL LAW AS IT EXISTS ...................................................... 68
VI. QUESTION (A): WHAT ARE THE OBLIGATIONS OF STATES UNDER
INTERNATIONAL LAW TO ENSURE 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?
ANSWER ............................................................................................................ 70
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Obligation not to cause transboundary harm: States must ensure that
activities within their jurisdiction and control do not harm the environment
of other States .......................................................................................... 70
Obligation to protect and preserve the environment: States must protect
and preserve their own internal environment within a State’s own territory
for the benefit of their own people .......................................................... 86
(i) The obligation to protect and preserve one’s own environment
arises from the obligation not to harm people within a State’s own
jurisdiction and control ............................................................... 87
(ii) This obligation is enforceable on a State-to-State level ........... 112
Obligation to protect and preserve the environment in areas beyond
national control: States must protect and preserve the climate system and
other parts of the environment in areas beyond national control .......... 118
Obligation to mitigate and repair: States must mitigate and repair harm
already caused or that will be caused by anthropogenic greenhouse gas
emissions, whether or not they have initially caused such harm ........... 133
Obligation to cooperate: States must cooperate to protect and preserve the
climate system and other parts of the environment ............................... 142
Obligation to compensate: States must pay for loss and damage caused by
their anthropogenic gas emissions ......................................................... 165
(i) States must pay compensation for such loss and damage on a strict
liability basis ............................................................................. 166
(ii) In addition, States must also pay compensation for loss and
damage caused by anthropogenic gas emissions where they have
breached another international law obligation.......................... 183
VII. QUESTION (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 PARICULAR, 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
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ANSWER .......................................................................................................... 185
States must provide full monetary reparation to other States for climate
change damage ...................................................................................... 186
(i) States must provide full monetary reparation under general
international law ....................................................................... 187
(ii) States must provide full monetary reparation under international
environmental law .................................................................... 194
States must offer full monetary reparation to other States for climate
change caused by acts and omissions attributable to them in whole or in
part......................................................................................................... 199
States must offer other redress for damage due to climate change by inter
alia contributing to climate change funds, offering other financial
resources and ensuring transfers of technology .................................... 204
(i) States should contribute to collective climate change funds and
offer other financial resources to other States affected by the
climate emergency .................................................................... 204
(ii) States should ensure the transfer of technology to other States
affected by the climate emergency ........................................... 215
(iii) States should invest in research on climate change .................. 220
Full reparation and assistance must take account of the circumstances of
affected States, peoples and individuals ................................................ 225
(i) Full reparation and assistance must take account of the particular
situation of States, including in particular small island developing
States that are injured or specially affected by or are particularly
vulnerable to the adverse effects of climate change ................. 226
(ii) Full reparation and assistance must take account of the particular
situations of peoples and individuals of present and future
generations affected by the adverse effects of climate change . 235
VIII. CONCLUSION ................................................................................................. 255
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I. SUMMARY OF WRITTEN STATEMENT
1. The United Nations General Assembly (“UN General Assembly”) has
unanimously asked the International Court of Justice (the “Court”) to
render an advisory opinion on one of the most pressing geopolitical
problems of our time – the disastrous environmental consequences caused
by human-made emissions of carbon dioxide and other globe-warming
gases. As this Court’s settled jurisprudence confirms, the legal questions
presented in UN General Assembly’s request fit comfortably within the
Court’s jurisdiction.1
2. Notably, the UN General Assembly’s request does not require this Court
to act de lege ferenda or to apply potentially contested principles of
international law. There is no divided opinio juris or lack of historical
precedent, such as led this Court to find it could not articulate definitive
legal prohibitions in the Nuclear Weapons Advisory Opinion.2 Instead,
answering the central question posed by the UN General Assembly –
‘What are the obligations of States to ensure the protection of the climate
system and compensate for damage to the same?’ – requires only the
application of long-standing international law to indisputable scientific
facts.
3. On the law, the core legal principle is as simple as it is ancient: sic utere
tuo ut alienum non laedas, the classical prohibition on transboundary
harm. The principle is stated in Latin because it originates in a Roman
1 See Section III.
2 See Section V.
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principle of law.3 However, the legal concept is not limited to the
Western legal tradition. Its homologues are found in every major legal
tradition in the world, such as (as shown below) Buddhist, ancient
Chinese, Hindu, Islamic and other legal traditions.4 Furthermore, it is
undeniable that this principle of international law pre-dates the start of the
Industrial Revolution and its associated massive anthropogenic release of
carbon dioxide and other gases into the Earth’s climate.
4. As is now also well-established, the prohibition on transboundary harm
protects the environment outside a State’s borders, including both areas
under another State’s control and areas outside of any national control. As
this Court has succinctly explained:
[t]he existence of the general obligation of States to
ensure that activities within their jurisdiction and control
respect the environment of other States and of areas
beyond national control is now part of the corpus of
international law relating to the environment.5
5. The principle of transboundary harm also carries with it the requirement
of redress based on strict liability. That is, any State that has, by action or
omission, caused transboundary harm must do all it can reasonably to
remedy and provide redress for that harm. This is regardless of other fault
or dolus. It is not a defence for any State to assert a purported lack of reus
(i.e., that it did not mean to), knowledge (i.e., that it did not know) or the
failure to breach another norm of international law (i.e., that the acts were
otherwise lawful). As this written statement explains, a State’s
3 See paragraph 135.
4 See paragraphs 136-139.
5 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996,
I.C.J. Reports 1996, p. 226 (“Nuclear Weapons Advisory Opinion”), paragraph 29,
Annex 393.
6
wrongdoing and consequent liability arises strictly from the creation of the
transboundary harm itself. The transboundary harm alone is a necessary
and sufficient condition of the obligation to provide redress.6
6. A State that knowingly or with wilful blindness permits transboundary
harm also must, of course, provide full redress, at the very least.7
However, that does not detract from the underlying regime of strict
liability.
7. Further, to the extent the prohibition on transboundary harm applies only
to ‘serious’ transboundary harm, the harm emerging from climate change
is straightforwardly ‘serious’, as shown herein.
8. It cannot be doubted that the foregoing correctly states the position of
international law. The principles set forth above, and all the legal
positions set forth in this written statement, are supported by reference to
over 500 international law legal authorities. These include treaties,
international agreements, non-binding inter-State instruments, State acts,
decisions of the highest judicial authorities, writings of the most highly
qualified publicists and more. These legal authorities come from every
region on our planet. They span the epochs, from ancient times to the
modern day. And they reflect a vast diversity of different circumstances.
These over 500 authorities are merely the beginning of the legal support
for the rights and obligations under international law identified in this
written statement. Undoubtedly, the written statements of other States
will provide even more supporting authorities.
6 See Section VI.F.
7 See Sections VI.F, VII.A, VII.B and VII.D.
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9. With respect, Barbados submits that the role for this Court is to apply the
facts of climate change to these clearly identified and applicable legal
principles. In that respect, the answers to the UN General Assembly’s
request are straightforward. States that have, by permission or their own
acts, contributed to climate change must now provide complete and
effective remedy for the harms they caused. Moreover, those States
cannot be excused from this obligation because it would be inconvenient
or expensive. A State’s remedial obligations under the laws of State
responsibility can only arguably be reduced somewhat by a risk of the
most catastrophic of consequences on its population. However, States
cannot avoid their remedial obligations by claiming slight inconvenience,
political difficulty or high cost.8
10. Climate change is a transboundary harm. At all relevant times, it has
always been known to have been caused by anthropogenic greenhouse gas
emissions. Indeed, the scientific basis for climate change through
atmospheric carbon dioxide emission was comprehensively described over
130 years ago by the renowned Swedish chemist Svante Arrhenius.9 The
dramatic consequences of anthropogenic gas emissions have been
subsequently confirmed for at least the last seventy years, by many
scientific and governmental institutions.10 Despite this, harmful
anthropogenic emissions of greenhouse gases continued virtually
unabated.
11. The physical consequences of the decision to permit the expulsion of
carbon dioxide and other greenhouse gases, in massive quantities for such
8 See paragraphs 340-342.
9 See paragraph 37.
10 See Section IV.
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an extended period of time, are as harmful as they are dramatic. They
include, amongst other things: (a) rising land and ocean temperatures; (b)
rising sea levels; (c) extreme weather events; (d) extreme harm to wildlife
and ecosystems; and (e) acidification and harm to marine
ecosystems. Every human being on this planet, just as every animal and
plant, is and will be harmed by climate change.11
12. States that did not contribute to climate change, including but not limited
to Barbados, are now suffering these and other consequences. They suffer
harm due to the acts and omissions of other States. In these
circumstances, the States that caused climate change have an obligation
under international law to provide effective and complete redress for these
harms. The redress can and must include:
a. widely distributed funding for climate change alleviation
measures, through existing and future dedicated climate change
funds;12
b. close State attention to climate change and investment in scientific
research into its amelioration and mitigation;13
c. significant technology transfer and know-how and capacity
building measures to address the effects of climate change;14 and
11 See Section IV.
12 See Section VII.C(i).
13 See Section VII.C(iii).
14 See Section VII.C(ii).
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d. compensation to States and their peoples who are suffering from
climate change.15
13. No doubt climate change impacts the whole world. Indeed, small island
developing States like Barbados are deeply affected by the climate
emergency. At present, Barbados is suffering significant loss and damage
caused by (a) the effects of climate change; and (b) taking action to
mitigate and adapt to climate change.16 These effects and costs will only
grow in future.
14. This written statement does not, of course, ‘assign blame’. It seeks to
assist the Court by articulating the legal consequences of established law
based on the physical reality of climate change. Unlike in the Nuclear
Weapons Advisory Opinion, the principles of international law related to
these questions pertaining to climate change are settled.17 Transboundary
harm requires full and effective remedy, under international law. The fact
that the principle today must be applied to the widespread effects of
climate change does not mean that it can be set aside or modified. The
law of State responsibility and its obligations remained and remain
constant. Their application to climate change is similarly unquestionable.
15 See Sections VII.A and VII.D.
16 See Section IV.B(vi).
17 See Section V.
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II. INTRODUCTION
15. This written statement furnishes information on the questions submitted to
the Court for an advisory opinion on the Obligations of States in Respect
of Climate Change by the UN General Assembly on 12 April 2023
(the “Request”), in accordance with the Orders dated 20 April and 15
December 2023.
16. The Request comes at a critical time. As all UN Member States
recognise, “climate change is an unprecedented challenged of
civilisational proportions” and “the well-being of present and future
generations of humankind depends on our immediate and urgent response
to it.”18 198 State Parties to the United Nations Framework Convention
on Climate Change acknowledge that “change in the Earth’s climate and
its adverse effects are a common concern of humankind.”19
17. It is a matter of public record that Barbados has been at the forefront of
the international climate change dialogue for a significant period of time.
This includes its participation in collective action by small island States.
Two seminal examples of Barbados’s leadership in this field are: (a) the
2021 Bridgetown Declaration, which calls for action on the environmental
dimension of COVID-19 sustainable development and recovery in Latin
America and the Caribbean;20 and (b) the Bridgetown Initiative for the
18 UN General Assembly Resolution 77/276 (2023), A/RES/77/276, 4 April 2023 (“UN
General Assembly Resolution 77/276”), Annex 233.
19 United Nations Framework Convention on Climate Change, 9 May 1992, 1771 UNTS
107 (“UNFCCC”), Recitals, page 2, Annex 112.
20 See Bridgetown Declaration, Report XXII Meeting of the Forum of Ministers of
Environment of Latin America and the Caribbean, 1-2 February 2021, Annex III,
UNEP/LAC-IG.XXII/7, 5 February 2021, Annex 307.
11
Reform of the Global Financial Architecture,21 which calls for collective
action related to financial mechanisms available to developing States to
address the disproportionate burden of climate change shouldered by these
States.
18. This written statement to the Court provides a welcome opportunity for
Barbados to continue its efforts at the forefront of global climate change
initiatives. Barbados respectfully expresses the hope that its views on
these questions will assist the Court in advancing the rule of law in the
context of the climate emergency.
19. Section I above provided a summary of this written statement. After this
Introduction, Section III notes that the Court has jurisdiction to make this
advisory opinion and should do so. Section IV explains that
anthropogenic (i.e., human-made) emissions of greenhouse gases
irrefutably cause damage and loss to all States and present and future
generations. This has been known for over a century. Section V notes
that this Court should answer the questions submitted by the UN General
Assembly on the basis of international law as it exists. Section VI sets
out the obligations of States 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.
Section VII discusses the legal consequences of those obligations, in
particular for States (including small island developing States), peoples
and present and future generations specially affected by climate change.
Section VIII provides a conclusion to this written statement.
21 See The 2022 Bridgetown Agenda for the Reform of the Global Financial Architecture,
Government of Barbados, Ministry of Foreign Affairs and Foreign Trade, 23 September
2022, Annex 311.
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III. JURISDICTION AND ADMISSIBILITY
20. This Court is competent to render the advisory opinion requested by the
UN General Assembly. It should do so. Should any State or international
organisation submit that the Court is not competent, Barbados respectfully
reserves the right to provide further submissions on this subject.
21. Previous advisory opinions rendered by this Court have fundamentally
contributed to the development of international law.22 This function of the
Court is vital. Climate change is among the most pressing issues facing
the world today. For this reason, the exercise of the Court’s advisory
function in the present proceedings will be of critically important value.
The Court has jurisdiction over the Request
22. This Court has jurisdiction to provide this advisory opinion because: (i) it
is requested by an organ duly authorised under Article 96 of the UN
22 See, e.g., L.B. Chazournes, Advisory Opinions and the Furtherance of the Common
Interest of Humankind, in INTERNATIONAL ORGANIZATIONS AND INTERNATIONAL
DISPUTE SETTLEMENT: TRENDS AND PROSPECTS, eds. L.B. Chazournes et al (Brill |
Nijhoff, 2002), page 105, Annex 544; T. Mayr & J. Mayr-Singer, “Keep the Wheels
Spinning: The Contributions of Advisory Opinions of the International Court of Justice
to the Development of International Law”, Heidelberg Journal of International Law,
2016, pp. 425-449, Annex 545. See also N. Lanzoni, “The Authority of ICJ Advisory
Opinions as Precedents: The Mauritius/Maldives Case”, The Italian Review of
International and Comparative Law, 2022, pp. 296-322, page 309, Annex 546 (“For
instance, in Convention on Genocide the ICJ introduced the innovative criterion of the
conformity with the object and purpose of the treaty in order to scrutinise the legitimacy
of making reservations to it. This criterion quickly became the generally accepted one
and made its way through the work of the International Law Commission on the law of
treaties, and the 1969 Vienna Convention on the Law of Treaties”); Reservations to the
Convention on Genocide, Advisory Opinion of 28 May 1951, I.C.J. Reports 1951, p. 15,
pages 24-27 and 29, Annex 411.
13
Charter;23 (ii) it pertains to legal questions; and (iii) the procedure for
adoption of the Request is proper.
23. Article 65(1) of the Statute of this Court states that:
[t]he Court may give an advisory opinion on any legal
question at the request of whatever body may be authorized
by or in accordance with the Charter of the United Nations
to make such a request.24
24. The UN Charter provides that:
[t]he General Assembly or the Security Council may
request the International Court of Justice to give an
advisory opinion on any legal question.25
25. In application of this provision, this Court has explained that:
[i]t is however a precondition of the Court’s competence
that the advisory opinion be requested by an organ duly
authorized to seek it under the Charter, that it be requested
on a legal question, and that, except in the case of the
General Assembly or the Security Council, that question
should be one arising within the scope of the activities of
the requesting organ.26
23 See UN Charter, 26 June 1945, XV UNCIO 335, amendments in 557 UNTS 143, 638
UNTS 308 and 892 UNTS 119 (“UN Charter”), Article 96(1), Annex 66.
24 Statute of the International Court of Justice, 26 June 1945, USTS 993, 3 (“ICJ Statute”),
Article 65(1).
25 UN Charter, Article 96(1), Annex 66.
26 Application for Review of Judgment No. 273 of the United Nations Administrative
Tribunal, Advisory Opinion of 20 July 1982, I.C.J. Reports 1982, p. 325, pages 333-334,
Annex 412.
14
26. The above conditions are met. First, the Request is made by the UN
General Assembly, an organ of the UN duly authorised to make a request
to this Court to “give an advisory opinion on any legal question.”27
27. Second, the Request pertains to legal questions as per the UN Charter and
the ICJ Statute. This Court has indicated that the questions requested
must be “framed in terms of law and raise problems of international law”
and therefore must be “by their very nature susceptible of a reply based on
law.”28 Such questions must “scarcely [be] susceptible of a reply
otherwise than on the basis of law.”29
28. The questions posited by the UN General Assembly are legal questions.
The first question asks the Court to set out, inter alia, “the obligations of
States under international law to ensure the protection of the climate
system” and the second question asks the Court to set out “the legal
consequences under these obligations for States” that have caused
“significant harm to the climate system” with respect to (i) States that are
“specially affected” and (ii) “people and individuals of the present and
future generations affected by the adverse effects of climate change.”30 In
order to answer these questions, the Court must “identify the existing
principles and rules, interpret them and apply them” to offer a reply
“based on law.”31
27 UN Charter, Article 96(1), Annex 66.
28 Western Sahara, Advisory Opinion of 16 October 1975, I.C.J. Reports 1975, p. 12, page
18, Annex 413.
29 Western Sahara, Advisory Opinion of 16 October 1975, I.C.J. Reports 1975, p. 12, page
18, Annex 413.
30 Obligations of States in respect of Climate Change (Request for Advisory Opinion),
Order of 20 April 2023, I.C.J. General List No.187, page 2.
31 Nuclear Weapons Advisory Opinion, page 234, Annex 392.
15
29. Further, Barbados submits that the questions are strictly legal and not
political. The questions pertain to international law, including
international environmental law. The late Judge Christopher
Weeramantry, Vice-President of this Court, in his dissent in the Nuclear
Weapons Advisory Opinion considered the “principles of environmental
law” as “part of customary international law” and “sine qua non for
human survival.”32
30. However, the jurisprudence of this Court has established that even if the
questions posited have political aspects, that would be irrelevant to
establishing jurisdiction.33 Those political aspects do not suffice to
deprive the questions of their legal character or “deprive the Court of a
competence expressly conferred on it by its Statute.”34
31. Barbados further submits that the questions submitted to the Court are not
abstract. In the unlikely event that such a concern is raised, Barbados
submits that the Court would still not be deprived of its jurisdiction. The
Court has dismissed this objection since its earliest advisory opinion. In
Conditions of Admission, this Court was invited to provide an opinion in
respect of the admission of States into the UN. It was argued that the
question was an abstract one. Rejecting this argument, this Court held:
[i]t has also been contended that the Court should not deal
with a question couched in abstract terms. That is a mere
32 Nuclear Weapons Advisory Opinion, Dissenting Opinion of Judge Weeramantry
(“Nuclear Weapons Advisory Opinion, Dissenting Opinion of Judge
Weeramantry”), page 504, Annex 393. Judge Weeramantry considered, amongst
others, the Stockholm and Rio Declarations, referring to the duties of States to prevent
damage to the environment of other States.
33 See Nuclear Weapons Advisory Opinion, page 234, Annex 392.
34 Application for Review of Judgment No. 158 of the United Nations Administrative
Tribunal, Advisory Opinion of 12 July 1973, I.C.J. Reports 1973, p. 166, page 172,
Annex 414.
16
affirmation devoid of any justification. According to
Article 96 of the Charter and Article 65 of the Statute, the
Court may give an advisory opinion on any legal question,
abstract or otherwise.35
32. The Request is also compatible with the UN General Assembly’s practice,
which inter alia, has called for the “[p]rotection of global climate for
present and future generations of humankind.”36
33. Third, the proper procedure for the adoption of the Request has been
followed. The UN General Assembly, at its sixty-fourth plenary meeting
held on 29 March 2023, adopted the resolution requesting the present
advisory opinion, by consensus.37 The procedure for the adoption of UN
General Assembly Resolution 77/276 was perfectly proper.
The Request is admissible
34. The questions requiring the advisory opinion are made by written request,
containing an exact statement of the questions upon which the opinion is
required38 and are accompanied by documents likely to throw light upon
the question.39
35 Conditions of Admission of a State to Membership in the United Nations, Advisory
Opinion of 28 May 1948, I.C.J. Reports 1948, p. 57, page 61, Annex 416.
36 UN General Assembly Resolution 68/212 (2013), A/RES/68/212, 20 December 2013,
Annex 234.
37 See Request for Advisory Opinion by the Secretary-General of the United Nations dated
12 April 2023.
38 See ICJ Statute, Article 65(2); Request for Advisory Opinion by the Secretary-General of
the United Nations dated 12 April 2023, page 2.
39 See ICJ Statute, Article 65(2); Request for Advisory Opinion by the Secretary-General of
the United Nations dated 12 April 2023, page 2 (“I would like to further inform you that,
pursuant to Article 65, paragraph 2, of the Statute of the Court, the Secretariat will start
to prepare a dossier containing a collection of all documents that are likely to throw light
17
35. Further, as this Court has emphasised, Article 65(1) of the ICJ Statute
leaves this Court discretion whether to give an advisory opinion or not.40
Barbados submits that this Court should exercise its discretion to do so.
36. This Court has observed that it has “constantly been mindful of its
responsibilities”41 as the “principal judicial organ of the United
Nations.”42 As part of that function, it has also been mindful in principle
to not refuse to give an advisory opinion43 and has held that it would only
do so for “compelling reasons.”44 Given the importance of climate
change, as further described in Section IV, the Request is not an occasion
for the Court to depart from this practice. There is no compelling reason
for the Court not to exercise its jurisdiction to render an advisory opinion.
In fact, it is essential that it does so.
upon these questions. The dossier will be transmitted to the Court in due course”); List
of Documents (documents received from the Secretariat of the United Nations), 30 June
2023.
40 See Nuclear Weapons Advisory Opinion, pages 234-235, Annex 392.
41 Nuclear Weapons Advisory Opinion, page 235, Annex 392.
42 UN Charter, Article 92, Annex 66.
43 See Nuclear Weapons Advisory Opinion, page 235, Annex 392.
44 Judgments of the Administrative Tribunal of the ILO upon Complaints Made against
UNESCO, Advisory Opinion of 23 October 1956, I. C. J. Reports 1956, p. 77, page 86,
Annex 386.
18
IV. FACTUAL BACKGROUND
37. The chemical and planetary dynamics that cause climate change have been
widely known, and scientifically accepted, for over 150 years; indeed they
were fully described by Svante Arrhenius as early as 1896 and have been
further confirmed for at least 70 years (see Section IV.A).45 There is
nothing new or surprising in what is discussed below. What has changed
is only that, today, the dramatic impacts of anthropogenic gas emissions
have become, as predicted, deeply vexing (see Section IV.B).
From the 1850s onwards, the harmful impacts of anthropogenic
carbon gas emissions have been known and confirmed
38. The consequential impacts on the climate of greenhouse gas emissions
have been studied, confirmed and reiterated by scientists and experts for
well over a century-and-a-half.
39. Historically, the impacts of atmospheric carbon were known as early as
1856, when a paper published in the American Journal of Science and
Arts explained that “[a]n atmosphere of [carbon acid/carbon dioxide]
would give to our earth a high temperature.”46
45 See S. Arrhenius, “On the Influence of Carbonic Acid in the Air upon the Temperature of
the Ground”, Philosophical Magazine and Journal of Science, 1896, pp. 237-276, Annex
3.
46 E. N. Foote, “Circumstances affecting the Heat of the Sun’s Rays”, American Journal of
Science and Arts, 1856, pp. 382-383, page 383, Annex 1.
19
40. By 1861, it had been scientifically extrapolated that anthropogenic carbon
gas emissions would necessarily cause “changes of climate.” An 1861
paper published by the Royal Society of London explained that:
if . . . the chief influence be exercised by the aqueous
vapour, every variation of this constituent must produce a
change of climate. Similar remarks would apply to the
carbonic acid [/carbon dioxide] diffused through the air;
while an almost inappreciable admixture of any of the
hydrocarbon vapours would produce great effects on the
terrestrial rays and produce corresponding changes of
climate.47
41. The definitive description of climate change was then provided by the
renowned chemist Svante Arrhenius in 1896, when he stated in the
Philosophical Magazine and Journal of Science that:
[a]ll authors agree in the view that there prevails an
equilibrium in the temperature of the earth and its
atmosphere. The atmosphere must, therefore, radiate as
much heat to space as it gains partly through the absorption
of the sun’s rays, partly through the radiation from the
hotter surface of the earth and by means of ascending
currents of air heated by contact with the ground. On the
other hand, the earth loses just as much heat by radiation to
space and to the atmosphere as it gains by absorption of the
sun’s rays.
. . .
Thus if the quantity of carbonic acid [/carbon dioxide]
increases in geometric progression, the augmentation of the
47 J. Tyndall, “On the Absorption and Radiation of Heat by Gases and Vapours, and on the
Physical Connexion of Radiation, Absorption, and Conduction”, Philosophical
Transactions of the Royal Society of London, 1861, pp. 1-36, page 28, Annex 2.
20
temperature will increase nearly in arithmetic
progression.48
42. By 1899, a paper in The Journal of Geology explained with startling
accuracy how doubling or tripling the then still relatively lower level of
carbon dioxide in the atmosphere would result in a rise in temperatures
equivalent to those of a long past geological era, the Middle Tertiary (also
known as the Miocene) era – around 23 million to 5 million years ago –
when humans were not in existence yet. It stated that:
[t]he general results assignable to a greatly increased or a
greatly reduced quantity of atmospheric carbon dioxide and
water may be summarized as follows . . . An increase, by
causing a larger absorption of the sun’s radiant energy,
raises the average temperature, while a reduction lowers it.
The estimate of Dr. Arrhenius, based upon an elaborate
mathematical discussion of the observations of Professor
Langley, is that an increase of the carbon dioxide to the
amount of two or three times the present content would
elevate the average temperature 8° or 9°C, and would bring
on a mild climate analogous to that which prevailed in the
Middle Tertiary age.49
43. Drawing on these observations, by 1938, another paper published by the
British Royal Meteorological Society drew the direct link and warned of
the result of human emissions of fossil fuels and the rise in global
temperatures. It stated that the influence of “the activities of man” on “the
making of our climates and weather” is “not only possible, but is actually
48 S. Arrhenius, “On the Influence of Carbonic Acid in the Air upon the Temperature of the
Ground”, Philosophical Magazine and Journal of Science, 1896, pp. 237-276, pages
254-267, Annex 3.
49 T. C. Chamberlin, “An Attempt to Frame a Working Hypothesis of the Cause of Glacial
Periods on an Atmospheric Basis”, The Journal of Geology, 1899, pp. 545-584, page
551, Annex 4.
21
occurring at the present time.”50 It also advanced that “[t]he temperature
observations at 200 meteorological stations are used to show that world
temperatures have actually increased at an average rate of 0.005°C. per
year during the past half century.”51 The same paper concluded that the
natural absorption (the offtake) did not balance human emissions (the
artificial production). Instead, it properly stated that:
great many factors which influence the carbon cycle in
nature have been examined in order to determine the
quantitative relation between the natural movements of this
gas and the amounts produced by the combustion of fossil
fuel. . . . The general conclusion from a somewhat lengthy
investigation on the natural movements of carbon dioxide
was that there is no geological evidence to show that the net
offtake of the gas is more than a small fraction of the
quantity produced from fuel. (The artificial production at
present is about 4,500 million tons per year.)52 (Emphasis
in the original.)
44. By 1940, scientific analysis confirmed that “[i]n the period between 1900
and 1935 the amount of coal and oil burnt has been very nearly 50,000
million tons, equal to the direct addition to the atmosphere of 150,000
million tons of CO2.”53 The same paper again dispelled the idea that the
50 G. Callendar, “The artificial production of carbon dioxide and its influence on
temperature”, Quarterly Journal of the Royal Meteorological Society, 1938, pp. 223-240
(“1938 Callendar Paper”), page 223, Annex 5.
51 1938 Callendar Paper, page 223, Annex 5.
52 1938 Callendar Paper, page 224, Annex 5.
53 G. Callendar, “Variations of the amount of carbon dioxide in different air currents”,
Quarterly Journal of the Royal Meteorological Society, 1940, pp. 395-400, page 399,
Annex 6.
22
ocean could absorb such additional carbon dioxide from the Earth’s
atmosphere. It noted that:
[t]he importance of the sea water in regulating the amount
of CO2 in the air has already been mentioned, and one
would expect to find that a considerable part of the gas
produced from fuel had been absorbed by the sea; but the
observations . . . appear to show that all this extra gas has
remained in the air.54
45. In 1949, another scientific paper in the publication Weather yet again
confirmed that the burning of fossil fuel led to more solar heat being
trapped in the Earth’s atmosphere, i.e., increased temperatures. It noted
that “the climates of the world are behaving in a manner which suggests
that slightly more solar heat is being retained in the atmosphere.”55 It also
observed that:
[i]t is only during the present century that man has exerted
his influence on a sufficient scale to disturb nature’s slowmoving
carbon-balance, but now his demand for heat and
power has led to the transfer of large quantities of “fossil”
carbon from the rocks to the air.56
46. In 1956, a paper published in Tellus posited that temperatures would
increase by 3.6°C if carbon dioxide concentration doubled. It noted that
“in order to restore equilibrium, the surface temperature must rise 3.6°C if
the CO2 concentration is doubled and the surface temperature must fall
54 G. Callendar, “Variations of the amount of carbon dioxide in different air currents”,
Quarterly Journal of the Royal Meteorological Society, 1940, pp. 395-400, pages 399-
400, Annex 6.
55 G. Callendar, “Can carbon dioxide influence climate?”, Weather, 1949, pp. 310-314,
page 314, Annex 7.
56 G. Callendar, “Can carbon dioxide influence climate?”, Weather, 1949, pp. 310-314,
page 312, Annex 7.
23
3.8°C if the CO2 concentration is halved.”57 The paper emphasised that
this increase in carbon dioxide in the atmosphere is caused by
anthropogenic emissions of greenhouse gases, including the combustion
of fossil fuels. It also concluded that human activities in the burning of
fossil fuels resulted in a steep increase in carbon dioxide in the
atmosphere. The paper observed that:
[i]n recent years industrial and other activities of man are
adding considerably more CO2 to the atmosphere than any
of the above factors from the inorganic world . . . The
combustion of fossil fuels is adding 6 x 109 tons per year of
CO2 to the atmosphere at the present time. In addition such
activities as the clearance of forests, the drainage and
cultivation of lands, and industrial processes such as lime
burning and fermentation release additional amounts of
CO2 that are not included in the above estimate. This is a
large enough contribution to upset the carbon dioxide
balance and to increase the amount in the atmosphere
appreciably. Some of this additional CO2 is used in
photosynthesis, but as already discussed, very little of the
extra CO2 is permanently lost to the atmosphere since there
is a corresponding increase in the rates of decay and
respiration. Another part of this additional CO2 is absorbed
by the oceans; this factor is discussed in detail in the
following sections. However, it seems probable that these
losses are small at the present time. If this is true, then a
major portion of the extra CO2 from man’s activities will
remain in the atmosphere and the CO2 concentration will
increase for at least several centuries to come. If this extra
CO2 is remaining in the atmosphere, the concentration is
increasing from this source at the rate of 30 per cent a
century.58
. . .
57 G. Plass, “The Carbon Dioxide Theory of Climate Change”, Tellus, 1956, pp. 140-154
(“Plass Paper”), page 142, Annex 8.
58 Plass Paper, pages 143-144, Annex 8.
24
At the present time the burning of fossil fuels is adding
more than 6 x 109 tons per year of CO2 to the atmosphere.
Other activities of man such as the clearance of forests and
the drainage and cultivation of land add additional amounts
of CO2 to the atmosphere each year. The total amount
added each year from these sources is several orders of
magnitude larger than any factor that contributes to the CO2
balance from the inorganic world at the present time . . .
Therefore, this additional factor has greatly disturbed the
CO2 balance. If all this additional CO2 remains in the
atmosphere, there will be 30 per cent more CO2 in the
atmosphere at the end of the twentieth century than at the
beginning. If no other factors change, man’s activities are
increasing the average temperature by 1.1°C per century.59
47. The paper then drew the undeniable conclusion that “[e]ven if the oceans
absorb CO2 much more rapidly than has been assumed here, the
accumulation of CO2 in the atmosphere will become an increasingly
important problem through the centuries.”60
48. In 1957, two scientific papers again warned of the excessive amount of
carbon dioxide humanity was adding to the Earth’s atmosphere. The first,
published again in Tellus, cautioned that humanity was carrying out:
a large scale geophysical experiment of a kind that could
not have happened in the past nor be reproduced in the
future. Within a few centuries we are returning to the
atmosphere and oceans the concentrated organic carbon
stored in sedimentary rocks over hundreds of millions of
years.61
59 Plass Paper, page 149, Annex 8.
60 Plass Paper, page 149, Annex 8.
61 R. Revelle & H. Suess, “Carbon Dioxide Exchange Between Atmosphere and Ocean and
the Question of an Increase of Atmospheric CO2 during the Past Decades”, Tellus, 1957,
pp. 18-27, page 19, Annex 9.
25
49. The paper also observed that “[i]n contemplating the probably large
increase in CO2 production by fossil fuel combustion in coming decades
we conclude that a total increase of 20 to 40 % in atmospheric CO2 can be
anticipated.”62
50. The second paper, published in 1957 by the American Geophysical Union,
similarly noted:
[o]f particular interest is the fate of the enormous quantity
of carbon dioxide which has been introduced into the
atmosphere since the beginning of the industrial revolution
in the 19th century, and the manner in which the added
carbon dioxide has been distributed in the carbon cycle.
Although appreciable amounts of carbon dioxide have
undoubtedly been added from soils by tilling of land,
apparently a much greater amount has resulted from the
combustion of fossil fuels.63
51. In 1959, similar remarks were again repeated in another paper in a treatise,
where it was said that:
[i]t is obvious that an addition of CO2 to the atmosphere
will only slightly change the CO2 content of the sea but
appreciably effect the CO2 content of the atmosphere.64
52. In 1961, a letter by the scientist Gilbert Plass to the editor of the scientific
journal Tellus noted that the increase in carbon dioxide caused a rise in
62 R. Revelle & H. Suess, “Carbon Dioxide Exchange Between Atmosphere and Ocean and
the Question of an Increase of Atmospheric CO2 during the Past Decades”, Tellus, 1957,
pp. 18-27, page 26, Annex 9.
63 H. R. Brannon et al., “Radiocarbon evidence on the dilution of atmospheric and oceanic
carbon by carbon from fossil fuels”, Transactions, American Geophysical Union, 1957,
pp. 643-650, page 643, Annex 10.
64 B. Bolin & E. Eriksson, Changes in the carbon dioxide content of the atmosphere and
sea due to fossil fuel combustion, in THE ATMOSPHERE AND THE SEA IN MOTION:
SCIENTIFIC CONTRIBUTIONS TO THE ROSSBY MEMORIAL VOLUME, ed. B. Bolin
(Rockefeller Institute Press, 1959), page 131, Annex 11.
26
global temperatures. The letter stated that “[m]any of the climatic changes
which have occurred over the past several billion years of the earth’s
history can readily be explained by variations of the atmospheric CO2
amount” and “the difference between our two values for the temperature
change is significant for the explanation of the world-wide temperature
increase which has occurred in the twentieth century.”65 This letter
references Gilbert Plass’s earlier paper from 1956, in which he concluded
that:
[t]he radiation calculations predict a definite temperature
change for every variation in CO2 amount in the
atmosphere. These temperature changes are sufficiently
large to have an appreciable influence on the climate.66
53. In 1961, the British Royal Meteorological Society published another paper
noting that the additional carbon dioxide in the atmosphere leads to
temperature increases at different latitudes. It found that “a considerable
fraction of the extra CO2, and the warming effect which goes with it, may
still remain in the northern westerly circulation to give the greater
temperature rise there than in other latitudes.”67 This paper also looked
back on the scientific agreement surrounding climate change, noting that:
[s]ome years ago the writer suggested that rising
temperature trends, already observed in certain regions,
could be due to back radiation from the extra CO2 produced
by fossil fuel combustion. (Callendar 1938, 1949). Since
then calculations on atmospheric radiation by Plass* (1953)
have supported this view, and he considers that variations
65 L. D. Kaplan, “The Influence of Carbon Dioxide Variations on the Atmospheric Heat
Balance”, Letter to the Editor, Tellus, 1961, pp. 296-300, page 296, Annex 12.
66 Plass Paper, page 142, Annex 8.
67 G. Callendar, “Temperature fluctuations and trends over the earth”, Quarterly Journal of
The Royal Meteorological Society, 1961, pp. 1-12, page 10, Annex 13.
27
of atmospheric carbon dioxide are an important factor in
climatic change (Plass 1956).68
54. In 1962, the US National Academy of Sciences – National Research
Council (the definitive scientific institution in the United States of
America)69 explained in a study, in plain terms, that the burning of fossil
fuels leads to a higher amount of carbon dioxide in the atmosphere, which
causes temperatures to rise as well as other weather effects and ecological
misbalances. It stated that:
[t]here is evidence that the greatly increasing use of the
fossil fuels, whose material contents after combustion are
principally H2O and CO2, is seriously contaminating the
earth’s atmosphere with CO2. Analyses indicate that the
CO2 content of the atmosphere since 1900 has increased 10
percent. Since CO2 absorbs long-wavelength radiation, it
is possible that this is already producing a secular climatic
change in the direction of higher average temperatures.
This could have profound effects both on the weather and
on the ecological balances.
In view of the dangers of atmospheric contamination by
both the waste gases of the fossil fuels and the radioactive
contaminates from nuclear power plants, Professor
Hutchinson urges serious consideration of the maximum
utilization of solar energy.70
55. In 1963, a scientific paper published by the Conservation Foundation
concluded with a high level of certainty that the increase in carbon dioxide
68 G. Callendar, “Temperature fluctuations and trends over the earth”, Quarterly Journal of
The Royal Meteorological Society, 1961, pp. 1-12, page 9, Annex 13.
69 Courts of the United States of America consider the reports of the US National Academy
of Sciences as authoritative and as reflecting scientific consensus (see, e.g., Wise v Alcoa
Inc., 231 N.C. App. 159, 167 (2013), pages 5-6, Annex 465; Meister v Med Eng. Corp,
267 F.3d 1123 (D.C. Cir. 2001), Annex 466).
70 “Energy Resources: A Report to the Committee on Natural Resources of the National
Academy of Sciences”, United States National Academy of Sciences – National Research
Council, 1962, page 96, Annex 14.
28
caused global temperatures to rise to the devasting effect of melting the
polar ice caps, which in turn causes sea levels to rise and the warming of
the oceans. It stated:
[i]t seems quite certain that a continuing rise in the amount
of atmospheric carbon dioxide is likely to be accompanied
by a significant warming of the surface of the earth which
by melting the polar ice caps would raise sea level and by
warming the oceans would change considerably the
distributions of marine species including commercial
fisheries.71
56. The same paper also offered an ominous warning for future generations.
It stated:
[t]he effects of a rise in atmospheric carbon dioxide are
world-wide. They are significant not to us but to the
generations to follow. The consumption of fossil fuel has
increased to such a pitch within the last half century that the
total atmospheric consequences are matters of concern for
the planet as a whole.72
57. In 1965, the US President’s Science Advisory Committee released its
Report of the Environmental Pollution Panel for the President’s Science
Advisory Committee.73 This seminal report concluded that an increase in
carbon dioxide emissions driven by burning fossil fuels could “produce
measurable and perhaps marked changes in climate, and will almost
certainly cause significant changes in temperature and other properties of
71 “Implications of Rising Carbon Dioxide of the Atmosphere”, The Conservation
Foundation, 1963, page 1, Annex 15.
72 “Implications of Rising Carbon Dioxide of the Atmosphere”, The Conservation
Foundation, 1963, page 1, Annex 15.
73 See “Report of the Environmental Pollution Panel for the President’s Science Advisory
Committee”, The White House, November 1965 (“1965 Environmental Report”),
Annex 16.
29
the stratosphere.”74 It explained in clear terms the greenhouse effect of
carbon dioxide released into the atmosphere by human industrial
activities. It stated that:
[w]ithin a few short centuries, we are returning to the air a
significant part of the carbon that was slowly extracted by
plants and buried in the sediments during half a billion
years. . . . The part that remains in the atmosphere may
have a significant effect on climate: carbon dioxide is . . . a
strong absorber and back radiator of infrared radiation, . . .
consequently, an increase of atmospheric carbon dioxide
could act, much like the glass in a greenhouse, to raise the
temperature of the lower air.75
58. The 1965 Environmental Report described, again in clear terms, the
possible effects of an increase in atmospheric carbon dioxide, such as are
well-known today, including the melting of the Arctic ice caps, the rise of
sea levels, warming of seawater and increased acidity of freshwaters.76 It
also noted that “the climatic changes that may be produced by the
increased CO2 content could be deleterious from the point of view of
human beings.”77
59. In the same month that the 1965 Environmental Report was published, at
the 45th Annual Meeting of the American Petroleum Institute, the then-
President of this business association stated that:
[o]ne of the most important predictions of the report is that
carbon dioxide is being added to the earth’s atmosphere by
the burning of coal, oil, and natural gas at such a rate that
by the year 2000 the heat balance will be so modified as
74 1965 Environmental Report, pages 126-127, Annex 16.
75 1965 Environmental Report, page 113, Annex 16.
76 See 1965 Environmental Report, pages 123-124, Annex 16.
77 1965 Environmental Report, page 127, Annex 16.
30
possibly to cause marked changes in climate beyond local
or even national efforts. The report further states, and I
quote: ‘. . . the pollution from internal combustion engines
is so serious, and is growing so fast, that an alternative
nonpolluting means of powering automobiles, buses, and
trucks is likely to become a national necessity.’78
60. In 1966, a scientist wrote an essay in a bundle titled “Some thoughts on
the year 2000,” where he argued that:
[a]lready there are signs that air pollution has become a
global problem and could develop catastrophically in as
little as ten years. In the last few years it has been realised
that the sea also is not an infinite sink for waste products,
particularly where these are distributed as hydrocarbons at
the air water interface where dilution can only take place in
two dimensions.79
61. In 1967, a paper in the Journal of the Atmospheric Sciences estimated that
“a doubling of the CO2 content in the atmosphere [will have] the effect of
raising the temperature of the atmosphere . . . by about 2C.”80
62. In 1968, the Stanford Research Institute prepared a report for the
American Petroleum Institute which cautioned that rising carbon dioxide
levels in the atmosphere would result in increases in temperature at the
Earth’s surface.81 It also underscored that a significant temperature
78 “Proceedings of the American Petroleum Institute: Annual Meeting General Session”,
American Petroleum Institute, 1965, page 13, Annex 17.
79 J. Lovelock, Some thoughts on the year 2000: The future as seen half a century ago, in
THE COLOURS OF ENERGY: ESSAYS ON THE FUTURE OF ENERGY IN SOCIETY, eds. G.
Kramer & B. Vermeer (Shell International BV, 2015), PDF page 83, Annex 527.
80 S. Manabe & R. Wetherald, “Thermal Equilibrium of the Atmosphere with a Given
Distribution of Relative Humidity”, Journal of the Atmospheric Sciences, 1967, pp. 241-
259, page 241, Annex 18.
81 See “Report on Sources, Abundance, and Fate of Gaseous Atmospheric Pollutants”,
Stanford Research Institute, February 1968 (“1968 Report on Sources, Abundance,
and Fate of Gaseous Atmospheric Pollutants”), page 108, Annex 19.
31
increase could lead to sea level changes.82 In particular, this report stated
that:
[w]e are concerned with the possible changes in
atmospheric CO2 content because CO2 plays a significant
role in establishing the thermal balance of the earth. This
occurs because CO2 is a strong absorber and back radiator
in the infrared portion of the spectrum, especially between
12 and 18μ. As such CO2 prevents the loss of considerable
heat energy from the earth and radiates it back to the lower
atmosphere, the so-called “greenhouse” effect. Thus the
major changes which are speculated about as possibly
resulting from a change in atmospheric CO2 are related to a
change in the earth’s temperature . . . If the earth’s
temperature increases significantly, a number of events
might be expected to occur, including the melting of the
Antarctic ice cap, a rise in sea levels, warming of the
oceans, and an increase in photosynthesis.83
63. The same report even highlighted this finding in the summary at the
beginning. It noted that:
[i]f CO2 levels continue to rise at present rates, it is likely
that noticeable increases in temperatures could occur.
Changes in temperature on a world-wide scale could cause
major changes in the earth’s environment over the next
several hundred years including change in the polar ice
caps. It seems ironic that given this picture of the likely
result of massive CO2 emissions so little concern is given
to CO2 as an important air pollutant.84
82 See 1968 Report on Sources, Abundance, and Fate of Gaseous Atmospheric Pollutants,
page 108, Annex 19.
83 1968 Report on Sources, Abundance, and Fate of Gaseous Atmospheric Pollutants, pages
107-108, Annex 19.
84 1968 Report on Sources, Abundance, and Fate of Gaseous Atmospheric Pollutants, page
8, Annex 19.
32
64. This 1968 report also drew attention to the fact that “[t]he possibility that
changes in atmospheric CO2 could change world climate is not a new
idea.”85
65. Subsequently, at a meeting of the UN General Assembly in 1968, the US
Ambassador to the UN spoke with great concern about the possibility of
climate change resulting from the increase of anthropogenic greenhouse
gas emissions from the burning of fossil fuels. He suggested that even if
there were doubts about the consequences of climate change, these
consequences would be so devastating that humanity should not take the
risk of them materialising. Ambassador Wiggins addressed the leaders of
the world as follows:
[a]nd what are we going to do about the steadily rising
burden of carbon dioxide in the earth's atmosphere? In the
past hundred years, since fossil fuels began to be burned in
huge quantities, atmospheric carbon dioxide has increased
by close to 10 per cent. That increase will probably total
about 25 per cent by the year 2000, given the rapidly
accelerating rate of fuel consumption. Will the resulting
‘green-house’ effect cause a permanent warming of the
earth's climate, and perhaps even a rise in the world sea
level as the polar ice caps melt? No one is sure, though
much of human destiny could depend on the answer.86
66. At this same meeting, the Representative of the Republic of India to the
UN also noted that “nearly everyone agrees that there is an environment
crisis.”87 He noted that the “problems of human environment” that have
85 1968 Report on Sources, Abundance, and Fate of Gaseous Atmospheric Pollutants, page
105, Annex 19.
86 UN General Assembly, Agenda Item 91, 1733rd Plenary Meeting, A/PV.1733, 3
December 1968 (“General Assembly 23rd Session”), paragraph 38, Annex 276.
87 General Assembly 23rd Session, paragraph 125, Annex 276.
33
an international nature are “disturbances in temperatures and destruction
of ecological systems on land and water.”88
67. In 1970, a paper published by the National Academy of Sciences found
that current rates of carbon dioxide increase in the atmosphere would
cause a “very substantial change” in global temperatures.89 The paper
noted that:
[t]he effect of carbon dioxide is to increase the earth’s
temperature by absorbing outgoing terrestrial radiation.
Recent numerical studies have indicated that a 10%
increase in carbon dioxide should result, on the average, in
a temperature increase of about 0.3°C at the earth’s surface.
The present rate of increase of 0.7 ppm per year would
therefore (if extrapolated to 2000 A.D.) result in a warming
of about 0.6°C — a very substantial change.90
68. In 1970, the UK House of Commons also discussed the greenhouse effect
and the consequences of the resulting climate change. One member made
the following remarks in this respect:
[t]his has a “greenhouse” effect because it allows the sun’s
rays to come down but prevents them from escaping into
the atmosphere.
. . .
if this goes on, it is thought that by the end of the century
the temperature of the earth could be raised by two degrees
Centigrade, and this would begin to melt the ice caps. Water
generated by this melting process could, they say, be
sufficient in mass to flood many cities. But all is not lost.
88 General Assembly 23rd Session, paragraph 128, Annex 276.
89 G.S. Benton, “Carbon Dioxide and its Role in Climate Change”, Proceedings of the
National Academy of Sciences, 1970, pp. 898-899, page 898, Annex 20.
90 G.S. Benton, “Carbon Dioxide and its Role in Climate Change”, Proceedings of the
National Academy of Sciences, 1970, pp. 898-899, page 898, Annex 20.
34
We are pumping so much grit into the air that the sun's rays
are not able to get through, and they are deflected back into
the atmosphere. The ice-cap thus is catching up with us.91
69. In 1974, the US Central Intelligence Agency concluded a report titled “A
Study of Climatological Research as it Pertains to Intelligence
Problems.”92 The first sentence of this report highlighted the global
destabilising effect of climate change. It noted:
[t]he western world’s leading climatologists have
confirmed recent reports of a detrimental global change.
The stability of most nations is based upon a dependable
source of food, but this stability will not be possible under
the new climatic era. A forecast by the University of
Wisconsin projects that the earth’s climate is returning to
that of the neo-boreal era (1600-1850) — an era of drought,
famine, and political unrest in the western world.93
70. In 1975, a paper in the journal Science gravely warned that “[i]t is
possible that we are on the brink of a several-decades-long period of rapid
warming.”94 It explained the delayed onset of climatic change as follows:
the natural climatic cooling which, since 1940, has more
than compensated for the carbon dioxide effect, will soon
bottom out. Once this happens, the exponential rise in the
atmospheric carbon dioxide content will tend to become a
significant factor and by early in the next century will have
91 Statement by Mr C. Mather, Environmental Pollution, United Kingdom Parliament
Hansard, Volume 804, 21 July 1970, column 332, Annex 278.
92 “A Study of Climatological Research as it Pertains to Intelligence Problems”, The United
States of America Central Intelligence Agency, August 1974, Annex 21.
93 “A Study of Climatological Research as it Pertains to Intelligence Problems”, The United
States of America Central Intelligence Agency, August 1974, page 1, Annex 21.
94 W. S. Broecker, “Climatic Change: Are We on the Brink of a Pronounced Global
Warming?”, Science, 1975, pp. 460-463 (“1975 Broecker Paper”), page 460, Annex 22.
35
driven the mean planetary temperature beyond the limits
experienced during the last 1000 years.95
71. The report also noted in more detail:
[t]he major point of the argument is that over the past 30
years the warming trend due to CO2 has been more than
countered by a natural cooling. This compensation cannot
long continue both because of the rapid growth of the CO2
effect and because the natural cooling will almost certainly
soon bottom out. We may be in for a climatic surprise. The
onset of the era of CO2-induced warming may be much
more dramatic than in the absence of natural climatic
variations.96
and concluded:
[g]lobal temperature would begin a dramatic rise which
would continue for about four decades (that is, half the 80-
year cycle). This warming would by the year 2000 bring
average global temperatures beyond the range experienced
during the last 1000 years.97
72. Also in 1975, another paper used the term “greenhouse effect” to describe
the warming effect of the additional carbon dioxide in the atmosphere due
to the burning of fossil fuels. It also warned of “major climatic changes.”
It stated that:
[e]nergy from fossil sources has a specific problem: the
release of CO2. Even if all other by-products, i.e. SO2; or
NOx, were retained, CO2 would still be released into the
atmosphere: Increases in the CO2 content of the atmosphere
could lead to the so-called greenhouse effect, i.e. an
increase in average global temperature to overcome the
CO2 infrared absorption barrier of the atmosphere. This has
95 1975 Broecker Paper, page 460, Annex 22.
96 1975 Broecker Paper, page 463, Annex 22.
97 1975 Broecker Paper, page 462, Annex 22.
36
been estimated to be perhaps as high as 1° to 2°C for a
doubling of the CO2 content in the atmosphere, which
would be enough to induce major climatic changes.98
73. Another paper in Science of that year also again noted how carbon dioxide
creates a greenhouse effect. It noted that “[t]his trapping of the surface
radiation by the infrared bands, also known as the greenhouse effect,
would tend to increase the surface and atmospheric temperature.”99
74. In 1976, a paper published (yet again) in Tellus alarmingly found that
within 12 years the carbon dioxide rate had increased by 60%. It stated:
“the change in [CO2] rate roughly approximates that of fossil fuel
combustion which was 60% higher in 1971 than in 1959.”100
75. In 1977, a paper (yet again) in Science offered a slightly lower estimate
than the paper discussed above, yet no less worrying estimate of the
increase in carbon dioxide levels. It stated that:
[o]ne fact about CO2 that is known with certainty is that the
concentration in the atmosphere is increasing . . . [f]or the
remainder of this century the clearing of land will continue
and the use of fossil fuel will increase. As a result, by the
year 2000 the CO2 concentration will exceed preindustrial
levels by about 25 percent . . . [t]he most likely trend
appears to be warming, with effects considerably greater in
the polar regions than at mid-latitudes.101
98 “Second Status Report of the IIASA Project on Energy Systems 1975”, International
Institute for Applied Systems Analysis, 1975, page 144, Annex 23.
