written submission on behalf of aosisblog.hawaii.edu/elp/files/2016/04/aosis-memorial.pdf ·...

Written Submission on Behalf of AOSIS

1

INTERNATIONAL COURT OF JUSTICE

REQUEST FOR AN ADVISORY OPINION CONCERNING FUTURE GENERATIONS’

LEGAL INTERESTS IN RELATION TO THE CLIMATE CRISIS

MEMORIAL FOR THE ASSOCIATION OF SMALL ISLAND STATES (AOSIS)

THE 2016 WORLD CONSERVATION CONGRESS MOOT COURT WORKSHOP IN

HONOLULU, HAWAII

SEPTEMBER 2016

AGENTS FOR AOSIS:

Sean Aronson, J.D. Candidate ’17; Claire Colegrove, J.D. Candidate ’17; Lisa Engebretsen, J.D.

Candidate ’18; Alyssa-Marie Y. H. Kau, J.D. Candidate ’18; Arielle Kramer, J.D. Candidate ’17;

Rio Kwon, J.D. Candidate ’18; Kaily Wakefield, J.D. Candidate ‘17

TEAM ADVISOR:

Loren A. Seehase, J.D., Member of the Bar of the State of Hawaiʻi and U.S. District Court for

the District of Hawaiʻi


2

TABLE OF CONTENTS

TABLE OF CONTENTS 2

INDEX OF AUTHORITIES 3

I. STATEMENT OF JURISDICTION 8

II. QUESTION PRESENTED 9

III. IN CONTEXT: THE ALLIANCE OF SMALL ISLAND STATES 10

IV. PRINCIPLES OF CUSTOMARY INTERNATIONAL ENVIRONMENTAL LAW ARE

BINDING ON STATES 15

A. Precautionary Principle 15

B. Duty to Cooperate and Notify 17

C. Duty to Do No Harm 19

D. Polluter Pays 19

V. INTERNATIONAL ENVIRONMENTAL CONVENTIONS AND AGREEMENTS

INCORPORATE PRINCIPLES OF CUSTOMARY INTERNATIONAL LAW AND PROVIDE

BINDING OBLIGATIONS ON ALL STATES 21

A. United Nations Convention on the Law of the Sea 21

1. UNCLOS background, purpose and force: UNCLOS is a multilateral treaty that is

considered to be customary international law. 21

2. UNCLOS is applicable to climate change impacts 22

3. Case law supports the argument that UNCLOS provides binding international

obligations to preserve the marine environment and is applicable to protections against

climate change impacts. 24

B. The Paris Agreement 28

1. Background, Purpose, and Force: COP 21 and the Paris Agreement is the latest and

strongest iteration of the UNFCCC effort to act on climate change. 29

2. Ratification status and force of the Paris Agreement. 32

3. The Paris Agreement is binding customary international law 35

C. Sustainable Development Goals: 42

1. SDGs: Purpose, Background, and Force 42

2. Binding Customary International Law with Similar Principles to the SDGs 45

3. Practical implications of SDGs on states’ responsibility to address climate change: 51

VI. THE LAW OF STATE RESPONSIBILITY IS APPLICABLE TO CLIMATE CHANGE 52

A. Obligation to cease an internationally wrongful act and international action on climate

change mitigation 54

B. Obligation to make full reparation and international action on climate change adaptation

55

VII. CONCLUSION 55


3

INDEX OF AUTHORITIES

TREATIES AND OTHER INTERNATIONAL AGREEMENTS

Bergen Ministerial Declaration, Mar. 20-21, 1990.

Charter of Economic Rights and Duties of States, G.A. Res. 3281 (XXIX) U.N. Doc.

A/RES/29/3281(XXIX) (Dec. 12, 1974).

Conference of the Parties Twenty-first Session, U.N. Framework Convention on Climate

Change, Paris Agreement, Art. 2, Dec. 12, 2015, U.N. Doc. FCCC/CP/2015/10/

Convention on Environmental Impact Assessment in a Transboundary Context, Feb. 25, 1991,

1989 U.N.T.S. 309.

Convention on the Law of the Non-Navigational Uses of International Watercourses, Apr. 11,

1997, U.N. Doc. A/51/869.

Draft Articles on Prevention of Transboundary Harm from Hazardous Activities with

commentaries Articles, 53 I.L.C 148 (2001).

Draft Articles on Responsibility of States for Internationally Wrongful Acts, in: Report of the

International Law Commission on the work of its Fifty-third session, Official Records of the

General Assembly, Fifty-sixth session, Supplement No. 10 (A/56/10), ch.IV.E.2, art. 1 (2001).

International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171.

International Convention on Civil Liability for Oil Pollution Damage, Nov. 29, 1969, 9 I.L.M.

45.

International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3.

Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 11,

1997, 2303 U.N.T.S. 148.

Paris Agreement, United Nations Framework Convention on Climate Change, Dec. 12, 2015,

U.N. Doc. FCCC/CP/2015/10/ .

Rio Declaration on Environment and Development, June 14, 1992, 31 I.L.M. 874, U.N. Doc.

A/CONF.151/26.

S.C. Res. 687, U.N. Doc. S/RES/687 (Apr. 8, 1991).

S.C. Res. 692, U.N. Doc. S/RES/692 (May 20, 1991).

Status of Convention on Environmental Impact Assessment in a Transboundary Context, Feb.

25, 1991, 1989 U.N.T.S. 309.

Stockholm Declaration of the United Nations Conference on the Human Environment, prin. 21-

22, June 16, 1972, 11 I.L.M. 1416, U.N. Doc. A/CONF.48/14/Rev.1

The Sustainable Development Agenda


4

Sustainable Development Goals

U.N. Charter, Statute of the International Court of Justice (1945)

United Nations Convention on the Law of the Sea (UNCLOS), Dec. 10, 1982, 21 I.L.M. 1261

(entered into force Nov. 16, 1994)

United Nations Framework Convention on Climate Change, July 1992, 31 I.L.M. 849 (1992)

Universal Declaration of Human Rights, U.N. Doc. A/810 at 71 (1948).

Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331.

JUDICIAL DECISIONS AND ADVISORY OPINIONS

Arbitration Regarding the Iron Rhine (“IJzeren Rijm”) Railway between the Kingom of Belgium

and the Kingdom of the Netherlands, Award of 24 May 2005, PCA Award Series (2007), RIAA

Vol. XXVII.

Case Concerning Gabcíkovo-Nagymaros Project (Hung. v. Slovk.), Judgment, 1997 I.C.J. 692,

(Sept. 25) [hereinafter Gabcikovo] Island of Palmas Case (Neth. v. U.S.), 2 R.I.A.A. 831, 839

(Perm. Ct. Arb. 1928).

Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 244, 248 (Dec. 15).

Factory at Chorzów, (F.R.G. v. Pol.), 1928 P.C.I.J. (ser A.) No. 17 (Sept. 13).

Flores v. Southern Peru Copper, 343 F.3d 140, 43 I.L.M. 196 (2004).

In re Indus Waters Kishenganga Arbitration (Pak. v. India), Partial Award (Arb. Trib. Feb. 18,

2013).

Lake Lanoux Arbitration (Fr. v. Spain), 24 I.L.R. 101, 130 (Arb. Trib. 1957).

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, (July 8).

The Mox Plant Case (No. 10) (Ir. v. U.K.), Case No. 10, Order of Dec. 3, 2001.

Phil. v. China, PCA Case No. 2013-19 (Perm. Ct. Arb. 2016).

Pulp Mills on the River Uruguay (Arg. v. Uru.), 2010 I.C.J. 14, ¶113 (Apr. 20).

Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC),

Advisory Opinion of 2 April 2015, Apr. 2, 2015, 54 I.L.M. 890.

Southern Bluefin Tuna Cases (N.Z. v. Japan; Austl. v. Japan), Case Nos. 3 & 4, Order of Aug.

27, 1999 ITLOS Rep.

Trail Smelter Arbitral Decision (U.S. v. Can.), 3 R.I.A.A. 1905, 1965 (Perm. Ct. Arb. 1938).

Urgenda v The Netherlands, The Hague District Court (24 June 2015).


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CONSTITUTION

U.S. CONST. art. II, § 2.

REPORTS

Dieter Helm, Cameron Hepburn & Giovanni Ruta, Trade, Climate Change, and the Political

Game Theory of Border Carbon Adjustments, 28 OXFORD REV. ECON. POL’Y 368 (2012).

Douglas A Kysar, Climate Change and the International Court of Justice, Public Law Research

Paper No. 315 (Yale L. Sch. 2013).

Glen Peters et al., Growth in Emission Transfers via International Trade from 1990 to 2008, 108

Proceedings of the National Academy of Sciences 8903 (2011).

International Law Commission, First Report on the Legal Regime for Allocation of Loss in Case

of Transboundary Harm Arising Out of Hazardous Activities, U.N. GAOR, 55th Sess., U.N.

Doc. A/CN.4/531 (Mar. 21, 2003).

INTERNATIONAL PANEL ON CLIMATE CHANGE, FIFTH ASSESSMENT REPORT SUMMARY FOR

POLICYMAKERS, CLIMATE CHANGE: THE PHYSICAL SCIENCE BASIS (2013).

INTERNATIONAL PANEL ON CLIMATE CHANGE, SUMMARY FOR POLICYMAKERS, CLIMATE CHANGE

2014: IMPACTS, ADAPTATION, AND VULNERABILITY (2013).

James Hansen, et al., Ice melt, sea level rise and superstorms: evidence from paleoclimate data,

climate modeling, and modern observations that 2°C global warming is highly dangerous 20061

(Astronomy Chemistry and Physics Discussions, 2015)

Kjellrun Hiis Hauge, Belinda Cleeland & Douglas Clyde Wilson, Fisheries Depletion and

Collapse, INTERNATIONAL RISK GOVERNANCE COUNCIL 2, 7 (2012).

Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterranean,

art. 17, June 10, 1995, 2102 U.N.T.S. 203.

Sea-Level Rise in Small Island Nations - Up to Four Times the Global Average - to Cost US$

Trillions in Annual Economic Loss and Impede Future Development: Shift to Green Policies and

Investment Critical, UNITED NATIONS ENVIRONMENTAL PROGRAMME (2016).

SMALL ISLAND DEVELOPING STATES IN NUMBERS: CLIMATE CHANGE EDITION 2015, UNITED

NATIONS OFFICE OF THE HIGH REPRESENTATIVE FOR THE LEAST DEVELOPED COUNTRIES 21

(2015).

BOOKS, ARTICLES, JOURNALS


6

ALINE BAILLAT, INTERNATIONAL TRADE IN WATER RIGHTS: THE NEXT STEP (IWA Publishing

2010).