99 V. Ramanathan, “Greenhouse Effect Due to Chlorofluorocarbons: Climatic
Implications”, Science, 1975, pp. 50-52, page 50, Annex 24.
100 C. Keeling et al., “Atmospheric carbon dioxide variations at Mauna Loa Observatory,
Hawaii”, Tellus, 1976, pp 538-551, page 550, Annex 25.
101 P. H. Abelson, “Energy and Climate”, Science, 1977, page 941, Annex 26.
37
76. The paper concluded with the following frightening warning that there
would be no way back for humanity: “[h]umanity is in the process of
conducting a great global experiment. If unpleasant effects are
encountered they cannot be quickly reversed.”102
77. By 1980, the American Petroleum Institute had also established a CO2
and Climate Task Force. In 1980, a presentation was given to this task
force on “The CO2 Problem, Addressing Research Agenda
Development.”103 This presentation was both startling in its terms and its
predictive content. The following slide presented to the institute’s Task
Force speaks for itself:104
102 P. H. Abelson, “Energy and Climate”, Science, 1977, page 941, Annex 26.
103 Minutes of the Meeting of American Petroleum Institute CO2 and Climate Task Force
(AQ-9), 29 February 1980 (“Minutes of the Meeting of American Petroleum Institute
CO2 and Climate Task Force”), page 1, Annex 29.
104 Minutes of the Meeting of American Petroleum Institute CO2 and Climate Task Force,
PDF page 13, Annex 29.
38
78. Today, of course, we are living in that predicted world of “major
economic consequences” and “globally catastrophic effects.”105
79. In 1980, scientists were already sounding out the need for international
cooperation inter alia to control fossil combustion. A paper of that year
stated that:
there is concern about climate effects from the build-up of
carbon dioxide (CO2) in the atmosphere from combustion
of all carbon fuels including oil, gas, coal, and wood.
Currently there is uncertainty about CO2 inputs from
various sources, the absorption of CO2 by various sinks,
and the consequences of the effects of rising CO2 content
in the atmosphere. If the effects prove as serious as some
researchers predict, the resulting situation would call for
extraordinary kinds of international cooperation to control
world fuel combustion or, alternatively, the amount of
deforestation.106
80. In 1980, yet another paper in Science emphasised the great importance of
environmental issues created by the increase of carbon dioxide in the
atmosphere. It noted: “[t]he possible climatic effects of large increases in
atmospheric CO2 due to burning of fossil fuels may constitute one of the
important environmental problems of the coming decades.”107
81. Similar warnings accrued over the rest of that decade:
a. in 1981, a paper in the Journal of Geophysical Research warned
that the climate warming effect of the increase in atmospheric
105 Minutes of the Meeting of American Petroleum Institute CO2 and Climate Task Force,
PDF page 13, Annex 29.
106 “COAL—Bridge to the Future”, World Coal Study (WOCOL), 1980, page 135, Annex
27.
107 R. Madden & V. Ramanathan, “Detecting Climatic Change due to Increasing Carbon
Dioxide”, Science, 1980, pp. 763-768, page 763, Annex 28.
39
carbon dioxide was even more significant than previously
thought. It found that “results indicate that the direct contribution
for CO2 increases to surface heating may be larger than previously
calculated [and] the question of indirect influences of the CO2 is
still far from resolved”;108
b. in 1981, a report on a symposium that year mentioned that:
man’s activities may produce changes in climate
that exceed any which have occurred naturally in
the past 10 000 years. The cause is atmospheric
carbon dioxide. By burning fossil fuels and, most
probably, by deforestation and changing land-use,
man has upset the balance in the global carbon
dioxide budget and produced, over the past century,
a considerable increase in atmospheric CO2
concentration. Future changes will almost certainly
occur at an accelerating rate. These changes are
important because CO2 is a radiatively active gas.
It participates strongly in the radiation balance of
the atmosphere, effectively trapping out-going
long-wave radiation in the lower layers of the
atmosphere and producing a warming by the
‘greenhouse’ effect.109
and also that:
[t]hese are necessary consequences, because
increased CO2 will perturb the whole climate
system, and will do so in quite complex ways.
Furthermore, CO2-induced changes will occur not
only in temperature, but also in other
meteorological and oceanographic parameters,
108 J. Hummel & R. Reck, “Carbon Dioxide and Climate: The Effects of Water Transport in
Radiative-Convective Models”, Journal of Geophysical Research, 1981, pp. 12,035-
12,038, page 12,037, Annex 30.
109 T. Wigley, Energy production and climatic change: an assessment, in URANIUM AND
NUCLEAR ENERGY: 1981, The Uranium Institute (Butterworth Scientific Limited, 1981),
pp. 291-322, page 293, Annex 31.
40
pressure patterns, prevailing winds, rainfall, ocean
temperatures and currents, sea-ice distribution, etc.
All these are interlinked facets of the global climate
system.
How sure can we be that doubling of CO2 levels will
warm the globe by on average 2-3°C? The answer
is that we can have considerable confidence on this
estimate.110 (Emphasis in the original.)
c. in 1983, the US Environmental Protection Agency published the
“Projecting Future Sea Level Rise. Methodology, Estimates to
the Year 2100, and Research Notes.” This study concluded that
the increase in greenhouse gases in the atmosphere would cause a
substantial rise in sea levels. It stated:
[c]oncentrations of atmospheric CO2 and other
greenhouse gases will continue to increase in
coming decades. Two National Academy of
Sciences panels have concluded that higher levels
of these gases will almost certainly produce a large
global warming. That warming, by thermally
expanding the oceans and by causing the transfer of
ice and snow resting on land to the oceans, should
raise sea level substantially faster than the rise that
has taken place during the past century.111
d. in 1984, a paper in a treatise described that “for CO2 doubling, all
models produce a rise in global mean temperature of about
110 T. Wigley, Energy production and climatic change: an assessment, in URANIUM AND
NUCLEAR ENERGY: 1981, The Uranium Institute (Butterworth Scientific Limited, 1981),
pp. 291-322, page 304, Annex 31.
111 “Projecting Future Sea Level Rise. Methodology, Estimates to the Year 2100, and
Research Notes”, U.S. Environmental Protection Agency, 24 October 1983, page vi,
Annex 32.
41
2.5 K.”112 It also concluded that “[r]esults of [the model] show
that limiting equatorial response by evaporative buffering . . . does
not limit global response: rather, such buffering strongly amplifies
polar response”;113
e. in 1986, a scientific paper delivered the following warning:
“[e]vidence is mounting, however, that by burning fossil fuels,
leveling tropical forests, and engaging in a number of other
activities, humans are releasing gases to the atmosphere that could
trap enough heat to raise the temperature of the earth’s surface by
a few degrees Celsius.”114 It warned that “[a]lthough an average
warming of a few degrees does not sound like much, it could
create dramatic changes in climatic extremes.”115 It also pointed
out some of the consequences of climate change: “[c]hanges in the
timing and amount of precipitation will almost certainly occur if
the climate warms, affecting agriculture and hydroelectric
resources, among other things. Soil moisture, which is critical
during planting and early growth periods, will change”;116 and
f. in 1989, a scientific paper also set out the consequences of climate
change for certain vulnerable States. It provided that “some
112 B. Flannery et al., Energy Balance Models Incorporating Evaporative Buffering of
Equatorial Thermal Response, in CLIMATE PROCESSES AND CLIMATE SENSITIVITY, eds.
J. Hansen & T. Takahashi (American Geophysical Union, 1984), page 113, Annex 33.
113 B. Flannery et al., Energy Balance Models Incorporating Evaporative Buffering of
Equatorial Thermal Response, in CLIMATE PROCESSES AND CLIMATE SENSITIVITY, eds.
J. Hansen & Taro Takahashi (American Geophysical Union, 1984), page 116, Annex 33.
114 M. Shepard, “The Greenhouse Effect: Earth’s Climate in transition”, EPRI Journal,
1986, pp. 4-15 (“Shepard 1986 Paper”), page 5, Annex 34.
115 Shepard 1986 Paper, page 13, Annex 34.
116 Shepard 1986 Paper, page 13, Annex 34.
42
countries are acutely vulnerable to natural climatic variability that
may cripple their own food production or substantially reduce the
supply and raise the price of foodstuffs on the world market.
Under conditions of changing climate and growing population,
this situation may grow more precarious.”117
82. This list could go on and on. There can be no doubt: the harmful effect of
greenhouse gas emissions through inter alia the burning of fossil fuels has
been established through scientific knowledge for many decades. The
above list of historical scientific findings is unequivocal evidence of this
simple fact.
Current scientific observations confirm past predictions:
anthropogenic gas emissions are harming all States and areas outside
national jurisdiction
83. The scientific consensus is as clear as it is undeniable. As definitively
stated by the Intergovernmental Panel on Climate Change (“IPCC”), the
UN body for assessing the science related to climate change,118 “[h]uman
activities, principally through emissions of greenhouse gases, have
unequivocally caused global warming.”119 All UN Member States
unanimously agree that “anthropogenic emissions of greenhouses gases
117 P. H. Gleick, “The Implications of Global Climatic Changes for International Security”,
Climatic Change, 1989, pp. 309-325, page 311, Annex 35.
118 See “About”, Intergovernmental Panel on Climate Change, Annex 59. In 1988, the UN
Environment Programme and the World Meteorological Organization, a UN specialised
agency, created the IPCC and the UN General Assembly endorsed it (see UN General
Assembly Resolution 43/53 (1988), A/RES/43/53, 6 December 1988 (“UN General
Assembly Resolution 43/53”), paragraph 5, Annex 215).
119 “Climate Change 2023: Synthesis Report. Summary for Policymakers”, IPCC AR6
SYR, Intergovernmental Panel on Climate Change, 2023 (“IPCC 2023 Summary for
Policymakers”), page 4, Annex 57.
43
are unequivocally the dominant cause of global warming.”120 States and
international organisations also accept the science of climate change in
their submissions to the International Tribunal for the Law of the Sea (the
“ITLOS”).121
84. This science is simple but highly developed. Carbon dioxide, methane
and nitrous oxide exist in the Earth’s atmosphere in different forms.122
These gases are also referred to as “greenhouse gases” because, when they
are in the atmosphere, they absorb and re-radiate solar energy within the
Earth’s atmosphere. This traps the heat from the Sun in the Earth’s
atmosphere, creating an effect similar to the artificial trapping of solar
radiation by greenhouses.123
120 UN General Assembly Resolution 77/276, page 2, Annex 233.
121 In the 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), ITLOS Case No. 31 (“ITLOS Climate Change Advisory
Opinion”), see United Kingdom, Written Statement of 16 June 2023, paragraph 6,
Annex 325; European Union, Written Statement of 15 June 2023, paragraph 44, Annex
318; African Union, Written Statement of 16 June 2023, paragraphs 12, 21, Annex 322;
Republic of Chile, Written Statement of 16 June 2023, paragraphs 29, 33, 39, Annex
327; Commission of Small Island States on Climate Change and International Law
(COSIS), Written Statement of 16 June 2023, Vol I, paragraph 125, Annex 328;
Democratic Republic of the Congo (DRC), Written Statement of 13 June 2023,
paragraph 41, Annex 330; Arab Republic of Egypt, Written Statement of 16 June 2023,
paragraph 12, Annex 331.
122 See “Annex VII – Glossary. Climate Change 2021: The Physical Science Basis”,
Cambridge University Press, Intergovernmental Panel on Climate Change, 2021 (“IPCC
2021 Glossary”), page 2233, “Greenhouse gases”, Annex 50; “The greenhouse effect”,
British Geological Survey, Annex 60.
123 See IPCC 2021 Glossary, page 2232, “Greenhouse effect”, Annex 50; “The greenhouse
effect”, British Geological Survey, Annex 60; “Historical Overview of Climate Change-
Climate Change 2007: The Physical Science Basis. Contribution of Working Group I to
the Fourth Assessment Report of the Intergovernmental Panel on Climate Change”,
Cambridge University Press, Intergovernmental Panel on Climate Change, 2007, page
115, Annex 37.
44
85. Certain human activities release elements into the atmosphere, like
carbon, that are stored in organic and inorganic sources on or buried
within the Earth. When these activities release these elements into the
atmosphere, the elements combine with prevalent atmospheric oxygen to
increase the amount of greenhouse gases beyond that which would
naturally occur. Examples of such human activities leading to the release
of these elements, and corresponding release of greenhouse gases, include:
“burning of fossil fuels, deforestation, land use [(e.g., grazing, timber
extractions, etc.)] and land-use changes (LILIC), livestock production,
fertilisation, waste management, and industrial processes.”124
86. Human activities that increase the atmospheric concentration of
greenhouse gases have greatly increased since the Industrial era that began
in the United Kingdom in the eighteenth century.125 Industrialisation led
to a significant increase in combusting material containing carbon, such as
coal, petroleum and natural gas, as doing so became increasingly common
to power heavy transport and industry.126 When such fuels are burned,
their carbon content combines with oxygen to form carbon dioxide. That
124 IPCC 2021 Glossary, pages 2218 and 2236, “Anthropogenic emissions” and “Land use”,
Annex 50.
125 See G. Agbugba et al., The decoupling of economic growth from carbon emissions: UK
evidence, UK Office for National Statistics, 2019, page 6, Annex 44.
126 See “Global Carbon and other Biogeochemical Cycles and Feedbacks. Climate Change
2021 – The Physical Science Basis”, Cambridge University Press, Intergovernmental
Panel on Climate Change, 2021, pp. 673-815 (“IPCC 2021 Global Carbon, Report on
Climate Change, The Physical Science Basis”), page 687, Annex 47; in the ITLOS
Climate Change Advisory Opinion, see African Union, Written Statement of 16 June
2023, paragraph 22, Annex 322; Australia, Written Statement of 16 June 2023, paragraph
26, Annex 329; Commission of Small Island States on Climate Change and International
Law (COSIS), Written Statement of 16 June 2023, Vol I, paragraph 67, Annex 328;
Democratic Republic of the Congo (DRC), Written Statement of 13 June 2023,
paragraph 48, Annex 330.
45
carbon dioxide becomes part of the atmosphere and further adds to the
natural greenhouse gases that are already present in the atmosphere.127
87. Vegetation (e.g., forests) and oceans are natural “sinks” in the sense that
they can absorb heat and carbon dioxide, which mitigates the impacts of
increasing greenhouse gas concentration in the atmosphere.128
88. However, there is a limit to the amount of carbon dioxide and other
greenhouse gases that can be absorbed by these sinks.129 The
effectiveness of these sinks is also substantially decreased as heightened
concentrations of greenhouse gases, and the resulting temperature
increases, create environmental damage.130
89. As a result, due to anthropogenic gas emissions, there is a greater
concentration of greenhouse gases in the atmosphere than at any other
point in the last two million years.131 This increased concentration of
127 See IPCC 2021 Glossary, page 2230, “Fossil fuel emissions”, Annex 50.
128 See “How much carbon dioxide does the Earth naturally absorb?”, Ask MIT Climate,
Annex 61. See also “Summary for Policymakers. Climate Change 2021 – The Physical
Science Basis”, Cambridge University Press, Intergovernmental Panel on Climate
Change, 2021, page 4, paragraph A.1.1 and footnote 7, Annex 46; “Frequently Asked
Questions. Climate Change 2021: The Physical Science Basis”, Cambridge University
Press, Intergovernmental Panel on Climate Change, 2021, page 28-29, Annex 49; IPCC
2023 Summary for Policymakers, page 13, paragraph B.1.3, Annex 57.
129 See “How much carbon dioxide does the Earth naturally absorb?”, Ask MIT Climate,
Annex 61.
130 See “Summary for Policymakers. Climate Change 2021 – The Physical Science Basis”,
Cambridge University Press, Intergovernmental Panel on Climate Change, 2021, pages
19-21, paragraphs B.4 to B.5.4, Annex 46; IPCC 2023 Summary for Policymakers, page
12, paragraph B.1.3, Annex 57.
131 Atmospheric carbon dioxide is now 50%t higher than pre-industrial levels. The IPCC
has found with high confidence that historical cumulative net carbon dioxide emissions
from 1850 to 2019 were 2400±240 gigatons, of which 58% occurred between 1850 and
1989, and about 42% occurred between 1990 and 2019. In 2019, carbon dioxide
concentrations in the atmosphere were higher than at any time in at least two million
years. During the last measured decade, global average annual emissions of carbon
46
anthropogenically created gas is not offset by natural “sinks,” causing the
atmosphere to trap more heat and, therefore, rising global temperatures.132
90. Rising global temperatures cause a series of significant consequences,
detailed in particularity below. These consequences adversely impacted
the environmental, climactic systems, plants, animals and human beings.
At some point, a “tipping point” is reached where the consequences of
climate change become irreversible.133 Examples of “tipping point”
consequences include the melting of polar ice sheets and the drying of the
Amazon rainforest.134 These risks of irreversible damage escalate with
every increment of global warming: the risks are higher now when the
global average temperature rises 1.5ºC above pre-industrial levels and will
become even higher when temperatures reach 2ºC above global
averages.135 Indeed, this has been accepted by numerous States and
international organisations in their submissions to ITLOS.136 Many States
and international organisations agree that the tipping point is dangerously
dioxide reached the highest levels in human history, to at least 10 billion metric tons per
year. See “Climate Change 2022: Mitigation of Climate Change. Summary for
Policymakers”, Cambridge University Press, Intergovernmental Panel on Climate
Change, 2022, page 6, Annex 51; IPCC 2021 Global Carbon, Report on Climate Change,
The Physical Science Basis, page 676, Annex 47.
132 See IPCC 2023 Summary for Policymakers, page 12, paragraph B.1.1, Annex 57.
133 See “Climate Change 2023. Synthesis Report of the IPCC Sixth Assessment Report
(AR6). Longer Report”, IPCC AR6 SYR, Intergovernmental Panel on Climate Change,
2023, page 42, Annex 56; “United in Science”, World Meteorological Organization,
2022, Annex 55.
134 See “United in Science”, World Meteorological Organization, 2022, Annex 55.
135 See IPCC 2023 Summary for Policymakers, page 15, paragraph B.2.2, Annex 57.
136 In the ITLOS Climate Change Advisory Opinion, see Republic of Mauritius, Written
Statement of 16 June 2023, paragraphs 21, 53, Annex 320; Republic of Mauritius, Oral
Statement of 15 September 2023 (am), ITLOS/PV.23/C31/9, pages 18-19, Annex 346;
Republic of Mozambique, Written Statement of 16 June 2023, paragraph 3.65, Annex
321; African Union, Written Statement of 16 June 2023, paragraph 23, Annex 322;
People’s Republic of Bangladesh, Written Statement of 16 June 2023, paragraph 43,
Annex 323.
47
imminent now and that climate change is the biggest challenge of our
time.137
91. The IPCC also estimates that there is very little capacity left in the
atmosphere for the presence of anthropogenic greenhouse gases to
increase without the tipping point being reached.138 At current rates, the
world will reach human-induced global warming of 1.5ºC around 2040.139
That is why an urgent reduction in anthropogenic gas emissions is
required.
92. To expand on the above with particularity, anthropogenically caused
increased greenhouse gas emissions will cause significant consequences to
the environment, including: (a) rising temperatures of land and ocean and
affect air quality (see sub-section (i)); (b) rising sea-levels (see sub-section
137 In the ITLOS Climate Change Advisory Opinion, see Republic of Singapore, Written
Statement of 16 June 2023, paragraph 1, Annex 324; Pacific Community, Oral Statement
of 20 September 2023 (pm), ITLOS/PV.23/C31/15, pages 9-10, Annex 349; United
Kingdom, Written Statement of 16 June 2023, paragraph 4, Annex 325; Canada, Written
Statement of 16 June 2023, paragraph 3, Annex 326; African Union, Written Statement
of 16 June 2023, paragraph 2, Annex 322; People’s Republic of Bangladesh, Written
Statement of 16 June 2023, paragraph 3, Annex 323; Republic of Chile, Written
Statement of 16 June 2023, paragraph 70, Annex 327; People’s Republic of China,
Written Statement of 15 June 2023, paragraph 4, Annex 317; Commission of Small
Island States on Climate Change and International Law (COSIS), Written Statement of
16 June 2023, Vol I, paragraph 8, Annex 328; Argentine Republic, Oral statement of 13
September 2023 (pm), ITLOS/PV.23/C31/6, page 1, Annex 341.
138 See IPCC 2021 Global Carbon, Report on Climate Change, The Physical Science Basis,
page 739-741, 777 (“to limit global warming to 1.5°C above pre-industrial levels with
either a one-in-two (50%) or two-in-three (67%) chance the remaining carbon budgets
amount to 500 and 400 billion tonnes of CO2, respectively, from 1 January 2020 onward
. . . Currently, human activities are emitting around 40 billion tonnes of CO2 into the
atmosphere in a single year”), Annex 47.
139 See “Framing and Context. Global Warming of 1.5°C. An IPCC Special Report on the
impacts of global warming of 1.5°C above pre-industrial levels and related global
greenhouse gas emission pathways, in the context of strengthening the global response to
the threat of climate change, sustainable development, and efforts to eradicate poverty”,
Cambridge University Press, Intergovernmental Panel on Climate Change, 2018, page
81, Annex 43.
48
(ii)); (c) extreme weather events (see sub-section (iii)); (d) harm to
wildlife and ecosystems (see sub-section (iv)); (e) acidification and
deoxygenation of oceans (see sub-section (v)); and (f) loss and damage to
States and their peoples (see sub-section (vi)).140
(i) Anthropogenic gas emissions cause rising temperatures of land and
ocean and affect air quality
93. Climate change caused by anthropogenic gas emissions will lead to
stronger and more frequent land and marine heatwaves.141 In addition to
killing vulnerable humans, heatwaves cause increased mortality of a wide
variety of animal and marine species and have consequent effects on
ecosystems and industries such as agriculture and fisheries.142
94. Indeed, this impact of anthropogenic gas emissions has been accepted by
numerous States and international organisations in their submissions to
ITLOS.143
140 See IPCC 2023 Summary for Policymakers, page 16, Annex 57.
141 See “Weather and Climate Extreme Events in a Changing Climate. Climate Change 2021
– The Physical Science Basis”, Cambridge University Press, Intergovernmental Panel on
Climate Change, 2021, pp. 1513-1765, page 1519, Annex 48.
142 See “Oceans and Coastal Ecosystems and Their Services. Climate Change 2022: Impacts,
Adaptation and Vulnerability”, Cambridge University Press, Intergovernmental Panel on
Climate Change, 2022, pp. 379-550, page 460, Annex 52.
143 In the ITLOS Climate Change Advisory Opinion, see European Union, Written
Statement of 15 June 2023, paragraph 44, Annex 318; European Union, Oral Statement
of 20 September 2023 (am), ITLOS/PV.23/C31/14, page 21, Annex 350; Canada,
Written Statement of 16 June 2023, paragraphs 4,14, Annex 326; Pacific Community,
Written Statement of 16 June 2023, paragraph 9, Annex 332; United Kingdom, Written
Statement of 16 June 2023, paragraph 41(a), Annex 325; African Union, Written
Statement of 16 June 2023, paragraphs 2, 25, 27, 43, 95, 103-108, Annex 322; Australia,
Written Statement of 16 June 2023, paragraphs 25, Annex 329; People’s Republic of
Bangladesh, Written Statement of 16 June 2023, paragraph 32, Annex 323; People’s
Republic of Bangladesh, Oral statement of 13 September 2023 (pm),
ITLOS/PV.23/C31/6, page 21, Annex 342; Belize, Written Statement of 16 June 2023,
49
95. Climate change is expected to have negative impacts on human health,
including increased likelihood of undernutrition from diminished food
production; injury, disease and death resulting from more intense
heatwaves and fires; and higher risk of food, water and vector-borne
diseases.144 The World Bank estimates that a 2°C rise in the average
global temperature could potentially put between 100 million and 400
million more people at risk of hunger and could result in over three
million additional deaths from malnutrition each year.145
96. Anthropogenic gas emissions also directly degrade air quality, which has a
resultant negative effect on human and animal health.146 The effects of
this may be most acutely felt by developing States that have more limited
medical facilities.
paragraph 19(b), Annex 333; Belize, Oral statement of 18 September 2023(am),
ITLOS/PV.23/C31/11, page 27, Annex 348; Republic of Chile, Written Statement of 16
June 2023, paragraphs 33-34, 55-56, Annex 327; Republic of Chile, Oral Statement of 14
September 2023 (am), ITLOS/PV.23/C31/7, page 1, Annex 345; Commission of Small
Island States on Climate Change and International Law (COSIS), Written Statement of
16 June 2023, Vol I, paragraphs 63-65, 87-89, Annex 328; Republic of Djibouti, Written
Statement of 16 June 2023, paragraph 6, Annex 334; Democratic Republic of the Congo
(DRC), Written Statement of 13 June 2023, paragraph 65, Annex 330; Arab Republic of
Egypt, Written Statement of 16 June 2023, paragraphs 13-14, Annex 331; France,
Written Statement of 16 June 2023, paragraph 82, Annex 335; Japan, Written Statement
of 15 June 2023, page 2, Annex 319; Federal Republic of Germany, Written Statement of
14 June 2023, paragraph 32, Annex 316; Republic of Indonesia, Oral Statement of 15
September 2023 (am), ITLOS/PV.23/C31/9, pages 1-2, Annex 347.
144 See “Water. Climate Change 2022: Impacts, Adaptation and Vulnerability”, Cambridge
University Press, Intergovernmental Panel on Climate Change, 2022, pp. 551-712, pages
555-557, 585, Annex 53.
145 See “World Development Report 2010: Development and Climate Change”, The World
Bank, 7 June 2011, pages 4-5, Annex 500.
146 See “Annex I: Glossary. Global Warming of 1.5°C. An IPCC Special Report on the
impacts of global warming of 1.5°C above pre-industrial levels and related global
greenhouse gas emission pathways, in the context of strengthening the global response to
the threat of climate change, sustainable development, and efforts to eradicate poverty”,
Cambridge University Press, Intergovernmental Panel on Climate Change, 2018, pp.
541-562, page 542, Annex 42.
50
97. Such impacts will inevitably interact with human socio-economic risk
drivers, such as competition for land between urban expansion, food
production and pandemics.147 Invariably, human rights abuses may
materialise as societies struggle with these vast impacts and consequential
migration and social friction.148
(ii) Anthropogenic gas emissions cause rising sea levels
98. The IPCC states that anthropogenic gas emissions are the main driver of
the increase in sea levels seen since at least 1971.149 It also states that
global mean sea levels increased by approximately 0.20 metres between
1901 and 2018 and that sea levels are projected to continue rising with
what the IPCC describes in the IPCC 2023 Summary for Policymakers as
“risks for coastal ecosystems, people and infrastructure.”150
99. Indeed, this impact of anthropogenic gas emissions described by the IPCC
has been accepted by numerous States and international organisations in
their submissions to ITLOS.151
147 See IPCC 2023 Summary for Policymakers, page 15, paragraph B.2.3, Annex 57.
148 See “Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part A: Global and
Sectoral Aspects. Contribution of Working Group II to the Fifth Assessment Report of
the Intergovernmental Panel on Climate Change”, Intergovernmental Panel on Climate
Change, 2014, page 20, Annex 41.
149 See IPCC 2023 Summary for Policymakers, page 5, paragraph A.2.1, Annex 57.
150 IPCC 2023 Summary for Policymakers, page 15, paragraph B.2.2, Annex 57.
151 In the ITLOS Climate Change Advisory Opinion, see European Union, Written
Statement of 15 June 2023, paragraphs 44,46, Annex 318; European Union, Oral
Statement of 20 September 2023 (am), ITLOS/PV.23/C31/14, page 21, Annex 350;
Canada, Written Statement of 16 June 2023, paragraph 14, Annex 326; Republic of
Sierra Leone, Written Statement of 16 June 2023, paragraph 24, Annex 336; Kingdom of
the Netherlands, Written Statement of 16 June 2023, paragraph 4.7, Annex 338; United
Kingdom, Written Statement of 16 June 2023, paragraph 41(b), Annex 325; African
Union, Written Statement of 16 June 2023, paragraphs 2, 25, 112-116, Annex 322;
51
100. As a small island State, Barbados is particularly susceptible to coastal
inundation, sea level rise and coastal erosion.152
(iii) Anthropogenic gas emissions cause extreme weather events
101. Recent years have seen a concerning upward trend in the amount of
extreme weather events (such as floods, droughts, cyclones, heat waves
and wildfires) and deaths from such weather events.153 Such events have
huge impacts on economic activity in exposed sectors, such as agriculture,
forestry, fishery, energy and tourism with resultant impacts on individual
livelihoods.154 Such extreme weather events have been accepted as a
consequence of the global heating of anthropogenic gas emissions.
African Union, Oral Statement of 21 September 2023 (pm), ITLOS/PV.23/C31/17, page
2, Annex 352; People’s Republic of Bangladesh, Written Statement of 16 June 2023,
paragraphs 4, 9, 23, Annex 323; People’s Republic of Bangladesh, Oral Statement of 13
September 2023 (pm), ITLOS/PV.23/C31/6, page 21, Annex 342; Belize, Written
Statement of 16 June 2023, paragraph 19(c), Annex 333; Belize, Oral Statement of 18
September 2023 (am), ITLOS/PV.23/C31/11, page 27, Annex 348; Republic of Chile,
Written Statement of 16 June 2023, paragraphs 33, 34, 55, 56, Annex 327; Commission
of Small Island States on Climate Change and International Law (COSIS), Written
Statement of 16 June 2023, Vol I, paragraphs 93-95, Annex 328; Republic of Djibouti,
Written Statement of 16 June 2023, paragraph 6, Annex 334; Democratic Republic of the
Congo (DRC), Written Statement of 13 June 2023, paragraphs 65, 67, Annex 330; Arab
Republic of Egypt, Written Statement of 16 June 2023, paragraphs 13, 15, Annex 331;
France, Written Statement of 16 June 2023, paragraph 82, Annex 335; Japan, Written
Statement of 15 June 2023, page 2, Annex 319; Federal Republic of Germany, Written
Statement of 14 June 2023, paragraph 32, Annex 316; Republic of Indonesia, Oral
Statement of 15 September 2023 (am), ITLOS/PV.23/C31/9, pages 1-2, Annex 347.
152 See “Climate Change Knowledge Portal for Development Practitioners and Policy
Makers: Barbados”, The World Bank, Annex 58.
153 See A. Bárcena et al., The climate emergency in Latin America and the Caribbean: the
path ahead – resignation or action? (ECLAC Books, No. 160 (LC/PUB.2019/23-P),
Economic Commission for Latin America and the Caribbean, 2020) (“Bárcena, Climate
Emergency in Latin America”), pages 142-143, Annex 45.
154 See IPCC 2023 Summary for Policymakers, page 6, paragraph A.2.6, Annex 57.
52
102. Indeed, this impact of anthropogenic gas emissions has been accepted by
numerous States and international organisations in their submissions to
ITLOS.155
103. For example, Barbados is highly vulnerable to hurricanes and other
extreme weather events.156 Cyclones may be becoming more destructive
and frequent due to climate change.157 Small island developing States
often take years to recover from flooding by extreme weather events due
in part to the high cost of debt financing for such projects.158 If the trend
of increasingly strong hurricanes continues, these extreme weather events
may pose an existential risk to Barbados and other Caribbean and low
lying States.159
104. These adverse impacts are concentrated among economically and socially
marginalised persons such as the elderly and children.160 Extreme
weather events, such as heatwaves and hurricanes, cause disruptions in
155 In the ITLOS Climate Change Advisory Opinion, see African Union, Written Statement
of 16 June 2023, paragraph 24, Annex 322; People’s Republic of Bangladesh, Written
Statement of 16 June 2023, paragraphs 4, 9, 44, Annex 323; People’s Republic of
Bangladesh, Oral statement of 13 September 2023 (pm), ITLOS/PV.23/C31/6, page 21,
Annex 342; Belize, Written Statement of 16 June 2023, paragraph 20(a), Annex 333;
Republic of Djibouti, Written Statement of 16 June 2023, paragraph 6, Annex 334;
Democratic Republic of the Congo (DRC), Written Statement of 13 June 2023,
paragraph 68, Annex 330; France, Oral Statement of 25 September 2023 (am),
ITLOS/PV.23/C31/18, page 1, Annex 353.
156 See “Climate Change Knowledge Portal for Development Practitioners and Policy
Makers: Barbados”, The World Bank, Annex 58.
157 See “Weather and Climate Extreme Events in Changing Climate. Climate Change 2023:
The Physical Science Basis”, Cambridge University Press, Intergovernmental Panel on
Climate Change, pp. 1513-1765, page 1517, Annex 48.
158 See Building Resilience in Small Island Developing States, A compendium of research
prepared by the UNCTAD Division for Africa, Least Developed Countries and Special
Programmes, UNCTAD/ALDC/INF/2022/2, 31 January 2022, page 16, Annex 487.
159 See Bárcena, Climate Emergency in Latin America, page 122, Annex 45.
160 See IPCC 2023 Summary for Policymakers, page 6, paragraph A.2.7, Annex 57.
53
necessary healthcare and services for older persons, sometimes resulting
in the elderly being stranded without access to medical care.161 Extreme
weather events also bring about enduring consequences. For instance,
children’s access to education may be interrupted due to damage to their
schools.162
105. Extreme weather events also have collateral effects on, for example,
public finances and infrastructure in the form of property losses, lifestyle
changes and disruption of transport and international trade (which
reinforces poverty traps).163
(iv) Anthropogenic gas emissions harm wildlife and ecosystems
106. Wildlife and ecosystems often contain unique features and resources that
generally extend beyond national borders. They include deserts, semi-arid
lands, mountains, wetlands, small islands and certain coastal areas.164
161 See Report of the Office of the United Nations High Commissioner for Human Rights,
Analytical study on the promotion and protection of the rights of older persons in the
context of climate change, A/HRC/47/46, 30 April 2021, page 5, paragraph 11, Annex
486.
162 See Report of the Office of the United Nations High Commissioner for Human Rights,
Analytical study on the relationship between climate change and the full and effective
enjoyment of the rights of the child, A/HRC/35/13, May 2017, page 4, paragraph 10,
Annex 481.
163 See Bárcena, Climate Emergency in Latin America, Annex 45, citing (a) at page 158,
“Natural Hazards, Unnatural Disasters: The Economics of Effective Prevention”, The
World Bank, 2010, pages 10-22, Annex 499; and (b) at page 95, R. Caballeros-Otero &
R. Zapata, The impacts of natural disasters on developing economies: implications for
the international development and disaster community in DISASTER PREVENTION FOR
SUSTAINABLE DEVELOPMENT: ECONOMIC AND POLICY ISSUES, ed. Mohan Munasinghe &
Caroline Clarke (The World Bank, 1995), Annex 517.
164 See The Environment and Human Rights (State Obligations in Relation to The
Environment in the Context of the Protection and Guarantee of the Rights to Life and to
Personal Integrity: Interpretation and Scope of Articles 4(1) and 5(1) in Relation to
Articles 1(1) and 2 of the American Convention on Human Rights). Advisory Opinion
OC-23/17 of November 15, 2017. Series A No. 23 (“IACtHR 2017 Advisory
Opinion”), paragraph 142, footnote 279, Annex 372.
54
Climate change caused by anthropogenic gas emissions (and resulting
extreme events such as floods, droughts, cyclones, heat waves and fires)
affects the functioning of ecosystems, biodiversity and ecosystem
services.165
107. Irreversible damage to wildlife and ecosystems has already occurred due
to anthropogenic gas emissions. Certain local species have gone extinct
due to heat extremes and mass mortality events – and others are
significantly endangered.166 As the warming levels further rise, the risk of
species extinction and loss of biodiversity in key ecosystems (such as
forests, coral reefs and the Arctic regions) also rises.167 Many
communities depend on those ecosystems for food and employment, such
as tourism and conservation.168 Loss of those resources will inevitably
lead to conflict, mass migration and the accompanying human rights
abuses.169
108. The impact of anthropogenic gas emissions on wildlife and ecosystems
has been accepted by numerous States and international organisations in
their submissions to ITLOS.170
165 See “Terrestrial and Freshwater Ecosystems and Their Services. Climate Change 2022:
Impacts, Adaptation and Vulnerability”, Cambridge University Press, Intergovernmental
Panel on Climate Change, 2022, pp. 197-377, page 202, Annex 54.
166 See IPCC 2023 Summary for Policymakers, page 5, paragraph A.2.3 and page 18,
paragraph B.3.2, Annex 57.
167 See IPCC 2023 Summary for Policymakers, page 19, paragraph B.3.2, Annex 57.
168 See IPCC 2023 Summary for Policymakers, pages 5-6, paragraphs A.2.3-A.2.6, Annex
57.
169 See IPCC 2023 Summary for Policymakers, page 19, paragraph B.3.2, Annex 57.
170 In the ITLOS Climate Change Advisory Opinion, see European Union, Written
Statement of 15 June 2023, paragraph 45, Annex 318; European Union, Oral Statement
of 20 September 2023 (am), ITLOS/PV.23/C31/14, page 21, Annex 350; Canada,
55
(v) Anthropogenic gas emissions acidify and deoxygenate oceans
109. Due to the anthropogenic gas emissions already in the atmosphere, ocean
acidification is imminent despite attempts to keep the global temperature
rise within 1.5ºC.171 Ocean acidification is a result of increased
concentration of carbon dioxide dissolved in ocean waters, depleting
oxygen levels in the ocean and thereby making the oceans more acidic.172
This deeply impacts sea life as ocean acidity hinders sea organisms’
Written Statement of 16 June 2023, paragraphs 4-5, Annex 326; Republic of Mauritius,
Written Statement of 16 June 2023, paragraph 19, Annex 320; Republic of Mozambique,
Written Statement of 16 June 2023, paragraph 3.27, Annex 321; Pacific Community,
Written Statement of 16 June 2023, paragraph 11, Annex 332; United Kingdom, Written
Statement of 16 June 2023, paragraph 41(a)-(c), Annex 325; African Union, Written
Statement of 16 June 2023, paragraphs 24, 94, Annex 322; African Union, Oral
Statement of 21 September 2023 (pm), ITLOS/PV.23/C31/17, pages 2, 17, Annex 352;
People’s Republic of Bangladesh, Written Statement of 16 June 2023, paragraphs 24, 26,
Annex 323; People’s Republic of Bangladesh, Oral statement of 13 September 2023
(pm), ITLOS/PV.23/C31/6, pages 21, 22, 23, Annex 342; Belize, Written Statement of
16 June 2023, paragraph 19(a), Annex 333; Belize, Oral Statement of 18 September 2023
(am), ITLOS/PV.23/C31/11, pages 27-28, Annex 348; Republic of Chile, Written
Statement of 16 June 2023, paragraphs 37, 38, 91, Annex 327; Republic of Chile, Oral
Statement of 14 September 2023 (am), ITLOS/PV.23/C31/7, pages 6, 7, Annex 345;
Commission of Small Island States on Climate Change and International Law (COSIS),
Written Statement of 16 June 2023, Vol I, paragraphs 90-92, 113-119, Annex 328;
Democratic Republic of the Congo (DRC), Written Statement of 13 June 2023,
paragraphs 66, 76-81, Annex 330; Arab Republic of Egypt, Written Statement of 16 June
2023, paragraphs 14, 76, Annex 331; France, Written Statement of 16 June 2023,
paragraphs 86, 87, 93, Annex 335; Japan, Written Statement of 15 June 2023, page 2,
Annex 319; Republic of Indonesia, Oral Statement of 15 September 2023 (am),
ITLOS/PV.23/C31/9, pages 1-2, Annex 347.
171 See IPCC 2023 Summary for Policymakers, pages 12 and 13, paragraph B.1.3, Annex
57.
172 See “Summary for Policymakers. Climate Change 2021 – The Physical Science Basis”,
Cambridge University Press, Intergovernmental Panel on Climate Change, 2021, page 5,
paragraph A.1.6, Annex 46; IPCC 2021 Glossary, page 2241, “Ocean acidification”,
Annex 50.
56
ability to build shells, thereby posing a significant risk to the marine
ecosystem.173
110. Such damage to the oceans has a negative impact on humans. Persons are
reliant on the marine environment for their livelihood, such as those who
work in the fishing industry. In this respect, harm to the oceanic
environment directly affects their social and economic rights. Human
enjoyment of the oceans is also protected under the right to a healthy
environment, of which the oceans are a significant part.
111. This impact of anthropogenic gas emissions has been accepted by
numerous States and international organisations in their submissions to
ITLOS.174
173 See “Oceans and Coastal Ecosystems and Their Services. Climate Change 2022: Impacts,
Adaptation and Vulnerability”, Cambridge University Press, 2022, Intergovernmental
Panel on Climate Change, pp. 379-550, page 460, Annex 52.
174 In the ITLOS Climate Change Advisory Opinion, see Republic of Sierra Leone, Written
Statement of 16 June 2023, paragraph 31, Annex 336; Federated States of Micronesia,
Written Statement of 16 June 2023, paragraph 32, Annex 337; Socialist Republic of
Vietnam, Oral Statement of 20 September 2023 (am), ITLOS/PV.23/C31/14, page 42,
Annex 351; United Kingdom, Written Statement of 16 June 2023, paragraphs 4, 41(c),
Annex 325; Republic of Rwanda, Written Statement of 17 June 2023, paragraph 129,
Annex 340; European Union, Written Statement of 15 June 2023, paragraphs 44-45,
Annex 318; European Union, Oral Statement of 20 September 2023 (am),
ITLOS/PV.23/C31/14, page 21, Annex 350; Republic of Mozambique, Written
Statement of 16 June 2023, paragraph 3.27, Annex 321; Canada, Written Statement of 16
June 2023, paragraph 14, Annex 326; Republic of Latvia, Written Statement of 16 June
2023, paragraph 17, Annex 339; Kingdom of the Netherlands, Written Statement of 16
June 2023, paragraph 2.5, Annex 338; African Union, Written Statement of 16 June
2023, paragraphs 2, 25, 95, 98-102, Annex 322; African Union, Oral Statement of 21
September 2023 (pm), ITLOS/PV.23/C31/17, page 2, Annex 352; People’s Republic of
Bangladesh, Written Statement of 16 June 2023, paragraph 24, Annex 323; People’s
Republic of Bangladesh, Oral Statement of 13 September 2023, ITLOS/PV.23/C31/6,
pages 21-22, Annex 342; Belize, Written Statement of 16 June 2023, paragraph 19(a),
Annex 333; Republic of Chile, Written Statement of 16 June 2023, paragraphs 33, 35,
55, 56, Annex 327; Republic of Chile, Oral Statement of 14 September 2023 (am),
ITLOS/PV.23/C31/7, pages 1, 7, Annex 345; Commission of Small Island States on
Climate Change and International Law (COSIS), Written Statement of 16 June 2023,
57
(vi) Like many other States and their peoples, Barbados and its citizens
are already experiencing loss and damage due to climate change
112. Some of the worst effects of anthropogenic gas emissions are felt by small
island States and other developing States.175 Although they are among the
least responsible of all nations for climate change caused by these gas
emissions, these States are likely to suffer strongly from its adverse
effects.176 This makes them a special case requiring the help and attention
of the international community.177 The impact of anthropogenic gas
paragraphs 98-103, 110-113, Annex 328; Democratic Republic of the Congo (DRC),
Written Statement of 13 June 2023, paragraphs 65, 69, Annex 330; Arab Republic of
Egypt, Written Statement of 16 June 2023, paragraphs 13-14, Annex 331; Japan, Written
Statement of 15 June 2023, page 2, Annex 319; Federal Republic of Germany, Written
Statement of 14 June 2023, paragraph 32, Annex 316; Republic of Indonesia, Oral
Statement of 15 September 2023 (am), ITLOS/PV.23/C31/9, pages 1-2, Annex 347.
175 See “On the Frontlines of Climate Change, Small Island States Can Lead in Resilience”,
The World Bank, 11 April 2022, Annex 501.
176 G20 States account for around 78% of global greenhouse gas emissions and “largely
determine global emission trends” (“Emissions Gap Report 2019”, UN Environment
Programme, 2019, page 16, Annex 488 bis).
177 See “Climate change, small island developing States”, Climate Change Secretariat,
United Nations Framework Convention on Climate Change (UNFCCC), 2005, page 5,
Annex 474.
58
emissions on small island States has been accepted by numerous States
and international organisations in their submissions to ITLOS.178
113. Climate change is “already wreaking havoc on Barbados.”179 There has
been a “significant drying trend” in the Caribbean in the last decades and a
noticeable decline in annual rainfalls.180 In the period 1961-2010,
temperatures during the day have risen and there has been a significant
increase in extreme warm temperatures.181 Sea levels are already rising in
the Caribbean.182 Caribbean States face a scarcity of freshwater such that,
178 In the ITLOS Climate Change Advisory Opinion, see Republic of Singapore, Written
Statement of 16 June 2023, paragraph 1, Annex 324; Republic of Mauritius, Written
Statement of 16 June 2023, paragraphs 3, 17, Annex 320; United Kingdom, Written
Statement of 16 June 2023, paragraph 5, Annex 325; Canada, Written Statement of 16
June 2023, paragraph 4, Annex 326; African Union, Written Statement of 16 June 2023,
paragraphs 11, 52, Annex 322; Belize, Written Statement of 16 June 2023, paragraph 15,
Annex 333; Commission of Small Island States on Climate Change and International
Law (COSIS), Written Statement of 16 June 2023, Vol I, paragraphs 8, 122-124, Annex
328; Democratic Republic of the Congo (DRC), Written Statement of 13 June 2023,
paragraph 54, Annex 330; Australia, Oral Statement of 13 September 2023 (am),
ITLOS/PV.23/C31/5, page 2, Annex 343; Federal Republic of Germany, Oral Statement
of 13 September 2023 (am), ITLOS/PV.23/C31/5, page 17, Annex 344; Argentine
Republic, Oral Statement of 13 September 2023 (pm), ITLOS/PV.23/C31/6, page 1,
Annex 341; Republic of Chile, Oral Statement of 14 September 2023 (am),
ITLOS/PV.23/C31/7, page 6, Annex 345; European Union, Oral Statement of 20
September 2023 (am), ITLOS/PV.23/C31/14, page 21, Annex 350; France, Oral
Statement of 25 September 2023 (am), ITLOS/PV.23/C31/18, page 1, Annex 353.
179 Barbados 2021 Update of the First Nationally Determined Contribution, 1 January 2021,
page 6, Annex 306.
180 T. Stephenson et al., “Changes in extreme temperature and precipitation in the Caribbean
region, 1961-2010”, International Journal of Climatology, pp. 2957-2971, pages 2958-
2959, Annex 40 bis. See also Dr A. Thomas et al., “Science of Climate Change and the
Caribbean: Findings from the Intergovernmental Panel on Climate Change (IPCC) Sixth
Assessment Cycle (AR6)”, IPCC AR6 (“Science of Climate Change and the
Caribbean”), page 13, Annex 61 bis.
181 See T. Stephenson et al., “Changes in extreme temperature and precipitation in the
Caribbean region, 1961-2010”, International Journal of Climatology, pp. 2957-2971,
pages 2962-2963, Annex 40 bis. See also Science of Climate Change and the Caribbean,
page 13, Annex 61 bis.
182 See The Climate Studies Group Mona, The University of the West Indies, “The State of
the Caribbean Climate”, 2020, page 40, Annex 44 bis.
59
for example, Barbados must rely on desalination to meet the freshwater
needs of its population.183 Barbados is one of the world’s most water
stressed States.184 Further:
[t]he likelihood is that with increasing population and
social trends Caribbean island states will become evermore
water scarce, making additional increases in supply very
expensive and environmentally sensitive.185
114. As both a small island and a developing State, Barbados “face[s] the
consequences of climate change with a very limited quantity of economic,
social and natural resources.”186 The International Monetary Fund has
assessed that “Barbados is highly vulnerable to climate change due to
increased frequency and intensity of climate-induced natural disasters” yet
its “greenhouse gas emissions are low, contributing to less than 0.01
percent of the global total.”187
183 See A. Cashman et al., “Climate Change in the Caribbean: The Water Management
Implications”, The Journal of Environment & Development, 2010, pp. 42-67 (“Climate
Change in the Caribbean”), page 48, Annex 39 bis. See also Science of Climate
Change and the Caribbean, page 17, Annex 61 bis.
184 See The Climate Studies Group Mona, The University of the West Indies, “The State of
the Caribbean Climate”, 2020, page 89, Annex 44 bis.
185 Climate Change in the Caribbean, page 47, Annex 39 bis.
186 Barbados 2021 Update of the First Nationally Determined Contribution, 1 January 2021,
page 6, Annex 306.
187 “Barbados – Staff Report for the 2023 Article IV Consultation and Second Reviews
under the Arrangement under the Extended Fund Facility Arrangement and Arrangement
under the Resilience and Sustainability Facility – World Bank Assessment Letter for the
Resilience and Sustainability Facility”, International Monetary Fund, 6 December 2023
(“IMF Report on Barbados”), paragraphs 1-2, Annex 502.
60
115. Barbados is already allocating significant resources to initiatives aimed at
building resilience and adaptive capacity to climate change in Barbados.
This includes, for example:
a. the Roofs to Reef Program aimed at enhancing the capacity of
Barbados to “recover from climatic events”;188
b. the Water Resource Management and Flood Resilience Program
which seeks to improve “water resource management and flood
resilience”;189
c. the National Coastal Risk Information and Planning Platform
which provides key data relating to Barbados’s vulnerability to
coastal hazards;190
d. the Water Sector Resilience Nexus for Sustainability in Barbados
which “is designed to strengthen the resilience of Barbados to the
impacts of climate change” and “support adaptation measures in
the water sector”;191 and
e. an Integrated Coastal Zone Management Plan which involves
assessing and anticipating climate-related risks in order to
strengthen Barbados’s resilience to coastal hazards and mitigate
climate change induced risks.192
188 “Barbados Resilience Profile”, USAID, May 2021 (“Barbados Resilience Profile”),
page 5, Annex 46 bis.
189 Barbados Resilience Profile, page 5, Annex 46 bis.
190 See Barbados Resilience Profile, page 5, Annex 46 bis.
191 Barbados Resilience Profile, page 5, Annex 46 bis.
192 See “Integrated Coastal Zone Management: The Barbados Policy Framework (2020 to
2030)”, ICZM Plan Vol.1, July 2020, page 8, Annex 371 bis.
61
116. Nevertheless, Barbados and its citizens are already experiencing loss and
damage due to climate change. Loss and damage refers to the “negative
effects of climate change that occur despite mitigation and adaptation
efforts” which are the “unavoidable and irreversible impacts of the climate
crisis.”193
117. As Prime Minister Mia Mottley stated on World Environment Day 2023:
as Barbadians, the truth is that each day serves as an
environment day for us. With the rising sea levels impacting
our island, from Six Men’s to Silver Sands, worsening
quantities of Sargassum Seaweed blanketing our shores, and
the days and nights getting warmer, we know and feel the
effects of the Climate Crisis in our nation.
[O]n June 17 [2021], we were impacted by a freak storm and
three months later, Hurricane Elsa became the first major
hurricane to hit the country since 1955, impacting homes,
destroying crops, damaging livestock in the hundreds of
thousands and resulting in damage in excess of US $35
million.194
118. In December 2023, the Heads of Government to the Caribbean
Community made a joint statement noting that:
[t]he impacts [of climate change] have been devasting for
our Region. Loss and damage have struck at the core of our
economies and our societies. At one extreme, lives and
livelihoods have been lost. At the other extreme, our
193 “About loss and damage”, UN Environment Programme, 2024, Annex 490.
194 “Prime Minister Statement for World Environment Day 2023”, Barbados Government
Information Service, 5 June 2023, Annex 315.