Charles R. Taylor, Fishing with a Bulldozer: Options for Unilateral Action by the United States

Under Domestic and International Law to Halt Destructive Bottom Trawling Practices on the

High Seas, 34 ENVIRONS ENVTL. L.& POL’Y J. 121 (2010).

CHRISTIAN TAMS, ENFORCING OBLIGATIONS ERGA OMNES IN INTERNATIONAL LAW 250

(Cambridge Univ. Press, 1 ed. 2010).

Christoph Schwarte, Environmental Concerns in the Adjudication of the International Tribunal

for the Law of the Sea, 16 GEO. INT’L ENVTL. L. REV. 421 (2004).

Christopher Weber et al., The Contributions of Chinese Exports to Climate Change, 36 ENERGY

POL’Y 3572 (2008).

CHRIS WOLD, DAVID HUNTER & MELISSA POWERS, CLIMATE CHANGE AND THE LAW 46

(LexisNexis 2nd Ed. 2013)

Cinnamon P. Carlarne, Rethinking a Failing Framework: Adaptation and Institutional Rebirth

for the Global Climate Change Regime, 25 GEO. INT’L ENVTL. L. REV. 1 (2012).

Glen Peters, From Production-based to Consumption-based National Emission Inventories, 65

ECOLOGICAL ECONOMICS 12 (2008).

Gregory D. Pendleton, State Responsibility and the High Seas Marine Environment: A Legal

Theory for the Protection of Seamounts in the Global Commons, 14 PAC. RIM. L. & POL’Y J. 485

(2005).

IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW (7th ed. 2008).

JAMES CRAWFORD, BROWNLIE’S PRINCIPLES OF PUBLIC INTERNATIONAL LAW (Oxford University

Press, 7th ed. 2008).

Lawrence A. Kogan, What Goes Around Comes Around: How UNCLOS Ratification Will Herald

Europe’s Precautionary Principle as U.S. Law, 7 SANTA CLARA J. INT’L L. 1 (2009).

LEGAL RESPONSE INITIATIVE, ‘NO-HARM RULE’ AND ‘CLIMATE CHANGE’ (2012).

PATRICIA BIRNIE, ALAN BOYLE, AND CATHERINE REDGWELL, INTERNATIONAL LAW AND THE

ENVIRONMENT (Oxford, 3rd ed., 2009).

PHILLIPPE SANDS, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW, Cambridge University

Press 2d. Ed. 2003).

PHILIPPE SANDS & JACQUELINE PEEL, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW

(Cambridge Univ. Press 3rd

Ed. 2012).

ROBERT CALLUM, THE OCEAN OF LIFE: THE FATE OF MAN AND SEA (2012).

RODA VERHEYEN, CLIMATE CHANGE DAMAGE AND INTERNATIONAL LAW: PREVENTION, DUTIES,

AND STATE RESPONSIBILITY (2005).


7

Stephen Kass, United Nations Convention on the Law of the Sea and Climate Change, N.Y.L.J.

(2012).

STEPHEN M. SCHWEBEL, THE EFFECT OF RESOLUTIONS OF THE U.N. GENERAL ASSEMBLY ON

CUSTOMARY INTERNATIONAL LAW in PROCEEDINGS OF THE ANNUAL MEETING 301, 304 (Am.

Soc’y. Int’l. L. 1979).

MISCELLANEOUS

Chronological Lists of Ratifications of, Accessions and Successions to the convention and the

Climate Impacts on Agriculture and Food Supply, UNITED NATIONS (2016).

Members, AOSIS.

Meetings, UNITED NATIONS FRAMEWORK CONVENTION ON CLIMATE CHANGE.

Paris Agreement – Status of Ratification, UNITED NATIONS FRAMEWORK CONVENTION ON

CLIMATE CHANGE.

Status of Ratification of the Convention, UNITED NATIONS FRAMEWORK CONVENTION ON

CLIMATE CHANGE.

Status of Treaties: Paris Agreement, United Nations Treaty Collection.

Summary of the Paris Agreement, UNITED NATIONS FRAMEWORK CONVENTION ON CLIMATE

CHANGE.

The United States and China Build on Paris Agreement and Strengthen Climate Change

Cooperation, U.S. DEPT. OF STATE.


8

I. STATEMENT OF JURISDICTION

On January 15, 2016, The United Nations General Assembly adopted resolution

Res/70/xxx, requesting an advisory opinion from the International Court of Justice (“The Court”)

pursuant to Article 65 of the Statute of The Court. In accordance with Article 66, the Court

invited all interested State parties entitled to appear before the Court to submit memorials

through regional intergovernmental organizations as an efficient way to represent the multiplicity

of State interests in the proceedings. Therefore, the Association of Small Island States

(“AOSIS”) submits this memorial in answer to the question presented.


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II. QUESTION PRESENTED

1. What is the responsibility under international law of states to address the global climate crisis

for the benefit of present and future generations of humankind?


10

III. IN CONTEXT: THE ALLIANCE OF SMALL ISLAND STATES

Global warming is unequivocal and the effects of climate change will severely threaten

the existence of small island states. The combined effects of sea-level rise, acidic oceans, and

increased storm surge intensity, will adversely affect the physical integrity of small islands as

well as the vulnerable people that live on them.

The Intergovernmental Panel on Climate Change (“IPCC”) estimates that the average

temperature of the Earth’s surface has increased by 0.85°C over the course of the past century.1

The cause of the increase is attributable to the use of fossil fuels and their associated carbon

dioxide emissions since the start of the industrialized era.2 Global average temperatures are

projected to increase around 0.11°C per decade in the coming years.3

The greatest imminent risk to coastal areas and small island states is sea level rise. Sea

level rise is caused by the thermal expansion of water and the increased input of water into the

world’s oceans from the melting of glaciers.4 The mean rate of global average sea level rise was

1.7 mm per year between 1901 and 2010, 2.0 mm per year between 1971, and 3.2 mm per year

between 1993 and 2010.5

A related effect of rapid global warming is an increased acidity of the world’s oceans.

Overall, since the industrialized era began, the IPCC estimates that the ocean’s pH has decreased

1 RODA VERHEYEN, CLIMATE CHANGE DAMAGE AND INTERNATIONAL LAW: PREVENTION, DUTIES, AND

STATE RESPONSIBILITY 56-58 (2005).

2 INTERNATIONAL PANEL ON CLIMATE CHANGE, FIFTH ASSESSMENT REPORT SUMMARY FOR

POLICYMAKERS, CLIMATE CHANGE: THE PHYSICAL SCIENCE BASIS 9 (2013), available at

http://www.ipcc.ch/pdf/assessment-report/ar5/wg1/WG1AR5_SPM_FINAL.pdf. [hereinafter “IPCC Science”]

3 DOUGLAS A KYSAR, CLIMATE CHANGE AND THE INTERNATIONAL COURT OF JUSTICE, PUBLIC LAW

RESEARCH PAPER NO. 315, 4 (Yale L. Sch. 2013), available at

http://archive.envirocenter.yale.edu/uploads/publications/Climate%20Change%20ICJ%208.23.13.pdf.

4 Id.

5 IPCC supra note 2 at 9.


11

by about 0.1 units, which means that it has become more acidic.6 The pH is projected to increase

to between 0.14 and 0.35 units over the next century.7 The current 0.1 decrease in pH actually

reflects a 30% increase in seawater acidity, and presents a problem for many marine plants and

animals that use carbonate minerals to produce their skeletal structures.8 These marine species

use dissolved carbonate minerals from seawater and secrete it in the form of a calcium carbonate

skeleton. When the acidity of the ocean increases and becomes less alkaline, or basic, marine

species must exert more energy to secrete the carbonate structures.9 Thus, when atmospheric

CO2 increases, oceans become more acidic, and calcifying organisms produce smaller and/or

weaker skeletons.10

Climate change will impact islands’ ability to produce local food. In addition to

weakening marine species that produce calcium carbonate skeletal structures generally, a specific

and broad reaching impact of ocean acidification is coral bleaching and coral death. As an

“umbrella” species, coral is vital to the entire ecosystem, without which the entire ecosystem

ceases to exist.11

Depletion of coral will lead to a decline in fish stocks thereby leading to a

scarcity of food sources, and an increase in the market prices of fish caught and sold on the

market.12

Depletion of other affected species including mollusks, crustaceans, echinoderms,

6 KYSAR, supra note 3.

7 Id.

8 ROBERT CALLUM, THE OCEAN OF LIFE: THE FATE OF MAN AND SEA 44 (2012).

9 Id.

10 Id.

11 Charles R. Taylor, Fishing with a Bulldozer: Options for Unilateral Action by the United States Under

Domestic and International Law to Halt Destructive Bottom Trawling Practices on the High Seas, 34 ENVIRONS

ENVTL. L.& POL’Y J. 121, 129 (2010).

12 Kjellrun Hiis Hauge, Belinda Cleeland & Douglas Clyde Wilson, Fisheries Depletion and Collapse,

INTERNATIONAL RISK GOVERNANCE COUNCIL 2, 7 (2012), available at http://irgc.org/wp-

content/uploads/2012/04/Fisheries_Depletion_full_case_study_web.pdf.


12

corals, calcareous algae, foraminifera, and some phytoplankton13

also affect upper levels of the

food web.14

Weaker and dwindling populations of such species threaten not only ocean

ecosystems generally, but threaten the survival of people who depend on marine ecosystems for

their subsistence or economy.15

Coastal states and small islands states including those in AOSIS

will be among the first to face these impacts and will likely face significant difficulties in feeding

themselves and in earning a living.16

The loss of those rights for coastal and AOSIS states will

be devastating to those people.

Other climate change impacts will also inhibit island states’ ability to sustain themselves.

Sea level rise and extreme weather events inundate low-lying vegetation rendering the local

vegetation and agricultural cultivations unsuitable for consumption.17

Even after the waters have

receded the increased salinity reduces the fertility of the soil.18

Along with agricultural

difficulties and food shortages, the increased presence of salt water on land taints the fresh water

sources, which for many small island states is the only source of fresh water. Therefore, climate

change threatens the most basic human necessities relied upon by small island states to sustain

human life.

As global warming increases the acidity, temperature, and level of the oceans it likewise

has a direct effect on weather patterns thereby increasing the frequency and intensity of tropical

13

CHRIS WOLD, DAVID HUNTER & MELISSA POWERS, CLIMATE CHANGE AND THE LAW 46 (LexisNexis 2nd

Ed. 2013).

14 Id.

15 Sea-Level Rise in Small Island Nations - Up to Four Times the Global Average - to Cost US$ Trillions in

Annual Economic Loss and Impede Future Development: Shift to Green Policies and Investment Critical, UNITED

NATIONS ENVIRONMENTAL PROGRAMME,

http://www.unep.org/newscentre/default.aspx?DocumentID=2791&ArticleID=10879 (last visited Aug. 16, 2016).

16 Id.

17 KYSAR supra note 3.

18 Id.


13

storms, which only exacerbates the occurrence of sea level rise.19

Extreme weather patterns

threaten the very existence of atolls and other low-lying islands.20

Twenty to thirty percent of

species are at increased risk of extinction if the global average temperature exceeds 1.5 to 2.5C

above the 1980-1999 levels.21

The rise in sea level combined with increased intensity and

frequency of storms would cause the loss of lives, property, livelihood, and, in some cases, the

entire territory of a state.22

Sea level rise poses an immediate threat to small island developing states. On average,

26% of states have land area within 5 meters above sea level and are vulnerable to loss of that

land in projected sea level rise scenarios.23

However, several AOSIS states have high

percentages of land area within 5 meters above sea level and are projected to lose the majority of

their land to sea level rise. The states (and percentages of vulnerable land) include the Maldives

(100%), Marshall Islands (99%), Kiribati (96%), and the Cook Islands (88%).24

Climate change also causes disproportionate economic impacts on developing countries,

including AOSIS states. Globally, estimated economic stresses due to climate change caused

projected losses of USD 63 billion per year starting in 2010.25

While the global average annual

loss was less than 1% GDP, the states most affected by climate change impacts experienced

higher percentages of economic loss. For example, some AOSIS states, by share of GDP,

19

Id.

20 Id.

21 Id.

22 Id.

23 SMALL ISLAND DEVELOPING STATES IN NUMBERS: CLIMATE CHANGE EDITION 2015, UN OFFICE OF THE

HIGH REPRESENTATIVE FOR THE LEAST DEVELOPED COUNTRIES 21 (2015), available at http://unohrlls.org/custom-

content/uploads/2015/12/SIDS-IN-NUMBERS-CLIMATE-CHANGE-EDITION_2015.pdf [hereinafter

“UNOHRLLS”].

24 Id.

25 Id. at 9.


14

include Vanuatu (6.5%), Tonga (4%), the Solomon Islands (3%) the Federated States of

Micronesia (3.5%), and Fiji (3%).26

26

Id.

ARGUMENTS

IV. PRINCIPLES OF CUSTOMARY INTERNATIONAL ENVIRONMENTAL LAW

ARE BINDING ON STATES

Numerous principles of customary international environmental law provide binding

obligations on all states. The question presented to this Court necessitates an interpretation of

these principles as applied to the environmental damage caused by climate change, and whether

the environmental damage can be attributed to a state’s activities with a sufficient nexus to

invoke liability. Just as the duties to conserve, preserve, protect, and use precaution supersede

the rights and freedoms to exploit the natural resources on the high seas27

– an area of the

commons, for the benefit of all mankind – so too should the same duties supersede the freedom

to emit pollutants into the atmosphere.

A. Precautionary Principle

Principles of international environmental law are “part of the sine qua non of human

survival,”28

and “do not depend for their validity on treaty provisions.”29

The precautionary

principle, a binding norm in international law, 30

mandates states to use precaution prior to

engaging in activities that have the potential to possibly cause harm to the environment, even in

the absence of scientific certainty that the proposed activity may harm the environment.31

27

Gregory D. Pendleton, State Responsibility and the High Seas Marine Environment: A Legal Theory for

the Protection of Seamounts in the Global Commons, 14 PAC. RIM. L. & POL’Y J. 485, 498, 505 (2005).

28 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, ¶99, 102,

105(2)(F) (July 8) (separate opinion of Judge Weeramantry) [hereinafter Nuclear Weapons Advisory Opinion].

29 Id.

30 Christoph Schwarte, Environmental Concerns in the Adjudication of the International Tribunal for the

Law of the Sea, 16 GEO. INT’L ENVTL. L. REV. 421, 431 (2004) (citing PATRICIA W. BIRNIE & ALAN E. BOYLE,

INTERNATIONAL LAW AND THE ENVIRONMENT, 347 (2002)).

31 Bergen Ministerial Declaration, Art. 7, Mar. 20-21, 1990; Rio Declaration on Environment and

Development, prin. 15, June 14, 1992, 31 I.L.M. 874, U.N. Doc. A/CONF.151/26 [hereinafter “Rio Declaration”];

United Nations Framework Convention on Climate Change, Art. 4(1)(f), July 1992, 31 I.L.M. 849 (1992)


16

Originally established in 1992 with the Rio Declaration, principle fifteen, states that “[i]n order

to protect the environment, the precautionary approach shall be widely applied by states

according to their capabilities. Where there are threats of serious or irreversible damage, lack of

full scientific certainty shall not be used as a reason for postponing cost-effective measures to

prevent environmental degradation.”32

Since the creation of the principle this court has held that

“[t]he 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.”33

Under the

principle, states must seriously consider environmental harms and take “necessary precautionary

measures,”34

continually use precaution,35

and the principle places the evidentiary burden on the

state proposing the activity to establish that no essential damage will result.36

Implied within the precautionary principle is an obligation owed to the international

community as a whole, including present and future generations, to not damage global

environmental commons, such as high seas, the atmosphere, or the climate system.37

The

precautionary principle has been applied in cases where the environmental harm originates from

[hereinafter “UNFCCC”]; Convention on Biological Diversity, Art. 14(1)(a), May 22, 1992, S. Treaty Doc. No. 20,

103d Cong., 1st Sess. (1993).

32 Rio Declaration, supra note 31, Prin. 15.

33 Nuclear Weapons Advisory Opinion, supra note 28 ¶ 29.

34 Case Concerning Gabcíkovo-Nagymaros Project (Hung. v. Slovk.), Judgment, 1997 I.C.J. 692, ¶ 112 (

(Sept. 25) [hereinafter Gabcikovo] (arising from a dispute between Hungary and the Slovak Republic

regarding the construction and operation of a system of locks impacting a transboundary river). 35

Id. ¶112.

36 Nuclear Weapons Advisory Opinion, supra note 28 ¶ 29.

37 See PHILIPPE SANDS & JACQUELINE PEEL, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW 734

(Cambridge Univ. Press 3rd

Ed. 2012).


17

activities conducted within the territory of a State, but the effects extend extra-territorially.38

Applying the precautionary principle to climate change mandates states to use precaution prior to

engaging in domestic activities that threaten serious or irreversible environmental damage.

States are unable to rely on scientific uncertainty as an affirmative defense to its failure to use

precaution. For example, the precautionary principle applies to emissions created by state

entities, national companies, or used for domestic consumption.39

B. Duty to Cooperate and Notify

The duty to cooperate is an obligation under both treaty law40

and custom,41

and

mandates states to proactively notify and consult one another, before engaging in an activity.42

When a state is proposing to engage in an activity that may cause environmental harm in a

transboundary context the state must take into account the interests of other states that may be

affected.43

The duty to cooperate is effectuated through notification of the proposed activity and

38

Trail Smelter Arbitral Decision (U.S. v. Can.), 3 R.I.A.A. 1905, 1965 (Perm. Ct. Arb. 1938) [hereinafter

“Trail Smelter”]. While the Trail Smelter arbitration award refers to the “territory” of a State, subsequent references

(in particular the Stockholm Declaration, Declaration of the United Nations Conference on the Human Environment,

A/Conf.48/14/Rev. 1, principle 21; the Rio Declaration, principle 2; and Nuclear Weapons Advisory Opinion, supra

note 28 ¶ 29) consistently referred to “activities within their jurisdiction or control.

39 See e.g. Dieter Helm, Cameron Hepburn & Giovanni Ruta, Trade, Climate Change, and the Political

Game Theory of Border Carbon Adjustments, 28 OXFORD REV. ECON. POL’Y 368 (2012); Glen Peters, From

Production-based to Consumption-based National Emission Inventories, 65 ECOLOGICAL ECONOMICS 12 (2008);

Christopher Weber et al., The Contributions of Chinese Exports to Climate Change, 36 ENERGY POL’Y 3572 (2008);

Glen Peters et al., Growth in Emission Transfers via International Trade from 1990 to 2008, 108 Proceedings of the

National Academy of Sciences 8903 (2011).

40 United Nations Convention on the Law of the Sea (UNCLOS), art. 197 Dec. 10, 1982, 21 I.L.M. 1261

(entered into force Nov. 16, 1994) [hereinafter UNCLOS].

41 Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment, 2010 I.C.J. Rep. 14 ¶ 113 (Apr. 20)

[hereinafter “Pulp Mills”]; Lake Lanoux Arbitration (Fr. v. Spain), 24 I.L.R. 101, 130 (Arb. Trib. 1957)

[hereinafter “Lake Lanoux”].

42 Lake Lanoux, supra note 41 at 130.

43 See generally Charter of Economic Rights and Duties of States, G.A. Res. 3281 (XXIX) U.N.

Doc. A/RES/29/3281(XXIX) (Dec. 12, 1974), [hereinafter Charter of Economic Rights and Duties of

States] (declarations of the General Assembly of the United Nations are evidence of international custom

when they are supported by actual state practice); STEPHEN M. SCHWEBEL, THE EFFECT OF RESOLUTIONS


18

consideration of the affected states’ interests.44

One application of the duties to cooperate and

notify is through the production of an Environmental Impact Assessment (“EIA”). Arguably, the

duty to conduct an EIA is a distinct principle of customary international law when a proposed

activity could affect the environment and cause damage in a transboundary context.45

Under the

duty to conduct an EIA, the state proposing the activity is required to notify affected parties,46

and provide equal opportunity to participate in the EIA process.47

The best means of achieving

full notification to affected parties is through a comprehensive EIA that anticipates and assesses

the effects to all States.48

Included in the duty to cooperate is the obligation to take adequate

measures to protect other states’ interests.49

The International Law Commission (“ILC”)

codified these principles in the Draft Articles on Prevention of Transboundary Harm for

Hazardous Activities.50

In the maritime context, the duty to cooperate and notify includes an additional obligation

OF THE U.N. GENERAL ASSEMBLY ON CUSTOMARY INTERNATIONAL LAW in PROCEEDINGS OF THE

ANNUAL MEETING 301, 304 (Am. Soc’y. Int’l. L. 1979).

44 Id.

45 Convention on Environmental Impact Assessment in a Transboundary Context, Feb. 25, 1991, 1989

U.N.T.S. 309 [hereinafter EIA Convention]. This treaty is evidence of custom. Forty-five developed countries have

signed the treaty, which is evidence of opnio juris; Status of Convention on Environmental Impact Assessment in a

Transboundary Context, see UNITED NATIONS TREATY COLLECTION,

https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-4&chapter=27&lang=en (last

visited Aug. 15, 2016). Both Ritania and Amalea require an EIA prior to permit approval, which is evidence of

regional State practice.