62
environment is under siege. We pay for our losses from
threadbare pockets.195
119. Barbados has made huge strides forward in recent years as a vibrant and
economically productive democracy. But the disproportionately high
impact of climate change on Barbados puts that progress at risk.196 For
example, Bridgetown harbour is the primary economic coastal asset of the
State.197 The harbour handles the most tourists per year in Barbados but
already stands significantly impacted by a rise in sea levels, storm surges
and coastal erosion, with the prospect of worse ahead.198
120. Unfortunately, the Caribbean will face severe climate consequences due to
its low-lying land mass and fragile marine environments.199 Climate
models demonstrate that the Caribbean, including Barbados, will face
further deleterious effects of climate change in the near future. These
models evidence an increase in annual temperatures in the Caribbean “of
approximately 2.9°C” for the period 2071-2100 which is “well outside the
range of natural variability.”200 Projections for seasonal temperatures
195 Joint statement for the Heads of Government of the Caribbean Community (CARICOM)
at the twenty-eighth session of the Conference of the Parties (COP 28) to the United
Nations Framework Convention on Climate Change (UNFCCC), 4 December 2023, page
1, Annex 370 bis.
196 See “INDC Project Actions and Impacts: Barbados”, United Nations Development
Programme, May 2019, Annex 484.
197 See M. Mycoo et al., “Human Adaptation to Coastal Hazards in Greater Bridgetown,
Barbados”, Frontiers in Environmental Science, 2021, Annex 533.
198 See M. Mycoo et al., “Human Adaptation to Coastal Hazards in Greater Bridgetown,
Barbados”, Frontiers in Environmental Science, 2021, pages 6, 12, Annex 533. See also
IMF Report on Barbados, paragraph 1, Annex 502.
199 See “Climate Change 2023. Synthesis Report of the IPCC Sixth Assessment Report
(AR6). Longer Report”, IPCC AR6 SYR, Intergovernmental Panel on Climate Change,
2023, pages 16-17, Annex 56.
200 J. D. Campbell et al., “Future climate of the Caribbean from a regional climate model”,
International Journal of Climatology, 2010, pp. 1866-1878, PDF page 10, Annex 38 bis.
63
further suggest an increase of 2°C to 5°C across the Caribbean for the
same period.201
121. Sea levels in the Caribbean will rise at a rate of “5.0 to 10.0mm per year”
in the “next several decades”, putting low lying coastal islands of the
Caribbean in great distress.202 For example, as Barbados communicated
to the UNFCCC in 2018, it faces considerable loss of coastal area due to
climate change. This is seen in the following two pictures:203
201 J. D. Campbell et al., “Future climate of the Caribbean from a regional climate model”,
International Journal of Climatology, 2010, pp. 1866-1878, PDF page 10, Annex 38 bis.
202 Climate Change in the Caribbean, pages 51-52, Annex 39 bis.
203 See Barbados’ Second National Communication under the United Nations Framework
Convention on Climate Change, April 2018, pages 50-51, Annex 359, citing Simpson et
al., “CARIBSAVE Climate Change Risk Atlas (CCCRA) – Barbados”, 2012, DFID,
AusAID and The CARIBSAVE Partnership, Barbados, West Indies, pages 79-80, Annex
41 bis.
64
65
66
122. The combination of drought conditions and rising sea levels will also
foster “salinity intrusion into coastal and groundwater aquifers,” further
threatening freshwater resources of Caribbean States.204
123. Rising sea levels, ocean acidification and coral bleaching will adversely
affect reef fishing in the Caribbean.205 This will have a significant impact
on small-scale fisheries that rely on reef fishing for their livelihoods.206
124. As about 70% of the Caribbean population lives and works in coastal
areas, where most of the infrastructure is located:
the cost to Caribbean [small island developing States] from
increased hurricane damage, infrastructure damage and loss
of tourism revenue due to climate change is projected to
reach $22 billion by 2050 or about 10% of the current
regional economy.207
125. Barbados faces the prospect of these and further climate change impacts.
In addition to droughts and rising sea levels described above, these
impacts include eroding shorelines and loss of reefs and fisheries.208 The
204 Climate Change in the Caribbean, page 52, Annex 39 bis.
205 See L. Nurse, “The implication of global climate change for fisheries management in the
Caribbean”, Climate and Development, 2011, pp. 228-241, pages 231-232, Annex 42 bis.
206 See L. Nurse, “The implication of global climate change for fisheries management in the
Caribbean”, Climate and Development, 2011, pp. 228-241, pages 232-233, Annex 42 bis.
207 “Rising to the climate challenge: Coastal and marine resilience in the Caribbean”, Canari
Issue Paper, 2021, page 2, Annex 45 bis.
208 See “Barbados Resists Climate Colonialism in an Effort to Survive the Costs of Global
Warming” ProPublica, 27 June 2022, Annex 310. See also IMF Report on Barbados,
paragraph 1, Annex 502; Science of Climate Change and the Caribbean, pages 18 and 26
(“further loss of 70-90% of reef-building corals compared to today, with 99% of corals
being lost under warming of 2°C or more above the pre-industrial period (high
confidence)”), Annex 61 bis.
67
loss of reefs reduces protection against sea surges and tsunamis,
increasing the island’s vulnerability.209
126. As part of its leadership in addressing the impacts of climate change on
behalf of all vulnerable peoples and States, Barbados is honoured that it
has been selected to serve as the next Chair of the Climate Vulnerable
Forum (“CVF”). The CVF is an international partnership of sixty-eight
developing countries, representing over 1.74 billion people and USD 3.8
trillion of gross domestic product, who are uniquely vulnerable to the
adverse impacts of climate change. The CVF is also forming an
independent Secretariat, headed by former Maldives President Mohamed
Nasheed as Secertary-General, to continue its work to address the impact
of climate change on vulnerable States.210 Barbados reaffirms its
commitment to the CVF and, indeed, to the amelioration of the harms of
climate change for all vulnerable States around the world.
209 See “Oceans and Coastal Ecosystems and Their Services. Climate Change 2022: Impacts,
Adaptation and Vulnerability”, Cambridge University Press, Intergovernmental Panel on
Climate Change, 2022, pp. 379-550, page 382, Annex 52.
210 See, e.g., “Barbados to Hold Next Climate Vulnerable Forum Presidency with former
Maldives president Mohamed Nasheed as first CVF-V20 Secretary-General”, Climate
Vulnerable Forum, Vulnerable Twenty Group, 1 December 2023, Annex 368 bis; “The
Climate Vulnerable Forum & The Vulnerable Group of Twenty – An Overview Guide”,
Climate Vulnerable Forum, Vulnerable Twenty Group, 2022, pages 8, 12-13, Annex 369
bis.
68
V. THIS COURT SHOULD ANSWER THE REQUEST ON THE
BASIS OF INTERNATIONAL LAW AS IT EXISTS
127. As the principal judicial organ of the UN, the Court should answer this
Request on the basis of international law as it exists, in light of all relevant
sources of law. It should do so notwithstanding the prevailing policy
considerations of large and developed States on climate change.
128. This advisory opinion is not like the Nuclear Weapons Advisory Opinion.
In that advisory opinion, this Court decided that the threat or use of
nuclear weapons would “generally” be contrary to international law but
could not conclude “definitively” whether such weapons would be
unlawful.211 It did so only because the relevant legal principles were not
yet fully established in international law. The opposite is true in respect
of this advisory opinion.
129. This Court should have regard to the full panoply of sources when
considering the existence and scope of each obligation, rule, duty and
principle of international law under the Request. International law is rich
with sources from all legal traditions, languages and backgrounds. This
written statement discusses international law obligations, duties, rules and
principles that are accepted under multiple sources of international law
listed in Article 38 of the ICJ Statute. This includes “international
conventions,” “international custom, as evidence of a general practice
accepted as law,” “general principles of law,” “judicial decisions” and the
“teachings of the most highly qualified publicists.”212 Indeed, the sources
listed in this written statement include historical conventions. This Court
211 Nuclear Weapons Advisory Opinion, paragraph 105(2)(E), Annex 392.
212 ICJ Statute, Article 38.
69
also refers to various materials as evidence of customary international law,
including domestic court decisions, domestic legislation, resolutions of
UN organs and other specialised agencies, decisions and commentaries of
treaty bodies and reports of the International Law Commission
(the “ILC”), all of which are cited here.213
130. Some States may have different public policy considerations, especially as
concerns the costs of redress and mitigation of climate change damage.
However, unlike States before this Court in the Nuclear Weapons
Advisory Opinion, the international community agrees about the climate
emergency and the need for international courts to clarify international
law. It is no coincidence that UN Member States unanimously agreed to
request this Court for an advisory opinion on this topic too.214 As
explained throughout this written statement, the legal principles at issue in
this advisory opinion have been well-established in international law for
decades and centuries – indeed, they were uncontested before Roman
times.
213 See, e.g., Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, Advisory Opinion of 9 July 2004, I. C. J. Reports 2004, p. 136, pages 171-179,
Annex 417; I. Brownlie, Principles of Public International Law (Oxford, 5ed., 1998),
page 5, Annex 512; S. Rosenne, The Law and Practice of the International Court, 1920-
2005 (Martinus Nijhoff Publishers, 4ed., 2006), pages 1551-1552, Annex 514; Nuclear
Weapons Advisory Opinion, paragraph 70, Annex 392.
214 See UN General Assembly Resolution 77/276, Annex 233.
70
VI. QUESTION (A): WHAT ARE THE OBLIGATIONS OF STATES
UNDER INTERNATIONAL LAW TO ENSURE 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?
ANSWER
132. This Section sets out the obligations of States under international law to
ensure 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. This comprises: (a) the obligation not to
cause transboundary harm (see Section VI.A); (b) the obligation to protect
and preserve the environment within a State’s own jurisdiction (see
Section VI.B); (c) the obligation to protect and preserve the environment
in areas beyond national control (see Section VI.C); (d) the obligation to
mitigate and repair (see Section VI.D); (e) the obligation to cooperate (see
Section VI.E); and (f) the obligation to compensate (see Section VI.F).
Obligation not to cause transboundary harm: States must ensure that
activities within their jurisdiction and control do not harm the
environment of other States
133. Under international law, States are obligated not to cause transboundary
harm, including environmental harm.
134. It is well-established in customary international law that States cannot
cause transboundary harm, i.e., they cannot conduct or even permit
71
activities in their own territory that harm the territories of other States.215
This well-established principle applies to climate change.
135. This obligation pre-dates even the Industrial Revolution. The sic utere tuo
ut alienum non laedas principle (in English, “[u]se your own property in
such a way that you do not injure other people’s”)216 has been wellestablished
since the time of Roman law.217 It was already “[o]ne of the
tritest of maxims in the law of England” in 1897,218 having been
recognised by United Kingdom courts, for example, in 1610.219
136. The related principle of good neighbourliness, which requires States to
abstain from conduct that causes harm to other States, also pre-dates the
Industrial Revolution.220 Iterations of this principle appear in Chinese and
Japanese law on conciliation,221 Malaysian and Indonesian customary
law222 and Romanian treaties with neighbouring States as early as 1655.223
215 See Nuclear Weapons Advisory Opinion, paragraph 29, Annex 392.
216 J. Law & E. A. Martin, “sic utere tuo ut alienum non laedas”, in A DICTIONARY OF LAW
(Oxford University Press, 2006), Annex 526.
217 See A. Watson, “The Digest of Justinian, Volume 1”, University of Pennsylvania Press,
1998, Digest 8.5., pages 269-270, Annex 167.
218 M. De Villiers, “Nuisances in Roman Law”, Law Quarterly Review, 1897, pp. 387-394,
page 387, Annex 168.
219 See Aldred’s Case (1610) 77 ER 816, page 821, Annex 169.
220 See J. G. Lammers, Pollution of International Watercourses (Martinus Nijhoff
Publishers, 1984), page 568, Annex 186; L. B. Chazournes & D. Campanelli,
“Neighbour States” in Max Planck Encyclopedia of Public International Law, 2006,
paragraphs 9 and 10, Annex 187.
221 See C. W. Jenks, “Tolerance and Good Neighbourliness as Concepts of International
Law”, Malaya Law Review, 1967, pp. 1-9, page 2, Annex 188.
222 See C. W. Jenks, “Tolerance and Good Neighbourliness as Concepts of International
Law”, Malaya Law Review, 1967, pp. 1-9, page 2, Annex 188.
223 See F. Dumitrita & N. Gales, “Affirming the Principle of Good Neighborliness in
International Relations”, Logos Universality Mentality Education Novelty Section: Law,
Vol. 8, no. 2 (2020), pp. 1-10, page 7, Annex 547.
72
137. The ancient Hindu legal code, the Manu Smriti, also provides that a legal
wrong is committed by damaging the natural environment of another’s
property – in chapter 8, verses 288 and 289, it states that legal damages
must be paid by one who “damages the goods of another,”224 including for
damage to “flowers, roots, and fruit.”225 The same principle animates
Buddhist legal principles, as well.226
138. Further, the ancient Chinese T’ang Code, first promulgated in 642 AD,
prohibited damage to public and private property, including letting out
“filth” through walls.227 The Great Qing Code, first promulgated in 1647,
similarly prohibited damage to property.228 This principle is encapsulated
in modern Chinese laws requiring that “[a]ny person who pollutes the
environment and causes damages to others in violation of State provisions
224 J.L. Shastri, Manusmṛti of Kullūka Bhaṭṭa (Motilal Banarsidass, 2000), page 324, as
translated in G. Bühler, “The Laws of Manu”, in The Sacred Books of the East, Oxford
University Press, 1886, reprinted by Motilal Banarsidass, 1964, Vol. XXV, page 305,
paragraph 288, Annex 170.
225 J.L. Shastri, Manusmṛti of Kullūka Bhaṭṭa (Motilal Banarsidass, 2000), page 324, as
translated in G. Bühler, “The Laws of Manu”, in The Sacred Books of the East, Oxford
University Press, 1886, reprinted by Motilal Banarsidass, 1964, Vol. XXV, page 305,
paragraph 289, Annex 170.
226 See Case concerning the Gabčíkovo-Nagymaros Project (Hungary v Slovakia), Judgment
of 25 September 1997, I.C.J. Reports 1997, p. 7 (“Gabčíkovo-Nagymaros”), Separate
Opinion of Vice-President Weeramantry, page 102, Annex 395.
227 G. MacCormack and F. X. Wang, “The T’ang Code: Early Chinese Law”, Irish Jurist,
1983, pp. 132-150, page 133; Annex 189; W. Johnson, “The T'ang Code, Volume II:
Specific Articles”, Princeton Library of Asian Translations, 1997, Articles 204, 284,
404, 425, Annex 171.
228 See L. H. Zhang and N. Dong, The Great Qing Code in Comparative and Historical
Perspective, in LAW, JUSTICE AND CODIFICATION IN QING CHINA: EUROPEAN AND
CHINESE PERSPECTIVES. ESSAYS IN HISTORY AND COMPARATIVE LAW, ed. Guido
Abbattista (Edizioni Università di Trieste, 2017), page 156, Annex 190; W. C. Jones,
“The Great Qing Code”, Oxford University Press, 1994, Article 98, Annex 172.
73
for environmental protection and the prevention of pollution shall bear
civil liability in accordance with the law.”229
139. Islamic law (i.e., Sharia law) also supports the international obligation not
to cause transboundary harm. The hadith, which are sayings of the
Prophet Muhammad (PBUH),230 state that “[w]hoever harms [others],
Allah will harm him, and whoever causes hardship [to others] Allah will
cause hardship to him”231 and “let there be no infliction of harm nor its
reciprocation.”232 The Ottoman Civil Code elaborated between 1869 and
1875 and based on Islamic law (which was also in force in Jordan and
Kuwait),233 states that “[e]ach man can build an enclosure as high as he
likes, which is his property, and can place on it what he wishes, without
his neighbour being able to hinder him, so long as an excessive injury
does not result by reason of it,” which includes excessive smoke escaping
to the neighbour’s property.234
229 General Principles of the Civil Law of the People’s Republic of China, 1986, Article 124,
Annex 268. See also, e.g., Tort Law of the People's Republic of China, 2010, Article 65,
Annex 269 (“Where any harm is caused by environmental pollution, the polluter shall
assume the tort liability”); Environmental Protection Law of the People’s Republic of
China, 1989, Articles 38-39, 41 and 44-45, Annex 270.
230 See G. E. Roughton, “The Ancient and the Modern: Environmental Law and Governance
in Islam”, Columbia Journal of Environmental Law, 2007, pp. 99-140, page 102, Annex
191.
231 N. M. Nasir et al., “Environmental Sustainability and Contemporary Islamic Society: A
Shari’a Perspective”, Asian Academy of Management Journal, 2022, pp. 211-231, page
221, Annex 192 (second and third brackets appear in the original), citing as primary
source: Abu Dawood, Book 19, Hadith 3635.
232 M. H. Kamali, “Legal Maxims and Other Genres of Literature in Islamic Jurisprudence”,
Arab Law Quarterly, 2006, pp. 77-102, page 85, Annex 193.
233 See J. G. Lammers, Pollution of International Watercourses (Martinus Nijhoff
Publishers, 1984), page 485, Annex 186. The Ottoman Civil Code was known by
various names, including Medjellè.
234 See W. E. Grigsby, The Medjellè or Ottoman Civil Law (Nicosia, 1895), page 246,
Annex 173, citing Medjellè, Articles 1198, 1200. See also, e.g., W. E. Grigsby, The
74
140. Unsurprisingly, Judges of this Court have expressly referred to the same
fundamental principle of sic utere.235
141. Modern international instruments document the obligations not to cause
transboundary environmental harm. For example:
a. under the Convention on the Law of the Non-Navigational Uses
of International Watercourses, 41 States recognise a duty that
mandates countries using an international watercourse within their
territories to take suitable measures to avert causing significant
harm to other countries sharing the same watercourse.236 This
convention has been described as a codification of customary
international law in respect to obligations to equitable and
reasonable utilisation, prevention of significant harm and prior
notification of planned measures;237
Medjellè or Ottoman Civil Law (Nicosia, 1895), pages 246, 257, Annex 173, citing
Medjellè, Article 1197 (“No one can be hindered from the use of his own property unless
from this excessive injury result to another person, then he can be hindered”) and Article
1254 (“Each man can take the benefit of a common thing, but under the condition that he
does not cause injury to others”), Annex 173.
235 See, e.g., Nuclear Tests (Australia v France), Judgment of 20 December 1974, I.C.J.
Reports 1974, p. 253, Dissenting Opinion of Judge Castro, page 388, Annex 389;
Gabčíkovo-Nagymaros, Separate Opinion of Vice-President Weeramantry, page 102,
Annex 395.
236 See Convention on the Law of the Non-Navigational Uses of International Watercourses,
21 May 1997, 2999 UNTS 77 (“Convention on the Law of the Non-Navigational Uses
of International Watercourses”), Article 7(1) (“Watercourse States shall, in utilizing an
international watercourse in their territories, take all appropriate measures to prevent the
causing of significant harm to other watercourse States”), Annex 128.
237 See S. C. McCaffrey, “Introductory note to the Convention on the Law of the Nonnavigational
Uses of International Watercourses”, United Nations Audiovisual Library of
International Law, 30 June 2008, Annex 521.
75
b. under the UN Convention on the Law of the Sea, 168 States and
the European Union recognise the sic utere principle;238
c. under the Convention on the Protection and Use of Transboundary
Watercourses and International Lakes, 52 States undertake to take
all appropriate measures to “prevent, control and reduce” any
transboundary impact;239
d. under the Vienna Convention for the Protection of the Ozone
Layer, 197 States and the European Union recognise they must
“adopt appropriate legislative or administrative measures and cooperate
in harmonising appropriate politics to control, limit,
reduce, or prevent human activities under their jurisdiction or
control should it be found that these activities have or are likely to
have adverse effects resulting from modification or likely
modification of the ozone layer”;240
e. under the Convention on long-range transboundary air pollution,
52 States and the European Union state they are “determined to
protect man and his environment against air pollution and shall
endeavour to limit and, as far as possible, gradually reduce and
238 See United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 3
(“UNCLOS”), Article 194(2) (“States shall take all measures necessary to ensure that
activities under their jurisdiction or control are so conducted as not to cause damage by
pollution to other States and their environment, and that pollution arising from incidents
or activities under their jurisdiction or control does not spread beyond the areas where
they exercise sovereign rights in accordance with this Convention”), Annex 95.
239 Convention on the Protection and Use of Transboundary Watercourses and International
Lakes, 17 March 1992, 1936 UNTS 269 (“Convention on the Protection and Use of
Transboundary Watercourses and International Lakes”), Article 2, Annex 109.
240 Vienna Convention for the Protection of the Ozone Layer, 22 March 1985, 1513 UNTS
293 (“Vienna Convention for the Protection of the Ozone Layer”), Article 2, Annex
98.
76
prevent air pollution including long-range transboundary air
pollution”;241
f. under the Convention on the Prevention of Marine Pollution by
Dumping of Wastes and Other Matter, 79 States recognise that the
Contracting States have “the responsibility to ensure that activities
within their jurisdiction or control do not cause damage to the
environment of other States or of areas beyond the limits of
national jurisdiction”;242 and
g. under the Convention on Environmental Impact Assessment in a
Transboundary Context, 44 States and the European Union
commit to “either individually or jointly, take all appropriate and
effective measures to prevent, reduce and control significant
adverse transboundary environmental impact from proposed
activities.”243
142. Regional conventions also refer to the same legal prohibition on
transboundary harm:
a. under the Convention for the Protection of the Marine
Environment and the Coastal Region of the Mediterranean, 21
States and the European Union recognise they must “take all
appropriate measures to prevent, abate and to the fullest possible
extent eliminate pollution of the environment which can be caused
241 Convention on long-range transboundary air pollution, 13 November 1979, 1302 UNTS
217 (“Convention on long-range transboundary air pollution”), Article 2, Annex 89.
242 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other
Matter, 29 December 1972, 1046 UNTS 120, Preamble, Annex 82.
243 Convention on Environmental Impact Assessment in a Transboundary Context, 25
February 1991, 1989 UNTS 309, Article 2.1, Annex 166.
77
by transboundary movements and disposal of hazardous wastes,
and to reduce to a minimum, and if possible, eliminate such
transboundary movements”;244
b. under the Protocol for the Protection of the Mediterranean Sea
against Pollution resulting from Exploration and Exploitation of
the Continental Shelf and the Seabed and its Subsoil, 14 States
and the European Union agree to “take all measures necessary to
ensure that activities under [their] jurisdiction are so conducted as
not to cause pollution beyond the limits of [their] jurisdiction”;245
c. under the ASEAN Agreement on Transboundary Haze Pollution,
10 States acknowledge, “in accordance with the Charter of the
United Nations and the principles of international law”, their
“responsibility to ensure that activities within their jurisdiction or
control do not cause damage to the environment and harm to
human health of other States or of areas beyond the limits of
national jurisdiction”;246 and
d. under the Protocol Concerning Pollution from Land-Based
Sources and Activities to the Convention for the Protection and
Development of the Marine Environment of the Wider Caribbean
244 Amendments to the Convention for the Protection of the Mediterranean Sea Against
Pollution (the title of the Convention was amended as: Convention for the Protection of
the Marine Environment and the Coastal Region of the Mediterranean), 10 June 1995, OJ
L 322, Article 11, Annex 124.
245 Protocol for the Protection of the Mediterranean Sea against Pollution Resulting from
Exploration and Exploitation of the Continental Shelf and the Seabed and its Subsoil, 14
October 1994, OJ L 4/15, Article 26(1), Annex 122.
246 ASEAN Agreement on Transboundary Haze Pollution, 10 June 2002, Article 3(1),
Annex 139.
78
Region, 12 States agree to consult with each other to resolve the
issue of transboundary pollution.247
143. In addition to such binding instruments, non-binding instruments also hold
particular importance in the Court’s analysis. Non-binding instruments
gain significant legal weight when they are consistently reaffirmed by
international entities and authorities over time.248 This reaffirmation often
plays a substantial role in shaping and recognising international legal
norms originating from conventional sources.249 The following nonbinding
instruments confirm the obligation against transboundary harm:
a. in 1972 and 1974, UN Member States twice accepted the
responsibility not to cause transboundary harm, in the 1972
Stockholm Declaration (adopted by 113 States) and General
Assembly Resolution 3281 (XXIX) (1974) (adopted with votes
from 121 States in favour);250
247 See Protocol Concerning Pollution from Land-Based Sources and Activities to the
Convention for the Protection and Development of the Marine Environment of the Wider
Caribbean Region, 6 October 1999, US Treaty Series 10-813, Article IX, Annex 133.
248 See K. Schmalenbach, States Responsibility and Liability for Transboundary
Environmental Harm, in CORPORATE LIABILITY FOR TRANSBOUNDARY ENVIRONMENTAL
HARM: AN INTERNATIONAL AND TRANSNATIONAL PERSPECTIVE, eds. K. Schmalenbach
et al. (Springer, 2023), page 55, Annex 541.
249 See J. Friedrich, International environmental “soft law” (Springer, 2013), pages 143-
170, Annex 524.
250 See Report of the United Nations Conference on the Human Environment, Declaration of
the United Nations Conference on the Human Environment, A/CONF.48/14/Rev.1, 16
June 1972 (“Stockholm Declaration”), Principle 21 (“States have, in accordance with
the Charter of the United Nations and the principles of international law, the sovereign
right to exploit their own resources pursuant to their own environmental policies, and the
responsibility to ensure that activities within their jurisdiction or control do not cause
damage to the environment of other States or of areas beyond the limits of national
jurisdiction”), Annex 469. See also UN General Assembly Resolution 3281(XXIX)
(1974), A/9946, 12 December 1974, Article 30 (“All States have the responsibility to
ensure that activities within their jurisdiction or control do not cause damage to the
79
b. by the 1974 OECD Recommendation of the Council on Principles
concerning Transfrontier Pollution, the Council of the OECD
(made up of ambassadors from Member States of the OECD)
recommended that Member States “co-operate in developing
international law applicable to transfrontier pollution”;251
c. by General Assembly Resolution 37/7 (1982) (adopted with votes
from 111 States in favour), UN Member States committed to
ensure that their activities do not cause any harm to “natural
systems located within other States or in the areas beyond the
limits of national jurisdiction”;252
d. the UN Conference on Environment and Development in 1989
reaffirmed States’ “responsibility to ensure that activities within
their jurisdiction or control do not cause damage to the
environment of other States or of areas beyond the limits of
national jurisdiction”;253
e. during UN Conference on Environment and Development in
1992, 179 States adopted the Rio Declaration on Environment and
environment of other States or of areas beyond the limits of national jurisdiction”),
Annex 211.
251 “OECD, Recommendation of the Council on Principles concerning Transfrontier
Pollution”, OECD/LEGAL/0133, OECD, 14 November 1974, page 4, Annex 507.
252 UN General Assembly Resolution 37/7 (1982), A/RES/37/7, 29 October 1982, Principle
21(d), Annex 213.
253 UN General Assembly Resolution 44/228 (1989), A/RES/44/228, 22 December 1989,
paragraph 7, Annex 216.
80
Development and agreed to cooperate and notify to prevent any
transboundary harm;254
f. in 2001, the ILC proclaimed that States “shall take all appropriate
measures to prevent significant transboundary harm”;255 and
g. States’ submissions before the Inter-American Court of Human
Rights (“IACtHR”) in related advisory proceedings before the
IACtHR have also confirmed that the obligation not to cause
transboundary harm is a relevant part of general international
law.256
254 See Report of the United Nations Conference on the Human Environment and
Development, Rio Declaration on Environment and Development,
A/CONF.151/26/Rev.1 (Vol. 1), June 3-14 1992 (“Rio Declaration”), Principle 14
(“States should effectively cooperate to discourage or prevent the relocation and transfer
to other States of any activities and substances that cause severe environmental
degradation or are found to be harmful to human health”) and Principle 18 (“States shall
immediately notify other States of any natural disasters or other emergencies that are
likely to produce sudden harmful effects on the environment of those States. Every
effort shall be made by the international community to help States so afflicted”), Annex
281.
255 “Draft Articles on Prevention of Transboundary Harm from Hazardous Activities”,
Report of the Commission to the General Assembly on the work of its fifty-third session,
Yearbook of the International Law Commission, A/CN.4/SER.A/2001/Add.1 (Part 2),
International Law Commission, 10 August 2001, Article 3, Annex 493.
256 In the Request for Advisory Opinion OC-32 on Climate Emergency and Human Rights
presented by the Republic of Chile and the Republic of Colombia (“IACtHR Second
Climate Change Advisory Opinion”), see, e.g., Written Observations of the Republic
of Colombia, 18 December 2023, paragraph 71, Annex 353 bis; Written Observations of
the Republic of El Salvador, 18 December 2023, page 11, Annex 354 bis.
81
144. International case law, including that of this Court, also reflects the
importance of the obligation not to cause transboundary harm, including
environmental harm:
a. in Corfu Channel, this Court ruled that it is “every State’s
obligation not to allow knowingly its territory to be used for acts
contrary to the rights of other States”; 257
b. in the Nuclear Weapons Advisory Opinion, as noted above, this
Court confirmed this principle and established that the “existence
of the general obligation of States to ensure that activities within
their jurisdiction and control respect the environment of other
States or of areas beyond national control is now part of the
corpus of international law relating to the environment”;258
c. in Pulp Mills, this Court added that “the principle of prevention,
as a customary rule, has its origins in the due diligence that is
required of a State in its territory . . . A State is thus obliged to use
all the means at its disposal in order to avoid activities which take
place in its territory, or in any area under its jurisdiction, causing
significant damage to the environment of another State. This
Court has established that this obligation ‘is now part of the
corpus of international law relating to the environment.’”259 This
Court also stated that “it may now be considered a requirement
under general international law to undertake an environmental
257 Corfu Channel (United Kingdom of Great Britain and Northern Ireland v Albania),
Merits, Judgment of 9 April 1949, I.C.J. Reports 1949, p. 4, page 22, Annex 384.
258 Nuclear Weapons Advisory Opinion, paragraph 29, Annex 392.
259 Case of Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment of 20 April
2010, I.C.J. Reports 2010, p. 14 (“Pulp Mills”), paragraph 101, Annex 400.
82
impact assessment where there is a risk that the proposed
industrial activity may have a significant adverse impact in a
transboundary context, in particular, on a shared resource”;260
d. in Certain Activities Carried Out by Nicaragua in the Border
Area (Costa Rica v Nicaragua), this Court set out procedural and
substantive obligations of States that flow from the obligation not
to cause transboundary harm, including the obligation to
undertake an environmental impact assessment and the
“obligation to exercise due diligence in preventing significant
transboundary environmental harm”;261
e. in Disputes over the Waters of the Silala River (Bolivia v Chile),
this Court confirmed that in “general international law,” States
have an obligation not to cause harm to another State’s
environment “in a transboundary context, and in particular as
regards a shared resource”;262 and
f. in the Trail Smelter Arbitration, in awarding damages for
transboundary harm, the tribunal confirmed that “under the
principles of international law, as well as of the law of the United
States of America, no State has the right to use or permit the use
of its territory in such a manner as to cause injury by fumes in or
to the territory of another or the properties or persons therein,
260 Pulp Mills, paragraph 204, Annex 400.
261 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v
Nicaragua) and Construction of a Road in Costa Rica along the San Juan River
(Nicaragua v Costa Rica), Merit, Judgment of 16 December 2015, I.C.J. Reports 2015, p.
665, paragraph 153, Annex 406.
262 Disputes over the Waters of the Silala River (Bolivia v Chile), Merit, Judgment of 1
December 2022, I.C.J. Reports 2022, p. 614, paragraph 99, Annex 383.
83
when the case is of serious consequence and the injury is
established by clear and convincing evidence.”263
145. The opinions of the most highly qualified publicists also concur. For
example, a group of human rights and environmental law experts
(including former judges of the European Court of Human Rights
(“ECtHR”), Paulo Pinto de Albuquerque and Helen Keller, and UN
Special Rapporteur on Human Rights and the Environment, David R.
Boyd) have drafted the Strasbourg Principles, which note that States have
the responsibility to ensure that activities within their jurisdiction or
control do not cause damage to the environment of other States.264 In
addition, in 1986, the International Law Association, a non-governmental
organisation created to study the developments of international law,
drafted rules on international groundwaters that included an obligation on
basin States to “prevent or abate the pollution of international
groundwaters in accordance with international law applicable to existing,
new, increased and highly dangerous pollution.”265
146. States also recognise the existence of the obligation not to cause
transboundary harm through their practice:
a. the United States of America consented to Canada damming the
St Lawrence River with a part of it being in the American
263 Trail Smelter Arbitration (United States v Canada), Awards, 16 April 1938 and 11
March 1941, RIAA, Vol. III, p. 1905 (“Trail Smelter Arbitration”), page 1965, Annex
433.
264 See “The Strasbourg Principles of International Environmental Human Rights Law –
2022”, Journal of Human Rights and the Environment, 2022, pp. 195-2020 (“Strasbourg
Principles”), Principle 36, Annex 540.
265 “Rules on International Groundwaters”, Report of the Sixty-Second Conference, Seoul
Conference Report, 1986, Committee on International Water Resources, pp. 251-274,
International Law Association, Article 3(1), Annex 513.
84
territory, under some conditions, one being that “if the
construction and operation of the said dam causes damage or
detriment to the property owners of Les Galops Island or to the
property of any other citizens of the United States, the
government of Canada shall pay such amount of compensation as
may be agreed upon between the said government and parties
damaged, or as may be awarded the said parties in the proper
court of the United States before which claims for damage may be
brought”;266 and
b. the United Kingdom reserved its right “with the Soviet
Government to claim compensation on our own behalf on behalf
of our citizens for any losses suffered as a consequence of the
accident at Chernobyl” on 21 July 1986.267
147. As adeptly stated by the Republic of Colombia in its recent submissions
on climate change to the IACtHR in 2023:
. . .at the international level there is an obligation not to
cause transboundary damage, which refers not only to the
negative obligation or “not to do”, but the duty to ensure
that all activities carried out under the jurisdiction and
control of a State do not cause damage to the environment
in areas beyond its jurisdiction. This is also configured as a
positive obligation for States, in the sense of preventing
266 “Canada-United States Settlement of Gut Dam Claims: Report of the Agent of the United
States Before the Lake Ontario Claims Tribunal”, International Legal Materials, 1969,
page 120, Annex 277.
267 Statement by Ronald Timothy Renton, Baron Renton of Mount Harry, PC, DL, UK
Parliament Hansard, Chernobyl Disaster (Compensation), Volume 102: debated on
Monday 21 July 1986, Annex 280.
85
their territory from being used for acts contrary to the rights
of other States.
(Translated from Spanish original.)268
148. Some have argued that the obligation not to cause transboundary harm
also requires the harm to be “significant.” Whether or not this
requirement is part of the law of transboundary harm, the requirement of
“significance” is clearly met in the particular circumstances of climate
change for the reasons described in Section IV. According to the ILC, the
threshold of significant harm exists “to prevent frivolous or vexatious
claims.” 269 The standard of “significant” harm requires “a real
detrimental effect on matters such as, for example, human health,
industry, property, environment or agriculture in other States” as shown
through objective evidence.270 “Significant” harm is said to mean
something that is “more than ‘detectable’ but need not be at the level of
268 In the IACtHR Second Climate Change Advisory Opinion, see Written Observations of
the Republic of Colombia, 18 December 2023, paragraph 71 (in original Spanish, “. . . a
nivel internacional existe la obligación de no causar daño transfronterizo, la cual hace
referencia no solo a la obligación negativa o “de no hacer”, sino el deber de velar por que
todas las actividades realizadas bajo la jurisdicción y control de un Estado no causen
daños al medio ambiente en áreas más allá de su jurisdicción. Lo anterior se configura
también como una obligación positiva para los Estados, en el sentido de impedir que su
territorio sea utilizado para actos contrarios a los derechos ed los otros Estados”), Annex
353 bis. See also IACtHR 2017 Advisory Opinion, paragraph 101, Annex 372.
269 “Commentaries on the Draft principles on the allocation of loss in the case of
transboundary harm arising out of hazardous activities”, Report of the International Law
Commission Fifty-eighth session, Yearbook of the International Law Commission,
A/CN.4/SER.A/2006/Add.l (Part 2), International Law Commission, 2006 (“ILC
Commentaries on the Draft Principles on the Allocation of Loss in the Case of
Transboundary Harm arising out of Hazardous Activities”), Principle 2, paragraph 1,
page 64, Annex 497.
270 ILC Commentaries on the Draft Principles on the Allocation of Loss in the Case of
Transboundary Harm arising out of Hazardous Activities, Principle 2, paragraph 2, page
65, Annex 497.
86
‘serious’ or ‘substantial’.”271 The arbitral tribunal in the Trail Smelter
Arbitration awarded damages where there were “serious consequences”
and “clear and convincing evidence” of injury.272 This Court considered
as significant harm the large deposition of sediment from a road, with
resulting risks to the ecology and water quality as well as morphological
changes.273
149. As Section IV sets out, there is scientific consensus that anthropogenic
emissions of greenhouse gases cause, among other things, rising sea
levels, extreme weather events and harm to humans.
150. Therefore, the obligation not to cause transboundary harm is wellestablished
and also applies to the legal questions posed in this advisory
opinion request relating to climate change.
Obligation to protect and preserve the environment: States must
protect and preserve their own internal environment within a State’s
own territory for the benefit of their own people
151. Under international law, States are obligated to protect and preserve their
own internal environment in order to protect their own peoples from harm.
152. This Section explains that the obligation to protect and preserve the
environment is an obligation that arises out of the international obligation
271 ILC Commentaries on the Draft Principles on the Allocation of Loss in the Case of
Transboundary Harm arising out of Hazardous Activities, Principle 2, paragraph 2, page
65, Annex 497.
272 Trail Smelter Arbitration, page 1965, Annex 433.
273 See Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v
Nicaragua) and Construction of a Road in Costa Rica along the San Juan River
(Nicaragua v Costa Rica), Merit, Judgment of 16 December 2015, I.C.J. Reports 2015, p.
665, paragraphs 155-156, Annex 406.
87
not to harm humans within a State’s own jurisdiction and control (see subsection
(i)) and that it is enforceable on a State-to-State level (see subsection
(ii)).
(i) The obligation to protect and preserve one’s own environment arises from
the obligation not to harm people within a State’s own jurisdiction and
control
153. As attested by historical legal authorities, States have always had an
obligation to preserve their own environment to benefit their own citizens:
a. under the Roman law public trust doctrine, waters and resources
were government property but all Roman citizens had the right to
occupy and use them.274 Courts in the United States of America
relying on this doctrine have held that public authorities hold
waterways and related resources in trust for the benefit of
citizens;275
b. environmental conservation was a component of public health
regulations (salubritas) under Roman law;276
c. legislation in the 13th century in England prohibited the burning of
coal as a matter of public health due to its noxious release of
chemicals;277
274 See B. Frey, “The Public Trust in Public Waterways”, Urban Law Annual, 1974, pages
220-222, Annex 196.
275 See, e.g., Illinois Central Railroad Co. v Illinois, 146 U.S. 387 (1892), Annex 174.
276 See M. Jimenez Salcedo, “Initiatives of the Roman Administration and Urban
Environment”, Ius Romanum, 2018, pages 164-165, Annex 197.
277 See, e.g., D. Fowler et al., “A chronology of global air quality”, Philosophical
Transactions of the Royal Society, 2020, page 5, Annex 198; H. C. Maxwell Lyte,
88
d. legislation in medieval Northern Italy aimed at limiting pollution
within cities to protect the communal environment;278 and
e. under Islamic law (i.e., Sharia law),279 Muslims are required “not
[to] cause corruption in the land”280 and “not [to] spread
corruption on earth [and] be mindful of God who created you and
former generations.”281 Islamic scholars interpret corruption in
Sharia law as also referring to environmental damage.282
Similarly, the hadith require that “[t]here shall be no damage and
no infliction of damage,” which Islamic scholars interpret as a
Calendar of Close Rolls, Edward I: Volume 5, 1302-1307 (His Majesty’s Stationery
Office, 1908. British History Online), page 537, Annex 175; H. C. Maxwell Lyte,
Calendar of Patent Rolls, Edward I: Volume 4, 1301-1307 (His Majesty’s Stationery
Office, 1898. British History Online), page 549, Membrane 5d, Annex 176; Smoke
Abatement, London Act 1853, 1853(16 & 17 Vict.) C. 128, Annex 177.
278 See R. E. Zupko & R. A. Laures, Straws in the Wind: Medieval Urban Environmental
Law the Case of Northern Italy (Routledge, 1996), pages 97-99, 104-107, Annex 199.
279 Sharia law is documented by the Qur’an (the “word of God”) and Prophet “Muhammad’s
reported sayings (hadith), deeds, and tacit approval of practices” (G. E. Roughton, “The
Ancient and the Modern: Environmental Law and Governance in Islam”, Columbia
Journal of Environmental Law, 2007, pp. 99-140, page 102, Annex 191).
280 M. A. S. Abdel Haleem, Qur'an: English translation and parallel Arabic text (Oxford
University Press, 2010) (“Qur’an English Translation”), Chapter 2, verse 60, Annex
178.
281 Qur’an English Translation, Chapter 26, verses 183-184, Annex 178. See also Qur’an
English Translation, Chapter 2, verse 205, Annex 178 (“[w]hen he leaves, he sets out to
spread corruption in the land, destroying crops and livestock– God does not like
corruption”); Qur’an English Translation, Chapter 5, verse 64, Annex 178 (“[t]hey try to
spread corruption in the land, but God does not love those who corrupt ”); Qur’an
English Translation, Chapter 7, verse 56, Annex 178 (“do not corrupt the earth after it
has been set right – call on Him fearing and hoping. The mercy of God is close to those
who do good”).
282 See The Islamic Declaration on Climate Change, 18 August 2018, Annex 271 (“We
recognize the corruption (fasād) that humans have caused on Earth in our relentless
pursuit of economic growth and consumption”); M. K. Gueye & N. Mohamed, “An
Islamic Perspective on Ecology and Sustainability”, Ecotheology, 2022, page 2 (“Muslim
scholars writing on the ecological crisis regard excesses, both in the unbridled
consumption of natural resources and the production of waste, as transgressions of [the]
balance [created by God]” i.e., “a corruption”), Annex 179.
89
protection of the “basic elements of the environment for the
benefit of present and future generations,” including “from the
harmful impacts of external factors such as chemical products and
wastes.”283
154. Furthermore, in applying the “general principles of law recognized by
civilized nations” under Article 38(1)(c) of the ICJ Statute, the Court
should also make reference to the legal principles adopted by the
sovereign so-called “indigenous” peoples of the world. In this respect,
Barbados respectfully submits that any archaic understanding of “civilized
nations” in Article 38(1)(c) that excluded indigenous peoples must instead
be replaced with the ordinary, good faith meaning of the term in
accordance with Article 31 of the Vienna Convention on the Law of
Treaties.284 The good faith, ordinary meaning of the term “civilized
nations” would necessarily include the robust and complex legal
principles that govern and governed the relations of the various
indigenous, sovereign peoples in the world.285 Indeed, indigenous,
sovereign peoples are recognised by the UN General Assembly and States
283 A. A. Bagader et al., Environmental Protection in Islam, IUCN Environmental Policy
and Law, Paper No. 20, 1994, page 13, Annex 548, citing Hadith related by the Imam
Malik. See also S. S. S. Haneef, “Principles of Environmental Law in Islam”, Arab Law
Quarterly, 2002, pp. 241-254, pages 248-252, Annex 194.
284 See Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331, Article
31, Annex 67.
285 See, e.g., A. Yusuf, “Diversity of Legal Traditions and International Law: Keynote
Address”, Cambridge Journal of International and Comparative Law, 2013, pp. 681-703,
pages 695 and 699, Annex 195; Gabčíkovo-Nagymaros, Separate Opinion of Vice-
President Weeramantry, page 97, Annex 395; C.G. Weeramantry, “Universalising
International Law” (Martinus Nijhoff Publishers, 2004), pages 2-3, Annex 549; North
Sea Continental Shelf (Federal Republic of Germany v Denmark; Federal Republic of
Germany v Netherlands), Judgment of 20 February 1969, p.3, Separate Opinion of Judge
Ammoun, page 140, Annex 418.
90
as having their own distinct political, legal, economic and cultural
institutions286 and have entered into treaties with States.287
155. In this regard, multiple international courts and national courts have
recognised and applied, as legal principles, indigenous legal principles
that mandate the protection and preservation of the environment. As but a
few examples:
a. in Case of Kichwa Indigenous People of Sarayaku v Ecuador, the
IACtHR recognised that the Sarayaku People of Ecuador have a
“profound and special relationship” with their lands, which
“encompasses their worldview and cultural and spiritual
identity.”288 The IACtHR referred to an expert witness account
which described this “special relationship” as being “expressed in
the most varied practices of management, protection, use or
primary extraction of natural resources, goods or services from the
ecosystems”;289
286 See, e.g., UN General Assembly Resolution 61/295 (2007), A/RES/61/295, 13 September
2007, Annex, Articles 3-5, Annex 235, adopting the UN Declaration on the Rights of
Indigenous Peoples; UN General Assembly Resolution 76/148 (UN General Assembly
Resolution 76/148 (2021), A/RES/76/148, 16 December 2021, preamble, Annex 236.
287 For example, the Treaty of Waitangi between the United Kingdom and the Māori was
signed by over 500 chiefs (see “All about the Treaty”, State Services Commission, 2005,
PDF page 2, Annex 207) and Canada entered into and continues to recognise treaties
with indigenous groups (see “Treaties and Agreements”, Government of Canada, Annex
366; Canada Act 1982, section 35, Annex 246).
288 Case of the Kichwa Indigenous People of Sarayaku v Ecuador, Merits and Reparations.
Judgment of June 27, 2012. Series C No. 245, paragraph 155 (“Case of the Kichwa
Indigenous People of Sarayaku v Ecuador”), Annex 379.
289 Case of the Kichwa Indigenous People of Sarayaku v Ecuador, paragraph 154, Annex
379.
91
b. New Zealand courts have recognised the principle of Kaitiakanga
in Māori communities under which the Māori recognise they have
spiritual stewardship over the environment.290 New Zealand’s
Supreme Court noted that this principle requires caring “for one’s
own.”291 It includes, for example, sustainably fishing in rivers to
catch only for immediate needs.292 This principle precedes the
time of the signing of the Treaty of Waitangi in May 1840 and the
colonisation of New Zealand by Europeans;293 and
c. Australian courts have recognised an obligation to protect and
preserve the environment in indigenous custom through
recognition of the practice of ‘Caring for Country’. This concept
refers to indigenous communities’ practice of “protect[ing] the
country from degradation and [caring] for it spiritually.”294 The
Federal Court of Australia, referring to the submissions of the
Ngaliwurru and Nungali peoples of Australia, has noted that
“[a]part from occupying the land, they are said to … care for the
290 See Waitangi Tribunal Report, Ko Aoteraroa Tēnei, A Report into Claims Concerning
New Zealand Law and Policy Affecting Māori Culture and Identity, Wai 262, 2011, page
105, Annex 200.
291 Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC
127, paragraph 154, footnote 243, Annex 201.
292 See Ngati Rangi Trust v Manawatu-Wanganui Regional Council, Decision of the
Environment Court of New Zealand of 18 May 2004, A67/2004 NZEnvC 172, paragraph
126, Annex 202.
293 See Ngati Rangi Trust v Manawatu-Wanganui Regional Council, Decision of the
Environment Court of New Zealand of 18 May 2004, A67/2004 NZEnvC 172,
paragraphs 120-123, Annex 202; Trans-Tasman Resources Ltd v Taranaki-Whanganui
Conservation Board [2021] NZSC 127, paragraph 297, Annex 201.
294 Western Australia v Ward, Decision of the High Court of Australia of 8 August 2002,
paragraph 592, Annex 203.
92
land and waters in accordance with spiritual and social
obligations.”295
156. Furthermore, constitutions and legislation of many States also recognise
and give effect to similar indigenous legal obligations to protect and
preserve the environment:
a. the Constitution of Ecuador incorporates the principle of Sumak
kawsay by stating:
the sovereign people of Ecuador . . . [h]ereby decide
to build [a] new form of public coexistence, in
diversity and harmony with nature, to achieve a
good way of living, the sumak kawsay
. . .
Article 14. The right of the population to live in a
healthy and ecologically balanced environment that
guarantees sustainability and the good way of living
(sumac kawsay), is recognized.
. . .
Article 250. The territory of the Amazon provinces
is part of an ecosystem that is necessary for the
planet’s environmental balance of the planet. This
territory shall constitute a special territorial district,
for which there will be integrated planning
embodied in a law including social, economic,
environmental and cultural aspects, with land use
development and planning that ensures the
conservation and protection of its ecosystems and
the principle of sumak kawsay (the good way of
living).
295 Griffiths v Northern Territory of Australia, Decision of the Federal Court of Australia of
17 July 2006, paragraph 27, Annex 204.
93
. . .
Article 275. The development structure is the
organized, sustainable and dynamic group of
economic, political, socio-cultural and
environmental systems which underpin the
achievement of the good way of living (sumak
kawsay).
. . .
Article 387. The following shall be responsibilities
of the State. . . [t]o promote the generation and
production of knowledge, to foster scientific and
technological research, and to upgrade ancestral
wisdom to thus contribute to the achievement of the
good way of living (sumak kawsay).296
b. in New Zealand, the principle of Ko au te Awa, ko te Awa ko au is
enshrined in the Te Awa Tupua (Whanganui River Claims
Settlement) Act 2017.297 It states that the “iwi and hapū [(i.e.,
communities] of the Whanganui River have an inalienable
connection with, and responsibility to, Te Awa Tupua [i.e., the
river and surrounding environment in its physical and
metaphysical forms]298 and its health and well-being”;299 and
c. in New Zealand, the principle of Kaitiakanga (discussed in the
paragraph above) is also enshrined in legislation. It is defined as,
296 Constitution of the Republic of Ecuador, 20 October 2008, Preamble, Articles 14, 250,
275 and 387, Annex 263.
297 See Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, 20 March 2017
(“Whanganui River Claims Settlement Act”), Annex 264.
298 See Whanganui River Claims Settlement Act, section 12, Annex 264 (“Te Awa Tupua is
an indivisible and living whole, comprising the Whanganui River from the mountains to
the sea, incorporating all its physical and metaphysical elements”).
299 Whanganui River Claims Settlement Act, section 13(c), Annex 264. See also
Whanganui River Claims Settlement Act, section 71(b), Annex 264.
94
for example, the “exercise of guardianship by the tangata whenua
[i.e., the relevant communities] of an area in accordance with
tikanga Maori in relation to natural and physical resources; and
includes the ethic of stewardship.”300
157. In fact, 143 UN Member States voted in favour of a UN General
Assembly adopting the UN Declaration on the Rights of Indigenous
Peoples, which recognises that indigenous peoples have the responsibility
to protect their lands:
Indigenous peoples have the right to maintain and
strengthen their distinctive spiritual relationship with their
traditionally owned or otherwise occupied and used lands,
territories, waters and coastal seas and other resources and
to uphold their responsibilities to future generations in this
regard.301
158. Moreover, the Government of Canada recognises that indigenous peoples
in Canada are under the obligation to protect and preserve the
environment by establishing funds to aid them in protecting the
environment.302 For example, in 2022, the Canadian Prime Minister
300 Resource Management Act 1991, 22 July 1991, section 2, Annex 265. See also, e.g.,
Natural and Built Environment Act 2023, 23 August 2023, section 11(1), Annex 266;
Marine and Coastal Area (Takutai Moana) Act 2011, 31 March 2011, section 9(1),
Annex 267.
301 UN General Assembly Resolution 61/295 (2007), A/RES/61/295, 13 September 2007,
Annex, Article 25, Annex 235, adopting the UN Declaration on the Rights of Indigenous
Peoples.
302 See, for e.g., “Budget 2023: A Made in Canada Plan”, Government of Canada, 2023,
pages 132-134, 233, Annex 362; “Project Finance for Permanence: Support for
Indigenous-led conservation initiatives”, Government of Canada, Annex 363;
“Protecting more nature in partnership with Indigenous Peoples”, The Prime Minister of
Canada, 7 December 2022, Annex 364.