46 EIA Convention, supra note 45 at Art. 2(4).

47 Id. at Art. 2(6).

48 Pulp Mills, supra note 41 ¶151-58.

49 Lake Lanoux, supra note 41 at 127 (unlike in the present case, in Lake Lanoux rights were not violated

because the tribunal could not determine a foreseeable injury and adequate measures to prevent damage had been

taken).

50 See Draft Articles on Prevention of Transboundary Harm from Hazardous Activities with commentaries

Articles, 53 I.L.C 148 (2001).


19

on riparian states to consider other states’ interests in the EIA.51

A riparian state on an

international watercourse has a duty to conduct in good faith consultations and negotiations with

other affected states.52

Moreover, a littoral state’s failure to notify affected states of potential

dangers is grounds for compensation,53

C. Duty to Do No Harm

The duty to do no harm rule is a well-established principle of customary international law

that obligates a state to prevent, reduce, and control the risk of environmental harm to other

states due to its own actions.54

According to this principle, no state along an international

watercourse is allowed to use the watercourse in its territory in such a way as to cause significant

harm to other watercourse States or to their environment.55

Importantly, the duty “not to cause

significant harm” is a due diligence obligation of prevention, rather than an absolute prohibition

on transboundary harm. Hence, a state’s compliance on Article 7 is not dependent solely on

harm being caused, but rather determined by a country’s reasonable conduct in terms of

preventative behavior to avoid the harm in question.56

D. Polluter Pays

51

Convention on the Law of the Non-Navigational Uses of International Watercourses, Art. 2, Apr. 11,

1997, U.N. Doc. A/51/869 [hereinafter UN Watercourses Convention Text]. This Convention has been adopted by

the General Assembly. G.A. Res. 51/229, U.N. Doc. No. A/RES/51/229 (May 21, 1997). The Convention’s

provisions have been referred to in parallel with UNCLOS provisions on common usage of straits for international

navigation. See ALINE BAILLAT, INTERNATIONAL TRADE IN WATER RIGHTS: THE NEXT STEP 74 (IWA Publishing

2010).

52 See id. at Art. 17.

53 Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 244, 248 (Dec. 15) (failure to warn warranted liability for

subsequent damage).

54 IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW, 275-85 (7th ed. 2008); PATRICIA BIRNIE,

ALAN BOYLE, AND CATHERINE REDGWELL, INTERNATIONAL LAW AND THE ENVIRONMENT, 143-52 (Oxford, 3rd ed.,

2009).

55 See UN Watercourses Convention Text, supra note 51 at Art. 7.

56 Id.


20

The polluter pays principle57

is a customary basis for liability for environmental

damage.58

Under the polluter pays principle, when a state violates its international

environmental obligations, it has a duty to make reparations for the wrong committed. The state

undertaking the activity is obligated to compensate for any environmental damage because of the

significant harm caused.59

The purpose behind the principle is that “the function of any regime

of allocation of loss should be to provide an incentive for those concerned with the hazardous

operations to take preventative or protective measures to avoid damage; to compensate damage

caused to any victim; and to serve an economic function, that is, internalize all the costs

(externalities).”60

This court’s predecessor, The Permanent Court of International Justice

(“PCIJ”), in the Factory at Chorzów Case stated “reparation must, as far possible, wipe out all

the consequences of the illegal act and reestablish the situation which would, in probability, have

existed if that act had not been committed.”61

More contemporaneously, this Court reiterated “an

injured state is entitled to obtain compensation from the state which has committed an

internationally wrongful act for the damage caused by it.”62

57

See, e.g., Trail Smelter, supra note 38; Rio Declaration, supra note 15 at Prin. 16.

58 See, e.g., Stockholm Declaration of the United Nations Conference on the Human Environment, prin.

21-22, June 16, 1972, 11 I.L.M. 1416, U.N. Doc. A/CONF.48/14/Rev.1; S.C. Res. 687, U.N. Doc. S/RES/687 (Apr.

8, 1991); S.C. Res. 692, U.N. Doc. S/RES/692 (May 20, 1991); International Convention on Civil Liability for Oil

Pollution Damage, Nov. 29, 1969, 9 I.L.M. 45.

59 Trail Smelter, supra note 38 at 1932-33 (the smelter plant itself was not an internationally wrongful act);

See generally Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, supra note 50 at arts.

1-2 (providing that an operator of significant transboundary damage is liable for a hazardous activity not prohibited

by international law).

60 International Law Commission, First Report on the Legal Regime for Allocation of Loss in Case of

Transboundary Harm Arising Out of Hazardous Activities, ¶ 45, U.N. GAOR, 55th Sess., U.N. Doc. A/CN.4/531

(Mar. 21, 2003) (prepared by Pemmaraju Sreenivasa Rao, Special Rapporteur).

61 Factory at Chorzów, (F.R.G. v. Pol.), 1928 P.C.I.J. (ser A.) No. 17, at 47 (Sept. 13).

62 See Nuclear Weapons Advisory Opinion, supra note 28 ¶ 29; see also Gabcikovo, supra note 34, ¶ 53

(Sept. 25).


21

V. INTERNATIONAL ENVIRONMENTAL CONVENTIONS AND AGREEMENTS

INCORPORATE PRINCIPLES OF CUSTOMARY INTERNATIONAL LAW AND

PROVIDE BINDING OBLIGATIONS ON ALL STATES

The United Nations Convention on the Law of the Sea (“UNCLOS”), the Paris

Agreement, and the United Nations Sustainable Development Goals (“UN SDG”) represent

international conventions and agreements to preserve the environment and the sustainability of

human life within the environment. Each instrument also incorporates the principles of

customary international law described above, arguably rendering each as binding customary

international law. Because the purpose and objectives of the convention and agreements contain

clear connections to climate change impacts, this section argues that the international community

is obligated to protect against the impacts of climate change under these instruments.

A. United Nations Convention on the Law of the Sea

The United Nations Convention on the Law of the Sea (“UNCLOS”) defines the rights

and responsibilities of states in their use of the world’s oceans and establishes guidelines for the

management of marine natural resources. 63

UNCLOS contains principles of binding customary

international law and is also so widely ratified that it is considered to be customary international

law itself.64

Because of the climate change impacts on the world’s oceans and marine resources,

the binding obligations under UNCLOS may be extended to climate change.

1. UNCLOS background, purpose and force: UNCLOS is a multilateral

treaty that is considered to be customary international law.

UNCLOS was created by the international community in response to the need for

63

See generally UNCLOS, supra note 40.

64 Chronological Lists of Ratifications of, Accessions and Successions to the convention and the Related

Agreements as of 23 June 2016, UNITED NATIONS,

http://www.un.org/Depts/los/reference_files/chronological_lists_of_ratifications.htm. (last visited Aug. 15, 2016).


22

competing states to peacefully manage and conserve a true commons; the ocean and its

resources.65

It is a multi-lateral treaty of a norm creating character that is built on the principles

of customary international environmental law and due to its widespread ratification is itself

considered to be customary international law.66

Nearly every duty prescribed within UNCLOS is accompanied by a corollary duty to

cooperate. The International Tribunal for the Law of the Sea (“ITLOS”) – the judicial organ

commissioned with the interpretation of UNCLOS – has required states to cooperate by ordering

the relevant states’ joint review of the entire notification system along with reporting

requirements.67

In order to promote cooperation, ITLOS requires: 1) A common basis of

information and evaluation regarding the effects of the project, and 2) The expectation that

parties will consult with each other.68

UNCLOS, and Maritime practice, obligates littoral states

bordering straits used for international navigation to cooperate to ensure environmental

protection.69

2. UNCLOS is applicable to climate change impacts

Given projected sea level rise, ocean acidification, coral bleaching, species extinction,

and the generally disastrous effects of climate change on the world’s oceans, there is a significant

likelihood that inclusion of measures to protect ocean environments will overlap with measures

65

UNCLOS, supra note 40, at Art. 25.

66 Chronological Lists of Ratifications of, Accessions and Successions to the convention and the Related

Agreements as of 23 June 2016, UNITED NATIONS,

http://www.un.org/Depts/los/reference_files/chronological_lists_of_ratifications.htm (last visited Aug. 15, 2016).

67 UNCLOS, supra note 40, at Art. 84; ITLOS is the judiciary body of UNCLOS.

68 Id. at Art. 84.

69 See Id. at Art. 43; Protocol Concerning Specially Protected Areas and Biological Diversity in the

Mediterranean, art. 17, June 10, 1995, 2102 U.N.T.S. 203, available at http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1999:322:0003:0017:EN:PDF (on the duty to conduct an EIA in

relation to projects that could have an effect on a specially protected area in the Mediterranean).


23

to reduce climate change.

A number of provisions contribute to the body of international environmental law

codifying marine protections and implicated by climate change. These provisions require parties

to regulate emissions from aircraft and marine vessels, which were seen as the “most significant

sources of atmospheric pollution affecting the oceans.”70

There are also general obligations of

the parties to prevent, reduce, and control marine pollution, cooperate on a global or regional

basis, notify other parties of imminent or actual damage to the oceans, adopt contingency plans

and provide technical assistance to developing countries in combating marine pollution.71

Articles 192 and 194(2) are the embodiment of the precautionary principle, obligating

states to refrain from activities that cause damage 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.72

Article 235 also provides for state

responsibility to be triggered through breach of any environmental duties under UNCLOS.73

Therefore, because climate change causes damaging impacts on the ocean environment and

because UNCLOS provides binding international obligations to preserve the marine

environment, UNCLOS provides “primarily rules obliging States to prevent or minimize climate

change damage.”74

Moreover, under UNCLOS, a state is liable for any damage caused by

violations of international law pertaining to the protection and preservation of the marine

70

Stephen Kass, United Nations Convention on the Law of the Sea and Climate Change, N.Y.L.J., Aug. 21,

2012,

http://www.newyorklawjournal.com/PubArticleNY.jsp?id=1202569335882&United_Nations_Convention_on_Law

_of_the_Sea_and_Climate_Change&slreturn=20130421093836.

71 UNCLOS supra note 40, Art. 192-206, 207-211, 212, 213-221.

72 Lawrence A. Kogan, What Goes Around Comes Around: How UNCLOS Ratification Will Herald

Europe’s Precautionary Principle as U.S. Law, 7 SANTA CLARA J. INT’L L. 1, 27 (2009).

73 UNCLOS, supra note 40, at Art. 235.

74 VERHEYEN, supra note 1, at Art. 194.


24

environment inflicted by natural or juridical persons under the State’s jurisdiction.75

3. Case law supports the argument that UNCLOS provides binding

international obligations to preserve the marine environment and is applicable

to protections against climate change impacts.

Three cases in particular demonstrate international decisions enforcing UNCLOS in

matters of international disputes relating to the preservation of the marine environment. These

cases are the Republic of the Philippines v. People’s Republic of China,76

Pulp Mills on the River

Uruguay (Arg. v. Uru.),77

and the Southern Bluefin Tuna Cases78

a) Republic of the Philippines v. People’s Republic of China

In this case, the Tribunal ruled that harvesting corals and giant clams from the waters

surrounding Scarborough Shoal has a harmful impact on the fragile marine environment.79

China was found to have breached various obligations under UNCLOS regarding the protection

and preservation of the marine environment by actively tolerating the exploitation of the living

resources of the reefs by having caused severe and irreparable harm to coral reef ecosystems in

its construction of artificial islands in the South China Seas. The opinion establishes terms of

cooperation with all claimants to design an interim international cooperative framework that

implements States’ UNCLOS duties to protect the marine environment. The Tribunal noted that

the environmental obligation in Part XII “apply to States irrespective of where the alleged

75

UNCLOS, supra note 40, at Art. 235(1), (2).

76 Phil. v. China, PCA Case No. 2013-19 (Perm. Ct. Arb. 2016), https://pca-cpa.org/wp-

content/uploads/sites/175/2016/07/PH-CN-20160712-Award.pdf. [hereinafter “South China Sea Arbitration

Award”]

77 See generally Pulp Mills, supra note 41.

78 Southern Bluefin Tuna Cases (N.Z. v. Japan; Austl. v. Japan), Case Nos. 3 & 4, Order of Aug. 27, 1999

ITLOS Rep., ¶77. [hereinafter “Southern Bluefin Tuna”]

79 South China Sea Arbitration Award, supra note 76 at ¶ 960.

https://pca-cpa.org/wp-content/uploads/sites/175/2016/07/PH-CN-20160712-Award.pdf

https://pca-cpa.org/wp-content/uploads/sites/175/2016/07/PH-CN-20160712-Award.pdf


25

harmful activities took place.”80

International law requires that States “ensure that activities

within their jurisdiction and control respect the environment of other States or of areas beyond

national control.” Thus, States have a positive “‘duty to prevent, or at least mitigate’

[signification harm to the environment when pursuing large-scale construction activities.”81

This

means that States must follow their positive obligations in Article 204 to analyze the risks of the

pollution on the marine environment and act under surveillance the effects of any activities,

which they permit or in which they exchange. The Tribunal ruled that Article 192 also extends

to the prevention of harms that would “affect, depleted, threatened, or endangered species

indirectly through the destruction of their habitation.”82

b) Pulp Mills

In this case, Argentina contested the construction of two pulp mills in Uruguay adjacent

to a trans-boundary river, alleged procedural violations of the 1975 Statute of the River Uruguay,

including breaches of key substantive international obligations such as pollution prevention and

precaution.83

Argentina argued the pulp mill emitted nonylphenols, endangering the river

environment.84

They argued the precautionary principle should place the burden on Uruguay to

prove that the pulp mills would not cause significant damage to the environment.85

While the ICJ ruled in favor of Uruguay because Argentina had not “adduced clear

evidence which establishes a link between the nonylphenols found in the waters of the river of

80

Id. ¶ 927.

81 In re Indus Waters Kishenganga Arbitration (Pak. v. India), Partial Award (Arb. Trib. Feb. 18, 2013), at

http://www.pca-cpa.org, ¶ 451; quoting Arbitration Regarding the Iron Rhine (“IJzeren Rijm”) Railway between the

Kingom of Belgium and the Kingdom of the Netherlands, Award of 24 May 2005, PCA Award Series (2007), RIAA

Vol. XXVII p. 35 at pp. 66-67, ¶ 59).

82 South China Sea Arbitration Award, supra note 76 at ¶ 960.

83 See generally Pulp Mills, supra note 77.

84 Id. ¶ 60

85 Id.


26

the Orion mill,”86

the Court acknowledged that, “a precautionary approach may be relevant in the

interpretation and the application of the provisions of the Statute; it does not follow that it

operates as reversal of the burden of proof.”87

When discussing the standard of proof, Argentina

was held to the standard of “convincing,”88

“clear,”89

and “conclusive” evidence90

in order to

prevail. States have a duty of due diligence to control activities within its territory that may

cause transboundary environmental harms. This decision mandates individual countries to take a

precautionary approach through environmental impact assessments when there is serious

environmental risk.

c) Southern Bluefin Tuna

In the Southern Bluefin Tuna cases, New Zealand and Australia requested provisional

measures from ITLOS to stop Japan from unilaterally increasing its catch levels of southern

bluefish tuna.91

One of the principal arguments was that Japan was failing to act consistently

with the precautionary principle. The Tribunal concluded: “the parties should be in the

circumstances act with prudence and caution to ensure that effective conservation measures are

taken to prevent serious harm to the stock of southern bluefish tuna.”92

The Order was the first

time in international environmental law where an international judicial body applied the

precautionary principle directly, even though it did not explicitly say so.

The Order also imposes an obligation of a State to ensure its fishing vessels would not be

86

Id.

87 Id.

88 Id. ¶ 89, 228.

89 Id. ¶ 225, 257, 259, 262, 264.

90 Id. ¶ 265.

91 Southern Bluefin Tuna, supra note 78 ¶ 28-29.

92 Id. ¶ 77.


27

involved in activities that would undermine another State’s responsibilities under the Convention

in respect of the conservation of living resources and the obligation to protect and preserve the

marine environment. States must adopt rules and measures and a “certain level of vigilance in

their enforcement and the exercise of administrative control.”93

Article 290(5) of UNCLOS requires ‘urgency’ of the situation to warrant provisional

measures to restrict the Tribunal’s intervention in cases where the dispute has already been

submitted to other tribunals not yet in existence.94

In the instant case, there seems to be an

element of urgency concerning the stopping of climate change effects towards a collapse of small

island states. As Judge Treves noted, “each step in such a deterioration could be seen as a serious

harm because of its cumulative effect to the collapse of the” [states].95

In addition, the Tribunal provided clarity on how serious harm to the environment has to

be for states to evoke the precautionary principle. The Order held that there was no

disagreement between the parties that the stock of southern blue tuna was severely depleted and

was at its ‘historically lowest levels’ and this was cause for ‘serious biological concern.’96

The

order also held that the parties to the dispute should act with ‘prudence and caution’ to ensure

that effective conservation measures were taken to prevent ‘serious harm’ to the stock of blue

tuna.97

The ‘undisputed historically low level of the parental biomass of a fish stock’ satisfies

the threshold of ‘serious harm’ to trigger environmental action.

The Order sets a precedent for climate change in several aspects. The international

93

Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC),

Advisory Opinion of 2 April 2015 ¶ 131, Apr. 2, 2015, 54 I.L.M. 890.

94 U.N. Charter, Statute of the International Court of Justice arts. 36, 41, June 26, 1945.The ICJ has the

power “to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to

preserve the respective rights of either party.”

95 Southern Bluefin Tuna, supra note 78 ¶ 8.

96 Id. ¶ 71.

97 Id. ¶ 77.


28

tribunal prescribed environmental action in the face of scientific uncertainties. This Order set an

example for fishing nations to cooperate in the management and conservation of fish stocks by

way of multilateral treaties as provided for in UNCLOS. This order provided guidance for

setting a threshold for environmental action on a procedural and substantive law in relation to

marine living resources.

B. The Paris Agreement

In December 2015 at the twenty-first Conference of the Parties (“COP 21”) in Paris,

France, the United Nations Framework Convention on Climate Change (“UNFCCC”) reached a

groundbreaking agreement (“Paris Agreement”) to combat climate change and its effects.98

There, representatives of 195 states made history by committing to accelerate, intensify, and

invest in actions that would ensure a low-carbon future and prevent global temperature increase

from exceeding two degrees Celsius over preindustrial levels, and to committing to adapt to the

impacts climate change.99

The Paris Agreement provides state obligations and mechanisms to address the global

climate crisis for the betterment of present and future generations, and prior to its entry into

force, prohibits all states from acting in contrast to its purpose.100

Since opening for signatures

on April 22, 2016, 180 states have signed the agreement and 22 have ratified it.101

Perhaps most

importantly, as this section will argue, the provisions contained therein represent binding

customary international law.

98

Summary of the Paris Agreement, UNITED NATIONS FRAMEWORK CONVENTION ON CLIMATE CHANGE,

http://bigpicture.unfccc.int/#content-the-paris-agreemen. (last visited Aug. 18, 2016).

99 Id.

100 Vienna Convention on the Law of Treaties, Art. 18, May 23, 1969, 1155 U.N.T.S. 331 [hereinafter

“Vienna Convention”]

101 See Status of Treaties: Paris Agreement, United Nations Treaty Collection (last visited Aug. 15, 2016),

https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-7-d&chapter=27&clang=_en.

https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-7-d&chapter=27&clang=_en


29

1. Background, Purpose, and Force: COP 21 and the Paris Agreement is

the latest and strongest iteration of the UNFCCC effort to act on climate

change.

As its name suggests, COP 21 is the latest effort by “the Parties” to reach a global

agreement on states’ efforts to fight and adapt to climate change. The COPs operate under the

United Nations Framework Convention on Climate Change (UNFCCC), which arose from the

Rio Conventions in 1992. The COP has met every year since then to find solutions to the

problem of climate change.102

As of this writing, 197 states have signed and ratified the

UNFCCC, including the United States.103

a) Summary of the UNFCCC and COP framework

The UNFCCC’s objective is to reduce global greenhouse gas emissions. More

specifically, the objective is:

To achieve stabilization of greenhouse gas concentrations in the atmosphere at a

level that would prevent dangerous anthropogenic interference with the climate

system. Such a level should be achieved within a time-frame sufficient to allow

ecosystems to adopt naturally to climate change, to ensure that food production is

not threatened and to enable economic development to proceed in a sustainable

manner.104

From this statement it is clear that the objective is not only to reduce GHG emissions, but also to

reduce them for the future survival and quality of life of people on earth. In fact, the first

Principle of the UNFCCC is that “Parties should protect the climate system for the benefit of

present and future generations of humankind, on the basis of equity and in accordance with their

common but differentiated responsibilities and respective capabilities.”105

The UNFCCC also

102

Meetings, UNITED NATIONS FRAMEWORK CONVENTION ON CLIMATE CHANGE,

http://unfccc.int/meetings/items/6240.php. (last visited Aug. 19, 2016).