95
announced a package of CAD 800 million of funding for indigenous-led
conservation initiatives, noting that:
Indigenous Peoples have been caring for the lands and
waters of Canada since time immemorial. First Nations,
Inuit, and Métis have unique relationships with nature and
knowledge of responsible stewardship as a way of life.303
159. Today, in international conventions, States further document the
obligation to protect and preserve the environment, including within their
jurisdiction and control. For example:
a. under the Convention on Biological Diversity, 195 States and the
European Union confirm that “[States have] sovereign rights over
their own biological resources [and are] responsible for conserving
their biological diversity and for using their biological resources in
a sustainable manner.”304 Those States also affirm that “the
conservation of biological diversity is a common concern of
humankind”;305
b. under UNCLOS, 168 States and the European Union agree that
“States have the obligation to protect and preserve the marine
environment.”306 UNCLOS defines “pollution of the marine
environment” as the “introduction by man . . . of substances or
energy into the marine environment . . . which results or is likely
303 “Protecting more nature in partnership with Indigenous Peoples”, The Prime Minister of
Canada, 7 December 2022, Annex 364.
304 Convention on Biological Diversity, 5 June 1992, 1760 UNTS 79 (“Convention on
Biological Diversity”), Preamble, Annex 113.
305 Convention on Biological Diversity, Preamble, Annex 113.
306 UNCLOS, Article 192, Annex 95.
96
to result in such deleterious effects as harm to living resources and
marine life, hazards to human health”;307 and
c. under the Alpine Convention, 8 States commit to take certain
measures, including regarding the “prevention of air pollution,”
where the “objective is to drastically reduce the emission of
pollutants and pollution in the Alpine region . . . to a level which is
not harmful to man, animals and plants.”308
160. Reflecting the universal legal obligation under the UN Charter to promote
and encourage respect for human rights and fundamental freedoms,309
States have agreed in international conventions on human rights to protect
and preserve the environment to prevent harm to humankind:
a. under the American Convention on Human Rights, 16 American
States must “undertake to adopt measures . . . with a view to
achieving progressively . . . the full realization of the rights
implicit in the economic, social, educational, scientific, and
cultural standards set forth in the Charter of the Organization of
American States.”310 As the IACtHR stated, this entails ensuring
sustainable development also in the environmental sphere.311 The
IACtHR noted that its observations on environmental obligations
go beyond States party to the treaty it was interpreting and are
307 UNCLOS, Article 1(4), Annex 95.
308 Alpine Convention, 7 November 1991, 1917 UNTS 135, Article 2(2)(c), Annex 160.
309 See UN Charter, Articles 1(3), 13(1)(b), 55, 62(2), Annex 66.
310 American Convention on Human Rights “Pact of San José, Costa Rica”, 22 November
1969, 1144 UNTS 123 (“American Convention on Human Rights”), Article 26, Annex
62. See also, e.g., Charter of the Organization of American States, 30 April 1948 (“OAS
Charter”), Articles 3(k)-(m) and 30, Annex 64.
311 IACtHR 2017 Advisory Opinion, paragraph 57, footnote 85, Annex 372.
97
“important for all the States of the planet.”312 The IACtHR also
clarified that this obligation entails a right to a healthy
environment and that this requires States to “implement the
necessary measures ex ante damage is caused to the environment,
taking into account that, owing to its particularities, after the
damage has occurred, it will frequently not be possible to restore
the previous situation.”313 On the basis of this obligation of the
American Convention on Human Rights, in 2020, the IACtHR
found that a State had violated the right to a healthy environment
by, among other things, failing to prevent illegal logging causing
harm to the territory of indigenous communities and thereby
negatively affecting the lives of those communities;314
b. under the Protocol of San Salvador to the American Convention on
Human Rights, 16 American States recognise that “[e]veryone has
a right to live in a healthy environment and to have access to basic
public services,” and therefore they are obliged to “promote the
protection, preservation, and improvement of the environment”;315
c. under the Regional Agreement on Access to Information, Public
Participation and Justice in Environmental Matters in Latin
312 IACtHR 2017 Advisory Opinion, paragraph 35, Annex 372.
313 Case of the Indigenous Communities of the Lhaka Honhat Association (Our Land) v
Argentina. Merits, Reparations and Costs. Judgment of February 6, 2020. Series C No.
400 (“Case of the Indigenous Communities of the Lhaka Honhat Association (Our
Land) v Argentina”), paragraph 208, Annex 380. See also Case of the Indigenous
Communities of the Lhaka Honhat Association (Our Land) v Argentina, paragraphs 202-
203, Annex 380; IACtHR 2017 Advisory Opinion, paragraph 57, Annex 372.
314 See Case of the Indigenous Communities of the Lhaka Honhat Association (Our Land) v
Argentina, Annex 380.
315 Additional Protocol to the American Convention on Human Rights in the area of
Economic, Social, and Cultural rights “Protocol of San Salvador”, 17 November 1988,
OAS Treaty Series No. 69, Article 11, Annex 63.
98
America and the Caribbean, 15 Latin American and Caribbean
States agree that they are obligated to “guarantee the right of every
person to live in a healthy environment”;316
d. under the Inter-American Convention on Protecting the Human
Rights of Older Persons, 8 Latin American States recognise that
“[o]lder persons have the right to live in a healthy environment
with access to basic public services”;317
e. under the Convention on Access to Information, Public
Participation in Decision-Making and Access to Justice in
Environmental Matters, 47 States recognise the “right of every
person of present and future generations to live in an environment
adequate to his or her health and well-being”; 318
f. under the African Charter on Human and Peoples’ Rights, 54
States are obligated to ensure that “[a]ll peoples . . . have the right
to general satisfactory environment favourable to their
development”;319
g. under the Protocol to the African Charter on Human and Peoples’
Rights on the Rights of Women in Africa, 42 States are obligated
316 Regional Agreement on Access to Information, Public Participation and Justice in
Environmental Matters in Latin America and the Caribbean (also known as the “Escazú
Agreement”), 4 March 2018, 3398 UNTS 1, Article 4(1), Annex 157. See also Article 1,
Annex 157.
317 Inter-American Convention on Protecting the Human Rights of Older Persons, 5 June
2015, 3175 UNTS 1, Article 25, Annex 155.
318 Convention on Access to Information, Public Participation in Decision-Making and
Access to Justice in Environmental Matters “Aarhus Convention”, 25 June 1998, 2161
UNTS 447, Article 1, Annex 132.
319 African Charter on Human and Peoples’ Rights, 27 June 1981, 1520 UNTS 217
(“African Charter on Human and Peoples’ Rights”), Article 24, Annex 92.
99
to ensure that “[w]oman shall have the right to live in a healthy
and sustainable environment” and “the right to fully enjoy their
right to sustainable development”;320 and
h. under the Arab Charter on Human Rights, 16 States recognise the
“right to a healthy environment” and that States shall take the
necessary measures to “commensurate with their resources to
guarantee these rights.”321
161. The International Covenant on Economic, Social and Cultural Rights
acknowledges that its 171 State parties must take certain steps to achieve
the full realisation of the right to physical and mental health, which
includes “the improvement of all aspects of environmental and industrial
hygiene.”322 According to the Committee on Economic, Social and
Cultural Rights, States should therefore: (a) prevent and reduce “the
population’s exposure to harmful substances such as radiation and harmful
chemicals or other detrimental environmental conditions that directly or
indirectly impact upon human health”; (b) “refrain from unlawfully
polluting air, water and soil, e.g., through industrial waste from Stateowned
facilities, from using or testing nuclear, biological or chemical
weapons if such testing results in the release of substances harmful to
human health”; and (c) “formulate and implement national policies aimed
320 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women
in Africa, 11 July 2003, 3269 UNTS 1, Articles 18, 19, Annex 143.
321 Arab Charter on Human Rights, 22 May 2004, CHR/NONE/2004/40/Rev.1, Article 38,
Annex 146.
322 International Covenant on Economic, Social and Cultural Rights, 16 December 1966,
993 UNTS 3 (“ICESCR”), Article 12(2), Annex 73.
100
at reducing and eliminating pollution of air, water and soil.”323 This
obligation goes beyond a State’s borders – States must respect this right in
other countries (including to prevent third parties in other countries from
violating it) by influencing other States and through influencing actions of
international organisations (along with international financial institutions
and development banks formulating policies, credit agreements, etc.).324
162. Even where an international convention does not provide for an express
right to a healthy environment or non-polluted climate system, treaty
bodies (e.g., committees, commissions and courts, including bodies whose
decisions are legally binding on States) have interpreted human rights as
requiring States to ensure that right. For example:
a. the IACtHR has underlined in its jurisprudence the “relevance of
the environment as a whole for the protection of human rights,”325
including the territorial rights of indigenous and tribal peoples and
the right to life;326
323 “General Comment No. 14 (2000) – The right to the highest attainable standard of health
(Article 12 of the International Covenant on Economic, Social and Cultural Rights”, E/C.
12/2000/4, UN Committee on Economic, Social and Cultural Rights, 11 August 2000
(“General Comment No. 14”), paragraphs 15, 34, 36, Annex 447.
324 See General Comment No. 14, paragraph 39, Annex 447. In the IACtHR Second
Climate Change Advisory Opinion, see also Written Observations of the Republic of
Colombia, 18 December 2023, paragraph 71, Annex 353 bis.
325 IACtHR 2017 Advisory Opinion, paragraph 35, Annex 372.
326 See IACtHR 2017 Advisory Opinion, Section VI, Annex 372, referring to further
jurisprudence of this Court (see, e.g., Case of Kawas-Fernández v Honduras. Merits,
Reparations, and Costs. Judgment of April 3, 2009. Series C No. 196, paragraph 148,
Annex 377). See also Individual Report on the American Declaration of the Rights and
Duties of Man, the American Convention on Human Rights, and the Additional Protocol
to the American Convention on Human Rights in the Area of Economic, Social and
Cultural Rights, Mapping Human Rights Obligations Relating to the Enjoyment of a
Safe, Clean, Healthy and Sustainable Environment, Report No. 13, prepared for the
Independent Expert on the Issue of Human Rights Obligations Relating to the Enjoyment
of a Safe, Clean, Healthy, and Sustainable Environment, December 2013, Annex 478.
101
b. the Inter-American Commission on Human Rights (the “IACHR”)
has equally stated that “several fundamental rights require, as a
necessary precondition for their enjoyment, a minimum
environmental quality, and are profoundly affected by the
degradation of natural resources,” such as the right to life, security
and physical integrity;327
c. the ECtHR decided that “severe environmental pollution may
affect individuals’ well-being and prevent them from enjoying
their homes in such a way as to affect their private and family life
adversely, without, however, seriously endangering their
health”;328
d. the European Committee of Social Rights decided that States have
an obligation to protect and preserve the right to health in the
context of pollution from human-made emissions from lignite
mining;329
e. the African Commission on Human and Peoples’ Rights decided
that States must “take reasonable and other measures to prevent
pollution and ecological degradation, to promote conservation, and
327 IACHR, Indigenous and Tribal Peoples’ Rights, paragraph 190, Annex 468.
328 López Ostra v Spain [1994] ECHR 46, paragraph 51, Annex 424. There are three
climate change-related cases currently pending before the ECtHR and that court has
adjourned several other climate change-related cases pending their resolution (see
“Factsheet – Climate change”, European Court of Human Rights, January 2024, Annex
509).
329 See “Marangopoulos Foundation for Human Rights v Greece”, Complaint No 30/2005,
Decision on the Merits, European Committee of Social Rights, 6 December 2006,
paragraphs 202-203, Annex 453. See also “International Federation for Human Rights v
Greece”, Complaint No 72/2011, Decision on the Merits, European Committee of Social
Rights, 23 January 2013, Annex 454.
102
to secure an ecologically sustainable development and use of
natural resources”;330
f. the Committee on the Elimination of Discrimination against
Women, the Committee on Economic, Social and Cultural Rights,
the Committee on the Protection of the Rights of All Migrant
Workers and Members of Their Families, the Committee on the
Rights of the Child and the Committee on the Rights of Persons
with Disabilities decided that a “[f]ailure to take measures to
prevent foreseeable harm to human rights caused by climate
change, or to regulate activities contributing to such harm, could
constitute a violation of States’ human rights obligations” and “in
order for States to comply with their human rights obligations and
to realize the objectives of the Paris Agreement, they must adopt
and implement policies aimed at reducing emissions”;331
g. the Committee on Economic, Social and Cultural Rights noted that
States owe an obligation to their own populations and populations
outside their territories to “prevent foreseeable human rights harm
330 “Decision on Communication 155/96, The Social and Economic Rights Action Center
and the Center for Economic and Social Rights / Nigeria”, African Commission on
Human and Peoples’ Rights, ACHPR/COMM/A044/1, 27 May 2002 (“African
Commission Decision on Communication 155/96”), paragraph 52, Annex 455.
331 Joint statement by the Committee on the Elimination of Discrimination against Women,
the Committee on Economic, Social and Cultural Rights, the Committee on the
Protection of the Rights of All Migrant Workers and Members of Their Families, the
Committee on the Rights of the Child and the Committee on the Rights of Persons with
Disabilities, HRI/2019/1, 14 May 2020, paragraphs 10-11, Annex 485. See also
Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3, Annex 65;
ICESCR, Annex 73; Convention on the Rights of Persons with Disabilities, 13 December
2006, 2515 UNTS 3, Annex 163; Convention on the Elimination of All Forms of
Discrimination Against Women, 18 December 1979, 1249 UNTS 13, Annex 164;
International Convention on the Protection of the Rights of All Migrant Workers and
Members of their Families, 18 December 1990, 2220 UNTS 3, Annex 165.
103
caused by climate change” and a failure to do so could constitute a
breach of human rights;332
h. the UN Human Rights Committee commented that
“[e]nvironmental degradation, climate change and unsustainable
development constitute some of the most pressing and serious
threats to the ability of present and future generations to enjoy the
right to life”;333
i. the Committee on the Elimination of Discrimination against
Women recognised that human-caused changes to the climate
exacerbate pre-existing gender inequalities and compound the
intersecting forms of discrimination against those who are often
disproportionately affected compared to others;334 and
j. the Committee on the Rights of the Child recognised that a “clean,
healthy and sustainable environment is both a human right itself
and necessary for the full enjoyment of a broad range of children’s
rights” and therefore “environmental degradation, including the
consequences of the climate crisis, adversely affects the enjoyment
of these rights, in particular for children in disadvantaged
332 Statement of the Committee on Economic, Social and Cultural Rights, E/C.12/2018/1, 31
October 2018, paragraphs 5-6, Annex 482.
333 “General Comment No. 36 (2019) – Article 6: Right to Life”, CCPR/C/GC/36, UN
Human Rights Committee, 3 September 2019, paragraph 62, Annex 441. See also
“Views adopted by the Committee under article 5 (4) of the Optional Protocol,
concerning communication No. 3624/2019, Billy v Australia”,
CCPR/C/135/D/3624/2019, UN Human Rights Committee, 18 September 2023 (“Billy v
Australia”), paragraph 8.3, Annex 444.
334 See “General recommendation No. 37 (2018) – On the gender-related dimensions of
disaster risk reduction in the context of climate change”, CEDAW/C/GC/37, UN
Committee on the Elimination of Discrimination against Women, 13 March 2018,
paragraph 2, Annex 450.
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situations or children living in regions that are highly exposed to
climate change.”335 It further noted that a failure to take measures
to prevent foreseeable human rights harm caused by climate
change or to regulate activities contributing to such harm, could
constitute a violation of States’ human rights obligations.336
163. This obligation extends to preventing harm by non-State entities and
persons, e.g., private companies and individuals.337 For example:
a. the UN Human Rights Committee also clarified that States must
preserve the environment and protect it from the harm “caused by
public and private actors.”338 This includes taking appropriate
legislative and other measures to ensure that all activities taking
place in whole or in part within their territory or jurisdiction are
consistent with the right to life;339
b. the IACtHR noted that States must do so “especially in relation to
hazardous activities” and therefore must “adopt legislative and
other measures to prevent such violations, and to investigate,
335 “General comment No. 26 (2023) – On children’s rights and the environment, with a
special focus on climate change”, CRC/C/GC/26, UN Committee on the Rights of the
Child, 22 August 2023, paragraph 8, Annex 451.
336 See “Decision adopted by the Committee on the Rights of the Child under the Optional
Protocol to the Convention on the Rights of the Child on a communications procedure in
respect of Communication No. 104/2019”, CRC/C/88/D/104/2019, UN Committee on the
Rights of the Child, 8 October 2021, paragraph 10.6, Annex 452.
337 For example, in the IACtHR Second Climate Change Advisory Opinion, see Written
Observations of the Republic of Colombia, 18 December 2023, paragraph 71, Annex 353
bis.
338 See “General Comment No. 36 (2019) – Article 6: Right to Life”, CCPR/C/GC/36, UN
Human Rights Committee, 3 September 2019, paragraph 62, Annex 441.
339 “General Comment No. 36 (2019) – Article 6: Right to Life”, CCPR/C/GC/36, UN
Human Rights Committee, 3 September 2019, paragraph 22, Annex 441.
105
punish and provide reparation when they occur.”340 It also stated
that given the relationship between human rights and the
environment, among other things, States must: (a) regulate this
matter to prevent significant damage to the environment; (b)
supervise and monitor certain activities to protect human rights
from actions of public authorities and private actors; and (c)
require and approve environmental impact assessments;341 and
c. the IACHR resolved that “States must ensure that both public and
private entities reduce their GHG [greenhouse gas] emissions.”342
164. The obligation to protect and preserve the environment within a State’s
own jurisdiction is also evidenced by the general practice of States and is
accepted as law:
a. in 1948, UN Member States recognised in the Universal
Declaration of Human Rights that they should ensure the right to a
standard of living that is adequate for health and well-being;343
b. in 1968, UN Member States unanimously adopted a resolution
recognising the “continuing and accelerating impairment of the
quality of the human environment caused by factors such as air
and water pollution . . . on the condition of man, his physical,
340 Case of the Buzos Miskitos (Lemoth Morris et al. v Honduras). Judgment of August 31,
2021, Series C No. 432, paragraph 48, Annex 382. See also IACtHR 2017 Advisory
Opinion, paragraphs 118-119, Annex 372.
341 See IACtHR 2017 Advisory Opinion, paragraphs 146-170, Annex 372.
342 “Climate Emergency: Scope of Inter-American Human Rights Obligations”, Resolution
3/2021, Inter-American Commission on Human Rights, 31 December 2021, paragraph
12, Annex 273.
343 See UN General Assembly Resolution 217(III) (1948), A/RES/217(III), 10 December
1948 (“Universal Declaration of Human Rights”), Article 25, Annex 208.
106
mental and social well-being, his dignity and his enjoyment of
basic rights”;344
c. in 1972, as mentioned above, 113 States adopted principles in the
Stockholm Declaration in which they acknowledged that
“[hu]man[s] ha[ve] the fundamental right to freedom, equality and
adequate conditions of life, in an environment of a quality that
permits a life of dignity and well-being” and that “[t]he discharge
of toxic substances . . . must be halted in order to ensure that
serious or irreversible damage is not inflicted upon
ecosystems.”345 As such, “States shall take all possible steps to
prevent pollution of the seas by substances that are liable to create
hazards to human health, to harm living resources and marine life,
to damage amenities or to interfere with other legitimate uses of
the sea” and States should plan policies and cooperate to protect
and improve the environment;346
d. in 1989, 29 European States party to the World Health
Organization adopted the European Charter on Environment and
Health, recognising that “every individual is entitled to an
environment conducive to the highest attainable level of health and
wellbeing” and therefore “[e]very government and public authority
344 UN General Assembly Resolution 2398(XXIII) (1968), A/RES/2398(XXIII), 3
December 1968, Annex 209.
345 Stockholm Declaration, Principles 1 and 6, Annex 469.
346 Stockholm Declaration, Principle 7, Annex 469. See also, e.g., Stockholm Declaration,
Principles 9-26, Annex 469.
107
has the responsibility to protect the environment and to promote
human health within the area under its jurisdiction”;347
e. in 1992, during the UN Conference on Environment and
Development, 179 States adopted principles in the Rio Declaration
in which they acknowledged that human beings are “entitled to a
healthy and productive life in harmony with nature” and that States
should “reduce and eliminate unsustainable patterns of production
and consumption” and “shall enact effective environmental
legislation”;348
f. in 1993, during the World Conference on Human Rights in
Vienna, 171 States adopted the Vienna Declaration and
Programme of Action (which was then endorsed unanimously by
the UN General Assembly)349 recognising that the right to
development should be fulfilled so as to meet the “environmental
needs of present and future generations” and that “illicit dumping
of toxic and dangerous substances and waste potentially
constitutes a serious threat to the human rights to life and health of
everyone”;350
g. in 1994, a UN Special Rapporteur noted that there was “universal
acceptance of the environmental rights recogni[s]ed at national,
347 European Charter on Environment and Health, 8 December 1989, WHO/EURO:1989-
3845-43604-61265, World Health Organization Regional Office for Europe, page 2,
paragraphs 1, 5, Annex 104.
348 Rio Declaration, Principles 1, 8, 11, Annex 281.
349 See UN General Assembly 48/121 (1994), A/RES/48/121, 14 February 1994, paragraph
2, Annex 237.
350 Vienna Declaration and Programme of Action, Report of the World Conference on
Human Rights, A/CONF.157/23, 12 July 1993, Article 11, Annex 365.
108
regional and international levels.”351 As of 2021, more than 150
States have recognised and operationalised the human right to a
healthy environment in their constitutions, legislation and
enforcement in local courts.352 For example, the Constitution of
India provides that the “State shall endeavour to protect and
improve the environment and to safeguard the forests and wild life
of the country,”353 the Federal Constitution of the Swiss
Confederation declares that the “Confederation shall legislate on
the protection of the population and its natural environment
against damage or nuisance,”354 the Constitution of Kenya states
that every person has the right “to have the environment protected
for the benefit of present and future generations through legislative
and other measures”355 and the Constitution of the Federative
Republic of Brazil provides that “[e]veryone has the right to an
ecologically balanced environment, which is an asset of common
use and essential to a healthy quality of life, and both government
and community shall have the duty to defend and preserve it for
351 Final report prepared by Mrs Fatma Zohra Ksentini, Special Rapporteur, Human Rights
and Environment, E/CN.4/Sub.2/1994/9, 6 July 1994, paragraph 240, Annex 471.
352 See J. H. Knox, Human Rights, in THE OXFORD HANDBOOK OF INTERNATIONAL
ENVIRONMENTAL LAW, eds. L. Rajamani & J. Peel (Oxford University Press, 2021),
pages 786-787, Annex 534. In 2019, a Special Rapporteur reported that “[t]here are 100
States whose constitutions explicitly incorporate the right to a healthy environment” and
“more than 100 States where the right to a healthy environment is explicitly incorporated
in national environmental legislation” (Report of the Special Rapporteur, Issue of human
rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable
environment, A/HRC/40/55, 8 January 2019, paragraphs 13, 15, Annex 483).
353 Constitution of India, 26 November 1949, as on May 2022, Article 48A, Annex 245.
354 Federal Constitution of the Swiss Confederation, 18 April 1999, as of 13 February 2022
(English translation), Article 74, Annex 255.
355 Constitution of Kenya, 28 August 2010, as amended from time to time and updated in
2019, Article 42, Annex 258.
109
present and future generations.”356 Moreover, in 2021, the
German Federal Constitutional Court decided that constitutionally
guaranteed human rights, namely the protection of life and
physical integrity, oblige Germany to take climate action.357 In
2022, the Australian Land Court of Queensland decided that, given
there is a causal link between climate change and the enjoyment of
human rights (including the right to life, protection of children,
culture of First Nations People and the enjoyment by certain
groups of rights without discrimination), activities which have
negative impacts on climate change limit human rights;358
h. in 2007, representatives of Small Island Developing States at the
conference of the Alliance of Small Island States on Preparing for
356 Constitution of the Federative Republic of Brazil, 5 October 1988, as amended from time
to time through 2022 (English translation), Article 225, Annex 249. See also
Constitution of the People’s Republic of China, 4 December 1982, as amended from
time to time and updated in 2019 (English translation), Article 26 (“[t]he state shall
protect and improve living environments and the ecological environment, and prevent
and control pollution and other public hazards”), Annex 248; Constitution of the
Kingdom of Cambodia, 21 September 1993, as on October 2015 (English translation),
Article 59 (“[t]he State shall preserve and protect the environment and the balance of
natural resources, by organizing a precise planning for the management, especially of
the land, water, atmosphere, air, geology, ecological systems, mines, energy, petroleum
and gas, rocks, sand, gems, forests and forest by-products, wildlife, fish and aquatic
resources”), Annex 251; Constitution of the Republic of Uzbekistan, 8 December 1992,
as amended in 2023 (English translation), Article 49 (“[t]he State, under the principle of
sustainable development, shall implement measures to improve, restore and protect the
environment, maintain ecological balance. The State shall take measures to protect and
restore the ecological system, social and economic development of the Aral Sea region”),
Annex 250; Constitution of the Republic of Poland, 2 April 1997, as amended from time
to time and updated in 2009 (English translation), Article 74 (“[p]ublic authorities shall
pursue policies ensuring the ecological security of current and future generations”),
Annex 254; Constitution of the Republic of Moldova, 27 July 1994, as amended from
time to time and updated in 2016 (English translation), Article 37 (“[e]very individual
has the right to live in an ecologically safe and healthy environment”), Annex 252.
357 See Neubauer v Germany, Order of the First Senate of 24 March 2021, German Federal
Constitutional Court – 1 BvR 2656/18, Annex 461.
358 See Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6), [2022] QLC 21, Order of
the Land Court of Queensland, 25 November 2022, paragraph 1352, Annex 464.
110
Bali and Beyond declared that climate change has “clear and
immediate implications for the full enjoyment of human rights,”
including the rights to life, to an adequate standard of living and to
the highest attainable standard of health;359
i. by 2012, 10 Member States of the Association of Southeast Asian
Nations recognised that “[e]very person has the right to an
adequate standard of living for himself or herself and his or her
family including . . . [t]he right to a safe, clean and sustainable
environment”;360
j. in 2022, 161 UN Member States voted in favour of a resolution
recognising the right to a healthy environment, the promotion of
which would require the “full implementation of the multilateral
environmental agreements under the principles of international
environmental law”;361 and
359 Malé Declaration on the Human Dimension of Global Climate Change, 14 November
2007, Annex 284.
360 ASEAN Human Rights Declaration (AHRD) and the Phnom Penh Statement on the
Adoption of the AHRD, 18 November 2012, Article 28(f), Annex 289.
361 UN General Assembly Resolution 76/300 (2022), A/RES/76/300, 1 August 2022,
paragraphs 1 and 3, Annex 228. Some States noted that, despite their vote in favour of
the resolution, they did not consider the right created a binding obligation on them (see
UN General Assembly, Draft resolution A/77/L.58, 64th Plenary Meeting, A/77/PV.64,
29 March 2023, Annex 232). The UN Human Rights Council had previously adopted a
decision recognising such right (see UN Human Rights Council Resolution 48/13 (2021),
A/HRC/RES/48/13, 18 October 2021, paragraph 1, Annex 227).
111
k. States sitting on the UN Human Rights Council have progressively
adopted resolutions acknowledging the effects of climate change,
including global warming, on the enjoyment of human rights.362
362 See, e.g., UN Human Rights Council Resolution 48/13 (2021), A/HRC/RES/48/13, 18
October 2021 (States recognise that “the impact of climate change, the unsustainable
management and use of natural resources, the pollution of air, land and water, the
unsound management of chemicals and waste, the resulting loss of biodiversity and the
decline in services provided by ecosystems interfere with the enjoyment of a clean,
healthy and sustainable environment, and that environmental damage has negative
implications, both direct and indirect, for the effective enjoyment of all human rights”),
Annex 227; UN Human Rights Council Resolution 46/7 (2021), A/HRC/RES/46/7, 23
March 2021 (States recognise “that sustainable development and the protection of the
environment, including ecosystems, contribute to human well-being and to the
enjoyment of human rights, including the rights to life, to the enjoyment of the highest
attainable standard of physical and mental health, to an adequate standard of living, to
adequate food, to safe drinking water and sanitation and to housing, and cultural rights”),
Annex 226; UN Human Rights Council Resolution 45/30 (2020), A/HRC/RES/45/30, 7
October 2020 (States are “deeply concerned that the effects of environmental harm may
undermine the full enjoyment of a vast range of the rights of the child, inter alia the right
to life, the right to the enjoyment of the highest attainable standard of physical and
mental health, the right to a standard of living adequate for the child’s physical, mental,
spiritual, moral and social development, the right to education, the right of the child to be
cared for by his or her parents, the right to rest and leisure, to engage in play and
recreational activities, and the right of the child to be protected from economic
exploitation and from performing any work that is likely to be hazardous or to interfere
with the child’s education or to be harmful to the child’s health or physical, mental,
spiritual, moral or social development”), Annex 225; UN Human Rights Council
Resolution 44/7 (2020), A/HRC/RES/44/7, 16 July 2020 (States emphasise that “the
adverse effects of climate change have a range of implications, which can increase with
greater global warming, both direct and indirect, for the effective enjoyment of human
rights, including, inter alia, the right to life, the right to adequate food, the right to the
enjoyment of the highest attainable standard of physical and mental health, the right to
adequate housing, the right to self-determination, the rights to safe drinking water and
sanitation, the right to work and the right to development, and recalling that in no case
may a people be deprived of its own means of subsistence”), Annex 224; UN Human
Rights Council Resolution 77/212 (2022), A/RES/77/212, 15 December 2022 (States
express their deep concern about “the increasing challenges posed by global climate
change and the loss of biodiversity, which have increased vulnerabilities and inequalities
and have adversely affected development gains, in particular in developing countries”),
Annex 230; UN Human Rights Council Resolution 7/23 (2008), A/HRC/7/23, 28 March
2008 (States are “[c]oncerned that climate change poses an immediate and far-reaching
threat to people and communities around the world and has implications for the full
enjoyment of human rights”), Annex 238.
112
165. This obligation is further supported by the most highly qualified
publicists. For example, the drafters and endorsers of the Strasbourg
Principles363 agree that States are under the obligation to ensure, for the
benefit of present and future generations, as well as for the benefit of the
environment itself, that everyone within their jurisdiction can enjoy safe,
clean, healthy and sustainable environmental conditions adequate for their
rights to health, well-being, dignity and culture.364
166. Therefore, international conventions, other international instruments and
State practice show that States are obligated to protect and preserve the
environment and the climate system within their own jurisdiction and
control.
(ii) This obligation is enforceable on a State-to-State level
167. The obligation to protect the environment within one’s own jurisdiction
and control is enforceable against a State by other States, even if they are
themselves not injured by the States whose territory is impacted. This is
because the obligation is an erga omnes obligation (i.e., an obligation in
whose fulfilment all States have a legal interest) and an erga omnes partes
obligation (i.e., an obligation in whose fulfilment all States party to the
same treaty have a legal interest).
168. The erga omnes and erga omnes partes character of the obligation is
supported by this Court’s case law. In Gabčíkovo-Nagymaros, this Court
recognised “the great significance [of] respect for the environment, not
363 See paragraph 145.
364 See Strasbourg Principles, Principle 35, Annex 540.
113
only for States but also for the whole of mankind.”365 In addition, late
Judge Christopher Weeramantry, previous Vice-President of this Court, in
his dissenting opinion in the Nuclear Weapons Advisory Opinion,
recognised that the principles of environmental law “do not depend for
their validity on treaty provisions,” that they are “part of customary
international law” and the “sine qua non for human survival.”366 Ad hoc
Judge Dugard, in his dissenting opinion in Certain Activities Carried Out
by Nicaragua in the Border Area (Costa Rica v Nicaragua), also
acknowledged the specific obligation not to engage in wrongful
deforestation that results in the release of carbon as an erga omnes
obligation.367
169. This Court has also allowed non-injured States to bring claims against
States for breaches of international human rights and environmental
obligations in treaties – thereby acknowledging that those obligations are
erga omnes partes.368
365 Gabčíkovo-Nagymaros, paragraph 53, Annex 394, citing the Nuclear Weapons Advisory
Opinion, paragraph 29, Annex 392.
366 Nuclear Weapons Advisory Opinion, Dissenting Opinion of Judge Weeramantry, page
504, Annex 393.
367 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v
Nicaragua), Compensation, Judgment of 2 February 2018, I.C.J. Reports 2018, p. 15
(“Certain Activities Carried Out by Nicaragua in the Border Area Compensation
Judgment”), Dissenting opinion of Judge Ad Hoc Dugard, paragraph 35, Annex 408).
368 See Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal),
Judgment of 20 July 2012, I.C.J. Reports 2012, p. 422, paragraphs 68-69, Annex 403;
Whaling in the Antarctic (Australia v Japan: New Zealand intervening), Judgment of 31
March 2014, I.C.J Reports 2014, p. 226, Annex 404. See also “Draft Articles on
Responsibility of States for Internationally Wrongful Acts”, Report of the Commission to
the General Assembly on the work of its fifty-third session, Yearbook of the
International Law Commission, A/CN.4/SER.A/2001/Add.1 (Part 2), International Law
Commission, 10 August 2001 (“Articles on Responsibility of States”), Article 48,
Annex 494. This is even though the Court in 1970 stated that human rights instruments
themselves do not confer on State the capacity to protect victims irrespective of their
114
170. The erga omnes and erga omnes partes nature of this obligation is
supported by teachings of highly qualified publicists. For example,
Giorgio Gaja (previously Judge of this Court) stated that:
[a] State which has not been injured, but which may invoke
the responsibility of the wrongdoing State, does so
essentially in the exercise of a collective interest. It will
rarely have suffered damage (moral or material) that affects
it individually. This could be the case of a State which,
even if its coastal and maritime areas are not affected by the
consequences of pollution in the high seas, incurs expenses
to combat pollution.369
171. The ILC, a body of international law experts, developed articles on State
responsibility, which state that:
[a]ny State other than an injured State is entitled to invoke
the responsibility of another State . . . if: (a) the obligation
breached is owed to a group of States including that State,
and is established for the protection of a collective interest
of the group; or (b) the obligation breached is owed to the
international community as a whole.370
172. The ILC’s Commentary to the Articles on Responsibility of States
clarifies that collective obligations “might concern, for example, the
environment or security of a region (e.g., a regional nuclear-free zone
treaty or a regional system for the protection of human rights).”371 The
nationality (see Barcelona Traction, Light and Power Company, Limited, Judgment of 5
February 1970, I.C.J Reports 1970, p. 3, paragraph 91, Annex 387).
369 G. Gaja, States having an Interest in Compliance with the Obligation Breached, in THE
LAW OF INTERNATIONAL RESPONSIBILITY, eds. James Crawford et al. (Oxford University
Press, 2010), page 961, Annex 523.
370 Articles on Responsibility of States, Article 48(1), Annex 494.
371 “Draft Articles on Responsibility of States for Internationally Wrongful Acts with
commentaries”, Report of the Commission to the General Assembly on the work of its
fifty-third session, Yearbook of the International Law Commission,
A/CN.4/SER.A/2001/Add.1 (Part 2), International Law Commission, 10 August 2001
115
ILC also noted that individual States may be specially affected by the
breach of obligations owed to the international community as a whole “for
example, a coastal State specially affected by pollution in breach of an
obligation aimed at protection of the marine environment in the collective
interest.”372
173. In addition, late Judge Crawford, in his then capacity as the ILC’s Special
Rapporteur on State Responsibility, stated that the conservation of
resources amounting to a common heritage of mankind could give rise to
obligations erga omnes partes.373
174. The obligation is also erga omnes and erga omnes partes by virtue of its
direct link with fundamental human rights obligations. This Court has
already stated that “the principles and rules concerning the basic rights of
the human person” are obligations erga omnes because they are the
“concern of all States.”374 As discussed above, there is a direct link
between a healthy environment and the enjoyment of human rights.
Therefore, the obligation to protect and preserve the environment,
including the climate system, for present and future generations is an
(“Commentary to the Articles on Responsibility of States”), Article 48, page 126,
paragraph 7, Annex 495.
372 Commentary to the Articles on Responsibility of States, Article 48, page 127, paragraph
10, Annex 495.
373 See Third Report on State responsibility by James Crawford, Special Rapporteur,
A/CN.4/507, International Law Commission, 15 March 2000, paragraph 92, Annex 492.
374 Barcelona Traction, Light and Power Company, Limited, Judgment of 5 February 1970,
I.C.J Reports 1970, p. 3, paragraphs 33-34, Annex 387.
116
obligation that is enforceable on a State-to-State level, because it is the
“concern of all States.”375
175. This is supported by State practice of bringing cases against each other
before international and regional courts with allegations for breaches of
human rights or providing for mechanisms for them to do so in treaties:
a. The Gambia brought a case against Myanmar for violations of the
Convention on the Prevention and Punishment of the Crime of
Genocide to this Court and this Court allowed this case to proceed
past the preliminary objections phase;376
b. Belgium brought a case against Senegal for violations of the
Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment and this Court decided on the
merits of the case;377 and
c. under the European Convention on Human Rights, 46 States agree
that “any High Contracting Party may refer to the Court any
alleged breach of the provisions of the Convention and the
375 Ad hoc Judge Dugard in his dissenting opinion in Certain Activities Carried Out by
Nicaragua in the Border Area Compensation Judgment also suggested that
environmental obligations (specifically the obligation not to engage in wrongful
deforestation that results in the release of carbon) is an erga omnes obligation (see
Certain Activities Carried Out by Nicaragua in the Border Area Compensation
Judgment, Dissenting opinion of Judge Ad Hoc Dugard, paragraph 35, Annex 408).
376 See Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (The Gambia v Myanmar), Preliminary Objections, Judgment of 22 July 2022,
I.C.J. Reports 2022, p. 477, Annex 410.
377 See Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal),
Judgment of 20 July 2012, I.C.J. Reports 2012, p. 422, Annex 403.
117
Protocols thereto by another High Contracting Party.”378 States
have exercised this right in over 30 inter-State cases.379 This is so
even if the State bringing the case is not a victim of an abuse of a
human right.380
176. In addition, the IACtHR recognises the “collective guarantee” of the entire
inter-American system, which “translates into a general duty of protection
required of States Parties to the American Convention and the OAS
Charter, in order to ensure the effectiveness of those instruments, as a rule
of an erga omnes partes nature.”381 This collective guarantee mechanism
in the American Convention on Human Rights requires States to
cooperate on ensuring the effectiveness of their human rights obligations.
177. Therefore, the obligation to protect and preserve the environment and
other parts of the climate system within the jurisdiction and control of the
State is an erga omnes (partes) obligation.
378 Convention for the Protection of Human Rights and Fundamental Freedoms as amended
by Protocol No. 15, 4 November 1950, European Treaty Series - No. 5 (“European
Convention on Human Rights”), Article 33, Annex 69.
379 See “Inter-State applications”, European Court of Human Rights, Annex 510.
380 See Slovenia v Croatia [2016] ECHR 54155, paragraph 67, Annex 429.
381 Denunciation of the American Convention on Human Rights and the Charter of the
Organization of American States and the consequences for State human rights
obligations (interpretation and scope of articles 1, 2, 27, 29, 30, 31, 32, 33 a 65 and 78
of the American Convention on Human Rights and 3(l), 17, 45, 53, 106 and 143 of the
Charter of the Organization of American States). Advisory Opinion OC-26/20 of
November 9, 2020, Series A No. 26, paragraph 164, Annex 381.
118
Obligation to protect and preserve the environment in areas beyond
national control: States must protect and preserve the climate system
and other parts of the environment in areas beyond national control
178. Under international law, States are also obligated to protect and preserve
the climate system and other parts of the environment in areas beyond
national control.
179. The extension of environmental protection obligations to areas beyond
national control is established under long-standing international law. In
the late 19th century, the tribunal in the Fur Seals Arbitration confirmed
environmental protection obligations (namely, measures for the protection
and preservation of migratory fur seals) in respect of the high seas
“outside the jurisdictional limits of the respective Governments.”382 The
finding is all the more notable for having been rendered by a tribunal
whose members included high-ranking State officials: inter alia, a Justice
of the US Supreme Court, a US Senator, the Minister of Justice of
Canada, the Attorney General of Canada, an Ambassador of France and a
Norwegian Minister of State.383 Within two decades, by 1911, the major
382 Award of the Arbitral Tribunal established under the Treaty signed in Washington, on
the 29th of February 1892, Between United States and Her Majesty The Queen of United
Kingdom of Great-Britain and Ireland (Relating to the Rights of Jurisdiction of United
States in the Bering’s Sea and the Preservation of Fur Seals), Award, 15 August 1893,
RIAA Vol. XXVIII, p. 263, page 270, Annex 180.
383 See Award of the Arbitral Tribunal established under the Treaty signed in Washington,
on the 29th of February 1892, Between United States and Her Majesty The Queen of
United Kingdom of Great-Britain and Ireland (Relating to the Rights of Jurisdiction of
United States in the Bering’s Sea and the Preservation of Fur Seals), Award, 15 August
1893, RIAA Vol. XXVIII, p. 263, page 268, Annex 180.
119
sealing States had also enshrined these extraterritorial obligations to
protect and promote the environment into treaty law.384
180. States’ obligations to protect and preserve the environment in areas
beyond national control is also widely confirmed by a multitude of more
recent international law sources. For example:
a. under the Vienna Convention for the Protection of the Ozone
Layer, 197 States and the European Union commit to protect
human health and the environment against adverse effects
resulting or likely to result from human activities which modify or
are likely to modify the ozone layer.385 Together, the Vienna
Convention for the Protection of the Ozone Layer and its
associated Montreal Protocol on Substances that Deplete the
Ozone Layer reflect the acceptance by 197 States and the
European Union of a binding obligation to protect the ozone layer
in the stratosphere, including beyond national jurisdiction.386
Notably, these instruments were the first in the history of the UN
to have achieved universal ratification, confirming decisively that
protecting and preserving the environment beyond national
jurisdiction reflects universally agreed principles of law;
384 See Convention between the United States and Other Powers Providing for the
Preservation and Protection of Fur Seals, 7 July 1911, UK Treaty Series 1912 No. 2,
Annex 181.
385 See Vienna Convention for the Protection of the Ozone Layer, Article 2(1), Annex 98.
386 The Vienna Convention for the Protection of the Ozone Layer defines “ozone layer”
expansively as “the layer of atmospheric ozone above the planetary boundary layer”,
without any limitation to areas immediately above territory within national jurisdiction
(see Vienna Convention for the Protection of the Ozone Layer, Article 1(1), Annex 98).
120
b. under the UNFCCC, 197 States and the European Union agree that
they “should protect the climate system for the benefit of present
and future generations of humankind”;387
c. through the Convention on Biological Diversity, 195 States and
the European Union confirm that:
States have, in accordance with the Charter of the
United Nations and the principles of international
law, the sovereign right to exploit their own
resources pursuant to their own environmental
policies, and the responsibility to ensure that
activities within their own jurisdiction or control do
not cause damage to the environment . . . of areas
beyond the limits of national jurisdiction.388
The Convention on Biological Diversity further establishes an
obligation to cooperate in respect of areas beyond national
jurisdiction for the conservation and sustainable use of biological
diversity;389
387 UNFCCC, Article 3(1), Annex 112. States recognise also that “climate change and its
adverse effects are a common concern of humankind” and that climate change may
adversely affect natural ecosystems and humankind (e.g., due to shortages of food) (see,
e.g., UNFCCC, Recitals, Annex 112; Paris Agreement, 12 December 2015, 3156 UNTS
79 (“Paris Agreement”), Recitals, Annex 156). In fact, the definition of “Adverse
effects of climate change” in the UNFCCC acknowledges that climate change has
significant deleterious effects on “human health and welfare” among other things
(UNFCCC, Article 1(1), Annex 112). States also attest that they are aware of “the
potentially harmful impact on human health and environment through modification of the
ozone layer” (Vienna Convention for the Protection of the Ozone Layer, Recitals, Annex
98).
388 Convention on Biological Diversity, Article 3, Annex 113. See also Stockholm
Declaration, Principle 21 (“States have, in accordance with the Charter of the United
Nations and the principles of international law . . . the responsibility to ensure that
activities within their jurisdiction or control do not cause damage to the environment of
other States or of areas beyond the limits of national jurisdiction”), Annex 469.
389 See Convention on Biological Diversity, Article 5, Annex 113.
121
d. under UNCLOS, 168 States and the European Union also accept
and enshrine expressly an obligation to protect and preserve the
marine environment.390 This is widely accepted, including
through judicial pronouncements, as applying both within and
beyond the limits of national jurisdiction;391 and
e. under the Convention on Environmental Impact Assessment in a
Transboundary Context, 44 States and the European Union agree
that they “shall, either individually or jointly, take all appropriate
and effective measures to prevent, reduce and control significant
adverse transboundary environmental impact from proposed
activities.”392
181. Likewise, the obligation to protect and preserve the marine environment is
universally reflected in a multitude of agreements relating to Antarctica.
In the context of the suspension of sovereignty claims over the Antarctic,
all obligations of environmental protection and preservation in Antarctica
are properly understood as pertaining to areas beyond national
jurisdiction.393 In this regard, key agreements include the Protocol on
390 See UNCLOS, Article 192, Annex 95.
391 See, e.g., Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries
Commission (SRFC), Advisory Opinion of 2 April 2015, ITLOS Reports 2015, p. 4,
paragraph 120, Annex 421. See also South China Sea Arbitration (Philippines v China),
Award, 12 July 2016, PCA Case No. 2013-19 (“South China Sea Arbitration”),
paragraphs 940-941, Annex 437.
392 Convention on Environmental Impact Assessment in a Transboundary Context, 25
February 1991, 1989 UNTS 309, Article 2.1, Annex 166.
393 See R. Rayfuse, “Protecting Marine Biodiversity in Polar Areas Beyond National
Jurisdiction”, Review of European Community & International Environmental Law,
2008, pp. 3-13, page 4 (“the suspension of sovereignty claims in the Antarctic currently
renders the entire Antarctic area, including the Southern Ocean south of the Arctic
Convergence, one beyond national jurisdiction, albeit one governed by a special regime
established by various agreements and bodies comprising the Antarctic Treaty System”),
Annex 520.
122
Environmental Protection to the Antarctic Treaty, which records the 33
Parties’ recognition of “the need to enhance the protection of the Antarctic
environment and dependent and associated ecosystems” and “that the
development of a comprehensive regime for the protection of the
Antarctic environment and dependent and associated ecosystems is in the
interest of mankind as a whole.”394 The Protocol further records the 33
Parties’ agreement that “[t]he protection of the Antarctic environment and
dependent and associated ecosystems and the intrinsic value of Antarctica
. . . shall be fundamental considerations in the planning and conduct of all
activities in the Antarctic Treaty area”395 as well as agreement that, inter
alia, activities in the Antarctic Treaty area shall be planned and conducted
so as to “limit adverse impacts on the Antarctic environment and
dependent and associated ecosystems”396 and to avoid “adverse effects on
climate and weather patterns.”397 Additional relevant instruments in this
regard include:
a. the Antarctic Treaty, to which 56 States are party, establishing a
consultation and recommendations procedure “in furtherance of
the principles and objectives of the Treaty, including . . .
preservation and conservation of living resources in Antarctica”398
as well as banning nuclear explosions and the disposal of
radioactive waste;399
394 Protocol on Environmental Protection to the Antarctic Treaty, 4 October 1991, 2941
UNTS 3 (“Antarctic Environmental Protocol”), Preamble, Annex 107.
395 Antarctic Environmental Protocol, Article 3(1), Annex 107.
396 Antarctic Environmental Protocol, Article 3(2)(a), Annex 107.
397 Antarctic Environmental Protocol, Article 3(2)(b)(i), Annex 107.
398 The Antarctic Treaty, 1 December 1959, 402 UNTS 71, Article IX(1)(f), Annex 70.
399 See The Antarctic Treaty, 1 December 1959, 402 UNTS 71, Article V(1), Annex 70.
123
b. the Convention for the Conservation of Antarctic Seals, to which
16 States are party, which – recognising the “need for effective
conservations measures,” “that the stocks of Antarctic seals are an
important living resource in the marine environment,” “that any
harvesting should be regulated so as not to exceed the levels of
optimum sustainable yield” and enshrining the objective “to
maintain a satisfactory balance within the ecological system” –
establishes catch limits for various seal species and prohibits
entirely the catch of others;400 and
c. the Convention on the Conservation of Antarctic Marine Living
Resources, to which 29 States are party, “[r]ecognising the
importance of safeguarding the environment and protecting the
integrity of the ecosystem of the seas surrounding Antarctica” as
well as “the urgency of ensuring the conservation of Antarctic
marine living resources” and the “prime responsibilities of the
Antarctic Treaty Consultative Parties for the protection and
preservation of the Antarctic environment.”401
182. Widespread obligations of environmental protection and preservation with
respect to areas beyond national control can also be found in regional
treaties and instruments. To set out just a few, non-exhaustive examples:
a. the Agreement on the Protection of the Marine Environment and
the Coastal Area of the South-East Pacific, to which 5 States are
party, establishes environmental protection and preservation
400 Convention for the Conservation of Antarctic Seals, 1 June 1972, 1080 UNTS 175,
Preamble, Annex 80.
401 Convention on the Conservation of Antarctic Marine Living Resources, 20 May 1980,
1329 UNTS 47, Preamble, Annex 90.
124
obligations inter alia with respect to “the high seas up to a distance
within which pollution of the high seas may affect” the area within
the 200-mile maritime area of sovereignty and jurisdiction of the
parties;402
b. the Agreement on Regional Cooperation in Combating Pollution
of the South-East Pacific by Oil or Other Harmful Substances in
Cases of Emergency, to which 5 States are party, establishes
environmental protection and preservation obligations inter alia
with respect to “the high seas up to a distance within which
discharged pollutants constitute a danger” to waters within the
200-mile maritime area of sovereignty and jurisdiction of the
parties;403
c. the Convention for the Protection of the Natural Resources and
Environment of the South Pacific Region, to which 12 States are
party, establishes environmental protection and preservation
obligations inter alia with respect to the “areas of the high seas
which are enclosed from all sides” by certain 200 nautical mile
zones;404
d. the Agreement on Cooperation on Marine Oil Pollution
Preparedness and Response in the Arctic, to which 8 States are
402 Agreement on the Protection of the Marine Environment and the Coastal Area of the
South-East Pacific, 12 November 1981, 1648 UNTS 3, Article 1, Annex 93.
403 Agreement on Regional Cooperation in Combating Pollution of the South-East Pacific by
Oil or Other Harmful Substances in Cases of Emergency, 22 July 1983, 1648 UNTS 35,
Article 2, Annex 97.
404 Convention for the Protection of the Natural Resources and Environment of the South
Pacific Region, 24 November 1986, Australian Treaty Series No. 31 (“Noumea
Convention”), Article 2, Annex 101.
125
party, extends certain obligations of marine oil pollution
preparedness and response to areas beyond the jurisdiction of any
State to the extent consistent with international law;405
e. the Agreement to Prevent Unregulated Fishing in the High Seas of
the Central Arctic Ocean, to which 9 States and the European
Union are party, pursues the express objective “to prevent
unregulated fishing in the high seas portion of the central Arctic
Ocean through the application of precautionary conservation and
management measures as part of a long-term strategy to safeguard
healthy marine ecosystems and to ensure the conservation and
sustainable use of fish stocks”;406 and
f. the Protocol on Climate Change Adaptation and Disaster Risk
Management in Fisheries and Aquaculture in the Caribbean,
approved by the 20 States of the Caribbean Community requires
States to “take action and adopt measures to combat climate
change and ocean acidification and their impacts, build resilience
and protect fisheries sector livelihood assets.”407
405 See Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in
the Arctic, 15 May 2013, US Treaty Series No. 16-325, Article 3(2), Annex 154.
406 Agreement to Prevent Unregulated Fishing in the High Seas of the Central Arctic Ocean,
3 October 2018, OJ L 73, Article 2, Annex 158. See also Agreement to Prevent
Unregulated Fishing in the High Seas of the Central Arctic Ocean, 3 October 2018, OJ L
73, Preamble (“consistent with the precautionary approach, to prevent the start of
unregulated fishing in the high seas portion of the central Arctic Ocean while keeping
under regular review the need for additional conservation and management measures”),
Annex 158.