103 Status of Ratification of the Convention, UNITED NATIONS FRAMEWORK CONVENTION ON CLIMATE

CHANGE, http://unfccc.int/essential_background/convention/status_of_ratification/items/2631.php. (last visited Aug.

19, 2016).

104 UNFCCC, supra note 31, at Art. 2.

105 Id. at Art. 3(1).


30

emphasizes use of the precautionary principle,106

and commits its parties to periodically provide

national inventories of anthropogenic emissions by sources and removal of emissions by sinks,107

update regional programs with measures to mitigate climate change, account for climate change

in state planning, promote sustainable development, share scientific and technologic information

related to the climate system, climate change impacts, and response strategies.108

The UNFCCC

also established the COP as the body of the convention to “regular[ly] review the implementation

of the convention and any legal instruments that the Conference of the Parties may adopt,” and

make “the decisions necessary to promote the effective implementation of the Convention.”109

The UNFCCC does not create binding targets for emissions reductions but establishes a

framework under which international agreements related to climate change mitigation and

adaptation can be created.

b) History of Past COP agreements

Since the UNFCCC entered into force in 1994, the COP has met each year. The most

notable conference aside from Paris was in Kyoto Japan in 1997. At COP3 in Kyoto, the parties

produced the Kyoto Protocol, which committed the parties to internationally binding emissions

limits,110

established international emissions trading,111

joint implementation (JI),112

and the

clean development mechanism (CDM).113

The Kyoto Protocol entered into force in 2005 and

106

Id. at Art. 3(3).

107 Id. at Art. 4(1)(a).

108 Id. at Art. 4.

109 Id. at Art. 7(2).

110 Kyoto Protocol to the United Nations Framework Convention on Climate Change, Art. 3, Dec. 11, 2303

U.N.T.S. 148 (hereinafter “Kyoto Protocol”).

111 Id. at Art. 17

112 Id. at Art. 6

113 Id. at Art. 12


31

amendments to the Kyoto Protocol were established in subsequent COPs in Marrakesh in 2001,

and Doha in 2012.114

The United States was the only Annex I country not to ratify the Kyoto

Protocol, and over time the Kyoto Protocol has been relatively unsuccessful at reducing

emissions, but instrumental in providing a foundation upon which future agreements can be

made.115

After the failure of 2009’s COP15 in Copenhagen, which had been anticipated to

produce a new agreement to supersede Kyoto, the international community hailed Paris in 2015

as a success.116

c) The objective and purpose of the Paris Agreement

The Paris Agreement is a product of the 21st COP, some 21 years after the UNFCCC

entered into force. The objective of the Paris Agreement is stated in Article 2 of the Agreement:

1. This Agreement, in enhancing the implementation of the Convention, including

its objective, aims to strengthen the global response to the threat of climate

change, in the context of sustainable development and efforts to eradicate poverty,

including by:

(a) Holding the increase in the global average temperature to well below 2

°C above pre-industrial levels and to pursue efforts to limit the

temperature increase to 1.5 °C above pre-industrial levels, recognizing that

this would significantly reduce the risks and impacts of climate change;

(b) Increasing the ability to adapt to the adverse impacts of climate change

and foster climate resilience and low greenhouse gas emissions

development, in a manner that does not threaten food production;

(c) Making finance flows consistent with a pathway towards low

greenhouse gas emissions and climate-resilient development.

2. This Agreement will be implemented to reflect equity and the principle of

common but differentiated responsibilities and respective capabilities, in the light

of different national circumstances.117

114

Id.

115 See Cinnamon P. Carlarne, Rethinking a Failing Framework: Adaptation and Institutional Rebirth for

the Global Climate Change Regime, 25 GEO. INT’L ENVTL. L. REV. 1, 5 (2012).

116 See Id. at 9.

117 Conference of the Parties Twenty-first Session, U.N. Framework Convention on Climate Change, Paris

Agreement, Art. 2, Dec. 12, 2015, U.N. Doc. FCCC/CP/2015/10/ [hereinafter “Paris Agreement”].


32

The purpose of the Paris Agreement is directed towards climate change mitigation, adaptation,

financing, equity, and a commitment to keep the average global temperature below 2°C. 118

The

agreement even aims for a lower target of 1.5°C,119

which has been the projected minimally

accepted amount to preserve low-lying island nations.120

The Agreement was created under the

UNFCCC framework as a COP, and will likely be amended in COPs in the coming years.

2. Ratification status and force of the Paris Agreement.

The Paris Agreement requires for entry into force a substantial percentage of the Parties

to the Convention to ratify the Agreement domestically, and for those parties to collectively

comprise a substantial percentage of the total global greenhouse gas emissions. Not only must

55 states ratify the Agreement by April 21, 2017; those states in aggregate must also represent at

least 55% of the global GHG emissions.121

This requirement for entry into force shows that the

COP recognizes that the success of the Agreement in meeting its objectives depends on the

participation of large emitters.

For example, the GHG emissions data used in the COP21 indicated that the United States

represented 17.89 percent of global emissions, China represented 20.09 percent, and the

European Union (which must vote as a bloc) represented 12.08 percent of global emissions.122

Those three entities combined represent approximately 50 percent of global emissions.123

118

See Id.

119 See Id.

120 James Hansen, et al., Ice melt, sea level rise and superstorms: evidence from paleoclimate data, climate

modeling, and modern observations that 2°C global warming is highly dangerous 20061 (Astronomy Chemistry and

Physics Discussions, 2015); Urgenda v The Netherlands, The Hague District Court (24 June 2015)

ECLI:NL:RBDHA:2015:7196 (acknowledging that for countries like Tuvalu and Fiji, 1.5°C increase carried the

risk of destruction of their entire territories).

121 See Paris Agreement, supra note 117, at Art. 21(1).

122 See Paris Agreement, supra note 117, at Annex 1.

123 Id.


33

Although it would be possible for the Agreement to enter into force without some of the larger

states, the process would be significantly faster if the major emitters approve the agreement

domestically.

a) Current Ratification Status of the Paris Agreement

To date, there are 179 states that are signatories to the Paris Agreement, and 21 states that

have also deposited their instruments of ratification.124

Notably, 15 of the 21 states that have

ratified the Agreement so far are members of AOSIS.125

These 21 small states that have ratified

the agreement represent 0.40 percent of the total global GHG emissions.126

b) Ratification Process in the United States

In the United States, the President has the power to enter into treaties provided he or she has

the advice and consent of two-thirds of the Senate.127

Although the United States played an

integral role in the negotiating process at COP21 and is a signatory to the agreement,128

it has not

yet ratified the agreement.129

Interestingly, the Obama Administration does not view the Paris

Agreement as a Treaty but rather, as a “politically binding” deal.130

Therefore, President Obama

124

Paris Agreement – Status of Ratification, UNITED NATIONS FRAMEWORK CONVENTION ON CLIMATE

CHANGE, http://unfccc.int/paris_agreement/items/9444.php. (last visited Aug. 19, 2016); Status of Treaties, supra

note 101.

125 Status of Treaties, supra note 101. AOSIS states that have ratified the Paris Agreement are: Barbados,

Belize, Fiji, Grenada, Guyana, Maldives, Marshall Islands, Mauritius, Nauru, Palau, Samoa, Seychelles, St. Kitts

and Nevis, St. Lucia, St. Vincent and the Grenadines, and Tuvalu. Other states that have ratified the Agreement are:

Cameroon, Norway, Palestine, Peru, and Somalia; See also, Members, AOSIS, http://aosis.org/about/members/ (last

visited Aug. 15, 2016).

126 See Paris Agreement, supra note 117, at 34.

127 U.S. CONST. art. II, § 2. “He shall have Power, by and with the Advice and Consent of the Senate, to

make Treaties, provided two thirds of the Senators present concur.”

128 Opening Ceremony of the United Nations Signing Ceremony of the Paris Agreement of Climate Change

U.S. DEPT. OF STATE (Apr. 22, 2016), http://www.state.gov/secretary/remarks/2016/04/256497.htm.

129 Status of Treaties, supra note 101.

130 Note: It seems that the Obama Administration negotiated with the parties to ensure that the Paris

Agreement is technically not a treaty in order to avoid the political opposition anticipated if the Agreement were


34

may implement the United States’ approval of the agreement through an executive order,

although to-date no such action has occurred.

c) Obligations of signatories to the Paris Agreement

Under the Vienna Convention, states that are signatories to a treaty “are obliged to refrain

from acts which would defeat the object and purpose of a treaty” when it has signed the treaty or

expressed consent to be bound by the treaty.131

Consent to be bound by a treaty may be

expressed through ratification, acceptance or approval.132

Thus, signatories to a treaty are

obligated to act in such a way that they do not defeat the purpose of the treaty, but are not

obligated to meet specific standards set forth in the treaty. In relation to the Paris Agreement, if

it is considered a treaty, this could translate to an obligation for the United States and China to

not increase dramatically their GHG emissions, but it does not bind them to reduce their

emissions by a particular amount or by a particular date as set forth in the Agreement.133

Additionally, parties may provisionally apply all the provisions of the agreement prior to its

entry into force.134

The fact that the Paris Agreement was created with the participation and agreement of so

many states who have since become signatories to the agreement, combined with the statements

of major emitters including the United States and China to commit to a low carbon future,135

reflect an improvement over the Kyoto Protocol and other COPs that yielded more limited

referred to the Republican-majority Senate. See Coral Davenport, “Obama Pursuing Climate Accord in Lieu of

Treaty,” New York Times (Aug. 26, 2014) http://www.nytimes.com/2014/08/27/us/politics/obama-pursuing-

climate-accord-in-lieu-of-treaty.html?_r=2.

131 Vienna Convention, supra note 100, Art. 18.

132 Id. at Art. 14.

133 Id. at Art. 18.

134 See Paris Agreement, supra note 117, at § I.5

135 The United States and China Build on Paris Agreement and Strengthen Climate Change Cooperation,

U.S. DEPT. OF STATE (June 8, 2016), http://www.state.gov/r/pa/prs/ps/2016/06/258179.htm.


35

results. Better yet, even though the Agreement has not entered into force, the principles that

comprise the Paris Agreement represent those of binding customary international law.

3. The Paris Agreement is binding customary international law

Under the Paris Agreement, states are obligated to address global climate change for the

benefit of present and future generations of humankind. This obligation rises from the existence

of customary international law principles included within the Paris Agreement, including

intergenerational equity and the precautionary principle, the duty to cooperate and notify, the

duty to do no harm, and the polluter pays principle.