407 Protocol on Climate Change Adaptation and Disaster Risk Management in Fisheries and
Aquaculture in the Caribbean, The Food and Agriculture Organization of the United
Nations and Caribbean Regional Fisheries Mechanism, 11 October 2018, Article 6.1,
Annex 161.
126
183. Similar obligations with respect to areas beyond national jurisdiction can
also be found in additional, non-regional treaties relating to fisheries. For
example:
a. the Agreement to Promote Compliance with International
Conservation and Management Measures by Fishing Vessels on
the High Seas, to which 44 States and the European Union are
party, confirms that “under international law as reflected in
[UNCLOS], all States have the duty to take, or to cooperate with
other States in taking, such measures for their respective nationals
as may be necessary for the conservation of the living resources of
the high seas.”408 Consistent with the obligation to provide
assistance to developing countries, the Agreement further confirms
that its Parties “shall cooperate . . . to provide assistance, including
technical assistance, to Parties that are developing countries in
408 Agreement to Promote Compliance with International Conservation and Management
Measures by Fishing Vessels on the High Seas, 24 November 1993, 2221 UNTS 91,
Preamble, Annex 119. See also International Guidelines for the Management of Deepsea
Fisheries in the High Seas, SPRFMO-VI-SWG-INF01, Food and Agriculture
Organization of the United Nations, 29 August 2008, Annex 475; UN General Assembly
Resolution 59/25 (2005), 17 January 2005, Article 66 (“Calls upon States, either by
themselves or through regional fisheries management organizations or arrangements,
where these are competent to do so, to take action urgently, and consider on a case-bycase
basis and on a scientific basis, including the application of the precautionary
approach, the interim prohibition of destructive fishing practices, including bottom
trawling that has adverse impacts on vulnerable marine ecosystems, including
seamounts, hydrothermal vents and cold water corals located beyond national
jurisdiction, until such time as appropriate conservation and management measures have
been adopted in accordance with international law”), Annex 219; UN General Assembly
Resolution 61/105 (2007), 6 March 2007, Article 89 (“further invites the Food and
Agriculture Organization of the United Nations . . . [to develop] standards and criteria for
use by States and regional fisheries management organizations or arrangements in
identifying vulnerable marine ecosystems and the impacts of fishing on such ecosystems,
and establishing standards for the management of deep sea fisheries, such as through the
development of an international plan of action”), Annex 220.
127
order to assist them in fulfilling their obligations under this
Agreement”;409 and
b. the Agreement for the Implementation of the Provisions of the
United Nations Convention on the Law of the Sea relating to the
Conservation and Management of Straddling Fish Stocks and
Highly Migratory Fish Stocks, to which 92 States and the
European Union are party, enshrines as general principles that
States fishing on the high seas, “[i]n order to conserve and manage
straddling fish stocks and highly migratory fish stocks,”410 shall
inter alia: “adopt measures to ensure long-term sustainability”;411
“ensure that such measures are based on the best scientific
evidence available” and taking into account “the special
requirements of developing States”;412 “apply the precautionary
approach”; “minimize pollution”;413 “protect biodiversity in the
marine environment”;414 and “implement and enforce conservation
and management measures through effective monitoring, control
and surveillance.”415 The Agreement further enshrines the
precautionary approach, including that “States shall be more
409 Agreement to Promote Compliance with International Conservation and Management
Measures by Fishing Vessels on the High Seas, 24 November 1993, 2221 UNTS 91,
Article VII, Annex 119.
410 Agreement for the Implementation of the Provisions of the United Nations Convention
on the Law of the Sea of 10 December 1982 relating to the Conservation and
Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 4 August
1995, 2167 UNTS 3 (“UN Fish Stocks Agreement”), Article 5, Annex 125.
411 UN Fish Stocks Agreement, Article 5(a), Annex 125.
412 UN Fish Stocks Agreement, Article 5(b), Annex 125.
413 UN Fish Stocks Agreement, Article 5(c), Annex 125.
414 UN Fish Stocks Agreement, Article 5(f), Annex 125.
415 UN Fish Stocks Agreement, Article 5(g), Annex 125.
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cautious when information is uncertain, unreliable or inadequate”
and that “[t]he absence of adequate scientific information shall not
be used as a reason for postponing or failing to take conservation
and management measures.”416
184. Each of these obligations of environmental protection and preservation
with respect to areas beyond national control should be understood in light
of the recently concluded Draft Agreement under the United Nations
Convention on the Law of the Sea on the Conservation and Sustainable
Use of Marine Biological Diversity of Areas Beyond National
Jurisdiction, already signed by 86 States and the European Union. Among
other things, it recalls the UNCLOS provisions on the protection and
preservation of the marine environment and espouses the objective of
ensuring conservation and sustainable use of marine biological diversity
of areas beyond national jurisdiction for the present and in the longterm.
417
185. The obligation to protect and preserve the marine environment under
UNCLOS is broad in scope. It extends beyond measures aimed strictly at
controlling marine pollution to include measures necessary to protect and
preserve fragile ecosystems.418 It encompasses obligations to prevent,
416 UN Fish Stocks Agreement, Article 6(2), Annex 125.
417 See Agreement under the United Nations Convention on the Law of the Sea on the
Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond
National Jurisdiction, 19 June 2023, A/CONF.232/2023/4, Preamble and Article 2,
Annex 159.
418 See UNCLOS, Article 194(5), Annex 95; Chagos Marine Protected Area Arbitration
(Mauritius v United Kingdom), Award, 18 March 2015, PCA Case No. 2011-03,
paragraphs 320, 538, Annex 436.
129
reduce and control pollution, whether direct or indirect,419 and without any
exclusion of new or previously unsuspected pollutants.420 It must
therefore be understood to include obligations to prevent, reduce and
control indirect pollution in the form of ocean acidification linked to
greenhouse gas emissions. In its application both within and beyond the
limits of national jurisdiction, such obligations under UNCLOS to protect
and preserve the marine obligation “exten[d] both to ‘protection’ of the
marine environment from future damage and ‘preservation’ in the sense of
maintaining or improving its present condition.”421
186. As the ICJ Statute confirms and as also explained in paragraph 129, the
above international conventions constitute a recognised and appropriate
source of international law to which this Court should refer.422 This Court
should also have regard to international custom as evidence of State
practice accepted as law, as well as judicial decisions and the teachings of
the most highly qualified publicists.423 These sources further confirm the
419 See UNCLOS Article 194, read with Article 1(1)(4) (“Pollution of the marine
environment means the introduction by man, directly or indirectly, of substances or
energy into the marine environment, including estuaries, which results or is likely to
result in such deleterious effects as harm to living resources and marine life, hazards to
human health, hindrance to marine activities, including fishing and other legitimate uses
of the sea, impairment of quality for use of sea water and reduction of amenities”),
Annex 95.
420 See Report of the United Nations Conference on the Human Environment, General
Principles for Assessment and Control of Marine Pollution, A/CONF.48/14/Rev.1, 16
June 1972, page 73, Principle 14 (“The development and implementation of control
should be sufficiently flexible to reflect increasing knowledge of the marine ecosystem,
pollution effects, and improvements in technological means for pollution control and to
take into account the fact that a number of new and hitherto unsuspected pollutants are
bound to be brought to light”), Annex 469. See also Report on the Work of the United
Nations Open-Ended Informal Consultative Process on Oceans and the Law of the Sea at
its Fourteenth Meeting, A/68/159, 17 July 2013, paragraphs 9-10, Annex 477.
421 South China Sea Arbitration, paragraph 941, Annex 437.
422 See ICJ Statute, Article 38.
423 See paragraph 129 above; ICJ Statute, Article 38.
130
extension of States’ obligations to protect and preserve the environment to
areas beyond national control.
187. In 2014, for example, 10 States articulated a common vision for
conserving the Sargasso Sea ecosystem – “the majority of which lies
beyond national jurisdiction” – for the benefit of present and future
generations and determined to collaborate to the extent possible in
pursuing its conservation.424 Even more notably, the United States of
America – a non-party to UNCLOS – has consistently recognised and
acted in accordance with environmental protection obligations vis-à-vis
the deep seabed beyond national jurisdiction in its conduct in connection
with proposed deep sea mining activities. The Deep Seabed Hard Mineral
Resources Act adopted by the United States of America encouraged
“international actions necessary to adequately protect the environment
from adverse impacts which may result from any exploration for and
commercial recovery of hard mineral resources of the deep seabed.”425
Similarly, the Deep Seabed Mining Regulations for Exploration Licenses
specifically restrain the National Oceanic and Atmospheric
Administration (“NOAA”) from issuing or transferring any exploration
licence unless it has found that the proposed exploration “cannot
reasonably be expected to result in a significant adverse effect on the
quality of the environment.”426
424 Hamilton Declaration on Collaboration for the Conservation of the Sargasso Sea, 11
March 2014, paragraphs 1-3, Annex 291.
425 Deep Seabed Hard Mineral Resources Act, 28 June 1980, as amended to 1 July 2000,
Article 1402(b)(2), Annex 272.
426 National Oceanic and Atmospheric Administration, Deep Seabed Mining Regulations for
Exploration Licenses,15 Code of Federal Regulations § 970.506, 15 September 1981,
Annex 247.
131
188. In 2022, the NOAA of the US Government confirmed that “no at-sea
activities may be conducted” pursuant to NOAA deep seabed hard mineral
exploration licences “without further environmental review and additional
prior written authorization by NOAA.”427 In particular, the NOAA has
repeatedly and consistently confirmed in 2016 and 2022 that:
a. the NOAA will “conduct an environmental analysis . . . if and
when NOAA authorizes . . . exploration activities pursuant to [the
Deep Seabed Hard Mineral Resources Act] Licenses USA-1 and
USA-4” granted to Lockheed Martin;428
b. “[a]ny additional authorization by NOAA would occur only after a
determination that proposed activities cannot reasonably be
expected to result in a significant adverse effect on the quality of
the environment”;429
c. “[d]ecision-making on seabed mining should be guided by the best
available scientific information on the marine environment and
ecosystem, and the risks posed by mining and associated
operational practices”;430
427 National Oceanic and Atmospheric Administration, Deep Seabed Mining: Approval of
Exploration License Extensions, 87 Fed. Reg. 52743, 29 August 2022 (“Deep Seabed
Mining: Approval of Exploration License Extensions”), page 52744, Annex 262. See
also National Oceanic and Atmospheric Administration, Deep Seabed Hard Minerals;
Request for Extension of Exploration Licenses; Comments Request, 87 Fed. Reg. 15408,
18 March 2022, Annex 261.
428 Center for Biological Diversity v Penny Pritzker et al., 33 U.S.C. § 1365 (2016), Joint
Motion to Dismiss and Proposed Order, 30 November 2016, paragraph 6, Annex 457.
429 Deep Seabed Mining: Approval of Exploration License Extensions, page 52744, Annex
262.
430 Deep Seabed Mining: Approval of Exploration License Extensions, page 52744, Annex
262.
132
d. “[a]gain, additional activities will be allowed only if NOAA
determines that those activities cannot reasonably be expected to
result in significant adverse effect on the quality of the
environment”;431 and
e. the “NOAA recognizes the importance of a stable, science-based,
internationally recognized regulatory framework for seabed
mining that is harmonious with the U.S. seabed mining regulatory
regime and ensures effective protection for the marine
environment from harmful effects of seabed mining activities.”432
189. As to judicial decisions and the teachings of the most highly qualified
publicists, in its Nuclear Weapons Advisory Opinion, this Court found
that:
the environment is not an abstraction but represents the
living space, the quality of life and the very health of human
beings, including generations unborn. The existence of the
general obligation of States to ensure that activities within
their jurisdiction and control respect the environment . . . of
areas beyond national control is now part of the corpus of
international law relating to the environment.433
190. It follows ipso facto that the protection and preservation of the
environment – not an abstraction and representing quality of life and
human health, including for future generations – extends to protection and
preservation of the climate system, including in areas beyond national
431 Deep Seabed Mining: Approval of Exploration License Extensions, page 52744, Annex
262.
432 Deep Seabed Mining: Approval of Exploration License Extensions, page 52745, Annex
262.
433 Nuclear Weapons Advisory Opinion, paragraph 29, Annex 392. See also Pulp Mills,
paragraph 193, Annex 400. South China Sea Arbitration, paragraph 941, Annex 437.
133
control. Consistent with this, the IACtHR has also affirmed that “States
must ensure that their territory is not used in such a way as to cause
significant damage to the environment . . . of areas beyond the limits of
their territory.”434
191. In addition, the drafters and endorsers of the Strasbourg Principles435
agree that States have the responsibility to ensure that activities within
their jurisdiction or control do not cause damage to the areas beyond the
limits of national jurisdiction.436
192. As set out above, international law confirms that the obligation to protect
and preserve the environment, including the climate system, extends as an
obligation to areas beyond national control. States are obliged to protect
and preserve the climate system and other parts of the environment in
areas beyond national control. This obligation, as recognised as a matter
of custom and treaty law, encompasses both the obligation to protect the
environment beyond national control from future damage and the
obligation to maintain and improve the condition of the environment
beyond national control.
Obligation to mitigate and repair: States must mitigate and repair
harm already caused or that will be caused by anthropogenic
greenhouse gas emissions, whether or not they have initially caused
such harm
193. Under international law, States are obligated to mitigate and repair harm.
This includes the obligation to mitigate harm already caused or that will
434 IACtHR 2017 Advisory Opinion, paragraph 104(f), Annex 372.
435 See paragraph 145 above.
436 See Strasbourg Principles, Principle 36, Annex 540.
134
be caused by their anthropogenic greenhouse gas emissions to the climate
system and other parts of the environment, as well as the obligation to
repair harm to the environment whether or not the State in question caused
the harm.
194. A State’s obligation to mitigate and repair harm already caused or that
will be caused by their anthropogenic greenhouse gas emissions to the
climate system is well-established in treaty law. Mitigation refers to the
obligation to address the cause of climate change by limiting and reducing
anthropogenic greenhouse gas emissions by sources and by enhancing the
removal of greenhouse gases by sinks and storage by reservoirs.437 It
includes, for example, the obligation to develop and transfer technologies
to combat the effects of climate change.438 It is complementary with the
related objective of climate change adaptation, a major component of the
obligation to repair, being the process of managing as far as possible the
consequences of climate change.439
195. States have agreed on clear obligations of climate change mitigation and
repair under international conventions such as the UNFCCC and the Paris
Agreement. The UNFCCC, for example, requires all parties to formulate,
implement, publish and regularly update programmes containing measures
to mitigate climate change by addressing anthropogenic emissions by
sources and removals by sinks.440 Consistent with the principle of
437 See B. Mayer, International Law Obligations on Climate Change Mitigation (Oxford
University Press, 2022), page 2, Annex 539.
438 See Section VII.C.
439 For example, through facilitated migration, bushfire management and other disaster risk
management. B. Mayer, International Law Obligations on Climate Change Mitigation
(Oxford University Press, 2022), pages 2-3, Annex 539.
440 See UNFCCC, Article 4(1)(b), Annex 112.
135
common but differentiated responsibilities and respective capabilities, the
UNFCCC further imposes obligations on Annex I parties to adopt national
policies and take corresponding measures on climate change mitigation.441
The UNFCCC also enshrines the obligation to repair climate change harm,
inter alia, by requiring developed countries to assist developing countries
that are particularly vulnerable to climate change adverse effects in
meeting costs of adaptation, including by providing financing and
promoting and facilitating technology transfer.442
196. The Paris Agreement enshrines and develops mitigation obligations
further by systematising processes for submitting and implementing
greenhouse gas mitigation commitments by States.443 By establishing
clear obligations to support developing countries,444 the Paris Agreement
further confirms the obligation to repair climate change harm whether or
not a State has caused such harm. These obligations have been further
enhanced through the Kyoto Protocol processes for imposing quantified
emission limitation and reduction commitments.445 These treaty
obligations confirm the recognition among States, including developed
States, of an obligation to foster climate resilience and make finance flows
consistent with a pathway towards low greenhouse gas emissions and
441 See UNFCCC, Article 4(2)(a), Annex 112.
442 See UNFCCC, Articles 4(3)-(5), Annex 112.
443 See Paris Agreement, Articles 4 and 5, Annex 156.
444 See Paris Agreement, Article 4(5), Annex 156.
445 See Kyoto Protocol to The United Nations Framework Convention on Climate Change,
11 December 1997, FCCC/CP/1997/L.7/Add.1 (“Kyoto Protocol”), Article 3, Annex
131.
136
climate-resilient development, specifically for developing countries and
small island States.446
197. The Paris Agreement and the Kyoto Protocol are mere starting points.
They are not by themselves sufficient to discharge States’ obligations in
respect of climate change.
198. In fulfilment of their obligations to mitigate and repair climate change
harm, including through adaptation, States have agreed to operationalise
these obligations through the establishment of funds and facilities. For
example, the UNFCCC Parties have established an Adaptation Fund to
finance concrete adaptation projects and programmes in developing
countries that are particularly vulnerable to the adverse effects of climate
change.447 In 2022, 197 States also reached a historic unanimous
agreement on the establishment of a loss and damage fund dedicated to
assist developing nations most severely affected by climate change.448
199. UN General Assembly Resolution 77/165 acknowledges that “adaptation
to climate change is an urgent priority and a global challenge faced by all
countries, in particular developing countries, especially those that are
446 See, e.g., UNFCCC, Article 4(4), Annex 112; Paris Agreement, Articles 2(1)(b) and (c),
9, 10, Annex 156.
447 See Funding under the Kyoto Protocol, Decision 10/CP.7, Report of the Conference of
the Parties on Its Seventh Session, held at Marrakesh from 29 October to 10 November
2001, Addendum, Part Two: Action taken by the Conference of the Parties,
FCCC/CP/2001/13/Add.1, 21 January 2002, Annex 282. See also Section VII.C below.
448 See Funding arrangements for responding to loss and damage associated with the adverse
effects of climate change, including a focus on addressing loss and damage, Decision
2/CP.27, Report of the Conference of the Parties on its twenty-seventh session, held in
Sharm el-Sheikh from 6 to 20 November 2022, Addendum, Part two: Action taken by the
Conference of the Parties at its twenty-seventh session, FCCC/CP/2022/10/Add.1, 17
March 2023, paragraphs 1 and 13, Annex 313.
137
particularly vulnerable to the adverse effects of climate change.”449 In this
context, it confirms “the importance of the adequacy and predictability of
adaptation finance and of the Adaptation Fund and that the provision of
scaled-up financial resources should be aimed at achieving a balance
between adaptation and mitigation.”450 Such treaty commitments and
State practice reflect widespread recognition of the obligation to mitigate
and repair climate change harm for other States and present and future
generations, including to repair harm whether or not they have caused
such harm.
200. Obligations of climate change mitigation are strongly related to the
general obligation under customary international law not to cause
transboundary harm, which has been discussed above.451 The obligation
to prevent transboundary harm to other States compels States as a matter
of law to reduce, prevent and control foreseeable climate change harm to
other States. Insofar as States have themselves caused or contributed to
climate change harm in breach of international law, the obligation to
mitigate (for example, through carbon sinks) and to repair harm applies as
a matter of customary international law as part of the duty to make full
449 UN General Assembly Resolution 77/165 (2022), A/RES/77/165, 14 December 2022
(“UN General Assembly Resolution 77/165”), Preamble, Annex 229. See also UN
General Assembly Resolution 77/165, paragraph 10, Annex 229.
450 UN General Assembly Resolution 77/165, Preamble, Annex 229.
451 See Section VI.A above. Reflecting the universal acceptance of these obligations, as
well as the obligation to protect and preserve the environment, States have already
moved rapidly to phase out ozone-depleting substances, including through the
universally ratified Vienna Convention for the Protection of the Ozone Layer, Annex 98
and the Montreal Protocol on Substances that Deplete the Ozone Layer, 16 September
1987, 1522 UNTS 3, Annex 102. See also paragraph 180 above.
138
reparation for injury caused by wrongful acts, as discussed in further
detail below.452
201. As set out in Section VI.B, climate change-related harm implicates human
rights, including the rights to life, adequate food, health, housing, selfdetermination,
access to water and privacy.453 A State’s obligations to
mitigate and repair climate change harm, whether or not caused by that
State, therefore follow from existing obligations of States under
international human rights law. Such obligations apply irrespective of
whether the State itself has directly caused the environmental harm
impacting free and full exercise of human rights. States are obliged in
fulfilling their human rights obligations to have particular regard to
communities who will be most acutely impacted, including those already
in vulnerable situations owing to poverty, gender, age, indigenous or
minority status and disability.454
202. International human rights law jurisprudence confirms that failing to
mitigate and repair climate change harm, whether or not caused by the
State, violates international human rights law. In Billy v Australia, the UN
Human Rights Committee determined that Australia’s climate change
inaction violated the rights to privacy, family and home, as well as the
right of indigenous peoples to enjoy their traditional territories and
continue to enjoy the natural resources traditionally used for their cultural
452 See Articles on Responsibility of States, Article 31, Annex 494; Section VII.B.
453 See UN Human Rights Council Resolution 10/4, Preamble, Annex 222. See also
IACtHR 2017 Advisory Opinion, paragraphs 123-124, Annex 372.
454 See UN Human Rights Council Resolution 10/4 (2009), A/HRC/RES/10/4, 25 March
2009, Preamble, Annex 222. See also Glasgow Climate Pact, Decision 1/CP.26, Report
of the Conference of the Parties on its twenty-sixth session, held in Glasgow from 31
October to 13 November 2021, Addendum, Action taken by the Conference of the
Parties at its twenty-sixth session, FCCC/CP/2021/12/Add.1, 8 March 2022, Annex 309.
139
identity. Australia’s violations were grounded in its failure to take timely
and adequate repair and adaptation action (namely, delays in the
construction of seawalls to address coastal erosion and storm surge
impacts),455 without any need to establish any separate connection
between the State and the environmental harm caused.
203. Human rights jurisprudence further recognises that failure to take timely
and adequate repair and adaptation action in respect of climate change
harm can violate the right to life. Thus, in its Views adopted in Teitiota v
New Zealand, the UN Human Rights Committee confirmed:
[t]he Committee is of the view that without robust national
and international efforts, the effects of climate change in
receiving States may expose individuals to a violation of
their rights under articles 6 or 7 of the Covenant.456
204. In Billy v Australia, in his individual opinion, Ambassador Duncan
Muhumuza Laki of the UN Human Rights Committee held that:
[t]he authors have ably informed the Committee that the
current state of affairs and existence in the Torres Strait
islands is under imminent threat owing to ongoing climate
change and therefore the State party should take immediate
adaptive precautionary measures to thwart climate changes
and preserve the lives of the islanders, including their
health and livelihood. Any further delays or non-action by
455 See Billy v Australia, paragraph 8.12 (“by failing to discharge its positive obligation to
implement adequate adaptation measures to protect the authors’ home, private life and
family, the State party violated the authors’ rights under article 17 of the Covenant”) and
paragraph 8.14 (“State party’s failure to adopt timely adequate adaptation measures to
protect the authors’ collective ability to maintain their traditional way of life, to transmit
to their children and future generations their culture and traditions and use of land and
sea resources discloses a violation of the State party’s positive obligation to protect the
authors’ right to enjoy their minority culture”), Annex 444.
456 “Views adopted by the Committee under article 5 (4) of the Optional Protocol,
concerning communication No. 2728/2016, Teitiota v New Zealand”,
CCPR/C/127/D/2728/2016, UN Human Rights Committee, 23 September 2020,
paragraph 9.11, Annex 442.
140
the State party will continue to put the lives of the citizens
at risk, which is a blatant violation of article 6 (1) of the
Covenant.457
205. The Supreme Court of the Republic of Colombia has notably ordered the
increase of actions to mitigate deforestation on the basis inter alia that:
[t]he increasing deterioration of the environment is a
serious attack on current and future life and on other
fundamental rights; it gradually depletes life and all its
related rights. The inability to exercise the fundamental
rights to water, to breathe pure air, and to enjoy a healthy
environment is making Colombians sick. It also increases
the lack of fresh water and decreases the ability to enjoy a
dignified life.
(Translated from Spanish original.)458
206. In Belgium, a decision from the Court of Appeals of Brussels459
confirmed a decision of the Tribunal of First Instance of Brussels460
declaring that the State, through its climate change inaction, violated
human rights:
[i]n pursuing their climate policy, [the Belgian State, the
Brussels-Capital Region and the Flemish Region] . . .
infringe the fundamental rights of the plaintiffs, and more
457 Annex I, Individual opinion of Committee member Duncan Laki Muhumuza
(dissenting), Billy v Australia, paragraph 12, Annex 444.
458 Future Generations v Ministry of Environment and Others, Sentence 4360-2018 of the
Supreme Court of Justice of Colombia of 5 April 2018, pages 13-14 and 48 (in original
Spanish, “El deterioro creciente del medio ambiente es [sic] atentado grave para la vida
actual y venidera y de todos los otros derechos fundamentales; además, agota
paulatinamente la vida y todos los derechos conexos con ella. La imposibilidad de ejercer
los derechos fundamentales al agua, a respirar aire puro y disfrutar un ambiente sano
enferma diariamente a los sujetos de derecho vivientes, aumenta la carencia de agua
dulce y disminuye las expectativas de vida digna”), Annex 458.
459 Klimaatzaak ASBL v Belgium, Judgment of the French-Speaking Court of Appeal of
Brussels of 30 November 2023, paragraphs 183, 209, 211 and 214, Annex 467.
460 Klimaatzaak ASBL v Belgium, Judgment of the French-Speaking Court of First Instance
of Brussels of 17 June 2021, page 83, Annex 463.
141
specifically Articles 2 and 8 of the ECHR, by failing to take
all necessary measures to prevent the effects of climate
change on their lives and privacy.
(Translated from French original.)461
207. In assessing the particular content of obligations to mitigate climate
change harm, developed States are required in practice to do more in line
with the established principle of common but differentiated
responsibilities.462 Along the same lines, the duty of States to comply
with their obligations of due diligence requires, in practice, that all States,
in particular developed States, take “all appropriate measures” to ensure
the free and full exercise of all relevant human rights, including those
under the International Covenant on Civil and Political Rights, the
ICESCR and the Universal Declaration of Human Rights.463 The same
applies with respect of the duties of States to exercise due diligence in
respect of their obligations under the UNFCCC, the Paris Agreement,
UNCLOS and the duty to protect and preserve the marine environment.
Taken together, the principle of common but differentiated responsibilities
and the due diligence standard require States to set their national climate
mitigation targets at the level of their highest possible ambition and to
pursue effective mitigation measures with the aim of achieving those
461 Klimaatzaak ASBL v Belgium, Judgment of the French-Speaking Court of Appeal of
Brussels of 30 November 2023, page 83 (in French original: “dans la poursuite de leur
politique climatique, les parties défenderesses . . . portent atteinte aux droits
fondamentaux des parties demanderesses, et plus précisément aux articles 2 et 8 de la
CEDH, en s’abstenant de prendre toutes les mesures nécessaires pour prévenir les effets
du changement climatique attentatoire à la vie et à leur vie privée”), Annex 467.
462 See, e.g., paragraph 217.a). See also E. Hey & S. Paulini, “Common but Differentiated
Responsibilities” in Max Planck Encyclopaedia of Public International Law, 2021,
paragraphs 4-8, Annex 551; P. Cullet, Common but differentiated responsibilities, in
RESEARCH HANDBOOK ON INTERNATIONAL ENVIRONMENTAL LAW, eds. Fitzmaurice et
al. (2020), pages 215-217, Annex 552.
463 IACtHR 2017 Advisory Opinion, paragraphs 123-124, Annex 372.
142
targets. The same applies with equal force to adaptation measures, which
must be set at the level of each State’s highest possible ambition.464
Obligation to cooperate: States must cooperate to protect and
preserve the climate system and other parts of the environment
208. Under international law, States are obligated to cooperate to protect and
preserve the climate system and other parts of the environment. The duty
to cooperate derives from the principle of good faith in international
relations and is essential for the protection of the environment.
209. The Court has previously identified the obligation to cooperate in at least
the following cases:
a. the Nuclear Tests case:
[o]ne of the basic principles governing the
creation and performance of legal
obligations, whatever their source, is the
principle of good faith. Trust and confidence
are inherent in international co-operation, in
particular in an age when this co-operation in
many fields is becoming increasingly
essential . . . Thus interested States may take
cognizance of unilateral declarations and
place confidence in them, and are entitled to
require that the obligation thus created be
respected.465
464 See Annex II, Individual opinion of Committee member Gentian Zyberi (concurring),
Billy v Australia, paragraph 3, Annex 444.
465 Nuclear Tests (Australia v France), Judgment of 20 December 1974, I.C.J. Reports 1974,
p. 253, paragraph 46, Annex 388.
143
b. the Nuclear Weapons Advisory Opinion:
[t]he obligation expressed in Article VI of the
Treaty on the Non Proliferation of Nuclear
Weapons includes its fulfilment in
accordance with the basic principle of good
faith. This basic principle is set forth in
Article 2, paragraph 2, of the Charter. It was
reflected in the Declaration on Friendly
Relations between States (resolution 2625
(XXV) of 24 October 1970) and in the Final
Act of the Helsinki Conference of 1 August
1975. It is also embodied in Article 26 of the
Vienna Convention on the Law of Treaties of
23 May 1969, according to which "[e]very
treaty in force is binding upon the parties to it
and must be performed by them in good
faith.466
c. the Pulp Mills case:
[t]he Court observes that it is by co-operating
that the States concerned can jointly manage
the risks of damage to the environment that
might be created by the plans initiated by one
or other of them, so as to prevent the damage
in question, through the performance of both
the procedural and the substantive obligations
laid down by the 1975 Statute.
. . .
The Court notes, moreover, that the 1975
Statute is perfectly in keeping with the
requirements of international law on the
subject, since the mechanism for co-operation
between States is governed by the principle of
good faith.467
466 Nuclear Weapons Advisory Opinion, paragraph 102, Annex 392.
467 Pulp Mills, paragraphs 77, 145, Annex 400.
144
d. the Gabčíkovo-Nagymaros case:
[t]he Danube has always played a vital part in
the commercial and economic development
of its riparian States, and has underlined and
reinforced their interdependence, making
international co-operation essential . . . The
Court is mindful that, in the field of
environmental protection, vigilance and
prevention are required on account of the
often irreversible character of damage to the
environment and of the limitations inherent in
the very mechanism of reparation of this type
of damage.468
210. The duty to cooperate has also been recognised by ITLOS in:
a. the Southern Bluefin Tuna Cases:
States Parties to the Convention have the duty
to cooperate directly or through appropriate
international organizations with a view to
ensuring conservation and promoting the
objective of optimum utilization of highly
migratory species.469
b. the MOX Plant Case:
the duty to cooperate is a fundamental
principle in the prevention of pollution of the
marine environment under . . . general
international law.470
468 Gabčíkovo-Nagymaros, paragraphs 17, 140, Annex 394.
469 Southern Bluefin Tuna Cases (New Zealand/Japan; Australia /Japan) Provisional
Measures, Order of 27 August 1999, ITLOS Reports 1999, p. 280, page 293, Annex 419.
470 The MOX Plant Case (Ireland/The United Kingdom) Provisional Measures, Order of 3
December 2001, ITLOS Reports 2001, p. 95, paragraph 82, Annex 420.
145
211. The duty to cooperate is also recognised in numerous treaties, for
instance:
a. the UN Charter:
[t]he [p]urposes of the United Nations are: . .
. [t]o achieve international co-operation in
solving international problems of an
economic, social, cultural, or humanitarian
character, and in promoting and encouraging
respect for human rights and for fundamental
freedoms for all without distinction as to race,
sex, language, or religion . . .471
As explained by the UN High Commissioner for Human Rights:
[t]he UN Charter . . . and other . . . instruments
impose upon States the duty to cooperate to
ensure the realization of all human rights.
Climate change is a human rights threat with
causes and consequences that cross borders;
thus, it requires a global response,
underpinned by international solidarity.
States should share resources, knowledge and
technology in order to address climate
change. International assistance for climate
change mitigation and adaptation should be
additional to existing . . . commitments.472
471 UN Charter, Article 1(3), Annex 66. See also UN Charter, Articles 13(1)(b), 55, 62(2),
Annex 66.
472 “Understanding Human Rights and Climate Change”, Submission of the Office of the
High Commissioner for Human Rights to the 21st Conference of the Parties to the United
Nations Framework Convention on Climate Change, 2015, page 3, Annex 480. See also
“General Comment No. 25 (2020) – On science and economic, social and cultural
rights”, E/C.12/GC/25, UN Committee on Economic, Social and Cultural Rights, 30
April 2020, paragraph 77 (“The duty to cooperate internationally towards the fulfilment
of all economic, social and cultural rights, established in article 2 of the Covenant and in
articles 55 and 56 of the Charter of the United Nations”), Annex 449; ICESCR, Articles
15 (1)(b), (2), (3) and (4), Annex 73.
146
b. the UNFCCC:
[t]he Parties should cooperate to promote a
supportive and open international economic
system that would lead to sustainable
economic growth and development in all
Parties, particularly developing country
Parties, thus enabling them better to address
the problems of climate change. 473
c. the Paris Agreement:
Parties recognize the importance of support
for and international cooperation on
adaptation efforts and the importance of
taking into account the needs of developing
country Parties, especially those that are
particularly vulnerable to the adverse effects
of climate change. 474
d. the Kyoto Protocol:
[e]ach Party . . . in order to promote
sustainable development, shall . . . cooperate
with other such Parties to enhance the
individual and combined effectiveness of
their policies and measures adopted under
this Article. 475
e. UNCLOS:
States shall cooperate on a global basis and,
as appropriate, on a regional basis . . . for the
473 UNFCCC, Article 3(5), Annex 112. See also UNFCCC, Articles 4(1)(c), 4(1)(e),
4(1)(g), Annex 112.
474 Paris Agreement, Article 7(6), Annex 156. See also Paris Agreement, Preamble, Articles
6, 8, 10, 11, 12 and 14, Annex 156.
475 Kyoto Protocol, Article 2(1)(B), Annex 131.
147
protection and preservation of the marine
environment. 476
f. the UN Convention to Combat Desertification in Those Countries
Experiencing Serious Drought and/or Desertification, Particularly
in Africa:
the Parties shall . . . promote cooperation
among affected country Parties in the fields
of environmental protection and the
conservation of land and water resources, as
they relate to desertification and drought.477
212. The obligation of States to cooperate (in environmental matters) has also
been propounded by, among others:
a. the UN General Assembly, which has urged States and
international organisations to “treat climate change as a priority
issue, to undertake and promote specific, co-operative actionoriented
programme and research so as to increase understanding
on all sources and causes of climate change” and to “collaborate
in making every effort to prevent detrimental effects on
climate”;478
b. the Bridgetown Declaration:
[The Forum of Ministers]
Reiterate the importance of international and
regional cooperation that would serve as a
476 UNCLOS, Article 197, Annex 95. See also UNCLOS, Articles 192, 198-201, Annex 95.
477 United Nations Convention to Combat Desertification in those Countries Experiencing
Serious Drought and/or Desertification, Particularly in Africa, 14 October 1994, 1954
UNTS 3 (“UNCCD”), Article 4(2)(d), Annex 123.
478 UN General Assembly Resolution 43/53, paragraphs 6 and 9, Annex 215.
148
mechanism to mitigate the countries’
vulnerabilities, build resilience and maximize
opportunities for sustainable development
and contribute to the economic and
environmental recovery of our Region.
Take note that the global response to the
COVID-19 pandemic teaches us to work
together to combat the common challenges to
planet and humanity, recognising that
coordinated and time-oriented efforts can
strengthen sustainability and form the basis
for the creation of adequate strategies for
long-term benefit including sustainable
environmental management and joint efforts
between countries and organizations,
oriented to such objectives, alike.
Strengthen sustainability efforts and
formulate strategies among countries and
multilateral organizations for long term
benefits, recognizing joint and coordinated
efforts, including a global response to address
common challenges that threaten ecosystems
and humankind due to the COVID 19
pandemic.
Stress the need to promote on-going
dialogues and exchange of information
among Latin America and the Caribbean on
best practices for natural resource
management, including sustainable forest
management, and the implementation of
ecosystem- based approaches, among other
relevant approaches that provide adaptation
benefits, mitigation co-benefits and foster the
conservation of biodiversity.479
479 Bridgetown Declaration, Report XXII Meeting of the Forum of Ministers of
Environment of Latin America and the Caribbean, 1-2 February 2021, Annex III,
UNEP/LAC-IG.XXII/7, 5 February 2021, paragraphs 28-31, Annex 307.
149
c. the Rio Declaration, adopted by 179 States:
States shall cooperate in a spirit of global
partnership to conserve, protect and restore
the health and integrity of the Earth's
ecosystem”); Principle 27 (“States and people
shall cooperate in good faith and in a spirit of
partnership in the fulfilment of the principles
embodied in this Declaration and in the
further development of international law in
the field of sustainable development.480
d. the Joint Statement of Latin American and Caribbean
Parliamentarians at COP27, signed by 14 States:
[w]e agree to promote the development of the
financial structure that allows the raising of
public and private funds, as well as
international cooperation funds, for
adaptation, mitigation and loss and damage
projects, as well as working on urban and
rural resilience, capable of facing the climate
crisis.481
e. the Declaration on China-Africa Cooperation on Combating
Climate Change, made by the Republic of China, adopted by 53
African countries and the African Union Commission:
[w]e decide to establish a China-Africa
partnership of strategic cooperation of the
new era for the fight against climate change.
482
480 Rio Declaration, Principle 7, Annex 281.
481 Joint Statement of the Latin American and Caribbean Parliamentarians at COP 27, 10
November 2022, page 3, Annex 312.
482 Declaration on China-Africa Cooperation on Combating Climate Change, 2 December
2021, paragraph 5, Annex 308.
150
f. the Stockholm Declaration, adopted by 113 States:
[i]nternational matters concerning the
protection and improvement of the
environment should be handled in a
cooperative spirit by all countries, big and
small, on an equal footing. Cooperation
through multilateral or bilateral arrangements
or other appropriate means is essential to
effectively control, prevent, reduce and
eliminate adverse environmental effects
resulting from activities conducted in all
spheres, in such a way that due account is
taken of the sovereignty and interests of all
States.483
g. the San Jose Declaration, adopted by at least 26
Ministers of Environment comprising the Forum of
Ministers of Environment of Latin America and the
Caribbean:
[w]e are firmly committed to accelerating
action against climate change, in line with the
objectives, commitments and principles of
the UNFCCC and its Paris Agreement, [i]n
addition to being committed to strengthening
cooperation with a view to the adoption of an
ambitious package of decisions for COP 28 .
. .
We recognize the need to address in an
integrated manner, with a preventive
approach, the different forms of pollution,
including air, soil, ocean, and plastics and
microplastics pollution. . .484
483 Stockholm Declaration, Principle 24, Annex 469.
484 San Jose Declaration, XXIII Meeting of the Forum of Ministers of Environment of Latin
America and the Caribbean, 26 October 2023, paragraphs 5 and 26, Annex 356.
151
h. the Ibero-American Environmental Charter,
adopted by 22 States:
[t]he environmental challenges of the Ibero-
American Community can be overcome, to a
great extent, by intensifying and reinforcing
the already existing collaboration channels,
broadening the channels to share the wealth
of capabilities, knowledge and experiences
that the Ibero-American Community has in
environmental matters.
(Translated from Spanish original.)485
213. The obligation of cooperation has also been recognised by the UN
Committee on Economic, Social and Cultural Rights in the context of
economic, social and cultural rights under the ICESCR.486 In addition, by
the 1974 OECD Recommendation of the Council on Principles concerning
Transfrontier Pollution, the Council of the OECD (made up of
ambassadors from Member States of the OECD) recommended that
Member States “co-operate in developing international law applicable to
transfrontier pollution.”487
485 The Ibero-American Environmental Charter, adopted in the XXVIII Ibero-American
Summit of Heads of State and Government, 25 March 2023, page 5, Annex 162 (in
original Spanish, “[l]os retos ambientales de la Comunidad Iberoamericana pueden ser
superados, en gran medida, intensificando y reforzando las vías de colaboración ya
existentes, ampliando los cauces para compartir el patrimonio de capacidades,
conocimientos y experiencias que la Comunidad Iberoamericana alberga en materia
ambiental”).
486 See ICESCR, Articles 15 (1)(b), (2), (3) and (4), Annex 73. See also “General Comment
No. 25 (2020) – On science and economic, social and cultural rights”, E/C.12/GC/25, UN
Committee on Economic, Social and Cultural Rights, 30 April 2020, paragraphs 77-84
(“The duty to cooperate internationally towards the fulfilment of all economic, social and
cultural rights, established in article 2 of the Covenant and in articles 55 and 56 of the
Charter of the United Nations”), Annex 449.
487 “OECD, Recommendation of the Council on Principles concerning Transfrontier
Pollution”, OECD/LEGAL/0133, OECD, 14 November 1974, page 4, Annex 507.
152
214. The customary status of the obligation to cooperate is confirmed by the
ILC in its Draft Guidelines on the Protection of the Atmosphere, under
which States “have the obligation to cooperate . . . for the protection of the
atmosphere from atmospheric pollution and . . . degradation.”488
215. The existence of the obligation of cooperation in international law also
finds support in scholarly works. For example, Benoit Mayer notes that
“customary international law includes obligations of particular relevance
to climate change such as . . . to cooperate in protecting global
environmental resources.”489 Dr Margaretha Wewerinke-Singh and Dr
Curtis Doebbler note that “mitigation and adaptation measures must be
supported by climate financing” and that “[a]ll States have obligations to
cooperate with each other to realize the right to health based on customary
international law.”490
216. Finally, it follows from States’ overarching obligation of cooperation in
the environmental context that larger States responsible for the
acceleration of climate change have a duty to finance adaption and
mitigation efforts of small island States. The obligation to cooperate, in
context, also implies an obligation to finance adaption and mitigation
efforts of small island States.
488 “Draft Guidelines on the Protection of the Atmosphere with Commentaries”, A/76/10,
International Law Commission, 2021, Guideline 8: International Cooperation, page 35,
Annex 498.
489 B. Mayer, International Law Obligations on Climate Change Mitigation (Oxford
University Press, 2022), page 27, Annex 539.
490 M. Wewerinke-Singh & C. Doebbler, “Protecting Human Health from Climate Change:
Legal Obligations and Avenues of Redress under International Law”, International
Journal of Environmental Research and Public Health, 2022, pp. 1-13, pages 3-4, Annex
537.
153
217. This position finds support in various treaties and declarations, for
instance:
a. under the Rio Declaration, adopted by 179 States, States have
decided that “[i]n view of the different contributions to global
environmental degradation, States have common but
differentiated responsibilities” and “[t]he developed countries
acknowledge the responsibility that they bear in the international
pursuit of sustainable development in view of the pressures their
societies place on the global environment and of the technologies
and financial resources they command.”491 Further, they
recognise that “States should cooperate to promote a supportive
and open international economic system” to enable “economic
growth and sustainable development in all countries, to better
address the problems of environmental degradation”;492
b. under the Paris Agreement, 195 States recognise “the importance
of support for and international cooperation on adaptation
efforts,” as well as “the importance of taking into account the
needs of developing country Parties, especially those that are
particularly vulnerable to the adverse effects of climate
change”;493 and
c. most prominently, the UNFCCC:
[t]he Parties should cooperate to promote a
supportive and open international economic
system that would lead to sustainable
491 Rio Declaration, Principle 7, Annex 281.
492 Rio Declaration, Principle 12, Annex 281.
493 Paris Agreement, Article 7(6), Annex 156.
154
economic growth and development in all
Parties, particularly developing country
Parties, thus enabling them better to address
the problems of climate change. Measures
taken to combat climate change, including
unilateral ones, should not constitute a means
of arbitrary or unjustifiable discrimination or
a disguised restriction on international trade.
. . .
All Parties, taking into account their common
but differentiated responsibilities and their
specific national and regional development
priorities, objectives and circumstances, shall
formulate, implement, publish and regularly
update national and, where appropriate,
regional programmes containing measures to
mitigate climate change by addressing
anthropogenic emissions by sources and
removals by sinks of all greenhouse gases not
controlled by the Montreal Protocol, and
measures to facilitate adequate adaptation to
climate change.
. . .
All Parties, taking into account their common
but differentiated responsibilities and their
specific national and regional development
priorities, objectives and circumstances, shall
cooperate in preparing for adaptation to the
impacts of climate change; develop and
elaborate appropriate and integrated plans for
coastal zone management, water resources
and agriculture, and for the protection and
rehabilitation of areas, particularly in Africa,
affected by drought and desertification, as
well as floods.
. . .
155
The developed country Parties and other
developed Parties included in annex II shall
also assist the developing country Parties that
are particularly vulnerable to the adverse
effects of climate change in meeting costs of
adaptation to those adverse effects.494
218. The substantive content of the obligation of cooperation in the context of
environmental protection should also be understood as encompassing at
least the following elements: the duty to notify, the duty to consult and
negotiate and the duty to exchange information.
219. Regarding the duty to notify:
a. the UN General Assembly recognised that duties of cooperation
should include a duty to notify as long ago as 1973, when issuing
Resolution 3129(XXVIII), which stated that the sharing of natural
resources “must be developed on the basis of a system of
494 UNFCCC, Articles 3(5), 4(1)(b), 4(1)(e) and 4(4), Annex 112. The UNFCCC also draws
special attention of the Parties to needs of these developing countries, especially small
island countries (see UNFCCC, Article 4(8) (“In the implementation of the commitments
in this Article, the Parties shall give full consideration to what actions are necessary
under the Convention, including actions related to funding, insurance and the transfer of
technology, to meet the specific needs and concerns of developing country Parties arising
from the adverse effects of climate change and/or the impact of the implementation of
response measures, especially on (a) Small island countries; (b) Countries with low-lying
coastal areas; (c) Countries with arid and semi-arid areas, forested areas and areas liable
to forest decay; (d) Countries with areas prone to natural disaster (e) Countries with areas
liable to drought and desertification; (f) Countries with areas of high urban atmospheric
pollution; (g) Countries with areas with fragile ecosystems, including mountainous
ecosystems; (h) Countries whose economies are highly dependent on income generated
from the production, processing and export, and/or on consumption of fossil fuels and
associated energy-intensive products and (i) Land-locked and transit countries. Further,
the Conference of Parties may take actions, as appropriate with respect to this
paragraph”), Annex 112).
156
information and prior consultation within the framework of the
normal relations between them”;495
b. the obligation to notify as an element of the broader obligation of
cooperation is also expressly recognised in the Rio Declaration in
the following terms:
States shall provide prior and timely
notification and relevant information to
potentially affected States on activities that
may have a significant adverse transboundary
environmental effect and shall consult with
those States at an early stage and in good
faith.496
c. as reflected in the ILC Commentaries on the Draft Articles on
Prevention of Transboundary Harm from Hazardous Activities,
“the requirement of notification is an indispensable part of any
system designed to prevent transboundary harm or at any event to
minimize the risk thereof”;497
d. per the judgment of the Court in the Pulp Mills case (in the
context of interpreting notification obligations contained in the
495 UN General Assembly Resolution 3129 (1973), A/RES/3129(XXVIII), 13 December
1973, Annex 210; See also D. G. Partan, “The “Duty to Inform” in International
Environmental Law”, Boston University International Law Journal, 1988, pp. 43-88,
page 63, Annex 515.
496 Rio Declaration, Principle 19, Annex 281.
497 “Commentaries on the Draft articles on Prevention of Transboundary Harm from
Hazardous Activities”, Report of the Commission to the General Assembly on the work
of its fifty-third session, Yearbook of the International Law Commission,
A/CN.4/SER.A/2001/Add.1 (Part 2), International Law Commission, 10 August 2001,
Article 8, paragraph 2 (“Article 8 calls on the State of origin to notify States likely to be
affected by the planned activity. The activities here include both those that are planned
by the State itself and those planned by private entities. The requirement of notification
is an indispensable part of any system designed to prevent transboundary harm or at any
event to minimize the risk thereof”), Annex 496.
157
Statute of the River Uruguay), “the obligation to notify is intended
to create the conditions for successful co-operation between the
parties”;498 and
e. regarding the timing of the duty to notify, as the Court explained
in Pulp Mills, a State must notify the other State “as soon as it is
in possession of a plan which is sufficiently developed to . . .
make the preliminary assessment . . . of whether the proposed
works might cause significant damage to the other party”;499
similarly, UNCLOS provides that the duty arises when the State
becomes aware of certain potential risks.500
220. Regarding the duty to consult and negotiate, in Pulp Mills, the Court held:
[t]he obligation to notify is . . . an essential part of the
process leading the parties to consult in order to assess the
risks of the plan and to negotiate possible changes which
may eliminate those risks or minimise their effects.501
221. The duty to consult and even negotiate with other States potentially
affected by certain activities is found in various treaties, including:
a. under the Convention on the Law of the Non-navigational Uses of
International Watercourses, 41 States agree that:
[w]atercourse States shall exchange
information and consult each other and, if
498 Pulp Mills, paragraph 113, Annex 400.
499 Pulp Mills, paragraph 105, Annex 400.
500 See UNCLOS, Article 198 (“When a State becomes aware of cases in which the marine
environment is in imminent danger of being damaged or has been damaged by pollution,
it shall immediately notify other States it deems likely to be affected by such damage, as
well as the competent international organisations”), Annex 95.
501 Pulp Mills, paragraph 115, Annex 400.
158
necessary, negotiate on the possible effects of
planned measures on the condition of an
international watercourse.502
. . .
1. If a communication is made under article
15 that implementation of the planned
measures would be inconsistent with the
provisions of article 5 or 7, the notifying State
and the State making the communication
shall enter into consultations and, if
necessary, negotiations with a view to
arriving at an equitable resolution of the
situation.
2. The consultations and negotiations shall be
conducted on the basis that each State must in
good faith pay reasonable regard to the rights
and legitimate interests of the other State.
3. During the course of the consultations and
negotiations, the notifying State shall, if so
requested by the notified State at the time it
makes the communication, refrain from
implementing or permitting the
implementation of the planned measures for a
period of six months unless otherwise
agreed.503
b. under the Convention on the Transboundary Effects of Industrial
Accidents, 44 States and the European Union agree that:
Parties concerned shall, at the initiative of any
such Party, enter into discussions on the
identification of those hazardous activities
that are, reasonably, capable of causing
502 Convention on the Law of the Non-navigational Uses of International Watercourses,
Article 11, Annex 128.
503 Convention on the Law of the Non-navigational Uses of International Watercourses,
Article 17, Annex 128.
159
transboundary effects. If the Parties
concerned do not agree on whether an activity
is such a hazardous activity, any such Party
may, unless the Parties concerned agree on
another method of the question, submit that
question to an inquiry commission in
accordance with the provisions of Annex II
hereto for advice.504
c. under the Convention on the Prohibition of Military or any other
Hostile Use of Environmental Modification Techniques, 94 States
agree that:
[t]he States Parties to this Convention
undertake to facilitate, and have the right to
participate in, the fullest possible exchange of
scientific and technological information on
the use of environmental modification
techniques for peaceful purposes. States
Parties in a position to do so shall contribute,
alone or together with other States or
international organizations, to international
economic and scientific co-operation in the
preservation, improvement and peaceful
utilization of the environment, with due
consideration for the needs of the developing
areas of the world.505
222. As to the content of the obligation to consult and negotiate:
a. as the Court found in Gabčíkovo-Nagymaros, the consultation and
negotiation process calls for the mutual willingness of the States
504 Convention on the Transboundary Effects of Industrial Accidents, 17 March 1992, 2105
UNTS 457 (“Convention on the Transboundary Effects of Industrial Accidents”),
Article 4 (2), Annex 110.
505 Convention on the Prohibition of Military or any Other Hostile Use of Environmental
Modification Techniques, 10 December 1976, 1108 UNTS 151, Article III (2), Annex
85.