The following subsections will address how each of these principles are integrated into the

Paris Agreement, and concludes that because the Paris Agreement embodies binding

international obligations states must address the climate change crises.

a) Precautionary Principle

The precautionary principle is the primary principle of customary international law

embodied in the Paris Agreement. The entire premise of climate change mitigation and

environmental protection generally is to preserve the earth and its resources for the future; and

primarily to ensure the ability of humans to live on earth into the future. Indeed, as was stated in

the Rio Declaration, “In order to protect the environment, the precautionary approach shall be

widely applied by States according to their capabilities. Where there are threats of serious or

irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing

cost-effective measures to prevent environmental degradation.”136

The mitigation of climate

change impacts is a prime example of when the precautionary principle should be used because

the threats are serious and irreversible, and prevention of the worst effects requires immediate

136

Rio Declaration, supra note 31, Principle 15.


36

action rather than scientific certainty of impacts. As was previously discussed, the precautionary

principle is a principle of customary international law.137

As stated, the objective of the Paris Agreement is to strengthen the global response to

climate change by limiting the global temperature increase to below 2°C above pre-industrial

levels and to aim for a limit of 1.5°C above preindustrial levels, to increase adaptation measures,

and to encourage financing that is consistent with the first two objectives. The limitation of

global temperature increase to 2 or 1.5°C above pre-industrial levels embodies the precautionary

principle because it uses the best available science provided by the IPCC and projections of

likely climate change impacts in various warming scenarios to determine that there any such

impacts present a serious threat of irreversible damage which must be mitigated. It is

precautionary because it requires actions to mitigate and adapt to the harm before the harm has

been fully realized, or before any existing scientific uncertainty is made uncertain.138

In addition to the objective of the Paris Agreement, the precautionary principle appears

throughout the agreement. The idea that climate change is an “urgent and potentially irreversible

threat to human societies and the planet”139

repeats throughout the agreement.140

Article 4

creates an obligation for parties to reach global peaking of GHG emissions as soon as possible,141

and requires parties to “prepare, communicate and maintain successive nationally determined

contributions it intends to achieve” and pursue domestic mitigation measures to achieve its

137

Christoph Schwarte, Environmental Concerns in the Adjudication of the International Tribunal for the

Law of the Sea, 16 GEO. INT’L ENVTL. L. REV. 421, 431 (2004) (citing PATRICIA W. BIRNIE & ALAN E. BOYLE,

INTERNATIONAL LAW AND THE ENVIRONMENT, 347 (Oxford, 2nd ed, 2002)); Article 7 of the 1990 Bergen

Ministerial Declaration; Article 15 of the 1992 Rio Declaration; Article 4(1)(f) of the 1992 Climate Change

Convention; Article 14(1)(a) of the 1992 Convention on Biological Diversity.

138 Article 7 of the 1990 Bergen Ministerial Declaration; Article 15 of the 1992 Rio Declaration; Article

4(1)(f) of the 1992 Climate Change Convention; Article 14(1)(a) of the 1992 Convention on Biological Diversity.

139 See Paris Agreement, supra note 117, pmbl.

140 See generally, Paris Agreement, supra note 117.

141 See Id. at Art. 4, ¶ 1.


37

nationally determined contributions.142

Article 5 of the Agreement encourages the parties to

“conserve and enhance, as appropriate, sinks and reservoirs of greenhouse gases.”143

The

establishment of mandatory emissions limits reiterates the idea that current practices that create

GHG emissions must be curbed within each state, prior to the full impact that the international

scientific community predicts using the best science available. The suggestion that parties should

also make efforts to preserve sinks and pursue financing options that support the objectives of

the Agreement144

are also precautionary, because they work towards the same goal of preventing

the serious threat of irreparable damage to the livability on the planet for all people.

Adaptation planning required by the Agreement in Article 7 also falls within the

precautionary principle because adaptation aims to mitigate the damages that would otherwise

follow the impacts of climate change.145

Although it does not mitigate climate change itself,

effective adaptation measures would ideally limit the harm experienced by current and future

generations of people and thus, are precautionary measures. It is arguable that even the financial

mechanism set forth in Article 9 of the Agreement reflects the precautionary principle, because it

was created for the purpose of ensuring the success and longevity of the climate change

mitigation and adaptation measures set forth in the agreement.146

Due to the fact that the purpose of the Paris Agreement is strongly rooted in the

precautionary principle, and that this principle is consistently brought up throughout the

142

See Id. at Art. 4, ¶ 2.

143 See Id. at Art. 5, ¶ 1.

144 See Id. at Art. 9.

145 See Id. at Article 7, ¶ 9. (“ Each party shall, as appropriate, engage in adaptive planning processes and

the implementation of actions, including the development or enhancement of relevant plans, policies and/or

contributions…”)

146 See Id. at Art. 9.


38

agreement by obligations of the parties to meet the objective, 147

and considering the care taken

to craft the agreement in such a manner most likely to draw broad and committed support from

many states,148

the Paris Agreement is binding customary international law in respects to its

provisions of the precautionary principle.

b) Duty to Cooperate

As stated above, the duty to cooperate is binding customary international law because it

is a generally accepted normative international practice and in the environmental context, is

embodied in particular by UNCLOS.149

The Paris Agreement, similar to UNCLOS, incorporates

and embodies the principle of the duty to cooperate. Because that duty to cooperate is a binding

norm of customary international law the same duties under the Paris Agreement are likewise

binding.

In the Paris Agreement, the duty to cooperate is expressed first in Article 3:

As nationally determined contributions to the global response to climate change,

all Parties are to undertake and communicate ambitious efforts as defined in

Articles 4, 7, 9, 10, 11, and 13 with the view to achieving the purpose of this

Agreement as set out in Article 2.150

The agreement is based on the premise that parties to the agreement will participate

because without such participation, the agreement will not be effective. The agreement further

sets out that each party shall “prepare, communicate and maintain”151

their nationally determined

contributions, and that such communications shall be clear and transparent to the international

147

See Id. at Art. 14. Article 14 requires a global stock take of parties’ progress towards their obligations

under the Agreement; see also Paris Agreement, see id. at Art. 15, creating a mechanism to facilitate implementation

ad promote compliance with the agreement. Note that for Article 15, specific modalities and procedures have not yet

been adopted but should be at the first meeting of the COP after Paris. Id.

148 Status of Treaties, supra note 101.

149 MOX Plant Case (Ir. v. U.K.), Case No. 10, Order of Dec. 3 2001, 5 ITLOS Rep. 95.

150 Paris Agreement, supra note 117 at Art. 3.

151 Id. at Art. 4, ¶ 2.


39

community.152

Finally, Article 12 states that the parties must cooperate in “taking measures, as

appropriate, to enhance climate change education, training, public awareness, public

participation, and public access to information”153

These provisions in the Agreement related to

the duty of the parties to cooperate require parties to engage in the GHG emissions limitations,

and all other provisions of the agreement that are essential to the Agreement’s success in meeting

its objective.

Although it is true that these provisions of the Paris Agreement have the appearance of

essentially being treaty obligations, they are also binding as customary international law because

the duty to cooperate is binding customary international law, especially in the environmental

context as demonstrated by the UNCLOS analysis supra.

c) Duty to Do No Harm.

The duty to do no harm is a binding principle customary international law.154

In essence,

the duty to do no harm relates to the obligation of states to limit its national activities from

causing transboundary harms.155

In the context of the Paris Agreement, the objective and intent

of the Agreement itself embodies the duty to do no harm because GHG emissions in one location

cause climate change impacts, which cause damage to other states in addition to the emitter state.

Some states, like those in AOSIS, have emitted relatively less GHGs and thus do not claim

responsibility for the majority of climate change impacts.156

And yet, such states face serious

152

Id. at Art. 4, ¶ 8.

153 Id. at Art. 12.

154 JAMES CRAWFORD, BROWNLIE’S PRINCIPLES OF PUBLIC INTERNATIONAL LAW, 275-85 (Oxford

University Press, 7th ed. 2008); PATRICIA BIRNIE, ALAN BOYLE, AND CATHERINE REDGWELL, INTERNATIONAL LAW

AND THE ENVIRONMENt, 143-52 (Oxford University Press, 2009); See generally LEGAL RESPONSE INITIATIVE ‘NO-

HARM RULE’ AND ‘CLIMATE CHANGE’ (2012) available at http://legalresponseinitiative.org/wp-

content/uploads/2013/07/BP42E-Briefing-Paper-No-Harm-Rule-and-Climate-Change-24-July-2012.pdf.

155 Id.

156 See generally, UNOHRLLS supra note 23.


40

threats to their ability to live in their nations. The duty to do no harm in the context of Paris

applies to all nations, but practically (due to emissions) to developed and developing states to not

cause such harm to other states like those in AOSIS.

The Paris Agreement reflects the duty to do no harm impliedly in the context of the

precautionary principle, supra, and the polluter pays principle, discussed infra. This is because

the idea that the impacts of climate change that the precautionary principle addresses in the Paris

Agreement are global impacts and thus, can apply as a transboundary harm. The insertion of

polluter pays principles into the agreement also implies the duty to do no harm, because it

indicates that harms caused by one state to another are impermissible and can be remedied to an

extent if the polluter is liable to the transboundary damages it causes. Finally, the preamble of

the Paris Agreement shows that such a duty is of concern and applies:

Acknowledging that climate change is a common concern of mankind, 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.157

Under the Agreement, Parties are to consider impacts of climate change as a common

concern of mankind.158

As such, all of the considerations such as obligations for human rights,

health, people who live in vulnerable situations, etc., may be considered as obligations to prevent

harm on those various rights internationally. If that is the case, then there is actual and implied

application of the duty to do no harm in the Paris Agreement. Because such duty is binding

customary international law, the obligation to adhere to this principle as stated in the agreement

is also binding.

157

See Paris Agreement, supra note 117, pmbl.

158 Id., emphasis added.


41

d) Polluter Pays

As stated, the polluter pays principle is binding customary international law and its

definition is quite literal – the polluter pays for the damage caused to others as a result of the

pollution.159

This principle is an integral part of the Paris Agreement in the context of “common

but differentiated responsibilities,”160

which calls on all Parties to the agreement to participate

toward the objective of the Agreement, but the manner and degree of participation and effort is

dependent on the state. Specifically, historical and projected large emitters such as the United

States, the EU, and China, face obligations not only to curb emissions but do assist with

financing, development, and adaptation measures for those states which are not the primary

polluters in terms of emissions, and are facing serious threat of harm from climate change

impacts.161

This principle is most clearly presented in Article 4:

3. Each Party’s successive nationally determined contribution will represent a

progression beyond the Party’s then current nationally determined contribution

and reflect its highest possible ambition, reflecting its common but differentiated

responsibilities and respective capabilities, in the light of different national

circumstances.

4. Developed country Parties shall continue taking the lead by undertaking

economy-wide absolute emission reduction targets. Developing country Parties

should continue enhancing their mitigation efforts, and are encouraged to move

over time towards economy-wide emission reduction or limitation targets in the

light of different national circumstances.