160
to discuss actual and potential environmental risks in good
faith;506 and
b. as the Court found in Pulp Mills, during the time when such
consultations and negotiations are taking place, the State initiating
the proposed activity is obliged not to authorise such potentially
harmful activity and not to carry it out.507
223. The duty to exchange information as a constituent element of the broader
duty of cooperation is recognised in several international legal instruments
including:
a. the Paris Agreement:
Parties should strengthen their cooperation on
enhancing action on adaptation, taking into
account the Cancun Adaptation Framework,
including with regard to . . . Sharing
information, good practices, experiences and
lessons learned, including, as appropriate, as
these relate to science, planning, policies and
506 See Gabčíkovo-Nagymaros, paragraph 112 (“The obligations contained in Articles 15, 19
and 20 are by definition, general and have to be transformed into specific obligations of
performance through a process of consultation and negotiation. Their implementation
thus requires a mutual willingness to discuss in good faith actual and potential
environmental risks”), Annex 394.
507 See Pulp Mills, paragraphs 144 (“Consequently, in the opinion of the Court, as long as
the procedural mechanism for co-operation between the parties to prevent significant
damage to one of them is taking its course, the State initiating the planned activity is
obliged to authorize such work and, a fortiori, not to carry it out”) and 147 (“In the view
of the Court, there would be no point to the co-operation mechanism provided for by
Articles 7 to 12 of the 1975 Statute if the party initiating the planned activity were to
authorize or implement it without waiting for that mechanism to be brought to a
conclusion. Indeed, if that were the case, the negotiations between the parties would no
longer have any purpose”), Annex 400.
161
implementation in relation to adaptation
actions.508
b. the UNFCCC:
[t]he Conference of the Parties, as the
supreme body of this Convention, shall keep
under regular review the implementation of
the Convention and any related legal
instruments that the Conference of the Parties
may adopt, and shall make, within its
mandate, the decisions necessary to promote
the effective implementation of the
Convention. To this end, it shall [p]romote
and facilitate the exchange of information on
measures adopted by the Parties to address
climate change and its effects, taking into
account the differing circumstances,
responsibilities and capabilities of the Parties
and their respect respective commitments
under the Convention.509
c. the Convention on the Physical Protection of Nuclear Material:
[i]n the case of theft, robbery or any other
unlawful taking of nuclear material or of
credible threat thereof, States Parties shall, in
accordance with their national law, provide
co-operation and assistance to the maximum
feasible extent in the recovery and protection
of such material to any State that so requests.
In particular(,) [a]s appropriate, the States
Parties concerned shall exchange information
with each other or international organizations
with a view to protecting threatened nuclear
material, verifying the integrity of the
shipping container, or recovering unlawfully
taken nuclear material and shall: (i) Co-
508 Paris Agreement, Article 7(7)(a), Annex 156.
509 UNFCCC, Article 7(2)(b), Annex 112.
162
ordinate their efforts through diplomatic and
other agreed channels; (ii) Render assistance,
if requested; (iii) Ensure the return of nuclear
material stolen or missing as a consequence
of the above-mentioned events.510
d. the Convention on the Law of the Non-Navigational Uses of
International Watercourses:
[w]atercourse States shall exchange
information and consult each other and, if
necessary, negotiate on the possible effects of
planned measures on the condition of an
international watercourse.511
e. the Rio Declaration:
States shall provide prior and timely
notification and relevant information to
potentially affected States on activities that
may have a significant adverse transboundary
environmental effect and shall consult with
those States at an early stage and in good
faith.512
f. the Stockholm Declaration:
[i]nternational matters concerning the
protection and improvement of the
environment should be handled in a cooperative
spirit by all countries, big and
small, on an equal footing. Co-operation
through multilateral or bilateral arrangements
or other appropriate means is essential to
effectively control, prevent, reduce and
510 Convention on the Physical Protection of Nuclear Material, 26 October 1979, 1456
UNTS 125, Article 5(2)(b), Annex 88.
511 Convention on the Law of the Non-navigational Uses of International Watercourses,
Article 11, Annex 128.
512 Rio Declaration, Principle 19, Annex 281.
163
eliminate adverse environmental effects
resulting from activities conducted in all
spheres, in such a way that due account is
taken of the sovereignty and interests of all
States.513
224. The purpose for such exchange of information is to prevent or reduce
transboundary harm. It follows that the principles applicable in that
context (and the corresponding ILC articles) are also relevant here, as
explained in Section VI.A above. On the issue of exchange of
information, the Draft Articles on Prevention of Transboundary Harm
state that:
[w]hile the activity is being carried out, the States concerned
shall exchange in a timely manner all available information
concerning that activity relevant to preventing significant
transboundary harm or at any event minimizing the risk
thereof. Such an exchange of information shall continue
until such time as the States concerned consider it
appropriate even after the activity is terminated.514
225. As to the timing of exchange of information, as follows from the
foregoing excerpt from the ILC articles, information should be exchanged
“in a timely manner.” This should be interpreted as meaning at such time
that the information in question can be effectively utilised by the recipient
State in its efforts to prevent or reduce transboundary harm in the context
of climate change. While the requirement to exchange information in
order to properly carry out cooperation obligations will vary depending on
the context, such information and knowledge exchange could well be of
513 Stockholm Declaration, Principle 24, Annex 469.
514 “Draft Articles on Prevention of Transboundary Harm from Hazardous Activities”,
Report of the Commission to the General Assembly on the work of its fifty-third session,
Yearbook of the International Law Commission, A/CN.4/SER.A/2001/Add.1 (Part 2),
International Law Commission, 10 August 2001, Article 12, Annex 493.
164
critical importance in the context of the efforts of small island States such
as Barbados to mitigate the effects of climate change.
226. The obligation of States to cooperate includes a requirement on States to
offer aid to other States to address climate change. Under the UN Charter,
all UN Member States are required to “take joint and separate action in
co-operation with the [UN]” to promote “higher standards of living,”
“conditions of economic and social progress and development” and
“solutions of international economic, social, health, and related
problems.”515 International human rights instruments further specify that
States must cooperate to realise human rights progressively. For example:
a. under the ICESCR, 171 States must “take steps, individually and
through international assistance and co-operation, especially
economic and technical, to the maximum of its available
resources, with a view to achieving progressively the full
realization of the rights recognized in the present Covenant by all
appropriate means, including particularly the adoption of
legislative measures”;516
b. under the African Charter on Human and Peoples’ Rights, 55
States must “individually or collectively . . . ensure the exercise of
the right to development”;517 and
515 UN Charter, Articles 55-56, Annex 66.
516 ICESCR, Articles 2(1) and 22, Annex 73 (including the Committee on Economic, Social
and Cultural Rights’ interpretation of the Articles: “General Comment No. 3 (1991) – On
the Nature of States Parties’ Obligations”, E/1991/23, UN Committee on Economic,
Social and Cultural Rights, 14 December 1990, paragraph 13, Annex 446; “General
Comment No. 2 (1990) – On International technical assistance measures”, E/1990/23,
UN Committee on Economic, Social and Cultural Rights, 2 February 1990, Annex 445).
517 African Charter on Human and Peoples’ Rights, Article 22(2), Annex 92.
165
c. under the American Convention on Human Rights, 25 States must
“adopt measures, both internally and through international
cooperation, especially those of an economic and technical nature,
with a view to achieving progressively, by legislation or other
appropriate means, the full realization of the rights implicit in the
economic, social, educational, scientific, and cultural standards set
forth in the Charter of the Organization of American States as
amended by the Protocol of Buenos Aires.”518 The IACtHR notes
that the American Convention on Human Rights acknowledges
that not every State may have the necessary financial resources at
its disposal to comply with the international commitments it
makes and so requires States, among other things, to cooperate to
progressively realise human rights.519
Obligation to compensate: States must pay for loss and damage
caused by their anthropogenic gas emissions
227. Under international law, States are obligated to compensate for loss and
damage caused by their own anthropogenic gas emissions.
228. This Section explains that States must pay compensation for loss and
damage on a strict liability basis, i.e., both when their acts that caused
damage are not otherwise wrongful under international law (see subsection
(i)) and also when those acts are otherwise wrongful under
international law (see sub-section (ii)). Therefore, whether or not States’
518 American Convention on Human Rights, Article 26, Annex 62. See also, e.g., OAS
Charter, Articles 3(k)-(m) and 30, Annex 64.
519 See Case of Acevedo Buendía et al. v Peru. Reparations and Costs. Judgment of July 1,
2009. Series C No. 198, paragraphs 101-103, Annex 378.
166
acts in emitting or permitting emissions of anthropogenic greenhouse gas
were otherwise considered wrongful under international law at the time of
those acts except by virtue of the damage they caused, States must
compensate for loss and damage arising from those acts.
(i) States must pay compensation for such loss and damage on a strict
liability basis
229. As further discussed in Section VI.A, States must prevent transboundary
harm and act with due diligence. However, as the ILC explained, “even if
the relevant State fully complies with its prevention obligations, under
international law, accidents or other incidents may nonetheless occur and
have transboundary consequences that cause harm and serious loss to
other States and their nationals.”520 It is therefore important that “those
who suffer harm or loss as a result of such incidents involving hazardous
activities are not left to carry those losses and are able to obtain prompt
and adequate compensation.”521 That is why States also have a primary
obligation to pay compensation for loss and damage caused by their
anthropogenic gas emissions on the basis of strict liability.
230. Strict liability is not a novel concept of international law. For example,
under customary international law, States are obligated to pay
compensation when they expropriate property of non-nationals (even
though the expropriation is, subject to certain conditions, lawful).
520 ILC Commentaries on the Draft Principles on the Allocation of Loss in the Case of
Transboundary Harm arising out of Hazardous Activities, General Commentary, page 59,
Annex 497.
521 ILC Commentaries on the Draft Principles on the Allocation of Loss in the Case of
Transboundary Harm arising out of Hazardous Activities, General Commentary, page 59,
Annex 497.
167
231. In fact, the obligation to compensate for environmental harm is found in
the earliest legal authorities:
a. the Treaty of Mesilim is an international convention between
Umma and Lagash (Sumerian States in Mesopotamia), inscribed
on a stone in about 2550 BC. It is currently in the British
Museum in London.522 Under this convention, Umma promised
to repair the land of Lagash after Umma caused environmental
harm to Lagash during a war between them;523
b. as noted above, ancient Hindu law, as documented in the
Manusmriti (sometimes ascribed a date of 2000 BC), also
acknowledges that environmental harm must be remedied. But it
adds that such redress is required on a strict liability basis.
Manusmriti, ch 8, verse 288 provides that “[one] who damages
the goods of another, be it intentionally or unintentionally, shall
give satisfaction to the (owner) and pay to the king a fine equal to
522 See British Museum catalogue, Cylinder, undated, Annex 182; J. Pickford, “British
Museum reveals first recorded account of border conflict”, Financial Times, 21
November 2018, Annex 183.
523 See P. H. Sand, Origin and History, in THE OXFORD HANDBOOK OF INTERNATIONAL
ENVIRONMENTAL LAW, eds. L. Rajamani and J. Peel (Oxford University Press, 2021),
page 52, Annex 205; A. Altman, “Tracing the Earliest Recorded Concepts of
International Law. The Early Dynastic Period in Southern Mesopotamia”, Journal of the
History of International Law, 2004, pp. 153-172, pages 161, 165, Annex 206.
168
the (damage).”524 Verse 289 proceeds then to explain this concept
of sic utere to damage to “flowers, roots, and fruit”;525 and
c. the Code of Hammurabi, ruler of Babylon between 1795 and 1750
BC,526 requires a neighbour to pay compensation for harm to
another’s fields, corn pastures and plantations.527
232. States that have historically contributed to anthropogenic gas emissions
are obligated under international conventions to provide financial
resources to developing States and climate change funds:
a. under the UNFCCC, 197 States and the European Union agree
that “the developed country Parties should take the lead in
combating climate change and the adverse effects” and
“developed country Parties and other developed Parties included
524 J.L. Shastri, Manusmṛti of Kullūka Bhaṭṭa (Motilal Banarsidass, 2000), page 324, as
translated in G. Bühler, “The Laws of Manu”, in The Sacred Books of the East, Oxford
University Press, 1886, reprinted by Motilal Banarsidass, 1964, Vol. XXV, page 305,
paragraph 288, Annex 170.
525 J.L. Shastri, Manusmṛti of Kullūka Bhaṭṭa (Motilal Banarsidass, 2000), page 324, as
translated in G. Bühler, “The Laws of Manu”, in The Sacred Books of the East, Oxford
University Press, 1886, reprinted by Motilal Banarsidass, 1964, Vol. XXV, page 305,
paragraph 289, Annex 170.
526 See Hammurabi, Code of Hammurabi, Translated by L. W. King 1910 (Kessinger
Publishing, 2004), Introduction, Annex 184. The Code of Hammurabi appears on a stele
in the Louvre Museum in Paris (see Louvre catalogue, Code de Hammurabi, undated,
Annex 185).
527 See Hammurabi, Code of Hammurabi, Translated by L. W. King 1910 (Kessinger
Publishing, 2004) (“53. If any one be too lazy to keep his dam in proper condition, and
does not so keep it; if then the dam break and all the fields be flooded, then shall he in
whose dam the break occurred be sold for money, and the money shall replace the corn
which he has caused to be ruined. 54. If he be not able to replace the corn, then he and
his possessions shall be divided among the farmers whose corn he has flooded. 55. If
any one open his ditches to water his crop, but is careless, and the water flood the field of
his neighbor, then he shall pay his neighbor corn for his loss. 56. If a man let in the
water, and the water overflow the plantation of his neighbor, he shall pay ten gur of corn
for every ten gan of land”), Annex 184.
169
in Annex III [to the UNFCCC] shall also assist the developing
countries Parties that are particularly vulnerable to the adverse
effects of climate change in meeting costs of adaptation to those
adverse effects”;528
b. under the Kyoto Protocol, 192 States agree that developed country
Parties “shall” provide new and additional resources to meet the
agreed full costs incurred by developing country Parties in
meeting climate change targets;529
c. under the Paris Agreement, 195 States agree that “[d]eveloped
country Parties shall provide financial resources to assist
developing country Parties” and “[o]ther Parties are encouraged to
provide or continue to provide such support voluntarily.”530
States also agree to cooperate under the Warsaw International
Mechanism for Loss and Damage recognising the importance of
“averting, minimizing and addressing loss and damage associated
with the adverse effects of climate change”;531 and
d. under the UNCCD, 192 States agree, given the central importance
of financing, to ensure that adequate financial resources are
available for programmes to combat desertification and mitigate
528 UNFCCC, Articles 3(1), 4(4), Annex 112.
529 Kyoto Protocol, Article 11, Annex 131.
530 Paris Agreement, Articles 9, Annex 156.
531 Paris Agreement, Article 8, Annex 156. Note that the Conference of the Parties clarified
that “Article 8 of the Agreement does not involve or provide a basis for any liability or
compensation” (Adoption of the Paris Agreement, Decision 1/CP.21, Report of the
Conference of the Parties on its Twenty-First Session, held in Paris from 30 November to
13 December 2015, Addendum, Part two: Action taken by the Conference of the Parties
at its Twenty-First Session, FCCC/CP/2015/10/Add.1, 29 January 2016, paragraph 52,
Annex 293).
170
the effects of drought. In particular, developed country States
undertake to “mobilize substantial financial resources, including
grants and concessional loans.”532
233. Funds and resources provided by developed countries must also be used to
compensate those affected by the adverse impacts of climate change.533
234. Further, this obligation to compensate is supported by international
conventions under which States promise to compensate other States when
they cause significant harm to the environment. For example:
a. under the Convention on the Law of the Non-Navigational Uses
of International Watercourses, 41 States agree to “prevent the
causing of significant harm to other watercourse States.”534
However:
[w]here significant harm nevertheless is
caused to another watercourse State, the
States whose use causes such harm shall, in
the absence of agreement to such use, take all
appropriate measures, having due regard for
the provisions of articles 5 and 6, in
consultation with the affected State, to
eliminate or mitigate such harm and, where
appropriate, to discuss the question of
compensation.535
532 UNCCD, Article 20(2), Annex 123.
533 See Section VII.C(i).
534 Convention on the Law of the Non-Navigational Uses of International Watercourses,
Article 7(1), Annex 128.
535 Convention on the Law of the Non-Navigational Uses of International Watercourses,
Article 7(2), Annex 128.
171
b. under the Convention on the Protection and Use of Transboundary
Watercourses and International Lakes, 52 States agree to be
guided by the polluter pays principle “by virtue of which costs of
pollution prevention, control and reduction measures shall be
borne by the polluter”;536
c. under the Antarctic Environmental Protocol, 46 States agree that
an operator (which may be a State) is liable for environmental
emergencies (i.e., events that result or threaten to result in
significant and harmful impacts on the Antarctic environment)
and that “liability shall be strict”;537
d. under the Convention on Third Party Liability in the Field of
Nuclear Energy, 12 States agree that an operator (which may be a
State) shall be “liable in accordance with this Convention for
damage caused by a nuclear incident occurring thereafter and
involving the nuclear substances.”538 Moreover, they also agree
that “if an action is brought against a Contracting Party as an
operator liable under this Convention, such Contracting Party may
not invoke any jurisdictional immunities before the court
competent”;539
536 Convention on the Protection and Use of Transboundary Watercourses and International
Lakes, Article 2(5)(b), Annex 109.
537 Annex VI to the Protocol on Environmental Protection to the Antarctic Treaty, Liability
Arising from Environmental Emergencies, 17 June 2005, Articles 2(b), 2(c), 6(1) and
6(3), Annex 145.
538 Convention on Third Party Liability in the Field of Nuclear Energy and Additional
Protocol to the said Convention, 29 July 1960, 956 UNTS 251 (“1960 Paris
Convention”), Article 4(b), Annex 71.
539 1960 Paris Convention, Article 13 (f), Annex 71.
172
e. under the Vienna Convention on Civil Liability for Nuclear
Damage, 44 States agree that “the liability of the operator [which
may be a State] for nuclear damage under this Convention shall be
absolute.”540 Furthermore, they also agree that “except in respect
of measures of execution, jurisdictional immunities under rules of
national or international law shall not be invoked in actions under
this Convention before the courts competent pursuant to article
XI”;541
f. under the Treaty on Principles Governing the Activities of States
in the Exploration and Use of Outer Space, including the Moon
and other Celestial Bodies, 135 States agree that “each State Party
from whose territory or facility an object is launched, is
internationally liable for damage to another State Party to the
Treaty or to its natural or juridical persons by such object or its
component parts on the Earth, in air or in outer space, including
the moon and other celestial bodies”;542
f. under the Convention on the International Liability for Damage
Caused by Space Objects, 117 States agree to “be absolutely
liable to pay compensation for damage caused by its space object
on the surface of the earth or to aircraft in flight”;543
540 Vienna Convention on Civil Liability for Nuclear Damage, 21 May 1963, 1063 UNTS
265, Article IV (1), Annex 72.
541 Vienna Convention on Civil liability for Nuclear Damage, 21 May 1963, 1063 UNTS
265, Article XIV, Annex 72.
542 Treaty on Principles Governing the Activities of States in the Exploration and Use of
Outer Space, including the Moon and other Celestial Bodies, 27 January 1967, 610
UNTS 205, Article VII, Annex 75.
543 Convention on the International Liability for Damage Caused by Space Objects, 29
March 1972, 961 UNTS 187, Article II, Annex 79.
173
g. under the Convention on Civil Liability for Oil Pollution Damage
resulting from Exploration for and Exploitation of Seabed Mineral
Resources, 9 States agree that “the operator [which may be a State]
of the installation at the time of an incident shall be liable for any
pollution damage resulting from the incident”;544
h. under the International Convention on Liability and Compensation
for Damage in Connection with the Carriage of Hazardous and
Noxious Substances by Sea, 8 States agree that “the owner [which
may be a State] at the time of an incident shall be liable for
damage caused by any hazardous and noxious substances in
connection with their carriage by sea on board the ship, provided
that if an incident consists of a series of occurrences having the
same origin the liability shall attach to the owner at the time of the
first of such occurrences”;545
i. under the International Convention on Civil Liability for Bunker
Oil Pollution Damage, 106 States agree that “the shipowner
[which may be a State] at the time of an incident shall be liable for
pollution damage caused by any bunker oil on board or originating
from the ship, provided that, if an incident consists of a series of
occurrences having the same origin, the liability shall attach to the
shipowner at the time of the first of such occurrences”;546
544 Convention on Civil Liability for Oil Pollution Damage resulting from Exploration for
and Exploitation of Seabed Mineral Resources, 1 May 1977, Article 3(1), Annex 86.
545 International Convention on Liability and Compensation for Damage in Connection with
the Carriage of Hazardous and Noxious Substances by Sea “2010 HNS Convention”, 30
April 2010, Article 7(1), Annex 150.
546 International Convention on Civil Liability for Bunker Oil Pollution Damage, 23 March
2001, UK Treaty Series No. 47 (2012), Article 3(1), Annex 137.
174
j. under the International Convention on Civil Liability for Oil
Pollution Damage (as amended by its 1992 Protocol), 44 States
agree that the “owner [which may be a State] of a ship at the time
of an incident . . . shall be liable for any pollution damage caused
by the ship as a result of the incident”;547 and
k. under the Convention on Civil Liability for Damage Resulting
from Activities Dangerous to the Environment, 9 States agree that
an operator (which may be a State) is liable for damage caused by
specific dangerous activities.548
235. Under international conventions, States also agree to make up the
difference up to the limit of a non-State operator’s liability not covered by
their insurance or other financial securities by setting up compensation
funds.549 For example:
a. under the Protocol to Amend the Vienna Convention on Civil
Liability for Nuclear Damage, 25 States agree that “the Installation
547 International Convention on Civil Liability for Oil Pollution Damage, 29 November
1969, 973 UNTS 3, Article III(1), Annex 77 (amended by the Protocol to the
International Convention on Civil Liability for Oil Pollution Damage, 27 November
1992, 1956 UNTS 255, Article 4(1), Annex 115).
548 See Convention on Civil Liability for Damage Resulting from Activities Dangerous to
the Environment, 21 June 1993, European Treaty Series No. 150 (“Convention on Civil
Liability for Damage Resulting from Activities Dangerous to the Environment”),
Article 6(1), Annex 117.
549 See, e.g., the Compensation Funds for Marine Oil Pollution Damage established by the
International Convention on Civil Liability for Oil Pollution Damage, 29 November
1969, 973 UNTS 3 (amended by the Protocol of 1992 to Amend the International
Convention on Civil Liability for Oil Pollution Damage, 27 November 1992, 1956
UNTS 255, Annex 115); the Compensation Fund for Nuclear Damage established by the
Convention on Supplementary Compensation for Nuclear Damage, 12 September 1997,
3038 UNTS 41, Article III(1); a fund created by Annex VI to the Protocol on
Environmental Protection to the Antarctic Treaty, Liability Arising From Environmental
Emergencies, 17 June 2005, Article 12, Annex 145; HNS Fund established by the
International Convention on Liability and Compensation for Damage in Connection with
175
State . . . may establish a lower amount of liability of the operator,
provided that in no event shall any amount so established be less
than 5 million SDRs, and provided that the Installation State
ensures that public funds shall be made available up to the amount
established pursuant to paragraph 1”;550
b. under the Convention on Supplementary Compensation for
Nuclear Damage, 22 States agree that “beyond the amount made
available under sub-paragraph (a), the Contracting Parties shall
make available public funds according to the formula specified in
Article IV”;551 and
c. under the Protocol of 1992 to amend the International Convention
on the Establishment of an International Fund for Compensation
for Oil Pollution Damage, 121 States agree to establish an
international fund with the aim “to provide compensation for
pollution damage to the extent that the protection afforded by the
1992 Liability Convention is inadequate.”552
the Carriage of Hazardous and Noxious Substances by Sea “2010 HNS Convention”, 30
April 2010.
550 Protocol to Amend the Vienna Convention on Civil Liability for Nuclear Damage, 12
September 1997, 2241 UNTS 270, Article 7, Annex 129.
551 Convention on Supplementary Compensation for Nuclear Damage, 12 September 1997,
3038 UNTS 41, Article III(1)(b), Annex 130.
552 Protocol of 1992 to Amend the International Convention on the Establishment of an
International Fund for Compensation for Oil Pollution Damage, 27 November 1992,
1953 UNTS 330 (“1992 Protocol to Amend the Convention on the Establishment of
an International Fund for Compensation for Oil Pollution Damage”), Article 3(1)(a),
Annex 116.
176
236. In addition, international conventions require States to adopt rules and
procedures to determine liability and compensation for damage resulting
from pollution.553
237. In fact, this obligation to compensate is supported by State practice.
238. First, in declarations, States promote cooperation to develop international
law regarding liability and compensation for the victims of pollution and
other environmental damages caused by activities within the jurisdiction
or control of such States to areas beyond their jurisdiction:
a. in the Stockholm Declaration, 113 States promise to “co-operate
to develop further the international law regarding liability and
compensation for the victims of pollution and other environmental
damage caused by activities within the jurisdiction or control of
such States to areas beyond their jurisdiction”;554
553 See, e.g., Convention for the Protection and Development of the Marine Environment of
the Wider Caribbean Region, 24 March 1983, 1506 UNTS 157, Article 14, Annex 96;
Convention for the Protection, Management and Development of the Marine and Coastal
Environment of the Eastern African Region, 21 June 1985, OJ C 253/10, Article 15,
Annex 99; Kuwait Regional Convention for Co-operation on the Protection of the
Marine Environment from Pollution, 24 April 1978, 1140 UNTS 133, Article 13, Annex
87; Protocol on the prevention of pollution of the Mediterranean Sea by transboundary
movements of hazardous wastes and their disposal, 1 October 1996, 2942 UNTS 155,
Article 14, Annex 127; Agreement on the Protection of the Marine Environment and the
Coastal Area of the South-East Pacific, 12 November 1981, 1648 UNTS 3, Article 11(1),
Annex 93; Convention for Co-operation in the Protection and Development of the
Marine and Coastal Environment of the West and Central African Region, 23 March
1981, Article 15, Annex 91; Amended Nairobi Convention for the Protection,
Management and Development of the Marine and Coastal Environment of the Western
Indian Ocean, 31 March 2010, UNEP/(DEPI)/EAF/COP8/2015/10, Article 16, Annex
149; Framework Convention for the Protection of the Marine Environment of the
Caspian Sea, 4 November 2003, Article 29, Annex 144; Noumea Convention, Article 20,
Annex 101.
554 Stockholm Declaration, Principle 22, Annex 469.
177
b. in the Rio Declaration, 179 States promise to “develop national
law regarding liability and compensation for the victims of
pollution and other environmental damage. States shall also
cooperate in an expeditious and more determined manner to
develop further international law regarding liability and
compensation for adverse effects of environmental damage caused
by activities within their jurisdiction or control to areas beyond
their jurisdiction”;555
c. in the Declaration on the Right to Development adopted by the
UN General Assembly, States promise to “formulate appropriate
national development policies that aim at the constant
improvement of the well-being of the entire population and of all
individuals, on the basis of their active, free and meaningful
participation in development and in the fair distribution of the
benefits resulting therefrom”556 and to “take steps, individually
and collectively, to formulate international development policies
with a view to facilitating the full realization of the right to
development”;557
d. in the Universal Declaration of Human Rights, States promise that
“[e]veryone is entitled to a social and international order in which
555 Rio Declaration, Principle 13, Annex 281.
556 UN General Assembly Resolution 41/128 (1986), A/RES/41/128, 4 December 1986,
Article 2(3), Annex 214.
557 UN General Assembly Resolution 41/128 (1986), A/RES/41/128, 4 December 1986,
Article 4(1), Annex 214.
178
the rights and freedoms set forth in this Declaration can be fully
realized”;558 and
e. in the COP 28 UAE Declaration on Climate, Relief, Recovery and
Peace, 74 States agreed to “strengthen coordination, collaboration,
and partnerships,” notably by “[o]ptimizing complementarity of
mandates and expertise across climate, development,
humanitarian, disaster risk management, and peace actors to
further the efficiency, sustainability, and effectiveness of shortand
long-term investments, including by providing earlier and
more timely support, with the aim to yield cumulative increases in
the adaptive capacity, recovery, and resilience of people and
communities” and additionally by “[s]trengthening operational
partnerships and synergies across governments, international and
regional organizations, financial institutions and mechanisms,
civil society, local communities, the private sector, and other
actors to tailor climate action to context and needs, and to deliver
coordinated, inclusive programs and sustainable solutions for
greater impact.”559
239. Second, States’ submissions before the IACtHR in 2023 have also
confirmed that the obligation to compensate is part of general
international law and relevant in the context of climate change harm.560
558 Universal Declaration of Human Rights, Article 28, Annex 208.
559 UAE Declaration on Climate, Relief, Recovery and Peace (COP 28), 3 December 2023,
PDF page 5, Annex 367.
560 In the IACtHR Second Climate Change Advisory Opinion, see, e.g., Written
Observations of the Republic of Colombia, 18 December 2023, paragraph 72, Annex 353
bis; Written Observations of the United Mexican States, 18 December 2023, paragraphs
296-306, Annex 355 bis.
179
240. Third, there is practice among States of making ex gratia payments to
other States as compensation for environmental harm, which supports this
obligation.561 For example, the United States of America made a payment
to Japan for compensation for the injuries or damages sustained due to the
thermonuclear tests near the Marshall Islands.562 Australia also agreed to
make an ex gratia payment to Nauru for the rehabilitation of phosphate
mines administrated by Australia before Nauru reached independence,
while at the same time stressing that such compensation was “without
prejudice to Australia’s long-standing position that it bears no
responsibility for the rehabilitation of the phosphate lands worked out
before 1 July 1967.”563
241. The obligation to compensate is supported by judicial decisions. For
example, in the Trail Smelter Arbitration, Canada was requested to pay
compensation to the United States of America for environmental harm.564
561 However, jurists disagree whether this practice supports an obligation to compensate
whether or not a State has committed a wrongful act under international law (see, e.g.,
M. Montjoie, The Concept of Liability in the Absence of an Internationally Wrongful Act,
in THE LAW OF INTERNATIONAL RESPONSIBILITY, eds. James Crawford et al. (Oxford
University Press, 2010), page 507, Annex 522).
562 See “International liability for injurious consequences arising out of acts not prohibited
by international law”, Report of the Commission to the General Assembly on the work of
its forty-seven session, Yearbook of the International Law Commission,
A/CN.4/SER.A/1995/Add.1 (Part 1), International Law Commission, 23 June 1995,
paragraph 179, Annex 491. However, it is unclear whether this was a payment for “legal
liability” (see P. Sands & J. Peel, Principles of International Environmental Law
(Cambridge University Press, 2018) (“Principles of International Environmental
Law”), page 752, Annex 528, citing E. Margolis, “The Hydrogen Bomb Experiments
and International Law”, The Yale Law Journal, 1955, pp. 629-647, page 639), Annex
511.
563 Agreement Between Australia and the Republic of Nauru for the Settlement of the Case
in the International Court of Justice Concerning Certain Phosphate Lands in Nauru,
(Australia and the Republic of Nauru), 10 August 1993, Article I(1), Annex 118.
564 See Trail Smelter Arbitration, page 1965, Annex 433.
180
242. The obligation to compensate is further supported by the “polluter pays”
principle. This is a general principle of international law recognised by
States in international conventions,565 declarations566 and in national
565 See, e.g., Convention on Civil Liability for Damage Resulting from Activities Dangerous
to the Environment, 21 June 1993, European Treaty Series No. 150, Preamble, Annex
117; Consolidated version of the Treaty on the Functioning of the European Union, 26
October 2012, OJ C 326/47, Articles 191(2) and 192(5), Annex 153; ASEAN Agreement
on the Conservation of Nature and Natural Resources, 9 July 1985, Article 10(d), Annex
100; Convention on the protection of the Alps, 7 November 1991, 1917 UNTS 135,
Article 2, Annex 108; Convention on the Protection and Use of Transboundary
Watercourses and International Lakes, Article 2(5)(b), Annex 109; Convention for the
Protection of the Marine Environment of the North-East Atlantic, 22 September 1992,
2354 UNTS 67, Article 2(2)(b), Annex 114; Convention on Co-operation for the
Protection and Sustainable Use of the River Danube, 29 June 1994, OJ L 342, Article
2(4), Annex 121; the Energy Charter Treaty, 14 June 1994, 2080 UNTS 95, Article
19(1), Annex 120; Framework Convention on the Protection and Sustainable
Development of the Carpathians, 22 May 2003, 3372 UNTS 1, Article 2(2)(b), Annex
142; International Convention on Oil Pollution Preparedness, Response and Cooperation,
30 November 1990, 1891 UNTS 78, Preamble, Annex 106; Convention on the
Transboundary Effects of Industrial Accidents, Preamble, Annex 110; Protocol amending
the Agreement between Canada and the United States of America on Great Lakes water
quality, 1978 as amended on October 16, 1983 and November 18, 1987, 7 September
2012, 3125 UNTS 1, Article 2, Annex 152. However, treaties may derogate from this
principle (see, e.g., Case Concerning the Auditing of Accounts Between the Kingdom of
the Netherlands and the French Republic pursuant to the Additional Protocol of 25
September 1991 to the Convention on the Protection of the Rhine Against Pollution by
Chlorides of 3 December 1976 (Netherlands v France), Award, 12 March 2004, PCA
Case No. 2000-02, paragraph 103, Annex 434, in which the tribunal was also of the view
that this principle was not part of general international law).
566 See, e.g., Rio Declaration, Principle 16, Annex 281; “OECD Recommendation on
Guiding Principles concerning International Economic Aspects of Environmental
Policies”, OECD/LEGAL/0102, OECD, 26 May 1972, Annex 503; “OECD
Recommendation of the Council on the Implementation of the Polluter-Pays Principle”,
OECD/LEGAL/0132, OECD, 14 November 1974, Annex 504; “OECD
Recommendation concerning the Application of the Polluter-Pays Principle to Accidental
Pollution”, OECD/LEGAL/0251, OECD, 7 July 1989, Annex 505; Declaration of the
Council of the European Communities and of the representatives of the Governments of
the Member States meeting in the Council on the programme of action of the European
Communities on the environment, OJ C 112/1, 22 December 1973, Chapter I, A(4) and
B(7), Annex 279; Annex, Plan of Implementation of the World Summit on Sustainable
Development, Report of the World Summit on Sustainable Development, Johannesburg,
South Africa, 26 August-4 September 2002, A/CONF.199/20, 2002, paragraph 15(b),
Annex 473.
181
jurisdictions.567 According to this principle, the costs of any pollution
should be borne by the person responsible for causing the pollution (which
includes States or entities whose conduct is assumed by or attributed to
the State).568
243. This obligation to compensate is also supported by the principles of equity
and fairness in human rights law. International and regional human rights
treaties require States to provide effective remedies, including
compensation, for harm (discussed in Section VII).569 This obligation of
States to provide a remedy to victims of human rights violations resulting
from climate change within its jurisdiction demonstrates the need and
equitable nature for inter-State reparations for the same. If a State that
caused harm to another State would not need to pay reparations to that
second State, the compensating State would be forced to shoulder the cost
of the internationally wrongful acts of the polluting State. This would go
against the international law principle of equity and the principle of
fairness.
567 See ILC Commentaries on the Draft Principles on the Allocation of Loss in the Case of
Transboundary Harm arising out of Hazardous Activities, Principle 3, pages 74, 75,
footnote 401, Annex 497.
568 See Principles of International Environmental Law, page 240, Annex 528; R. Chemain,
The ‘Polluter Pays’ Principle in THE LAW OF INTERNATIONAL RESPONSIBILITY, eds. J.
Crawford et al. (Oxford University Press, 2010), page 879, Annex 535.
569 Decisions of human rights bodies demonstrate that States should offer reparations for
human rights violations resulting in environmental damage. For example, the African
Commission on Human and Peoples’ Rights requested Nigeria “to ensure protection of
the environment, health and livelihood of the people of Ogoniland” by different means,
and notably “[e]nsuring adequate compensation to victims” (African Commission
Decision on Communication 155/96, page 15, Annex 455).
182
244. This obligation to compensate is further supported by the most highly
qualified publicists:
a. the ILC’s 1996 Draft Articles for International Liability for
Injurious Consequences Arising out of Acts not Prohibited by
International Law state that “liability arises from significant
transboundary harm caused by an activity referred to in article 1
and shall give rise to reparation”;570
b. the ILC’s 2006 Draft Principles on the Allocation of Loss in the
Case of Transboundary Harm arising out of Hazardous Activities
acknowledge the existence of a strict liability regime primarily
attached to the operator (which may be a State), not requiring
proof of fault for the damages caused, supported where necessary
by additional compensation funding;571
c. the Institut de Droit International, an organisation of international
lawyers devoted to studying and developing international law,
acknowledged that the “obligation to reestablish the original
position or to pay compensation” may arise “from a rule of
international law providing for strict responsibility on the basis of
570 Twelfth report on international liability for injurious consequences arising out of acts not
prohibited by international law, by Mr. Julio Barboza, Special Rapporteur, A/CN.4/475/
and Add.1, 13 May 1996, Article 8, page 35, and paragraph 24.2, page 33, Annex 472.
571 See ILC Commentaries on the Draft Principles on the Allocation of Loss in the Case of
Transboundary Harm arising out of Hazardous Activities, Principle 4(2), Annex 497.
See also X. Hu, “The doctrine of liability fixation of State responsibility in the
convention on transboundary pollution damage”, International Environmental
Agreements: Politics, Law and Economics, 2020, page 187, Annex 531; Principles of
International Environmental Law, page 747, Annex 528.
183
harm or injury alone” and this is “particularly in the case of ultrahazardous
activities”;572 and
d. the Brundtland special commission report called on States to “take
all reasonable precautionary measures to limit the risk when
carrying out or permitting certain dangerous but beneficial
activities and shall ensure that compensation is provided should
substantial transboundary harm occur even when the activities
were not known to be harmful at the time they were
undertaken.”573
245. Whether the requirement under the obligation not to pay compensation is
for the harm to be “significant” (which is debateable), it is clearly met as
described in Section IV for the reasons in paragraph 147.
(ii) In addition, States must also pay compensation for loss and damage
caused by anthropogenic gas emissions where they have breached another
international law obligation
246. As further discussed in Section VII, States are liable to make full
reparation for wrongful acts. This includes compensating for loss and
damage caused by anthropogenic gas emissions.
247. In this regard, this Court has correctly already awarded compensation for
breaches of international law that cause environmental harm. For
572 “Responsibility and Liability under International Law for Environmental Damage”,
Session of Strasbourg, Institut de Droit International Resolution, 1997 (“Responsibility
and Liability under International Law for Environmental Damage”), Article 1,
Annex 518. See also Responsibility and Liability under International Law for
Environmental Damage, Article 4, Annex 518.
573 “Report of the World Commission on Environment and Development - Our Common
Future”, Brundtland Commission, 1987, Annex 1, paragraph 11, Annex 489 bis.
184
example, in Certain Activities Carried Out by Nicaragua in the Border
Area Compensation Judgment, this Court decided that “it is consistent
with the principles of international law governing the consequences of
internationally wrongful acts, including the principle of full reparation, to
hold that compensation is due for damage caused to the environment, in
and of itself, in addition to expenses incurred by an injured State as a
consequence of such damage.”574 This Court also asserted that “that
damage to the environment, and the consequent impairment or loss of the
ability of the environment to provide goods and services, is compensable
under international law.”575
248. Notably, as this Court itself asserted, States must compensate for such
harm even where there is an absence of adequate evidence as to the extent
of material damage.576 After all, as the Tribunal in the Trail Smelter
Arbitration noted, it would be a “perversion of fundamental principles of
justice to deny relief” where the act “itself is of such a nature as to
preclude the ascertainment of the amount of damages with certainty.”577
In such case, this Court, the IACtHR and the ECtHR, among many others,
award compensation on the basis of “equitable considerations.”578
574 Certain Activities Carried Out by Nicaragua in the Border Area Compensation
Judgment, paragraph 41, Annex 407.
575 Certain Activities Carried Out by Nicaragua in the Border Area Compensation
Judgment, paragraph 42, Annex 407.
576 See Certain Activities Carried Out by Nicaragua in the Border Area Compensation
Judgment, paragraph 35, Annex 407.
577 Trail Smelter Arbitration, page 1920, Annex 433 (citing United States Supreme Court in
Story Parchment Company v Paterson Parchment Paper Company (1931), 282 U. S.
555, Annex 456).
578 Certain Activities Carried Out by Nicaragua in the Border Area Compensation
Judgment, paragraph 35, Annex 407. See also e.g., Ahmadou Sadio Diallo (Republic of
Guinea v Democratic Republic of the Congo), Compensation, Judgment of 19 June 2012,
185
VII. QUESTION (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
ANSWER
249. Ubi jus, ibi remedium: every right carries a remedy in breach. This classic
legal principle animates this advisory opinion.
250. As a preliminary matter, this question presupposes that the harm to the
climate system or other parts of the environment must be significant.
However, it is well-established that States must provide full reparation
where they breach an international obligation, whether or not the harm
itself is significant. This is a separate and different question as to whether
the obligation not to cause transboundary harm is limited to significant
I.C.J. Reports 2012, p. 324, paragraphs 33, 36, Annex 402; Case of Chaparro Alvarez
and Lapo Iñiguez v Ecuador. Preliminary Objections, Merits, Reparations and Costs.
Judgment of November 21, 2007. Series C No. 170, paragraphs 240, 242, Annex 376;
Lupsa v Romania [2006] ECHR 604, paragraph 72, Annex 426.
186
harm or whether the obligation to compensate arises only when the harm
is significant.579 For the reasons in paragraph 147 above, harm to the
climate system or other parts of the environment is necessarily significant
harm.
251. This Section sets out the legal consequences under the obligations set out
in Section VI for States where they, by their acts and/or omissions, have
caused harm to the climate system and other parts of the environment.
Those legal consequences are that: (a) States must provide full monetary
reparation to other States for climate change damage caused by their
wrongful acts in breach of obligations (see Section VII.A); (b) States
must offer full monetary reparation to other States for acts and omissions
attributable to them in whole or in part (see Section VII.B); (c) States
must offer other redress for damage due to climate change by inter alia
contributing to climate change funds, offering financial resources and
ensuring transfers of technology (see Section VII.C); and (d) full
reparation and other assistance to address climate change must take
account of the circumstances of affected States and peoples (see Section
VII.D).
States must provide full monetary reparation to other States for
climate change damage
252. A State must make full reparations for damage to the environment caused
by that State’s internationally wrongful act, i.e., for a violation of the
obligations in relation to climate change set out in Sections VI.A-F above.
579 See, e.g., F. Vicuna, “Responsibility and Liability for Environmental Damage under
International Law: Issues and Trends”, Georgetown International Environmental Law
Review, 1998, pp. 279-308, page 295, Annex 554.
187
The principle of strict liability includes liability for transboundary harm
without other fault. States are thus obligated to provide reparations on this
strict liability basis, or otherwise, under general international law (see subsection
(i)) and international environmental law (see sub-section (ii)).
(i) States must provide full monetary reparation under general international
law
253. As stated in the Chorzów Factory case, the principle of full reparation
requires the State to “wipe out all the consequences of the illegal act and
re-establish the situation which would, in all probability, have existed if
that act had not been committed.”580 This formulation is universally
accepted.581 As recognised by this Court in its judgment on the merits in
the Armed Activities case:
[t]he Court observes that it is well established in general
international law that a State which bears responsibility for
an internationally wrongful act is under an obligation to
make full reparation for the injury caused by that act.582
580 Case Concerning the Factory at Chorzów (Claim for Indemnity) (Merits), Judgment of
13 September 1928, PCIJ, Series A-No. 17, page 47, Annex 423.
581 See Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v
Uganda), Reparations, Judgment of 9 February 2022, I.C.J. Reports 2022, p. 13
(“Armed Activities Reparations Judgment”), paragraphs 69, 99-100, Annex 409;
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v
Uganda), Merits, Judgment of 19 December 2005, I.C.J. Reports 2005, p. 168, paragraph
259, Annex 398; Gabčíkovo-Nagymaros, paragraphs 150 and 152, Annex 394; Avena
and Other Mexican Nationals (Mexico v United States of America), Judgment of 31
March 2004, I.C.J. Reports 2004, p. 12, paragraph 119, Annex 397; Articles on
Responsibility of States, Article 31, Annex 494.
582 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v
Uganda), Merits, Judgment of 19 December 2005, I.C.J. Reports 2005, p. 168, paragraph
259, Annex 398. See also Gabčíkovo-Nagymaros, paragraph 152 (“It is a wellestablished
rule of international law that an injured State is entitled to obtain
compensation from the State which has committed an internationally wrongful act for the
damage caused by it”), Annex 394.
188
254. The principle of full reparations is also incorporated in the Articles on
Responsibility of States.583 Article 31 states that “the responsible State is
under an obligation to make full reparation for the injury caused by the
internationally wrongful act,” specifying that the “[i]njury includes any
damage . . . caused by the internationally wrongful act of a State.”584
255. Likewise, in the specific context of environmental damage, the Institut de
Droit International has stipulated that:
[t]he breach of an obligation of environmental protection
established under international law engages responsibility
of the State (international responsibility), entailing as a
consequence the obligation to reestablish the original
position or to pay compensation.585
256. Breaching States are collectively responsible for damage caused by
climate change. In this respect, Article 47(1) of the Articles on
Responsibility of States provides that “[w]here several States are
responsible for the same internationally wrongful act, the responsibility of
each State may be invoked in relation to that act.”586 As stated in
subsequent Article 47(2)(b), this collective responsibility “is without
prejudice to any right of recourse against the other responsible States.”587
The Guiding Principles on Shared Responsibility in International Law
likewise provide that “[t]he commission by multiple international persons
of one or more internationally wrongful acts that contribute to an
583 See J. Crawford, State Responsibility (Cambridge University Press, 2013), pages 480-
482, Annex 525.
584 Articles on Responsibility of States, Article 31, Annex 494.
585 Responsibility and Liability under International Law for Environmental Damage, Article
1, Annex 518.
586 Articles on Responsibility of States, Article 47(1), Annex 494.
587 Articles on Responsibility of States, Article 47(2)(b), Annex 494.
189
indivisible injury entails shared responsibility.”588 These guidelines also
note that each party sharing responsibility for such an international
wrongful act “is under an obligation to make full reparation for the
indivisible injury caused by the single or multiple internationally wrongful
acts, unless its contribution to the injury is negligible.”589
257. Climate change loss that is subject to reparations includes damage to the
environment (i.e., “pure” environmental damage such as ecosystem
changes or the destruction of biological diversity) and damage to people
and property (i.e., defined economic assets including the cost of any
adaptation measures590).591 The obligation to repair “pure” environmental
damage is supported by the Articles on Responsibility of States. Article
31(2) of the Articles on Responsibility of States provides that “[i]njury
includes any damage, whether material or moral, caused by the
internationally wrongful act of a State.”592 In Certain Activities Carried
Out by Nicaragua in the Border Area Compensation Judgment, this Court
confirmed that “pure” environmental damage is recoverable. It held that:
it is consistent with the principles of international law
governing the consequences of internationally wrongful
acts, including the principle of full reparation, to hold that
compensation is due for damage caused to the environment,
588 A. Nollkaemper et al., “Guiding Principles on Shared Responsibility in International
Law”, The European Journal of International Law, 2020 (“Guiding Principles on
Shared Responsibility in International Law”), Principle 2(1), Annex 530.
589 Guiding Principles on Shared Responsibility in International Law, Principle 10, Annex
530.
590 See C. Voigt, State Responsibility for Damages associated with Climate Change, in
RESEARCH HANDBOOK ON CLIMATE CHANGE LAW AND LOSS & DAMAGE, eds. Meinhard
Doelle & Sara L. Seck (Edward Elgar Publishing Limited, 2021), page 181, Annex 536.
591 See M. Fitzmaurice et al., International Environmental Law, Text, Cases and Materials
(Edward Elgar Publishing Limited, 2022), page 424, Annex 538.
592 Articles on Responsibility of States, Article 31(2), Annex 494.
190
in and of itself, in addition to expenses incurred by an
injured State as a consequence of such damage . . .593
The Court is therefore of the view that damage to the
environment, and the consequent impairment or loss of the
ability of the environment to provide goods and services, is
compensable under international law. Such compensation
may include indemnification for the impairment or loss of
environmental goods and services in the period prior to
recovery and payment for the restoration of the damaged
environment.594
258. The UN Security Council has similarly recognised that States are liable
for “pure” environmental damage resulting from an international wrongful
act. In 1991, it affirmed that Iraq was liable “under international law” for
inter alia “environmental damage and the depletion of natural resources
. . . occurring as a result of its unlawful invasion and occupation of
Kuwait.”595
259. Full reparations in international law can take the form of restitution,
compensation or satisfaction.596 In the field of climate change,
compensation plays an important role. Environmental damage, as well as
593 Certain Activities Carried Out by Nicaragua in the Border Area Compensation
Judgment, paragraphs 41-42, Annex 407.
594 Certain Activities Carried Out by Nicaragua in the Border Area Compensation
Judgment, paragraph 42, Annex 407.
595 UN Security Council Resolution 687 (1991) reaffirming that Iraq was “liable under
international law for any direct loss, damage, including environmental damage and the
depletion of natural resources…occurring as a result of its unlawful invasion and
occupation of Kuwait” (UN Security Council Resolution 687 (1991), S/RES/687, 8 April
1991, paragraph 16, Annex 217).
596 See Articles on Responsibility of States, Article 34 (“Full reparation for the injury caused
by the internationally wrongful act shall take the form of restitution, compensation and
satisfaction, either singly or in combination”), Annex 494. In accordance with Article
36(2) of the Articles on State Responsibility, monetary compensation must “cover any
financially assessable damage including loss of profits insofar as it is established.” See
also Guiding Principles on Shared Responsibility in International Law, Principle 11,
Annex 530.
191
other damage resulting from climate change, is frequently irreversible,597
making restitution impossible. In Gabčíkovo-Nagymaros, this Court
noted this “often irreversible character of damage to the environment.”598
This Court has confirmed repeatedly that in such circumstances, when
restitution is not possible, reparation may take “the form of compensation
or satisfaction, or even both.”599 In the Certain Activities Carried Out by
Nicaragua in the Border Area Compensation Judgment, this Court added
that compensation for environmental damage includes “indemnification
for the impairment or loss of environmental goods and services in the
period prior to recovery and payment for the restoration of the damaged
environment.”600 It also held that compensation for restoration should
reflect that “active restoration measures may be required in order to return
the environment to its prior condition . . .”601
260. The obligation to make full reparations is not diminished by the
complexities of climate change. Reparations of environmental harm raise
various complexities, such as how to quantify the harm, causation, the
significant amount of compensation required, attribution of the harm
among polluting States, the ongoing and unpredictable nature of the harm
597 The precautionary principle, as formulated in the UNFCCC includes the “threats of
serious ore irreversible damage” from climate change (see UNFCCC, Article 3(3),
Annex 112).
598 Gabčíkovo-Nagymaros, paragraph 140 (“in the field of environmental protection,
vigilance and prevention are required on account of the often irreversible character of
damage to the environment and of the limitations inherent in the very mechanism of
reparation of this type of damage”), Annex 394.
599 Pulp Mills, paragraph 273, Annex 400; Certain Activities Carried Out by Nicaragua in
the Border Area Compensation Judgment, paragraph 31, Annex 407.
600 Certain Activities Carried Out by Nicaragua in the Border Area Compensation
Judgment, paragraph 42, Annex 407.
601 Certain Activities Carried Out by Nicaragua in the Border Area Compensation
Judgment, paragraph 43, Annex 407.
192
and other evidentiary difficulties.602 None of these complexities,
however, excuse a State from meeting its international law obligation to
make reparations.603 In such cases, where due to the nature and
circumstances of the internationally wrongful act the available evidence
might be imprecise or carry other defects, compensation can be calculated
by, first, agreement between States and, failing that, approximation if
needed. This is supported by the following seminal paragraph from the
Trail Smelter Arbitration, which has been cited approvingly by this Court
and other international courts and tribunals:604
[w]here the tort itself is of such a nature as to preclude the
ascertainment of the amount of damages with certainty, it
602 See, e.g., Section VI.F(ii) above. In Certain Activities Carried Out by Nicaragua in the
Border Area Compensation Judgment, this Court stated that: “the absence of adequate
evidence as to the extent of material damage will not, in all situations, preclude an award
of compensation for that damage” (Certain Activities Carried Out by Nicaragua in the
Border Area Compensation Judgment, paragraph 35, Annex 407). The Trail Smelter
Arbitration award, which quotes the US Supreme Court in Story Parchment Company v
Paterson Parchment Paper Company states: “[w]here the tort itself is of such a nature as
to preclude the ascertainment of the amount of damages with certainty, it would be a
perversion of fundamental principles of justice to deny all relief to the injured person,
and thereby relieve the wrongdoer from making any amend for his acts. In such case,
while the damages may not be determined by mere speculation or guess, it will be
enough if the evidence show the extent of the damages as a matter of just and reasonable
inference, although the result be only approximate” (Trail Smelter Arbitration, page
1965, Annex 433).
603 See Certain Activities Carried Out by Nicaragua in the Border Area Compensation
Judgment, paragraphs 34-35, Annex 407.
604 See Certain Activities Carried Out by Nicaragua in the Border Area Compensation
Judgment, paragraph 41, Annex 407. See also Armed Activities Reparations Judgment,
paragraphs 106, 360, Annex 409; Ahmadou Sadio Diallo (Republic of Guinea v
Democratic Republic of the Congo), Compensation, Judgment of 19 June 2012, I.C.J.
Reports 2012, p. 324, paragraph 33, Annex 402; Judgments of the Administrative
Tribunal of the ILO upon complaints made against the UNESCO, Advisory Opinion of 23
October 1956, I.C.J. Reports 1956, p. 77, page 100, Annex 386; Eritrea-Ethiopia Claims
Commission, Final Award, 17 August 2009, PCA Case No. 2001-02 (“Eritrea-Ethiopia
Final Award”), paragraphs 37,40, Annex 435; The Prosecutor v Ahmad Al Faqi Al
Mahdi, Reparations Order of 17 August 2017, ICC Case No. ICC-01/12-01/15,
paragraphs 116-127, Annex 438; Case of the Kichwa Indigenous People of Sarayaku v
Ecuador, paragraph 315 (“The Court underlines that the probative elements submitted
193
would be a perversion of fundamental principles of justice
to deny all relief to the injured person, and thereby relieve
the wrongdoer from making any amend for his acts. In such
case, while the damages may not be determined by mere
speculation or guess, it will be enough if the evidence show
the extent of the damages as a matter of just and reasonable
inference, although the result be only approximate.605
261. In the same vein, this Court in the Certain Activities Carried Out by
Nicaragua in the Border Area Compensation Judgment found that “[i]n
respect of the valuation of damage . . . the absence of adequate evidence
as to the extent of material damage will not, in all situations, preclude an
award of compensation for that damage.”606 The Eritrea-Ethiopia Claims
Commission (the “EECC”) relied on “the best estimates possible on the
basis of the available evidence” and it recalled that “when obligated to
determine appropriate compensation, it must do so even if the process
involves estimation, or even guesswork, within the range of possibilities
indicated by the evidence.”607 In this respect, the Commission also noted
that determining “the appropriate compensation for each such violation . .
. require[s] exercises of judgment and approximation.”608
are not sufficient or specific enough to determine the loss of earnings by members of the
Sarayaku People . . . However, in the circumstances of this case, it is reasonable to
presume that these events led to a series of expenses and loss of earnings . . .”), Annex
379; “Report and Recommendation made by the Panel of Commissioners Concerning the
Fifth Instalments of F4 Claims”, S/AC.26/2005/10, Governing Council, United Nations
Compensation Commission, 30 June 2005, paragraph 80, Annex 439.
605 Trail Smelter Arbitration, page 1920, Annex 433.
606 Certain Activities Carried Out by Nicaragua in the Border Area Compensation
Judgment, paragraph 35, Annex 407. In the Corfu Channel case, the Court accepted the
UK’s “figures and estimates” of its damages, adjudging whether these figures were
“reasonable” (Corfu Channel (United Kingdom of Great Britain and Northern Ireland v
Albania), Compensation, Judgment of 15 December 1949, I.C.J. Reports 1949, p. 244,
page 260, Annex 385).
607 Eritrea-Ethiopia Final Award, paragraph 37, Annex 435.
608 Eritrea-Ethiopia Final Award, paragraphs 37, 85, Annex 435.
194
(ii) States must provide full monetary reparation under international
environmental law
262. The obligation of States to offer reparations for environmental damage is
also supported in international environmental law. Two early influential
expressions of the obligation to offer compensation for such damage are
the Stockholm Declaration and the Rio Declaration. Principle 22 of the
Stockholm Declaration calls on States to develop international law on
compensation for environmental damage. It affirms that:
States shall cooperate to develop further the international
law regarding liability and compensation for the victims of
pollution and other environmental damage.609
263. Principle 13 of the Rio Declaration similarly declares that States need to
develop international law on the compensation for environmental damage
and adds that they should also develop national laws regarding the same.
It provides that:
States shall develop national law regarding liability and
compensation for the victims of pollution and other
environmental damage. States shall also cooperate in an
expeditious and more determined manner to develop
further international law regarding liability and
compensation for adverse effects of environmental damage
caused by activities within their jurisdiction or control to
areas beyond their jurisdiction.610
264. Principle 7 of the Rio Declaration further recognises the particular
responsibility of developed States. It states: “developed countries
acknowledge the responsibility that they bear in the international pursuit
609 Stockholm Declaration, Principle 22, Annex 469.
610 Rio Declaration, Principle 13, Annex 281.
195
of sustainable development in view of the pressures their societies place
on the global environment.”611
265. Under Article 8(1) of the Paris Agreement, States unequivocally
recognised “the importance of averting, minimising and addressing loss
and damage associated with the adverse effects of climate change.”612
However, the decision adopting the Paris Agreement provides that Article
8 of the Paris Agreement “does not involve or provide a basis for any
liability or compensation.”613 Importantly, this clause does not “exclude
liability on the basis of other articles of the Paris Agreement, other
treaties, the general principles of law, or on the basis of customary
international law.”614 Neither does the clause exclude the application of
general rules of international law that provide for the obligation to repair
climate change damage resulting from the internationally wrongful acts of
States, set out in Section VI.D above.615
611 Rio Declaration, Principle 7, Annex 281.
612 Paris Agreement, Article 8(1), Annex 156.
613 Adoption of the Paris Agreement, Decision 1/CP.21, Report of the Conference of the
Parties on its Twenty-First Session, held in Paris from 30 November to 13 December
2015, Addendum, Part two: Action taken by the Conference of the Parties at its Twenty-
First Session, FCCC/CP/2015/10/Add.1, 29 January 2016, paragraph 51, Annex 293.
614 C. Voigt, State Responsibility for Damages associated with Climate Change, in
RESEARCH HANDBOOK ON CLIMATE CHANGE LAW AND LOSS & DAMAGE, eds. Meinhard
Doelle & Sara L. Seck (Edward Elgar Publishing Limited, 2021), page 167, Annex 536.
615 See Cook Islands, Ratification of the Paris Agreement, 1 September 2016,
C.N.609.2016.Treaties-XXVII.7.d (Depositary Notification), Annex 297; Republic of the
Marshall Islands, Ratification of the Paris Agreement, 22 April 2016,
C.N.173.2016.Treaties-XXVII.7.d (Depositary Notification), Annex 295; Federated
States of Micronesia, Ratification of the Paris Agreement, 15 September 2016,
C.N.626.2016.Treaties-XXVII.7.d (Depositary Notification), Annex 298; Republic of
Nauru, Ratification of the Paris Agreement, 22 April 2016, C.N.179.2016.Treaties-
XXVII.7.d (Depositary Notification), Annex 296; Niue, Ratification of the Paris
Agreement, 28 October 2016, C.N.807.2016.Treaties-XXVII.7.d (Depositary
Notification), Annex 301; Republic of the Philippines, Ratification of the Paris
196
266. States have also committed through various international conventions that
they will pay for specific loss and damage to the environment, such as due
to:
a. oil pollution;616
b. nuclear damage;617
c. damage to the marine environment;618
Agreement, 23 March 2017, C.N.149.2017.Treaties-XXVII.7.d (Depositary
Notification), Annex 302; Solomon Islands, Ratification of the Paris Agreement, 21
September 2016, C.N.650.2016.Treaties-XXVII.7.d (Depositary Notification), Annex
299; Tuvalu, Ratification of the Paris Agreement, 22 April 2016, C.N.183.2016.Treaties-
XXVII.7.d (Depositary Notification), Annex 294; Republic of Vanuatu, Ratification of
the Paris Agreement, 21 September 2016, C.N.653.2016.Treaties-XXVII.7.d (Depositary
Notification), Annex 300.
616 See, e.g., International Convention on Civil Liability for Oil Pollution Damage, 29
November 1969, 973 UNTS 3, Annex 77 (amended by the Protocol of 1992 to Amend
the International Convention on Civil Liability for Oil Pollution Damage, 27 November
1992, 1956 UNTS 255, Articles 2 and 3, Annex 115); International Convention on the
Establishment of an International Fund for Compensation for Oil Pollution Damage, 18
December 1971, 1110 UNTS 57 (“International Convention on the Establishment of
an International Fund for Compensation for Oil Pollution Damage”), Article 2,
Annex 78 (amended by the 1992 Protocol to Amend the Convention on the
Establishment of an International Fund for Compensation for Oil Pollution Damage,
Article 3, Annex 116); International Convention on Civil Liability for Bunker Oil
Pollution Damage, 23 March 2001, UK Treaty Series No. 47 (2012), Article 3, Annex
137.
617 See, e.g., 1960 Paris Convention, Article 6(a), Annex 71; Vienna Convention on Civil
Liability for Nuclear Damage,1063 UNTS 265, 21 May 1963, Article 2, Annex 72.
618 See, e.g., Kuwait Regional Convention for Co-operation on the Protection of the Marine
Environment from Pollution, 24 April 1978, 1140 UNTS 133, Article XIII, Annex 87;
The Regional Convention for the Conservation of the Red Sea and Gulf of Aden
Environment, 14 February 1982, Article XIII, Annex 94; Convention for the Protection
and Development of the Marine Environment of the Wider Caribbean Region, 24 March
1983, 1506 UNTS 157, Article 14, Annex 96; Noumea Convention, Article 20, Annex
101; Convention on the Protection of the Marine Environment of the Baltic Sea Area, 22
March 1974, 1507 UNTS 166, Article 17, Annex 84; Convention on the Prevention of
Marine Pollution by Dumping of Wastes and Other Matter, 29 December 1972, 1046
UNTS 120, Article X, Annex 82; Cartagena Protocol on Biosafety to the Convention on
Biological Diversity, 29 January 2000, 2226 UNTS 208, Article 27 (giving rise to the
197
d. hazardous waste;619 and
e. other environmental damage.620
267. The obligation to offer reparations for environmental damage is
encompassed in well-established principles of international environmental
law, in particular, the polluter pays principle and the no-harm principle.
The polluter pays principle is a foundational principle of international
environmental law that, as noted in Section VI.F above, is recognised by
States in treaties, declarations and in national jurisdictions. The polluter
pays principle is a general principle of international law, as recognised by
several treaties.621 In essence and as described in the Rio Declaration, the
polluter pays principle entails that the State causing environmental
pollution should “bear the cost of pollution, with due regard to the public
interest and without distorting international trade and investment.”622 The
Nagoya-Kuala Lumpur Supplementary Protocol on Liability and Redress, 15 October
2010, 3240 UNTS 1, Annex 151), Annex 135.
619 See, e.g., Basel Protocol on Liability and Compensation for Damage Resulting from
Transboundary Movements of Hazardous Wastes and their Disposal, 10 December 1999,
Article 6, Annex 134.
620 See, e.g., Antarctic Environmental Protocol, Article 16 (the parties committed to
elaborate rules and procedures relating to liability for damage arising from activities
taking place in the Antarctic and covered by the Protocol), Annex 107; International
Convention on Liability and Compensation for Damage in Connection with the Carriage
of Hazardous and Noxious Substances by Sea “2010 HNS Convention”, 30 April 2010,
Article 23, Annex 150 (replacing the 1996 International Convention on Liability and
Compensation for Damage in Connection with the Carriage of Hazardous and Noxious
Substances by Sea, 3 May 1996).
621 See, e.g., International Convention on Oil Pollution Preparedness, Response and Cooperation,
30 November 1990, 1891 UNTS 78, Preamble, page 79, Annex 106;
Convention on the Transboundary Effects of Industrial Accidents, Preamble, page 461,
Annex 110; Protocol on Civil Liability and Compensation for Damage Caused by the
Transboundary Effects of Industrial Accidents on Transboundary Waters to the 1992
Convention on the Protection and Use of Transboundary Watercourses and International
Lakes and to the 1992 Convention on the Transboundary Effects of Industrial Accidents,
21 May 2003, Preamble, Annex 141.
622 Rio Declaration, Principle 16, Annex 281.
198
principle shifts the costs for pollution onto the polluter, which is a key
tenet of environmental fault-based liability and aligned with the principle
of equity and the principle of fairness under international law.623
268. Inter-State reparations for climate change damage are also a corollary of
the no-harm principle,624 which is a general principle of international
environmental law that has been incorporated into various international
environmental law instruments.625 Breach of the no-harm principle has
resulted in international courts and tribunals ordering the payment of
compensation. For example, in the Trail Smelter Arbitration, one of the
first cases in which environmental damage was addressed, an international
arbitral tribunal ordered Canada to pay the United States of America
compensation for the transboundary environmental harm caused.626
269. Last, the work of esteemed scholars in the field of international
environmental law supports that States are to provide compensation for
harm caused by their international wrongful acts. For example, Principle
21 of the Legal Principles for Environmental Protection and Sustainable
623 See Directive of the European Parliament and of the Council on environmental liability
with regard to the prevention and remedying of environmental damage, 21 April 2004,
2004/35/EC, Article 1 (“The purpose of this Directive is to establish a framework of
environmental liability based on the ‘polluter-pays’ principle, to prevent and remedy
environmental damage”), Annex 256. See also E. Hey & S. Paulini, “Common but
Differentiated Responsibilities” in Max Planck Encyclopaedia of Public International
Law, 2021, paragraph 5, Annex 551.
624 See M. Fitzmaurice et al., International Environmental Law, Text, Cases and Materials
(Edward Elgar Publishing Limited, 2022), page 424, Annex 538.
625 See Rio Declaration, Principle 16, Annex 281; Stockholm Declaration, Principle 21,
Annex 469. See also UNFCCC, Preamble, recital 8, Annex 112; Convention on the Law
of the Non-Navigational Uses of International Watercourses, Article 7, Annex 128;
UNCCD, Preamble, page 110, Annex 123; Stockholm Convention on Persistent Organic
Pollutants, 22 May 2001, 2256 UNTS 119, Preamble, page 215, Annex 138;
International Tropical Timber Agreement, 2006, 27 January 2006, 2797 UNTS 75,
Preamble, recital (d), Annex 147.
626 See Trail Smelter Arbitration, Annex 433.
199
Development adopted by the World Commission on Environment and
Development Experts Group on Environmental Law, stipulates under the
heading “State Responsibility” that “States shall cease activities which
breach an international obligation regarding the environment and provide
compensation for the harm caused.”627
States must offer full monetary reparation to other States for climate
change caused by acts and omissions attributable to them in whole or
in part
270. As discussed in Sections VI.A, VI.B, VI.C, States are required to protect
and preserve the environment and prevent transboundary harm. This
includes preventing harm to the climate system and other parts of the
environment from private parties, such as companies and individuals.
271. States should also offer full monetary reparation to other States for acts
and omissions attributable to them in whole or in part under the rules of
State responsibility. This includes providing full monetary reparation for
acts and omissions of the State’s organs, persons or entities empowered by
the State with governmental authority and others acting on the instructions
of the State. States regularly act through such parties (e.g., State-owned
corporations), which can be large emitters of greenhouse gases.
272. This Court has confirmed that acts or omissions that may be attributed to
the State, in violation of the norms of international law, engage the
international responsibility of the State.628 This Court has also stated that
627 “Report of the World Commission on Environment and Development - Our Common
Future”, Brundtland Commission, 1987, Annex 1, Principle 21, Annex 489 bis.
628 See Corfu Channel (United Kingdom of Great Britain and Northern Ireland v Albania),
Merits, Judgment of 9 April 1949, I.C.J. Reports 1949, p. 4, pages 22–23, Annex 384;
200
States may be found internationally responsible for acts or omissions
attributed to them within their territory and also for those acts or
omissions committed outside their territory, but under their jurisdiction.629
273. This is consistent with established rules of international law, as articulated
by the ILC in the Articles on Responsibility of States.630 The Articles on
Responsibility of States are regularly cited by this Court and other
international courts and tribunals.631 Under the Articles on Responsibility
of States, an act or omission may be attributed to a State if it is one of:
a. an organ of a State.632 This Court has confirmed that this is a rule
of customary international law;633
United States Diplomatic and Consular Staff in Tehran, Judgment of 24 May 1980, I.C.J.
Reports 1980, p. 3, paragraphs 63-67, Annex 415.
629 See Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, Advisory Opinion of 9 July 2004, I. C. J. Reports 2004, p. 136, paragraphs
109, 111, Annex 417. See also IACtHR 2017 Advisory Opinion, paragraphs 77-78,
Annex 372.
630 See Articles on Responsibility of States, Articles 1 and 2(a), Annex 494. See also
Commentary to the Articles on Responsibility of States, Article 2, page 35, paragraph 4,
Annex 495.
631 See, e.g., Armed Activities Reparations Judgment, paragraphs 70 and 98, Annex 409;
Ilasçu and others v Russia and Moldova, [2004] ECHR 318, paragraph 320 (“Another
recognised principle of international law is that of State responsibility for the breach of
an international obligation, as evidenced by the work of the ILC”), Annex 425.
632 This includes the responsibility of an insurrectional movement that becomes the new
government (see Articles on Responsibility of States, Article 10, Annex 494).
633 See Difference Relating to Immunity from Legal Process of a Special Rapporteur of the
Commission on Human Rights, Advisory Opinion of 29 April 1999, I.C.J. Reports 1999,
p. 62, paragraph 62, Annex 396. See also Articles on Responsibility of States, Article 4,
Annex 494.
201
b. persons or entities which are “empowered by the law of that State
to exercise elements of governmental authority”;634
c. persons acting on the instructions or under the direction or control
of the State in carrying out the conduct. This Court has confirmed
that this is a rule of customary international law;635 and
d. any actors when States adopt or acknowledge their conduct as their
own.636
274. Treaty bodies (including those whose findings are binding on States)
confirm that conduct of State-owned entities causing harm to the
environment is attributable to States. For example:
a. the Committee on Economic, Social and Cultural Rights noted that
States should refrain from unlawfully polluting through industrial
waste “from State-owned facilities”;637
634 Articles on Responsibility of States, Article 5, Annex 494. Conduct of organs placed at
the disposal of a State may also be attributed to a State (see Articles on Responsibility of
States, Article 6, Annex 494).
635 See Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment of 26 February
2007, I.C.J. Reports 2007, p. 43, paragraph 398, Annex 399, citing Articles on
Responsibility of States, Article 8, Annex 494. This Court already decided in 1986 that
States may be responsible in this way (see e.g., Military and Paramilitary Activities in
and against Nicaragua (Nicaragua v United States of America), Merits, Judgment of 27
June 1986, I.C.J. Reports 1986, p. 14, paragraph 109, Annex 390).
636 See Articles on Responsibility of States, Article 11, Annex 494.
637 General Comment No. 14, paragraph 34, Annex 447. See also ICESCR, Article 12,
Annex 73.
202
b. the IACtHR decided that States are obligated to refrain from
unlawfully polluting through industrial waste “from State-owned
facilities”;638
c. the African Commission on Human Rights determined that the
Government of Nigeria had violated human rights, even though the
acts were conducted by its State-owned oil company;639 and
d. the ECtHR held a State responsible for the conduct of coal
facilities owned by the State, given the State’s involvement in and
presumed awareness of their operations.640 Similarly, the ECtHR
explicitly considered that the State should be held responsible for
the acts or omissions of a State-owned mine.641
275. Further, the UN Human Rights Council recognises that an abuse of human
rights committed by a business enterprise that is controlled by the State
may entail a violation of the State’s own international law obligations.642
638 IACtHR 2017 Advisory Opinion, paragraph 117, Annex 372.
639 See African Commission Decision on Communication 155/96, paragraphs 66, 54-68,
Annex 455.
640 See Case of Dubetska and Others v Ukraine [2011] ECHR 13, paragraphs 120, 123,
Annex 428.
641 See Dimitar Yordanov v Bulgaria [2018] ECHR 9 paragraph 60, Annex 430.
642 See Report of the Special Representative of the Secretary-General on the issue of human
rights and transnational corporations and other business enterprises, John Ruggie,
A/HRC/17/31, 21 March 2011, Annex, principle 4, Annex 476. The UN Human Rights
Council adopted the UN Guiding Principles on Business and Human Rights by
unanimous consent (see UN Human Rights Council Resolution 17/4 (2011),
A/HRC/RES/17/4, 16 June 2011, paragraph 1, Annex 223).
203
276. As noted above, the Republic of Colombia explained in its submissions to
the IACtHR just a few months ago that States have a positive obligation to
prevent territory being used for acts contrary to the rights of other States:
. . .at the international level there is an obligation not to
cause transboundary damage, which refers not only to the
negative obligation or “not to do”, but the duty to ensure
that all activities carried out under the jurisdiction and
control of a State do not cause damage to the environment
in areas beyond its jurisdiction. This is also configured as a
positive obligation for States, in the sense of preventing
their territory from being used for acts contrary to the rights
of other States.
(Translated from Spanish original.)643
277. The obligation to provide full reparation for acts and omissions
attributable to the State is further supported by judicial decisions. In the
Trail Smelter Arbitration, for example, Canada was required to
compensate the United States of America for pollution by fumes caused in
Canada’s territory by a corporation.644 Canada assumed international
responsibility for the corporation’s damage to the United States of
America.645
278. This obligation is further supported by the most highly qualified
publicists. For example, as noted above, the ILC considers that the acts
643 In the IACtHR Second Climate Change Advisory Opinion, see Written Observations of
the Republic of Colombia, 18 December 2023, paragraph 71 (in original Spanish, “. . . a
nivel internacional existe la obligación de no causar daño transfronterizo, la cual hace
referencia no solo a la obligación negativa o “de no hacer”, sino el deber de velar por que
todas las actividades realizadas bajo la jurisdicción y control de un Estado no causen
daños al medio ambiente en áreas más allá de su jurisdicción. Lo anterior se configura
también como una obligación positiva para los Estados, en el sentido de impedir que su
territorio sea utilizado para actos contrarios a los derechos ed los otros Estados”), Annex
353 bis. See also IACtHR 2017 Advisory Opinion, paragraph 101, Annex 372.
644 See Trail Smelter Arbitration, page 1933, Annex 433.
645 See Trail Smelter Arbitration, page 1963, Annex 433.
204
and omissions of third parties (such as State-owned entities) may be
attributable to States.646
States must offer other redress for damage due to climate change by
inter alia contributing to climate change funds, offering other
financial resources and ensuring transfers of technology
279. Section VI.D above discusses the obligation of States to assist other
States to mitigate and repair climate change. Further to that Section, this
Section sets out how States must do so through: (a) the financial
contributions that States should make to redress the damage caused by the
climate emergency, regardless of whether they are liable for an
internationally wrongful act (see sub-section (i)); (b) the obligations of
States to ensure the transfer of technology to other States affected by the
climate emergency (see sub-section (ii)); and (c) investment in research on
climate change (see sub-section (iii)).
(i) States should contribute to collective climate change funds and offer other
financial resources to other States affected by the climate emergency
280. States should act to guarantee the right to redress for climate change
damage by contributing to collective climate change funds. Such climate
change funds have been established for developing States in light of the
climate emergency through the Paris Agreement and other international
conventions and initiatives and reflect considerations of equity, justice and
sustainability.
646 See Commentary to the Articles on Responsibility of States, Article 5, page 43,
paragraph 3, Annex 495.
205
281. Agreements relating to both financial assistance and collective climate
change compensation are well-established in international environmental
law. In the context of climate change, they reflect the principle of
common but differentiated responsibilities647 and follow from the
obligation to cooperate to conserve, protect and restore the
environment.648 They also follow from the obligations under international
law to provide full reparation and to compensate for loss and damage,
taking into account the situation of vulnerable or specially affected States
including small island developing States and the particular situations of
impacted peoples.649 Respect for these obligations is of utmost
importance for Barbados, a small island developing State that has been
greatly affected by the negative impacts of climate change and will need
to expend considerable funds to ensure redress and mitigation.650
282. As the UNFCCC and Paris Agreement confirm, the global nature of
climate change calls for the widest possible cooperation, with developed
States to take the lead in combating climate change and its adverse
effects.651 As part of effective action against anthropogenic climate
647 See Section VI.D above.
648 See Section VI.E above.
649 See Section VII.D above.
650 See Section IV.B(vi) above.
651 See UNFCCC, Preamble and Article 3(1), Annex 112; Paris Agreement, Article 9(3),
Annex 156.
206
change, the UNFCCC enshrines specific obligations on developed country
Parties and other developed parties:
a. to provide new and additional financial resources to meet the
agreed full costs incurred by developing country Parties in
complying with their obligations;
b. to provide such financial resources needed by the developing
country Parties to meet the agreed full incremental costs of
implementing agreed covered measures, with implementation
taking into account the need for adequacy and predictability in the
flow of funds and the importance of appropriate burden sharing
among developed country Parties; and
c. to assist developing State parties that are particularly vulnerable to
the adverse effects of climate change in meeting the cost of
adaptation to those adverse effects.652
283. The Paris Agreement further enshrines this by articulating express
obligations on developed country Parties to provide financial resources to
assist developing country Parties with respect to both mitigation and
adaptation, recognising this to form part of existing obligations under the
UNFCCC.653
284. The above obligations are operationalised in practice in a number of ways,
including through climate change funds. Established in 2001 at the 7th
session of the Conference of the Parties to the UNFCCC and officially
launched in 2007, the Adaptation Fund provides adaptation-related
652 See UNFCCC, Articles 4(3) and 4(4), Annex 112.
653 See Paris Agreement, Article 9(1), Annex 156.
207
funding to developing countries party to the Kyoto Protocol and Paris
Agreement that are particularly susceptible to climate change adverse
impacts.654 It holds particular importance for the Caribbean region, which
is particularly vulnerable to climate change impacts, including
increasingly extreme weather patterns.
285. Following approval by the Conference of the Parties to the UNFCCC in
2011, the Green Climate Fund was launched with the aim of supporting
developing countries within the broader global climate framework.655
Barbados was honoured in 2019 to launch and move to implementation
the first Green Climate Fund-financed project.656 In Barbados, the Green
Climate Fund has already contributed an estimated USD 151.5 million to
654 See Funding under the Kyoto Protocol, Decision 10/CP.7, Report of the Conference of
the Parties on Its Seventh Session, held at Marrakesh from 29 October to 10 November
2001, Addendum, Part Two: Action taken by the Conference of the Parties,
FCCC/CP/2001/13/Add.1, 21 January 2002, paragraph 1, Annex 282. See also
Adaptation Fund, Decision 1/CMP.3, Report of the Conference of the Parties serving as
the meeting of the Parties to the Kyoto Protocol on its third session, held in Bali from 3
to 15 December 2007, FCCC/KP/CMP/2007/9/Add.1, 14 March 2008, paragraphs 1 and
4, Annex 285. See also Matters relating to the Adaptation Fund, Decision 13/CMA.1,
Report of the Conference of the Parties serving as the meeting of the Parties to the Paris
Agreement on the third part of its first session, held in Katowice from 2 to 15 December
2018, FCCC/PA/CMA/2018/3/Add.2, 15 December 2018, paragraph 1, Annex 304.
655 See Governing instrument for the Green Climate Fund, Annex, Report of the Conference
of the Parties on its seventeenth session, held in Durban from 28 November to 11
December 2011, FCCC/CP/2011/9/Add.1, 15 March 2012, paragraphs 2 (“In the context
of sustainable development, the Fund will promote the paradigm shift towards lowemission
and climate-resilient development pathways by providing support to developing
countries to limit or reduce their greenhouse gas emissions and to adapt to the impacts of
climate change, taking into account the needs of those developing countries particularly
vulnerable to the adverse effects of climate change”) and 3 (“The Fund will play a key
role in channelling new, additional, adequate and predictable financial resources to
developing countries”), Annex 288.
656 See “Barbados launches first Caribbean climate resilience project”, Green Climate Fund,
13 May 2019, Annex 305.
208
date in funding and facilitated important initiatives, including in green
finance and water sector resilience.657
286. Other key climate change funds include the Special Climate Change Fund,
established inter alia to assist developing country economic
diversification,658 the Least Developed Countries Fund, established to
support adaptation in least developed countries659 and the CARICOM
Resilience Fund, established in a partnership between the CARICOM
Development Fund and the United States of America to fund initiatives
for building resilience across the Caribbean in the face of climate
change.660
287. These funds will be supplemented in the future by the establishment of a
loss and damage fund on which States reached historic and unanimous
consensus at the 27th Conference of the Parties to the UNFCCC. These
new funding arrangements will be established:
for assisting developing countries that are particularly
vulnerable to the adverse effects of climate change, in
responding to loss and damage, including with a focus on
657 See “Barbados”, Green Climate Fund, 2023, Annex 354.
658 See Funding under the Convention, Decision 7/CP.7, Report of the Conference of the
Parties on its Seventh Session, held at Marrakesh from 29 October to 10 November 2001,
FCCC/CP/2001/13/Add.1, 21 January 2002, paragraph 2, Annex 283.
659 See Funding under the Convention, Decision 7/CP.7, Report of the Conference of the
Parties on its Seventh Session, held at Marrakesh from 29 October to 10 November 2001,
FCCC/CP/2001/13/Add.1, 21 January 2002, paragraph 6 (“Decides also that a least
developed countries fund shall be established, which shall be operated by an entity
entrusted with the operation of the financial mechanism, under the guidance of the
Conference of the Parties, to support a work programme for the least developed
countries. This work programme shall include, inter alia, national adaptation
programmes of action in accordance with Section II, ‘Implementation of Article 4,
paragraph 9, of the Convention’, of decision 5/CP.7”), Annex 283.
660 See “Caricom Development Fund and the United States Partner to Launch US$100
Million Fund for Regional Development”, US Embassy in Barbados, Annex 357.
209
addressing loss and damage by providing and assisting in
mobilizing new and additional resources661
and acknowledging:
the urgent and immediate need for new, additional,
predictable and adequate financial resources to assist
developing countries that are particularly vulnerable to the
adverse effects of climate change in responding to
economic and non-economic loss and damage associated
with the adverse effects of climate change, including
extreme weather events and slow onset events, especially
in the context of ongoing and ex post (including
rehabilitation, recovery and reconstruction) action.662
288. Barbados is proud to have served on the Transitional Committee
established for the operationalisation of the new funding arrangements and
fund for assisting developing countries that are particularly vulnerable to
the adverse effects of climate change in responding to loss and damage.
Barbados’s term, as one of the three designated developing country Party
representatives for Latin America and the Caribbean on the Transitional
Committee, ran from July to December 2023.663
289. Both the new loss and damage fund and other obligations assumed nearly
universally by States under the UNFCCC and its associated Protocols
661 Funding arrangements for responding to loss and damage associated with the adverse
effects of climate change, including a focus on addressing loss and damage, Decision
2/CP.27, Report of the Conference of the Parties on its Twenty-Seventh Session, held in
Sharm el-Sheikh from 6 to 20 November 2022, FCCC/CP/2022/10/Add.1, 17 March
2023, paragraph 2, Annex 313.
662 Funding arrangements for responding to loss and damage associated with the adverse
effects of climate change, including a focus on addressing loss and damage, Decision
2/CP.27, Report of the Conference of the Parties on its Twenty-Seventh Session, held in
Sharm el-Sheikh from 6 to 20 November 2022, FCCC/CP/2022/10/Add.1, 17 March
2023, paragraph 1, Annex 313.
663 See “Membership - Transitional Committee”, United Nations Climate Change, 9 October
2023, Annex 355.
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have long-standing roots in international law. For example, the
International Convention on the Establishment of an International Fund
for Compensation for Oil Pollution Damage notes “the dangers of
pollution posed by the world-wide maritime carriage of oil in bulk,” “the
need to ensure that adequate compensation is available to persons who
suffer damage caused by” such pollution and “the need to elaborate a
compensation and indemnification system . . . with a view to ensuring that
full compensation will be available to victims of oil pollution
incidents.”664 Contributions to the fund are to be made by all persons
receiving crude oil and fuel oil in Contracting States.665 Consistent with
the principle of common but differentiated responsibilities, the
Convention and its successor Protocol set contributions in respect of each
Contracting State with reference to the total tonnage of crude oil and fuel
oil received by a relevant individual or corporate person, including a State
or any of its constituent subdivisions.666 In addition to paying
compensation to victims of oil pollution damage, the fund provides
assistance to Contracting States threatened or affected by pollution
664 International Convention on the Establishment of an International Fund for
Compensation for Oil Pollution Damage, Preamble, Annex 78. See also 1992 Protocol
to Amend the Convention on the Establishment of an International Fund for
Compensation for Oil Pollution Damage, Annex 116. See also Protocol of 2003 to the
International Convention on the establishment of an international fund for compensation
for oil pollution damage, 1992, 16 May 2003, 3432 UNTS 1, Annex 140.
665 See International Convention on the Establishment of an International Fund for
Compensation for Oil Pollution Damage, Articles 10, 11 and 12(2), Annex 78. See also
1992 Protocol to Amend the Convention on the Establishment of an International Fund
for Compensation for Oil Pollution Damage, Annex 116.
666 See International Convention on the Establishment of an International Fund for
Compensation for Oil Pollution Damage, Articles 10, 11 and 12(2), Annex 78. See also
1992 Protocol to Amend the Convention on the Establishment of an International Fund
for Compensation for Oil Pollution Damage, Articles 10 and 12, Annex 116.
211
wishing to take measures against it, including in the form of personnel or
material aid, credit facilities or other assistance.667
290. In 1990, the London Amendment to the Montreal Protocol established the
Multilateral Fund for the Implementation of the Montreal Protocol for the
“purposes of providing financial and technical cooperation”668 and on the
basis that the mechanism would “meet all agreed incremental costs of
such Parties in order to enable their compliance with the control
measures” for ozone-depleting substances under the Montreal Protocol.669
Since its establishment in 1991, the Multilateral Fund has disbursed more
than USD 3.6 billion in grant funding to help developing countries
decrease consumption and trade of ozone-depleting substances.670
291. Consistent with the principle of common but differentiated
responsibilities, the 196 Contracting Parties to the Convention on
Biological Diversity have committed to provide relevant financial support
and incentives in accordance with each Contracting Party’s capabilities.671
To that end, developed country Parties are obliged to provide new and
additional financial resources to enable developing country Parties to meet
the agreed full incremental costs of implementing measures under the
Convention.672 The Convention also establishes a financial mechanism to
667 See International Convention on the Establishment of an International Fund for
Compensation for Oil Pollution Damage, Article 4(7), Annex 78.
668 Amendment to the Montreal Protocol on Substances that Deplete the Ozone Layer, 29
June 1990, 1598 UNTS 469, Article 10(1), Annex 105.
669 Amendment to the Montreal Protocol on Substances that Deplete the Ozone Layer, 29
June 1990, 1598 UNTS 469, Article 10(1), Annex 105.
670 See “A global challenge, universal solidarity”, Multilateral Fund for the Implementation
of the Montreal Protocol, May 2023, page 2, Annex 489.
671 See Convention on Biological Diversity, Article 20, Annex 113.
672 See Convention on Biological Diversity, Article 20(2), Annex 113.
212
provide financial resources to developing country Parties, with
contributions to take into account the need for predictability, adequacy
and timely flow of funds.673 Along similar lines, the UNCCD commits its
Contracting Parties to promote the availability of financial mechanisms
and to encourage such mechanisms to maximise available funding for
developing country Parties affected by serious drought and/or
desertification.674
292. Consistent with established obligations of reparations, compensation,
cooperation and environmental protection (including extraterritorially),675
States, in particular developed States, should act by contributing to such
climate change and environmental protection funds to guarantee the right
to redress for damage caused in relation to the climate emergency.
293. States widely acknowledge that further and additional financial assistance
is required for developing States to ensure that they are able to mitigate
climate change effects and adapt to them, among other things. For
example, just at the Conference of the Parties of the UNFCCC in
December 2023, States recognised that:
scaling up new and additional grant-based, highly
concessional finance, and non-debt instruments remains
critical to supporting developing countries, particularly as
they transition in a just and equitable manner, and . . . that
there is a positive connection between having sufficient
fiscal space, and climate action and advancing on a
pathway towards low emissions and climate-resilient
development, building on existing institutions and
mechanisms such as the Common Framework;
673 See Convention on Biological Diversity, Article 21(1), Annex 113.
674 See UNCCD, Article 21(1), Annex 123.
675 See Sections VI.A-VI.F above.
213
. . .
that developed country Parties shall provide financial
resources to assist developing country Parties with respect
to both mitigation and adaptation in continuation of their
existing obligations under the Convention and that other
Parties are encouraged to provide or continue to provide
such support voluntarily;
. . .
the ongoing challenges faced by many developing country
Parties in accessing climate finance and encourages further
efforts, including by the operating entities of the Financial
Mechanism, to simplify access to such finance, in particular
for those developing country Parties that have significant
capacity constraints, such as the least developed countries
and small island developing States.676
294. As explained further in Section VII.D below, the financial assistance
offered by developed countries including through climate change funds
must take into account the circumstances of affected States and peoples.
This includes the particular situation of small island developing States
such as Barbados, a small country that is especially vulnerable to rising
sea levels, natural disasters such as hurricanes and other adverse climate
change effects.
295. In the context of the particular situation of Barbados, Barbados is proud to
have achieved a progressively higher Human Development Index (“HDI”)
ranking– most recently at 70th out of 191 countries, categorising Barbados
as a “High” human development country.677 However, while Barbados is
676 Outcome of the first global stocktake, Decision -/CMA.5, Conference of the Parties
serving as the meeting of the Parties to the Paris Agreement at its fifth session, Advance
unedited version, UN Climate Change Conference – United Arab Emirates Nov/Dec
2023, UNFCCC, paragraphs 69, 71, 75, Annex 358.
677 See “Barbados: Human development summary”, United Nations Development
Programme, 8 September 2022, Annex 488.
214
proud to have achieved this favourable HDI ranking, the HDI’s
logarithmic focus on income and gross domestic product is inadequate and
projects an incomplete picture of Barbados’s development challenges,
particularly in the context of climate change.678 Rather, climate change
funds and other forms of financial assistance by developed countries must
take into account the vulnerability and resilience challenges, including in
respect of climate change, facing Barbados. Specifically, highly-indebted
countries such as Barbados require support to regain access to the types of
financing suitable for maintaining hard-won social and economic gains.679
Such considerations should be mainstreamed as part of innovative and
non-traditional measures to address the high debt burdens facing Barbados
and other vulnerable small island developing States as part of broader
strategies for successful debt management and unlocking economic
growth and other developmental goals.680 Only such holistic approaches
that look beyond mere income levels will ensure appropriate, inclusive
and equitable financial assistance to States and peoples that are
particularly affected by and vulnerable to the adverse effects of climate
change.
678 See Statement by Senator the Honourable Darcy Boyce Minister in the Prime Minister’s
Office Barbados, General Debate of the Third International Conference on Financing for
Development, 15 July 2015, Addis Ababa (“Statement by Senator the Honourable
Darcy Boyce Minister”), pages 3 and 4, Annex 292.
679 See Statement by Senator the Honourable Darcy Boyce Minister, pages 3 and 4, Annex
292.
680 See Statement by Senator the Honourable Darcy Boyce Minister, page 4, Annex 292.
215
(ii) States should ensure the transfer of technology to other States affected by
the climate emergency
296. States have the obligation to ensure the transfer of technology to other
States affected by the climate emergency.681 As the UN High
Commissioner for Human Rights noted, “States should share resources,
knowledge and technology in order to address climate change” and
“[t]echnology transfers between States should take place as needed and
appropriate to ensure a just, comprehensive and effective international
response to climate change.” It recommended working towards a goal of
“[e]quitable access to technology, including, if necessary, [through] the
lowering of intellectual property standards and facilitation of technology
transfer.”682
297. The IPCC defined the term “transfer of technology” in its Special Report
on Methodological and Technological Issues in Technology Transfer as “a
broad set of processes covering the flows of know-how, experience and
equipment for mitigating and adapting to climate change amongst
681 See, e.g., UNFCCC, Article 4(1)(c), Annex 112; Paris Agreement, Article 10, Annex
156; OAS Charter, Article 38, Annex 64; Stockholm Declaration, Principle 20, Annex
469; Rio Declaration, Principle 9, Annex 281.
682 “Understanding Human Rights and Climate Change”, Submission of the Office of the
High Commissioner for Human Rights to the 21st Conference of the Parties to the United
Nations Framework Convention on Climate Change, 2015, pages 3, 4 and 27, Annex
480. See also, e.g., Universal Declaration of Human Rights, Article 27, Annex 208;
ICESCR, Article 15, Annex 73; American Declaration of the Rights and Duties of Man,
OAS Resolution XXX, adopted by the Ninth International Conference of American
States (1948), reprinted in Basic Documents Pertaining to Human Rights in the Inter-
American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 17 (1992), Article XIII, Annex 274;
Additional Protocol to the American Convention on Human Rights in the area of
Economic, Social, and Cultural rights “Protocol of San Salvador”, 17 November 1988,
OAS Treaty Series No. 69, Article 14, Annex 63.
216
different stakeholders such as governments, private-sector entities,
financial institutions, non-governmental organizations (NGOs) and
research/education institutions.”683 In the transfer of technology process
that takes place across borders, there are two parties to this process:
providers and recipients. The providers are often from developed States,
whereas recipients are often in developing States.684
298. The transfer of technology for adaptation to climate change is an
important element of reducing vulnerability to climate change.685 It
represents one of the most vital supports to the successful dissemination of
green innovations within and among States.686 It aids developing States to
meet their development needs and comply with international climate
commitments.687
299. Climate emergencies are “circumstances where severe consequences of
climate change occur too rapidly to be significantly averted by even
immediate mitigation efforts.”688 The environmental effect of climate
683 “Special Report – Methodological and Technological issues in Technological Transfer.
Summary for Policy Makers”, Intergovernmental Panel on Climate Change, 2000, page
3 Annex 36.
684 See Z. Yang, “An Analysis of Technology Transfer as a Response to Climate Change”,
Copenhagen Consensus on Climate, 2009 (“An Analysis of Technology Transfer as a
Response to Climate Change”), page 6, Annex 38.
685 See C. Karakosta et al., “Technology transfer through climate change: Setting a
sustainable energy pattern”, Renewable and Sustainable Energy Reviews, 2010, pp.
1546-1557, page 1547, Annex 40.
686 See R. Burrell et al., “Intellectual Property Rights, Climate Technology Transfer and
Innovation in Developing Countries”, INET Oxford Working Paper No. 2023-14, 2023,
page 79, Annex 542.
687 See R. Burrell et al., “Intellectual Property Rights, Climate Technology Transfer and
Innovation in Developing Countries”, INET Oxford Working Paper No. 2023-14, 2023,
page 60, Annex 542.
688 J. J. Blackstock et al., Climate Engineering Responses to Climate Emergencies (Novim,
2009), page 1, Annex 39.
217
change includes droughts, expansion of deserts and, in warm climatic
conditions, the heat from the air aid storms in absorbing more heat,
resulting in them becoming faster and turning into violent hurricanes.689
As a result, the effect climate change imposes on humans represents a
significant threat to human prosperity and human life.690 Technology
transfer plays a pivotal role in climate change policies as it is essential for
both mitigating and adapting to climate change, since both aspects rely on
the adoption and sharing of technological advancements. The transfer of
technology is an integral and inseparable element within any policy
approach addressing greenhouse gas mitigation and climate change
adaptation.691 Supporting greenhouse gas mitigation efforts in developing
States with technology transfers from developed States leads to
incremental benefits that play a significant role in addressing the complex
challenge of climate change, offering opportunities for developing States
to achieve their climate obligations.692
300. In the UNFCCC, developed countries agreed generally to “take all
practicable steps to promote, facilitate and finance, as appropriate, the
transfer of, or access to, environmentally sound technologies and knowhow”
to developing countries, and to “support the development and
enhancement of [their] endogenous capacities and technologies.”693 On
technology transfer in particular, Articles 4(1)I, 4(3), 4(5), and 4(7)
establish special and differentiated treatment for developing countries.
689 See Section IV.
690 See Section IV.
691 See An Analysis of Technology Transfer as a Response to Climate Change, preface,
Annex 38.
692 See An Analysis of Technology Transfer as a Response to Climate Change, page 11,
Annex 38.
693 UNFCCC, Article 4(5), Annex 112.
218
Article 4(2) establishes commitments that only apply to “developed
countries and others in Annex I.” The UNFCCC also establishes a group
of Annex II countries that have financial and technological support
obligations on top of mitigation commitments under Article 4 generally.
These countries are the traditional OECD group of early industrialisers.
However, apart from the UNFCCC, there are other instruments which
recognise the State’s duty towards ensuing free flowing technology
transfer to deal with issues of climate change.694
301. Moreover, in 2010, the Conference of the Parties to the UNFCCC
established the Technology Mechanism with the objective of accelerating
and enhancing climate technology development and transfer. It consists
of two complementary bodies that work together – the Technology
Executive Committee and the Climate Technology Centre and Network.
The mechanism will also serve the Paris Agreement.
302. Governments recognise the importance of technology transfer in dealing
with problems of climate change. The final ministerial declaration from
the second World Climate Conference in December 1990 stated that
694 See Kyoto Protocol, Article 10(c), Annex 131; Paris Agreement, Articles 10 and 13(9),
Annex 156; Convention on Biological Diversity, Articles 16-20 and 25, Annex 113;
Montreal Protocol on Substances that Deplete the Ozone Layer, 16 September 1987,
1522 UNTS 3, Articles 5(2) and 9, Annex 102; Basel Convention on the Control of
Transboundary Movements of Hazardous Wastes and Their Disposal, 22 March 1989,
1673 UNTS 57, Articles 10(2)(d) and (e), 10(3), 10(4) and 14, Annex 103; Convention
on the Protection of the Black Sea against Pollution, 21 April 1992, 1764 UNTS 3,
Article 15(6), Annex 111; Amendments to the Convention for the Protection of the
Mediterranean Sea Against Pollution (the title of the Convention was amended as:
Convention for the Protection of the Marine Environment and the Coastal Region of the
Mediterranean), 10 June 1995, OJ L 322, Article 4(4)(b), Annex 124; Convention to ban
the importation into Forum island countries of hazardous and radioactive wastes and to
control the transboundary movement and management of hazardous wastes within the
South Pacific Region (Waigani Convention), 16 September 1995, 2161 UNTS 91,
Article 10(2)(d), Annex 126. See also S. Alam, Technology Transfers and Assistance, in
THE OXFORD HANDBOOK OF INTERNATIONAL ENVIRONMENTAL LAW, eds. L. Rajamani &
J. Peel (Oxford University Press, 2021), pages 960-967, Annex 553.
219
“[t]here is a need, to meet the requirements of developing countries, that
adequate and additional financial resources be mobilized and the best
available environmentally sound technologies be transferred expeditiously
on a fair and most favourable basis.”695 Much of State practice
demonstrates an obligation to ensure technology transfers are thus
mandated by legal and institutional frameworks.
303. Apart from the UNFCCC and the Paris Agreement, there are other
initiatives that reiterate the need for and importance of technology transfer
in the context of climate change action. Among other initiatives, it is
worth noting the US Climate Technology Partnership – a continuation of
the former Technology Cooperation Agreement Pilot Project, active in
Brazil, China, Egypt, Korea, Mexico and the Philippines. This initiative
focuses on identifying country-driven technology priorities and assisting
partner countries in “implementing integrated market transformation
strategies” for these priority technologies.696
304. The importance of the transfer of technology in the context of climate
change has been recognised by the UN General Assembly, which has
emphasised “the urgency of scaling up action and support, including
finance, capacity-building and technology transfer, to enhance adaptive
capacity, strengthen resilience and reduce vulnerability to climate change
in line with the best available science, taking into account the priorities
695 Report of the Secretary General, Protection of global climate change for present and
future generations, Progress achieved in the implementation of resolution 44/207 on
protection of global climate for present and future generations of mankind,
A/45/696/ADD.1, 8 November 1990, page 17, Annex 470.
696 “International energy technology collaboration and climate change mitigation”, OECD
Environment Directorate & International Energy Agency,
COM/ENV/EPOC/IEA/SLT(2004)1, 2004, pages 23-24, Annex 506.
220
and needs of developing country parties.”697 This has also been recalled
by the UN Economic and Social Council.698 The UN Human Rights
Council has also called upon States to: “continue and enhance
international cooperation and assistance, in particular in financing, the
transfer of technology and capacity-building, for mitigation and adaptation
measures to assist developing countries, especially those that are
particularly vulnerable to the adverse effects of climate change.”699 The
importance of the transfer of technology was also underlined in various
COP decisions.700
(iii) States should invest in research on climate change
305. Small island developing States, like Barbados, are at risk of, among other
things, flooding from sea level rises and natural disasters caused by
climate change.701 Full redress requires not only financing for loss and
damage caused by climate change and for the implementation of
mitigation and adaption policies. It also requires investment in research
on climate change to find methods for adapting to the adverse effects of
climate change and for mitigating those effects.
306. As discussed in Section VI.E, States must cooperate to protect and
preserve the climate system and other parts of the environment. This
697 UN General Assembly Resolution 77/165, paragraph 18, Annex 229.
698 See UN Economic and Social Council 2023/4 (2023), E/RES/2023/4, 7 June 2023,
Annex 239.
699 UN Human Rights Council Resolution 44/7 (2020), A/HRC/RES/44/7, 16 July 2020,
paragraph 5, Annex 224.
700 An overview is provided in Decision enhancing climate technology development and
transfer through the Technology Mechanism, Decision 18/CP.27, Report of the
Conference of the Parties on its twenty-seventh session, held in Sharm el-Sheikh from 6
to 20 November 2022, FCCC/CP/2022/10/Add.2, 17 March 2023, Annex 368.
701 See Section IV.
221
includes investing in research on climate change and methods for adapting
to it and mitigating its effects. In international conventions, States agree
to invest in research on climate change. For example:
a. under the Paris Agreement, 194 States and the European Union
agree to share information and good practices on adaption
actions;702 strengthen scientific knowledge on climate, including
research, systematic observation of the climate system and early
warning systems;703 and assist developing States in identifying
effective adaptation practices;704
b. under the UNFCCC, 197 States and the European Union agree to
promote and cooperate in scientific and other research related to
the climate system,705 including by “financing research”;706
c. under the Kyoto Protocol, 192 States agree to:
[c]ooperate in scientific and technical research and
promote the maintenance and the development of
systematic observation systems and development of
data archives to reduce uncertainties related to the
climate system, the adverse impacts of climate
change and the economic and social consequences
of various response strategies, and promote the
development and strengthening of endogenous
capacities and capabilities to participate in
international and intergovernmental efforts,
702 See Paris Agreement, Article 7(7)(a), Annex 156.
703 See Paris Agreement, Article 7(7)(c), Annex 156.
704 See Paris Agreement, Article 7(7)(d), Annex 156.
705 See UNFCCC, Article 4(1)(g), Annex 112.
706 UNFCCC, Article 5(a), Annex 112.
222
programmes and networks on research and
systematic observation.707
d. under the Convention on Biological Diversity, 195 States and the
European Union agree to promote and encourage research that
contributes to the conservation and sustainable use of biological
diversity, particularly in developing countries;708
e. under the Vienna Convention for the Protection of the Ozone
Layer, 197 States and the European Union agree to cooperate in
legal, scientific and technical fields, including by “taking into
account, in particular the needs of the developing countries, in
promoting, directly or through competent international bodies, the
development and transfer of technology and knowledge” and to
“co-operate in . . . the conduct of research and scientific
assessments on” inter alia (i) “physical and chemical processes
that may affect the ozone layer”; (ii) “human health and other
biological effects deriving from any modifications of the ozone
layer”; (iii) “[c]limatic effects deriving from any modifications of
the ozone layer; and (iv) “[a]lternative substances and
technologies.”709 Under this agreement, they also commit, “in
accordance with the means at their disposal and their capabilities,”
to cooperate through:
systemic observations, research and information
exchange in order to better understand and assess
the effects of human activities on the ozone layer
and the effects on human health and the
707 Kyoto Protocol, Article 10(d), Annex 131.
708 See Convention on Biological Diversity, Articles 12(b) and (c), Annex 113.
709 Vienna Convention for the Protection of the Ozone Layer, Articles 4, 3(1)(a), (b), (c) and
(f), Annex 98.
223
environment from modification of the ozone
layer.710
f. under the Convention on long-range transboundary air pollution,
52 States and the European Union commit to exchange
information on inter alia “technical measures aimed at combating,
as far as possible, the discharge of air pollutants which may have
adverse effects, thereby contributing to the reduction of air
pollution including long-range transboundary air pollution.”711
They also agree to “initiate and co-operate in the conduct of
research into and/or development” of, among other thing:
“[e]xisting and proposed technologies for reducing emissions of
sulphur compounds and other major air pollutants”;
“[i]nstrumentation and other techniques for monitoring and
measuring emission rates and ambient concentrations of air
pollutants”; and “improved models for a better understanding of
the transmission of long-range transboundary air pollutants”;712
g. under the Cartagena Protocol on Biosafety to the Convention on
Biological Diversity, 172 States and the European Union agree to
“cooperate in the development and/or strengthening of human
resources and institutional capacities in biosafety, including
biotechnology to the extent that it is required for biosafety . . . in
710 Vienna Convention for the Protection of the Ozone Layer, Article 2(2)(a), Annex 98.
711 Convention on long-range transboundary air pollution, Article 4, Annex 89.
712 Convention on long-range transboundary air pollution, Article 7, Annex 89.
224
particular the least developed and small island developing States
among them, and . . . Parties with economies in transition”;713 and
h. under the UNCCD, 192 States commit to “promote and facilitate
access by affected country Parties, particularly affected developing
country Parties, to appropriate technology, knowledge and knowhow.”
714 States also undertake “to promote, finance and/or
facilitate the financing of the transfer, acquisition, adaptation and
development of environmentally sound, economically viable and
socially acceptable technologies” and to facilitate technology
cooperation through financial assistance and other means, to “take
appropriate measures to create domestic market conditions and
incentives, fiscal or otherwise, conducive to the development,
transfer, acquisition and adaptation of suitable technology,
knowledge, know-how and practices” and to facilitate access “in
particular by affected developing country Parties, on favourable
terms, including on concessional and preferential terms” to such
technologies.715 In addition, States agree to international
cooperation “to ensure the promotion of an enabling international
environment” which “cover[s] fields of technology transfer as well
as scientific research and development, information collection and
dissemination and financial resources.”716
713 Cartagena Protocol on Biosafety to the Convention on Biological Diversity, 29 January
2000, 2226 UNTS 208, Article 22, Annex 135.
714 UNCCD, Article 6(e), Annex 123.
715 UNCCD, Article 18, Annex 123.
716 UNCCD, Article 12, Annex 123.
225
307. Although it is not a State that contributed to climate change, Barbados
voluntarily dedicates its own resources, and also receives external
funding, towards scientific research on climate change. Barbados
participates in, for example, the Caribbean Regional Climate Outlook
Forum, tasked with assessing shifts in the weather; the Climate Modelling,
and Impact and Economic Modelling Implementation Plan, to predict
changes in climate and their impacts (including socio-economic effects) in
the Caribbean; and the Caribbean Regional Climate Change Center, which
monitors climate change in the Caribbean and produces forecasts.717
308. States must therefore proactively invest funds in research on climate
change, including adaptation to it and mitigation.
Full reparation and assistance must take account of the circumstances
of affected States, peoples and individuals
309. This Section explains that under international law full reparation and other
assistance to address climate change must take account of: (a) the
circumstances of affected States, including in particular small island
States (see sub-section (i)); and (b) peoples and individuals of present and
future generations affected by the adverse effects of climate change (see
sub-section (ii)).
717 See Barbados’ Second National Communication under the United Nations Framework
Convention on Climate Change, April 2018, pages 83-85, Annex 359; Caribbean
Regional Climate Center, About the Caribbean Regional Climate Centre, undated,
Annex 360.
226
(i) Full reparation and assistance must take account of the particular situation
of States, including in particular small island developing States that are
injured or specially affected by or are particularly vulnerable to the
adverse effects of climate change
310. Full reparation and other assistance to address climate change must take
account of the vulnerable position of small island States due to the
significant impact of climate change on such States.
311. International environmental law treaties and other instruments repeatedly
emphasise the need to offer in particular assistance to small island States
as well as to developing States, which are both particularly vulnerable to
the adverse effects of climate change.
312. The UNFCCC preamble recognises that “low-lying and other small island
countries . . . are particularly vulnerable to the adverse effects of climate
change.”718 Article 4(9) of the UNFCCC gives effect to this recognition
by requiring that States “take full account of the specific needs and special
situations of the least developed countries in their actions with regard to
funding.”719 Article 4(8) of the UNFCCC likewise requires that States
“especially consider the adverse effects of climate change and/or the
impact of the implementation of response measures on inter alia small
island States.”720
313. The UN General Assembly, in 1992, convened a global conference on the
sustainable development of small island developing States. Notably, it
recognised that “small island developing States and islands supporting
718 UNFCCC, Preamble, page 4, Annex 112.
719 UNFCCC, Article 4(9), Annex 112.
720 UNFCCC, Article 4(8)(a), Annex 112.
227
small communities are a special case with regard to both environment and
development [and] that they are ecologically fragile and vulnerable”;
expressed that “small island developing States are considered extremely
vulnerable to the impact of potential climate change and sea-level rise,
with certain small low-lying island developing States facing the increasing
threat of the loss of their entire national territories”; and noted its “grave
concerns that most tropical islands are currently experiencing the more
immediate impacts of an increasing frequency of cyclones, storms and
hurricanes associated with climate change, which are causing major setbacks
to their socio-economic development.”721
314. The Declaration of Barbados and the Barbados Programme of Action,722
adopted by the Global Conference on the Sustainable Development of
Small Island Developing States,723 emphasise the vulnerability of small
island developing States to climate-change-induced adverse effects:
[w]hile small island developing States are among those that
contribute least to global climate change and sea level rise,
they are among those that would suffer most from the
adverse effects of such phenomena and could in some cases
become uninhabitable. Therefore, they are among those
particularly vulnerable States that need assistance under the
United Nations Framework Convention on Climate
721 UN General Assembly Resolution 47/189 (1993), A/RES/47/189, 10 March 1993, page
2, Annex 240.
722 The UN General Assembly endorsed the Declaration of Barbados and the Barbados
Programme of Action and called “upon Governments, as well as the organs,
organizations and bodies of the United Nations system and other intergovernmental and
non-governmental organizations to implement all commitments reached and
recommendations made at the Conference and to take the action necessary for effective
follow-up to the Programme of Action” (UN General Assembly, Resolution 49/122
(1995), A/RES/49/122, 27 February 1995, page 2, Annex 241).
723 Global Conference on the Sustainable Development of Small Island Developing States,
Resolution A/CONF.167/9, Bridgetown, Barbados, from 25 April to 6 May 1994
(“Declaration of Barbados”) Annex 369.
228
Change, including adaptation measures and mitigation
efforts.
. . .
The international community should cooperate with small
island developing States in the implementation of the
Programme of Action for the Sustainable Development of
Small Island Developing States by providing effective
means, including adequate, predictable new and additional
financial resources.724
315. The Barbados Programme of Action further recognises that “small island
developing States are particularly vulnerable to global climate change,
climate variability and sea level rise”725 and calls for international action
to mitigate the adverse impact of climate change in small island
developing States by providing:
[i]improved access to financial and technical resources for
monitoring variability and change of climate and sealevel
rise, for assessing the impacts of climate change, and for
developing and implementing response adaptation
strategies in a timely manner, recognizing the specific
vulnerabilities and disproportionate cost borne by small
island developing States
. . .
Improved access to financial and technical resources to
assist small island developing States, which are particularly
vulnerable to the adverse effects of climate change, in
meeting the costs associated with the development of
national and regional strategies, measures and
724 Declaration of Barbados, pages 4-5, Annex 369.
725 Declaration of Barbados, Annex II (Barbados Programme of Action), page 10, Annex
369.
229
methodologies to facilitate adequate adaptation to climate
change.726
316. The Mauritius Declaration727 reaffirms the “commitment to support the
sustainable development strategies of small island developing States
through technical and financial cooperation, regional and interregional
institutional assistance and an improved international enabling
environment”728 and adopts the Mauritius Strategy for the Further
Implementation of the Programme of Action for the Sustainable
Development of Small Island Developing States. This strategy recognises
the need for adaptation to adverse impacts of climate change:
[t]he adverse effects of climate change and sea-level rise
present significant risks to the sustainable development of
small island developing States, and the long-term effects of
climate change may threaten the very existence of some
small island developing States. Based on the Secretary-
General’s report and other available data, small island
developing States believe that they are already
experiencing major adverse effects of climate change.
Adaptation to adverse impacts of climate change and sea-
726 Declaration of Barbados, Annex II (Barbados Programme of Action), pages 11-12,
Annex 369.
727 The UN General Assembly endorsed the Mauritius Declaration and Mauritius Strategy
for the Further Implementation of the Programme of Action for the Sustainable
Development of Small Island Developing States, and urged “Governments and all
relevant international and regional organizations, United Nations funds and programmes,
the specialized agencies, regional economic commissions, international financial
institutions, the Global Environment Facility, as well as other intergovernmental
organizations and major groups, to take timely actions to ensure the effective
implementation of and follow-up to the Mauritius Declaration and the Mauritius Strategy
for Implementation” (UN General Assembly, Resolution 59/311 (2005), A/RES/59/311,
5 August 2005, page 3, Annex 242).
728 International Meeting to Review the Implementation of the Programme of Action for the
Sustainable Development of Small Island Developing States, A/CONF.207/L.6, Port
Louis, Mauritius, Mauritius Declaration, 13 January 2005, page 1, Annex 370.
230
level rise remains a major priority for small island
developing States.729
317. The SAMOA Pathway, adopted by the International Conference on Small
Island Developing States,730 also calls for a comprehensive plan of action
to assist small island developing States in their sustainable development
efforts:
We recognize and call for the strengthening of the longstanding
cooperation and support provided by the
international community in assisting small island
developing States to make progress in addressing their
vulnerabilities and supporting their sustainable
development efforts.
. . .
We also reaffirm that climate change is one of the greatest
challenges of our time, and we express profound alarm that
emissions of greenhouse gases continue to rise globally.
We are deeply concerned that all countries, particularly
developing countries, are vulnerable to the adverse impacts
of climate change and are already experiencing an increase
in such impacts, including persistent drought and extreme
weather events, sea-level rise, coastal erosion and ocean
acidification, further threatening food security and efforts
to eradicate poverty and achieve sustainable development.
In this regard, we emphasize that adaptation to climate
change represents an immediate and urgent global priority.
. . .
729 International Meeting to Review the Implementation of the Programme of Action for the
Sustainable Development of Small Island Developing States, A/CONF.207/CRP.7, Port
Louis, Mauritius, Mauritius Strategy for the further Implementation of the Programme of
Action for the Sustainable Development of Small Island Developing States, 13 January
2005, page 3, Annex 371.
730 The UN General Assembly endorsed the “SIDS Accelerated Modalities of Action
(SAMOA) Pathway” (UN General Assembly Resolution 69/15 (2014), A/RES/69/15, 15
December 2014, page 1, Annex 243).
231
We urge all countries to fulfil their commitments to small
island developing States, including through the provision
of financial resources, to support the Barbados Programme
of Action, the Mauritius Strategy and the Samoa
Pathway.731
318. The Paris Agreement similarly contains provisions singling out the needs
of developing States and small island developing States in the context of
resources to address the adverse effects of climate change. It first
recognises “the specific needs and special circumstances of developing
country Parties, especially those that are particularly vulnerable to the
adverse effects of climate change, as provided for in the [UNFCCC].”732
The agreement then provides that the provision of scaled-up financial
resources should take into account inter alia “the priorities and needs of
developing country Parties especially those that are particularly vulnerable
to the adverse effects of climate change and have significant capacity
constraints, such as the least developed countries and small island
developing States.”733 The Paris Agreement also notes that the institutes
serving the agreement “shall aim to ensure efficient access to financial
resources through simplified approval procedures and enhanced readiness
support for developing country Parties, in particular for the least
developed countries and small island developing States.”734 Further,
731 UN General Assembly, Resolution 69/15 (2014), A/RES/69/15, 15 December 2014,
Annex, paragraphs 19, 32, 104, Annex 243.
732 Paris Agreement, page 1, Annex 156. The Paris Agreement also invites “least developed
countries and small island developing States may prepare and communicate strategies,
plans and actions for low greenhouse gas emissions development reflecting their special
circumstances” (Paris Agreement, Article 4(5), Annex 156).
733 Paris Agreement, Article 9(4), Annex 156.
734 Paris Agreement, Article 9(9), Annex 156.
232
capacity-building under the Paris Agreement is meant to enhance the
capacity of this same set of States.735
319. The UN General Assembly, in 2019, in a Resolution following up the
implementation of the SAMOA Pathway and the Mauritius Strategy,
“call[ed] for urgent and ambitious global action, in line with the Paris
Agreement, to address the threat and impact of climate change on small
island developing States”.736 The UN General Assembly also reaffirmed:
[t]he need for urgent action to address the adverse impacts
of climate change, including those related to sea level rise
and extreme weather events, which continue to pose a
significant risk to small island developing States and to
their efforts to achieve sustainable development and, for
many, represent the gravest of threats to their survival and
viability, including, for some, through loss of territory, as
well as through threats to water availability and food
security and nutrition.
[t]hat official development assistance, both technical and
financial, can foster resilient societies and economies, and
calls upon the international community to mobilize
additional development finance from all sources and at all
levels to support small island developing States’ efforts.737
320. The recent San Jose Declaration also reaffirms the Latin American and
Caribbean States’ commitment to scale-up efforts to implement actions for
the protection of small island developing States, “recognizing their high
735 See Paris Agreement, Article 11, Annex 156.
736 UN General Assembly, Resolution 74/217 (2020), A/RES/74/217, 21 January 2020, page
3, Annex 244.
737 UN General Assembly, Resolution 74/217 (2020), A/RES/74/217, 21 January 2020,
pages 2 and 4, Annex 244.
233
vulnerability to environmental threats, from sea level rise to biodiversity
loss [and] their unique economic and ecological challenges.”738
321. States also recognise the importance of providing damages to States
particularly affected by climate change through decisions taken at the
Conference of the Parties of the UNFCCC, including:
a. the Bali Action Plan, which contains a provision similarly singling
out the interest of “countries that are particularly vulnerable to the
adverse effects of climate change.”739 The comprehensive process
to enable the full, effective and sustained implementation of the
UNFCCC, launched by the Bali Action Plan, identified as one of
its topics “Enhanced Action on Adaptation,” including “means to
address loss and damage associated with climate change impacts
in developing countries that are particularly vulnerable to the
adverse effects of climate change”;740
b. the Cancun Agreement, under which States agreed to establish a
“work programme in order to consider . . . approaches to address
loss and damage associated with climate change impacts in
738 The San Jose Declaration, paragraph 45, Annex 356.
739 Bali Action Plan, Decision 1/CP.13, Report of the Conference of the Parties on its
thirteenth session, held in Bali from 3 to 15 December 2007, Addendum Part Two:
Action taken by the Conference of the Parties at its thirteenth session,
FCCC/CP/2007/6/Add.1, 14 March 2008, paragraph 1(c)(iii), Annex 286. See also
paragraph 1(c)(ii).
740 Bali Action Plan, Decision 1/CP.13, Report of the Conference of the Parties on its
thirteenth session, held in Bali from 3 to 15 December 2007, Addendum Part Two:
Action taken by the Conference of the Parties at its thirteenth session,
FCCC/CP/2007/6/Add.1, 14 March 2008, para 1(c)(iii), Annex 286.
234
developing countries that are particularly vulnerable to the adverse
effects of climate change”;741
c. the Warsaw International Mechanism associated with Climate
Change Impacts was created in 2013 “to address loss and damage
associated with impacts of climate change, including extreme
events and slow onset events, in developing countries that are
particularly vulnerable to the adverse effects of climate
change”;742 and
d. the Conference of the Parties in Dubai in December 2023
acknowledged:
the fiscal constraints and increasing costs to adapt
to the adverse effects of climate change and, in this
context, reiterates the need for public and grantbased
resources for adaptation in developing
country Parties, especially those that are
741 The Cancun Agreements: Outcome of the work of the Ad Hoc Working Group on Longterm
Cooperative Action under the Convention, Decision 1/CP.16, Report of the
Conference of the Parties on its sixteenth session, held in Cancun from 29 November to
10 December 2010, Addendum, Part Two: Action taken by the Conference of the Parties
at its sixteenth session, FCCC/CP/2010/7/Add.1, 15 March 2011, paragraphs 26 and 25
(“Recognizes the need to strengthen international cooperation and expertise in order to
understand and reduce loss and damage associated with the adverse effects of climate
change, including impacts related to extreme weather events and slow onset events”
(footnote omitted)), Annex 287.
742 Warsaw international mechanism for loss and damage associated with climate change
impact, Decision 2/CP.19, Report of the Conference of the Parties on its nineteenth
session, held in Warsaw from 11 to 23 November 2013 Addendum Part two: Action
taken by the Conference of the Parties at its nineteenth session,
FCCC/CP/2013/10/Add.1, 31 January 2014, paragraph 1, Annex 290. The same decision
that established the Warsaw International Mechanism also called on States “to work
through the United Nations and other relevant institutions, specialized agencies and
processes…to promote coherence at all levels in approaches relevant to addressing loss
and damage” (Warsaw international mechanism for loss and damage associated with
climate change impact, Decision 2/CP.19, Report of the Conference of the Parties on its
nineteenth session, held in Warsaw from 11 to 23 November 2013 Addendum Part two:
Action taken by the Conference of the Parties at its nineteenth session,
FCCC/CP/2013/10/Add.1, 31 January 2014, paragraph 12, Annex 290).
235
particularly vulnerable and have significant
capacity constraints, such as the least developed
countries and small island developing States.743
(Emphasis in the original.)
322. Moreover, it is in accordance with the international law principle of equity
and the principle of fairness that reparations, compensation and other
resources to address the adverse effects of climate change take account of
the particular circumstances of small island States. As Section IV.B
above describes, these States are especially vulnerable to the negative
impact of climate change and suffer its disastrous consequences most
greatly and immediately. Yet, they have relatively not contributed nearly
in the same proportion to the occurrence of climate change. As such, it is
fair and equitable that the needs of small island States in addressing
climate change are considered appropriately.
(ii) Full reparation and assistance must take account of the particular
situations of peoples and individuals of present and future generations
affected by the adverse effects of climate change
323. As discussed in Section IV, certain peoples and individuals are
particularly affected by the adverse effects of climate change. The
international community recognises that any reparation and compensation
must take account of the particular situations of those affected by these
adverse effects. This Section explains, in turn, that States must take
account of present generations and also future generations for full
reparation and compensation.
743 Long-term climate finance, Draft decision -/CP.28, Advance unedited version, UN
Climate Change Conference – United Arab Emirates Nov/Dec 2023, UNFCCC,
paragraph 12, Annex 361.
236
324. First, full reparation and compensation must take account of the particular
situations of peoples and individuals of present generations. States must
take account of all damage arising from their actions, even where that
damage is either to their own peoples and individuals or those of other
States.
325. Environmental problems may be felt with greater intensity by certain
groups in vulnerable situations, such as indigenous peoples and
communities that depend economically or for their survival on
environmental resources.744 Therefore, States must confront such
vulnerabilities based on the principles of equality and nondiscrimination.
745
326. States commit in international conventions to take account of peoples and
individuals affected by the adverse effects of climate change. For
example:
a. under the Paris Agreement, 194 States and the European Union
agree that they:
should, when taking action to address climate
change, respect, promote and consider their
respective obligations on human rights, the
right to health, the rights of indigenous
peoples, local communities, migrants,
children, persons with disabilities and people
in vulnerable situations and the right to
development, as well as gender equality,
744 See, e.g., Case of the Indigenous Communities of the Lhaka Honhat Association (Our
Land) v Argentina, paragraph 209, Annex 380 (citing the IACtHR 2017 Advisory
Opinion, Annex 372).
745 See, e.g., Case of the Indigenous Communities of the Lhaka Honhat Association (Our
Land) v Argentina, paragraph 209, Annex 380 (citing the IACtHR 2017 Advisory
Opinion, Annex 372).
237
empowerment of women and
intergenerational equity.746
b. under the Stockholm Convention on Persistent Organic Pollutants,
184 States recognise the need to take account of the particular
circumstances of women and indigenous peoples, acknowledging:
the health concerns, especially in developing
countries, resulting from local exposure to
persistent organic pollutants, in particular
impacts upon women and, through them,
upon future generations,
[and] that the Arctic ecosystems and
indigenous communities are particularly at
risk because of the biomagnification of
persistent organic pollutants and that
contamination of their traditional foods is a
public health issue.747
c. under the Convention on Biological Diversity, 195 States and the
European Union acknowledge the particular circumstances of
women and indigenous peoples:
the close and traditional dependence of many
indigenous and local communities embodying
traditional lifestyles on biological resources,
and the desirability of sharing equitably
benefits arising from the use of traditional
knowledge, innovations and practices relevant
to the conservation of biological diversity and
the sustainable use of its components,
. . . also the vital role that women play in the
conservation and sustainable use of biological
diversity and affirming the need for the full
746 Paris Agreement, page 2, Preamble, recital 11, Annex 156.
747 Stockholm Convention on Persistent Organic Pollutants, 22 May 2001, 2256 UNTS 119,
Preamble, recitals 2-3, Annex 138.
238
participation of women at all levels of policymaking
and implementation for biological
diversity conservation.748
d. under the Convention on the Conservation and Management of
High Seas Fishery Resources in the South Pacific Ocean, 14 States
recognise that, in giving effect to the duty to cooperate in the
establishment of conservation and management measures for
fishery resources:
the members of the Commission shall take
into account the special requirements of
developing State Contracting Parties in the
region, in particular the least developed
among them and small island developing
States, and territories and possessions in the
region, in particular
. . . the need to avoid adverse impacts on, and
ensure access to fisheries by, subsistence,
small-scale and artisanal fishers and women
fish workers, as well as indigenous people in
such developing States Parties, and territories
and possessions.749
327. In addition, States have agreed during meetings on climate change impacts
to take account of individuals and peoples affected by the adverse effects
of climate change. For example:
a. the Conference of the Parties in Doha acknowledged that:
the further work to advance the understanding
of and expertise on loss and damage . . . [h]ow
loss and damage associated with the adverse
effects of climate change affects those
748 Convention on Biological Diversity, Preamble, recitals 12-13, Annex 113.
749 Convention on the Conservation and Management of High Seas Fishery Resources in the
South Pacific Ocean, 14 November 2009, 2899 UNTS 211, Article 19(2), Annex 148.
239
segments of the population that are already
vulnerable owing to geography, gender, age,
indigenous or minority status, or disability,
and how the implementation of approaches to
address loss and damage can benefit those
segments of the population.750
b. in the Cancun Agreements, the Conference of the Parties
acknowledged that:
responses to climate change should be
coordinated with social and economic
development . . . taking fully into account the
legitimate priority needs of developing
country Parties . . . and the consequences for
vulnerable groups, in particular women and
children”751 and requested developed
countries Parties “to implement urgent, short-
, medium- and long-term adaptation actions,
plans, programmes and projects at the local,
national, subregional and regional levels, in
and across different economic and social
sectors and ecosystems, as well as to
undertake the activities.752
750 Approaches to address loss and damage associated with climate change impacts in
developing countries that are particularly vulnerable to the adverse effects of climate
change to enhance adaptive capacity, Decision 3/CP.18, Report of the Conference of the
Parties on its eighteenth session, held in Doha from 26 November to 8 December 2012,
FCCC/CP/2012/8/Add.1, 28 February 2018, paragraph 7(a)(iii), Annex 303.
751 The Cancun Agreements: Outcome of the work of the Ad Hoc Working Group on Longterm
Cooperative Action under the Convention, Decision 1/CP.16, Report of the
Conference of the Parties on its sixteenth session, held in Cancun from 29 November to
10 December 2010, FCCC/CP/2010/7/Add.1, 15 March 2011, Preamble to section on
social and economic response measures, recital 3, Annex 287. The Paris Agreement also
requires that adaptation action should “tak[e] into consideration vulnerable groups,
communities and ecosystems” (Paris Agreement, Article 7(5), Annex 156).
752 The Cancun Agreements: Outcome of the work of the Ad Hoc Working Group on Longterm
Cooperative Action under the Convention, Decision 1/CP.16, Report of the
Conference of the Parties on its sixteenth session, held in Cancun from 29 November to
10 December 2010, FCCC/CP/2010/7/Add.1, 15 March 2011, paragraph 18, Annex 287.
240
c. under the Warsaw International Mechanism for Loss and Damage
associated with Climate Change Impacts, the Conference of the
Parties recognised that technical assistance through the network is
to be developed through an:
inclusive and country-driven process, taking into
account the needs of vulnerable people, indigenous
peoples and local communities.753
d. in the Glasgow Pact, the Conference of the Parties recognised the:
important role of indigenous peoples, local
communities and civil society, including
youth and children, in addressing and
responding to climate change and
highlighting the urgent need for multilevel
and cooperative action” and acknowledged
that “climate change is a common concern of
humankind, Parties should, when taking
action to address climate change, respect,
promote and consider their respective
obligations on human rights, the right to
health, the rights of indigenous peoples, local
communities, migrants, children, persons
with disabilities and people in vulnerable
situations and the right to development, as
well as gender equality, empowerment of
women and intergenerational equity.754
753 Santiago network for averting, minimizing and addressing loss and damage associated
with the adverse effects of climate change under the Warsaw International Mechanism
for Loss and Damage associated with Climate Change Impacts, Decision 11/CP.27,
Report of the Conference of the Parties on its twenty-seventh session, held in Sharm el-
Sheikh from 6 to 20 November 2022, FCCC/CP/2022/10/Add.1, 17 March 2023,
paragraph 26, Annex 314.
754 Glasgow Climate Pact, Decision 1/CP.26, Report of the Conference of the Parties on its
twenty-sixth session, held in Glasgow from 31 October to 13 November 2021,
FCCC/CP/2021/12/Add.1, 8 March 2022, Preamble, recitals 9, 6, Annex 309.
241
328. This is reinforced by human rights and indigenous rights obligations to
provide effective remedies to peoples and individuals. As discussed in
Section VI.B, States recognise that there is a link between the state of the
environment and the fulfilment of human rights, including the rights of
indigenous peoples.755 This is why treaty bodies, including those whose
decisions are binding on States, interpret human rights as including the
duty to take account of the specific situations of those with greater
vulnerabilities to climate change effects.756 Similarly, as 173 States party
to the International Covenant on Civil and Political Rights agree, all
peoples have the right to self-determination and “[i]n no case may a
people be deprived of its own means of subsistence.”757 This requires
States to take positive actions to realise this right, even outside a State’s
755 See “General Comment No. 21 (2009) – Right of everyone to take part in cultural life
(Article 15, paragraph 1a of the Covenant on Economic, Social and Cultural Rights”,
E/C.12/GC/21, UN Committee on Economic, Social and Cultural Rights, 21 December
2009, paragraph 3, Annex 448.
756 See, e.g., paragraph 162. There are cases concerning the rights of those vulnerable to the
effects of climate change currently pending before the ECtHR (see “Factsheet – Climate
change”, European Court of Human Rights, January 2024, Annex 509). See also Joint
statement by the Committee on the Elimination of Discrimination against Women, the
Committee on Economic, Social and Cultural Rights, the Committee on the Protection of
the Rights of All Migrant Workers and Members of Their Families, the Committee on
the Rights of the Child and the Committee on the Rights of Persons with Disabilities,
HRI/2019/1, 14 May 2020, paragraph 3, Annex 485. See further UN Human Rights
Council Resolution 10/4, 25 March 2009, Preamble, recital 8 (“Recognizing that while
these implications affect individuals and communities around the world, the effects of
climate change will be felt most acutely by those segments of the population who are
already in vulnerable situations owing to factors such as geography, poverty, gender, age,
indigenous or minority status and disability”), Annex 222; IACtHR 2017 Advisory
Opinion, paragraph 67, Annex 372 (“[i]t has been recognized that environmental damage
will be experienced with greater force in the sectors of the population that are already in
a vulnerable situation . . . Various human rights bodies have recognized that indigenous
peoples, children, people living in extreme poverty, minorities, and people with
disabilities, among others, are groups that are especially vulnerable to environmental
damage, and have also recognized the differentiated impact that it has on women”).
757 International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171,
Article 1(2), Annex 74.
242
jurisdiction.758 States must also realise the rights of minorities, such as
not denying their right “in community with the other members of their
group, to enjoy their own culture, to profess and practice their own
religion, or to use their own language.”759 Indigenous peoples are
minorities whose lives are often closely associated with territory and the
use of its resources, including traditional activities, such as fishing or
hunting.760 Their rights to subsistence and cultural identity may be
adversely affected by the effects of climate change.761 For example, in
Billy v Australia, the UN Human Rights Committee observed that:
the authors – as members of peoples who are the
longstanding inhabitants of traditional lands consisting of
small, low-lying islands that presumably offer scant
opportunities for safe internal relocation – are highly
exposed to adverse climate change impacts. It is
uncontested that the authors’ lives and cultures are highly
dependent on the availability of the limited natural
resources to which they have access, and on the
predictability of the natural phenomena that surround them.
The Committee observes that in light of their limited
resources and location, the authors would likely be unable
to finance adequate adaptation measures themselves, on an
individual or community level, to adjust to actual or
expected climate and its effects in order to moderate harm.
The Committee therefore considers that the authors are
among those who are extremely vulnerable to intensely
758 See “General Comment No. 12 (1984) – Article 1 (Right to Self-determination), The
Right to Self-determination of Peoples”, HRI/GEN/1/Rev.9 (Vol. I), UN Human Rights
Committee, 13 March 1984, paragraph 6, Annex 440.
759 International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171,
Article 27, Annex 74.
760 See Billy v Australia, paragraph 8.13, Annex 444.
761 See, e.g., Billy v Australia, paragraph 8.14, Annex 444; “Views adopted by the
Committee under article 5 (4) of the Optional Protocol, concerning communication”, No.
2552/2015, CCPR/C/132/D/2552/2015, UN Human Rights Committee, 21 September
2022, paragraph 8.6, Annex 443.
243
experiencing severely disruptive climate change
impacts.762
329. States universally accept that “[e]veryone has the right to an effective
remedy by the competent national tribunals for acts violating the
fundamental rights granted him by the constitution or by law.”763
Therefore, States commit to provide effective remedies under international
conventions and declarations:
a. under the European Convention on Human Rights, 46 States agree
that “[e]veryone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity.”764 The
ECtHR has clarified that an effective remedy is one that allows a
person to “enforce the substance of the Convention rights . . . in
whatever form they may happen to be secured in the domestic
legal order.”765 The remedy must, for example, take account of
the personal circumstances of the aggrieved;766
b. under the American Convention on Human Rights, 25 States agree
that the right to simple and proper recourse should be available
762 Billy v Australia, paragraph 8.13, Annex 444. See also Billy v Australia, paragraph 8.14,
Annex 444.
763 Universal Declaration of Human Rights, Article 8, Annex 208.
764 European Convention on Human Rights, Article 13, Annex 69.
765 See Hatton v United Kingdom [2003] ECHR 338, paragraph 140, Annex 431. See also
Vilvarajah and Others v United Kingdom [1991] ECHR 47, paragraphs 117-127, Annex
432.
766 See European Convention on Human Rights, Article 35(1), Annex 69; “Guide on Article
13 of the European Convention on Human Rights”, European Court of Human Rights
Registry, 31 August 2022, paragraph 43, Annex 508; Glas Nadezhda EOOD and Elenkov
v Bulgaria [2007] ECHR 804, paragraph 69, Annex 427.
244
“even though such violation may have been committed by persons
acting in the course of their official duties.”767 The IACtHR has
decided that “the absence of an effective remedy for violations of
the rights recognized by the Convention is itself a violation of the
Convention”768 and that the right to an effective remedy is linked
to the State’s general duty to ensure and protect the enjoyment of
human rights.769 The IACtHR has already recognised that
environmental problems may be felt with greater intensity by
certain groups in vulnerable situations, such as indigenous peoples
and communities that depend economically for their survival on
environmental resources.770 Therefore, States must confront such
vulnerabilities based on the principles of equality and nondiscrimination;
771
c. under the African Charter on Human and Peoples’ Rights, 54
States acknowledge that they have a “duty to guarantee the
independence of the Courts and shall allow the establishment and
improvement of appropriate national institutions entrusted with the
767 American Convention on Human Rights, Article 25(1), Annex 62.
768 Judicial Guarantees in States of Emergency (Arts. 27(2), 25 and (8) American
Convention on Human Rights). Advisory Opinion OC-9/87 of October 6, 1987. Series A
No. 9, paragraph 24, Annex 373.
769 See Case of Ivcher Bronstein v Peru. Merits, Reparations and Costs. Judgment of
February 6, 2001. Series C No. 74, paragraph 135, Annex 374.
770 See Case of the Indigenous Communities of the Lhaka Honhat Association (Our Land) v
Argentina, paragraph 209, Annex 380 (citing the IACtHR 2017 Advisory Opinion,
Annex 372).
771 See Case of the Indigenous Communities of the Lhaka Honhat Association (Our Land) v
Argentina, paragraph 209, Annex 380 (citing the IACtHR 2017 Advisory Opinion,
Annex 372).
245
promotion and protection of the rights and freedoms guaranteed by
the present Charter”;772
d. under the ASEAN Human Rights Declaration, 10 countries agree
that “[e]very person has the right to an effective and enforceable
remedy, to be determined by a court or other competent
authorities, for acts violating the rights granted to that person by
the constitution or by law”;773
e. under the Charter of Fundamental Rights of the European Union,
all 27 member States of the European Union agree that there
should be a “[r]ight to an effective remedy and to a fair trial – this
includes a right to legal aid where you are deemed to lack
sufficient resources”;774 and
f. under the Arab Charter on Human Rights, 22 States undertake “to
ensure that any person whose rights or freedoms as herein
recognized are violated shall have an effective remedy,
notwithstanding that the violation has been committed by persons
acting in an official capacity.”775
330. Therefore, States must take account of these vulnerabilities of present
generations of individuals and peoples when providing full reparation and
compensation.
772 African Charter on Human and Peoples’ Rights, Article 26, Annex 92.
773 ASEAN Human Rights Declaration (AHRD) and the Phnom Penh Statement on the
Adoption of the AHRD, 18 November 2012, paragraph 5, Annex 289.
774 Charter of Fundamental Rights of the European Union, OJ C 364/1, 2 October 2000,
Article 47, Annex 136.
775 Arab Charter on Human Rights, CHR/NONE/2004/40/Rev.1, 22 May 2004, Article 23,
Annex 146.
246
331. Second, full reparation and compensation must also take account of the
particular situations of peoples and individuals of future generations.
332. Late Judge Christopher Weeramantry, previous Vice-President of this
Court, in his separate opinion in Gabčíkovo-Nagymaros, discussed the
ancient origins of the principle of intergenerational equity.776
333. This Court has already recognised the relevance of future generations in
the Nuclear Weapons Advisory Opinion, stating that nuclear weapons
have the “potential to destroy all civilization and the entire ecosystem of
the planet” and that their use “would be a serious danger to future
generations.”777 Therefore, this Court recognised it would be
“imperative” for it to take account of the ability of nuclear weapons “to
cause damage to generations to come.”778 It also noted that “the
environment is not an abstraction but represents the living space, the
quality of life and the very health of human beings, including generations
unborn.”779
334. Late Judge Christopher Weeramantry and late Judge Antônio Augusto
Cançado Trindade in multiple cases of this Court underscored the rights of
future generations and recognised the existence of an international law
principle of intergenerational equity.780 For example, Judge Christopher
776 See Gabčíkovo-Nagymaros, Separate Opinion of Vice-President Weeramantry, page 110,
Annex 395.
777 Nuclear Weapons Advisory Opinion, paragraph 35, Annex 392.
778 Nuclear Weapons Advisory Opinion, paragraph 36, Annex 392.
779 Nuclear Weapons Advisory Opinion, paragraph 29, Annex 392. The ICJ also referred to
these statements and underscored their importance in a subsequent case (see Gabčíkovo-
Nagymaros, paragraph 53, Annex 394).
780 See Maritime delimitation in the Area Between Greenland and Jan Mayen (Denmark v
Norway), Judgment of 14 June 1993, I.C.J Reports 1993, p. 38, Separate Opinion of
247
Weeramantry’s separate opinion in Gabčíkovo-Nagymaros noted that
ancient traditions had already recognised the idea of the rights of future
generations being served through the harmonisation of human
development work with respect to the natural environment.781 In his
dissenting opinion in the Nuclear Weapons Advisory Opinion, he added
that the Court “must, in its jurisprudence, pay due recognition to the rights
of future generations” given that these rights “have passed the stage when
they were merely an embryonic right struggling for recognition” and
“have woven themselves into international law through major treaties,
through juristic opinion and through general principles of law recognised
by civilized nations.”782 By 2010, Judge Antônio Augusto Cançado
Trindade declared that “it can hardly be doubted that the
acknowledgement of inter-generational equity forms part of conventional
wisdom in International Environmental Law.”783
335. In fact, under the UNFCCC, 197 States and the European Union affirm
that they are “[d]etermined to protect the climate system for present and
future generations.”784 Under the Partis Agreement, 194 States and the
European Union acknowledge that climate change is a concern of
humankind and they “should, when taking action to address climate
Judge Weeramantry, Annex 391; Nuclear Weapons Advisory Opinion, Dissenting
Opinion of Judge Weeramantry, page 233, Annex 393; Pulp Mills, Separate opinion of
Judge Cançado Trindade, paragraph 122, Annex 401; Whaling in the Antarctic (Australia
v Japan: New Zealand intervening), Judgment of 31 March 2014, I.C.J Reports 2014, p.
226, Separate Opinion of Judge Cançado Trindade, paragraph 60, Annex 405.
781 See Gabčíkovo-Nagymaros, Separate Opinion of Vice-President Weeramantry, page 106,
Annex 395.
782 Nuclear Weapons Advisory Opinion, Dissenting Opinion of Judge Weeramantry, page
233, Annex 393.
783 Pulp Mills, Separate opinion of Judge Cançado Trindade, paragraph 122, Annex 401.
784 UNFCCC, Article 3, Annex 112.
248
change, respect, promote and consider their respective obligations on
human rights . . . and intergenerational equity.”785 Many other
international conventions refer to the requirement to consider and protect
future generations from adverse climate change effects.786
336. In addition, States acknowledge the need to take account of the interests of
future generations, as a general practice accepted by law, through
declarations, joint statements and charters.787 They also do so through UN
General Assembly resolutions.788 For example, by UN General Assembly
Resolution 35/8 in 1980, UN Member States “proclaim[ed] the historical
responsibility of States for the preservation of nature for present and
future generations” and urged States to take specific actions to preserve
the environment “in the interests of present and future generations.”789 In
785 Paris Agreement, Recitals, Annex 156.
786 See, e.g., International Convention for the Regulation of Whaling, 2 December 1946, 161
UNTS 72, Preamble, Annex 68; African Convention on the Conservation of Nature and
Natural Resources, 15 September 1968, 1001 UNTS 3, Preamble, Annex 76; Convention
for the Protection of the World Cultural and Natural Heritage, 16 November 1972, 1037
UNTS 151, Article 4, Annex 81; Convention on the Protection and Use of
Transboundary Watercourses and International Lakes, Article 2(5)(c), Annex 109;
UNCCD, Preamble, Annex 123; Convention on Access to Information, Public
Participation in Decision-Making and Access to Justice in Environmental Matters
“Aarhus Convention”, 25 June 1998, 2161 UNTS 447, Preamble and Article 1, Annex
132; Convention on International Trade in Endangered Species of Wild Fauna and Flora,
3 March 1973, 993 UNTS 243, Preamble, Annex 83; Convention on Biological
Diversity, Preamble and Article 2, Annex 113; UNFCCC, Preamble, Article 3, Annex
112; Inter-American Democratic Charter, AG/RES. 1838 (XXXI-O/01), 11 September
2001, Article 15, Annex 275.
787 See, e.g., UNESCO General Conference, Declaration on the Responsibilities of the
Present Generations Towards Future Generations, Resolution 44, 29 C/Resolutions +
CORR, 12 November 1997, Annex 218; UN General Assembly Resolution 37/7 (1982),
A/RES/37/7, 29 October 1982, “World Charter for Nature”, Preamble, Annex 213; UN
General Assembly Resolution 3281(XXIX) (1974), A/9946, 12 December 1974, Article
30, Annex 211; Stockholm Declaration, Principles 1 and 2, Annex 469; Rio Declaration,
Principle 3, Annex 281.
788 See, e.g., UN General Assembly Resolution 43/53, Preamble, Annex 215.
789 UN General Assembly Resolution 35/8 (1980), A/RES/35/8, 30 October 1980,
paragraphs 1, 3, Annex 212.
249
addition, 159 UN Member States voted in favour of a resolution
committing themselves to protect and preserve the health, productivity
and resilience of oceans and marine ecosystems, to maintain their
biodiversity, enabling their conservation and sustainable use for present
and future generations.790
337. Further, the requirement to take account of future generations is supported
by State practice through legislation, constitutions and national court
decisions.791 For example:
a. the German Constitutional Court ruled that the Basic Law of
Germany requires Germany to take climate action for the benefit
of future generations and gives rise to an objective duty to protect
790 See UN General Assembly Resolution 77/248 (2022), A/RES/77/248, 30 December
2022, paragraph 207, Annex 231.
791 See, e.g., Well-being of Future Generations (Wales) Act 2015, 29 April 2015, Annex
259; the UK is also in the process of discussing equivalent legislation (see Wellbeing of
Future Generations Bill [HL], Parliamentary Bills, UK Parliament, 8 February 2022,
Annex 260); Constitution of the Republic of South Africa, 8 May 1996, as amended on
11 October 1996, Article 24 (b) (“[e]veryone has the right to have the environment
protected, for the benefit of present and future generations, through reasonable legislative
and other measures”), Annex 253; Constitution of the Federative Republic of Brazil, 5
October 1988 as amended from time to time through 2022 (English translation), Article
225 (“[t]he Government and the community have a duty to defend and to preserve the
environment for present and future generations”), Annex 249; Constitution of the
Kingdom of Bhutan, 18 July 2008, Article 5 (“[e]very Bhutanese is a trustee of the
Kingdom’s natural resources and environment for the benefit of the present and future
generations and it is the fundamental duty of every citizen to contribute to the protection
of the natural environment, conservation of the rich biodiversity of Bhutan and
prevention of all forms of ecological degradation”), Annex 257.
250
the life and health of future generations against risks posed by
climate change;792
b. the Dutch Supreme Court decided that the Netherlands must
reduce its greenhouse gas emissions even if the risk to the welfare
of Dutch residents will only materialise in a few decades;793
c. the Nepalese Supreme Court considered it imperative to address
climate justice concerns for both current and future generations
(invoking the principle of intergenerational equity) and required
the State to enact comprehensive climate legislation that aligns
with its international legal commitments;794 and
d. the Colombian Supreme Court considered that Amazon
deforestation infringes the intergenerational equity principle and
highlighted the duty of authorities to respond to this problem by
adopting corrective and palliative measures.795
792 See Neubauer v Germany, Order of the First Senate of 24 March 2021, German Federal
Constitutional Court – 1 BvR 2656/18, operative part of decision and, e.g., paragraphs
146, 197, Annex 461.
793 See Urgenda Foundation v the State of the Netherlands, Judgment of the Supreme Court
of the Netherlands of 20 December 2019, paragraph 5.6.2, Annex 460. See also
Milieudefensie v Royal Dutch Shell, Judgment of the Hague District Court of 26 May
2021, paragraph 4.2.4, Annex 462.
794 See Shrestha v Office of the Prime Minister et al., Order of the Nepali Supreme Court of
25 December 2018, NKP Part 61, Vol. 3, page 11, paragraph 2, Annex 459.
795 See Future Generations v Ministry of Environment and Others, Sentence 4360-2018 of
the Supreme Court of Justice of Colombia of 5 April 2018, paragraphs 11.2, 11.3, Annex
458.
251
338. Judicial decisions of the IACtHR support the requirement to take account
of future generations.796 The IACtHR has decided that the right to a
healthy environment is a universal value that is owed to both present and
future generations.797 It has also recognised the interests of future
generations, noting that indigenous communities’ relations with the land
are a “material and spiritual element which they must fully enjoy, even to
preserve their cultural legacy and transmit it to future generations.”798 In
addition, the IACHR (another body in the OAS system) recognises that
“[b]ased on the principle of intergenerational equity, all children and
adolescents have the right to enjoy a healthy environment and to live on a
planet equal to or in better conditions than their ancestors.”799
339. Teachings of highly qualified publicists support the requirement for the
principle of intergenerational equity to be taken into account.800 Professor
796 There are cases concerning the rights of future generations with respect to climate change
action currently pending before the ECtHR (see “Factsheet – Climate change”, European
Court of Human Rights, January 2024, Annex 509).
797 See IACtHR 2017 Advisory Opinion, paragraph 59, Annex 372.
798 See Case of the Mayagna (Sumo) Awas Tingni Community v Nicaragua. Merits,
Reparations and Costs. Judgment of August 31, 2001. Series C No. 79, paragraph 149,
Annex 375.
799 “Climate Emergency: Scope of Inter-American Human Rights Obligations”, Resolution
3/2021, Inter-American Commission on Human Rights, 31 December 2021, paragraph
21, Annex 273. The resolution also recognises that “climate change is one of the greatest
threats to the full enjoyment and exercise of human rights of present and future
generations, to the health of ecosystems and all species that inhabit the planet” (“Climate
Emergency: Scope of Inter-American Human Rights Obligations”, Resolution 3/2021,
Inter-American Commission on Human Rights, 31 December 2021, page 8).
800 See, e.g., A. Venn, Social Justice and Climate Change, in MANAGING GLOBAL
WARMING, ed. T. Letcher (Academic Press, 2019), pages 711-728, Annex 529; C.Y.
Keong, Global Environmental Sustainability: Case Studies and Analysis of the United
Nations’ Journey toward Sustainable Development (Elsevier, 2020), page 27, Annex
532; A. Opal & J. Nathwani, Global energy transition risks: Evaluating the
intergenerational equity of energy transition costs, in ENERGY DEMOCRACIES FOR
SUSTAINABLE FUTURES ed. M. Nadesan et al. (Academic Press, 2023), pages 301-310,
Annex 543; E.B. Weiss, In Fairness to Future Generations: International Law, Common
252
Dire Tladi considers that the principle of intergenerational equity requires
the protection of the environment for future generations.801 The Institut de
Droit International recognised that the principle of intergenerational
equity influences responsibility and liability.802 The Maastricht
Principles, adopted by scholars such as Professor Sandra Liebenberg and
Dr Margaretha Wewerinke-Singh and endorsed widely by publicists such
as David R. Boyd (UN Special Rapporteur on Human Rights and the
Environment) and Soledad García Muñoz (former IACHR’s Special
Rapporteur on Economic, Social, Cultural, and Environmental Rights),
identify intragenerational and intergenerational human rights obligations
of States to preserve the environment for future generations.803
340. As a final observation, it is not permissible for a State to avoid its
obligations of redress, repair and mitigation (as set forth in this written
statement) on purported grounds that doing so would cause inconvenience
to its population or be politically difficult. Notably, the ILC did not
include an exception to the Articles of State Responsibility to take into
Patrimony and Intergenerational Equity (United Nations University, 1989), page 293
(“all members of each generation of human beings, as a species, inherit a natural and
cultural patrimony from past generations, both as beneficiaries and as custodians under
the duty to pass on this heritage to future generations. As a central point of this theory
the right of each generation to benefit from this natural and cultural heritage is
inseparably coupled with the obligation to use this heritage in such a manner that it can
be passed on to future generations in no worse condition than it was received from past
generations”), Annex 516.
801 See D. Tladi, “Of Course for Humans: A Contextual Defence of Intergenerational
Equity”, South Africa Journal of Environmental Law and Policy, 2002, pp. 177-186,
page 184, Annex 519.
802 See Responsibility and Liability under International Law for Environmental Damage,
page 2, Annex 518.
803 See “The Maastricht Principles on the Human Rights of Future Generations”, Maastricht
Centre for Human Rights, 3 February 2023, principle 7(a) and 8(b), Annex 550.
253
account the economic capacity of a State.804 This is consistent with this
Court’s own approach. In the Armed Activities Reparations Judgment,
this Court considered the question of whether it should take into account
the financial burden on Uganda only after it established the amount of
reparations payable by Uganda805 – and also noted that “questions of
reparation are often resolved through negotiations between the parties
concerned.”806
341. Furthermore, a State that seeks to excuse its obligation to provide redress
on the basis of inconvenience must (a) not only provide proof of that fact
onus probandi incumbit actori,807 but also (b) provide sufficient proof
demonstrating that redress would destitute its population – indeed, in the
ILC’s view, to the stringent requirements of necessity.808 This Court and
the EECC similarly both considered they could only reduce reparations
where the ultimate financial burden imposed on the responsible State
would be so excessive, given its economic condition and ability to pay, as
to compromise its ability to meet its peoples’ “basic needs” under human
rights obligations applicable to that State.809
804 See Third Report on State responsibility by James Crawford, Special Rapporteur,
A/CN.4/507, International Law Commission, 15 March 2000, paragraphs 38, 41, Annex
492.
805 Armed Activities Reparations Judgment, paragraphs 110, 405-407, Annex 409.
806 Armed Activities Reparations Judgment, paragraph 67, Annex 409.
807 See Pulp Mills, paragraph 162, Annex 400.
808 See Third Report on State responsibility by James Crawford, Special Rapporteur,
A/CN.4/507, International Law Commission, 15 March 2000, paragraphs 38, 42, Annex
492.
809 See Armed Activities Reparations Judgment, paragraph 110, Annex 409; Eritrea-
Ethiopia Final Award, paragraph 22, Annex 435.
254
342. Indeed, it would be virtually impossible for any State, much less one that
has developed through anthropogenic gas emissions, to ever prove the
destitution of its population if it satisfied its obligations of redress and
reparation for climate change. The reason for this is simple. All States
are impacted by climate change. The costs to any State of failing to
provide full redress for climate change will be, inevitably, far more severe
to its own populations than any supposed short-term burden of doing so.
As such, political inconvenience must bow to physical reality: the costs of
failing to act on climate change far exceed the costs of doing so.
255
VIII. CONCLUSION
343. For the reasons described above, Barbados respectfully invites the Court
to make an advisory opinion:
a. in answer to the first question (What are the obligations of States
under international law to ensure 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?), that States are obliged under international law to:
i. ensure that activities within their jurisdiction and control
do not harm the environment of other States;
ii. protect and preserve their own internal environment and
their own peoples from activities within their jurisdiction
and control;
iii. protect and preserve the climate system and the other parts
of the environment in areas beyond national control;
iv. mitigate and repair harm already caused or that will be
caused by anthropogenic greenhouse gas emissions,
whether or not they have initially caused such harm;
v. cooperate to protect and preserve the climate system and
other parts of the environment; and
vi. pay for loss and damage caused by their anthropogenic gas
emissions;
256
b. in answer to the second question (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), that States are obliged under international law
to:
i. provide full monetary reparation to other States for climate
change damage caused by their wrongful acts in breach of
the obligations;
ii. provide full monetary reparation to other States for harm
attributable to them, in whole or in part;
iii. offer other redress for damage due to climate change by
inter alia contributing to climate change funds, offering
other financial resources and ensuring transfers of
technology; and
iv. take account of the circumstances of affected States and
peoples, including in particular small island States that are
particularly affected or vulnerable to the adverse effects of
climate change as well as future generations, in order to
fulfil the requirement to make full reparation and other
assistance to address climate change.