5. Support shall be provided to developing country Parties for the implementation

of this Article, in accordance with Articles 9, 10 and 11, recognizing that

enhanced support for developing country Parties will allow for higher ambition in

their actions.162

This is also stated in Article 7 in relation to adaptation measures, and Article 9 in relation to

159

See PHILLIPPE SANDS, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW, Cambridge University

Press 2d. Ed. 2003).

160 See Paris Agreement, supra note 117, at Art. 2, ¶ 2.

161 See Id. at Art. 4, ¶ 3-5.

162 Id.


42

financing. Because the polluter pays principle is binding customary international law, such

provisions in the Paris Agreement as illustrated above are also binding.

C. Sustainable Development Goals:

The United Nations Sustainable Development Goals (“SDGs”) provide governments with

recommendations and expectations for establishing global sustainable development and

eradication of poverty.163

As such, the SDGs are not currently recognized as binding customary

international law, although the SDGs are supported by and are substantively similar to other

international laws that are binding. Because of these similarities, this section of the memorial

argues that the rights protected by the SDGs may also be protected under binding international

law. Through such analogy, SDGs, including those that are directly applicable to issues of

climate change, are supported by binding customary international law and also support the

UNFCCC and the Paris Agreement.

1. SDGs: Purpose, Background, and Force

The UN SDGs were passed on January 1, 2016 as part of the 2030 Agenda for

Sustainable Development.164

The SDGs are not legally binding on their own. However, they

provide governments with recommendations and expectations for establishing national

frameworks for the achievement of the 17 Goals the SDGs lay out.165

The 2030 Agenda places

the primary responsibility for follow-up and review of implementation and progress of the Goals

with the countries utilizing the list.166

Included in the 2030 Agenda and Sustainable

163

The Sustainable Development Agenda, UNITEDNATIONS.ORG,

http://www.un.org/sustainabledevelopment/development-agenda/ (last visited Aug. 15, 2016) [hereinafter

“Agenda”].

164 Id.

165 Id.

166 Id.

http://unitednations.org/


43

Development Goals, is the acknowledgement that the UNFCCC is “the primary international,

intergovernmental forum for negotiating the global response to climate change.”167

High quality,

accessible, and timely data collection on each State’s national attainment of SDGs will inform

the analysis of global effectiveness of the implementation of SDGs.168

The SDGs’ strength comes from principles of customary international law and treaties,

which are reiterated in the language of the goals. Certain provisions of the SDGs are already

provisions of existing international human rights treaties including the right to life and all the

necessities that accompany that right including adequate food, shelter, and equality.169

As the

effects of human induced climate change continue to alter living conditions across the globe, it is

imperative that states address climate change in order to fulfill their existing obligations to

human rights treaties and other treaties of international law to which they are bound. Every state

that has agreed to the UN SDGs has a duty to cooperate as a general principle of international

law.170

The specific sustainable development goals are:

1. End poverty

2. End hunger, achieve food security and improved nutrition and promote sustainable

agriculture

3. Ensure healthy lives and promote well-being for all at all ages

4. Ensure inclusive and quality education for all and promote lifelong learning

5. Achieve gender equality and empower all women and girls

6. Ensure access to water and sanitation for all

7. Ensure access to affordable, reliable, sustainable and modern energy for all

8. Promote inclusive and sustainable economic growth, employment and decent work for all

9. Build resilient infrastructure, promote sustainable industrialization and foster innovation

10. Reduce inequality within and among countries

167

Sustainable Development Goals Goal 13, UNITEDNATIONS.ORG,

https://sustainabledevelopment.un.org/?menu=1300 (last visited Aug. 15, 2016) [hereinafter “SDGs”].

168 Agenda, supra note 163.

169 See SDGs, supra note 167; See Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N.

Doc. A/810 at 71 (1948).

170 Pulp Mills, supra note 41 ¶ 113; Lake Lanoux, supra note 41 at 130.


44

11. Make cities inclusive, safe, resilient and sustainable

12. Ensure sustainable consumption and production patterns

13. Take urgent action to combat climate change and its impacts

14. Conserve and sustainably use the oceans, seas and marine resources

15. Sustainably manage forests, combat desertification, halt and reverse land degradation,

halt biodiversity loss

16. Promote just, peaceful and inclusive societies

17. Revitalize the global partnership for sustainable development171

The SDG list enumerates specific actions States should take to achieve more equitable

development and improved health conditions worldwide.172

In addition to the 17 recommendations of the SDG, the UN also proposed five additional

recommended actions that fall under SDG13, which recommends “urgent action to combat

climate change and its impacts.”173

This is likely due to the UN’s recognition of the broad and

serious threats climate change poses to the successful fulfillment of the SDGs that are aimed at

eliminating, including hunger, poverty, infrastructure, and access to clean water.174

For example,

climate change is affecting and will likely to continue to affect Earth’s water systems causing sea

level rise, increased flooding in some areas and drought in others, glacial melt, and changes to

aquatic environments including ocean warming and acidification.175

These changes will disrupt

agriculture as well as fisheries productivity, cause displacement of entire communities, warmer

temperatures and increased air pollution, and numerous other negative impacts that will

negatively affect human health and wellbeing.176

.

To preserve the possibility for the fulfillment of the other SDG goals, the UN proposed

171

See SDGs, supra note 167.

172 Id.

173 See generally, id.; See also SDGs supra note 167 at Goal 13.

174 See SDGs, supra note 167.

175 Climate Change Impacts, ENVIRONMENTAL DEFENSE FUND, https://www.edf.org/climate/climate-

change-impacts (last visited Aug. 15, 2016).

176 Id.


45

the following five recommended actions for combating climate change under the heading of

SDG 13:

1. Strengthen resilience and adaptive capacity to climate-related hazards and natural

disasters in all countries

2. Integrate climate change measures into national policies, strategies and planning

3. Improve education, awareness-raising and human and institutional capacity on

climate change mitigation, adaptation, impact reduction and early warning

4. Implement the commitment undertaken by developed-country parties to the United

Nations Framework Convention on Climate Change to a goal of mobilizing jointly

$100 billion annually by 2020 from all sources to address the needs of developing

countries in the context of meaningful mitigation actions and transparency on

implementation and fully operationalize the Green Climate Fund through its

capitalization as soon as possible

5. Promote mechanisms for raising capacity for effective climate change-related

planning and management in least developed countries and small island developing

States, including focusing on women, youth and local and marginalized

communities.177

By following the guidelines set forth under SDG 13, States may be able to mitigate the impacts

of climate change and prepare adaptation plans for the health of their communities. The

maintenance of a healthy environment, clean water, access to food, and the right to self-

determination are universal human rights that are already protected under several treaties and

customary international law practices.178

2. Binding Customary International Law with Similar Principles to the

SDGs

A treaty is only binding among its parties. However, in some cases certain provisions

may become binding to all States, even those who were not party to the agreement, by way of

177

See generally, id; See also SDGs supra note 167 at Goal 13.

178 See International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, S. Treaty Doc. No.

95-19, 6 I.L.M. 360 (1967), 993 U.N.T.S. 3 [hereinafter “ICESCR”]; International Covenant on Civil and Political

Rights, Dec. 16, 1966, S. Treaty Doc. No. 95-20, 6 I.L.M. 368 (1967), 999 U.N.T.S. 171 [hereinafter “ICCPR”];

Universal Declaration of Human Rights, supra note 169.


46

customary international law.179

The International Covenant on Economic, Social and Cultural

Rights (ICESCR), the International Covenant on Civil and Political Rights (ICCPR), and earlier

UN General Assembly Resolutions share many of the principles and goals set forth in the

Sustainable Development Goals. The sustainable development goals may be used by states as

guidelines for maintaining their obligations under these treaties and recommended by the UN

through general assembly agreements.180

Furthermore, the SDGs add to a long list of resolutions passed by the UN General

Assembly that provide guidance for states for the benefit of mankind. Many of the General

Assembly resolutions that have evolved over time embody similar, if not identical concepts. The

SDGs provide guidelines and suggestions for achieving favorable outcomes for goals relating to

these concepts including food security, clean drinking water, education, human equality, the right

to nationality and the inherent benefits that accompany these concepts including health and

wellbeing.

a) States are obligated to ensure agricultural stability, adequate food

security, and access to clean water

Access to healthy food and clean drinking water are essential foundations for life. As the

population grows, so too are the affects climate change increasing including drought and

flooding in different regions which is affecting and will continue to impact agriculture, food

179

Flores v. Southern Peru Copper, 343 F.3d 140, 43 I.L.M. 196 (2004) (Accordingly, only States that have

ratified a treaty are legally obligated to uphold the principles embodied in that treaty, and the treaty only evidences

the customs and practices of those States. All treaties that have been ratified by at least two States provide some

evidence of the custom and practice of nations. However, a treaty will only constitute sufficient proof of a norm of

customary international law if an overwhelming majority of States have ratified the treaty, and those States

uniformly and consistently act in accordance with its principles. The evidentiary weight to be afforded to a given

treaty varies greatly depending on (i) how many, and which, States have ratified the treaty, and (ii) the degree to

which those States actually implement and abide by the principles set forth in the treaty.)

180 See ICESCR, supra note 178; ICCPR, supra note 178; Universal Declaration of Human Rights, supra

note 169; SDGs, supra note 169.


47

production, and access to drinking water.181

Goal two, three, and six present suggestions and

timelines for achieving food security, healthy lives, and clean water, and

SDG2 specifically supports the agreements codified in Article 11 of ICESCR. States

which are party to ICESCR are obligated to “recognize the right of everyone to an adequate

standard of living for himself and his family, including adequate food, clothing and housing, and

to the continuous improvement of living conditions.”182

States must take appropriate steps to

make sure this right is realized.

Although SDG 2 is not legally binding on its own, it is a principle to which states are

bound through their ratification of ICESCR. Food and water are essential to a standard of living

which allows the health and well being of all individuals. An adequate standard of living is a

fundamental human right and is also codified in Article 25 of the Universal Declaration of

Human Rights of 1948.183

b) All people have the right to an education

SDG4 focuses on education and the responsibility of States to ensure that all people are

given an inclusive and equitable quality education that allows for lifelong learning.184

SDG4

recommends that by 2030 all girls and boys complete free, equitable and quality primary and

secondary education, have access to quality early childhood development, care and pre-primary

education, States ensure equal access for all women and men to affordable and quality technical,

vocational and tertiary education, including university, states substantially increase the number

181

Climate Impacts on Agriculture and Food Supply, UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, https://www3.epa.gov/climatechange/impacts/agriculture.html#impactsintern (last visited Aug. 19, 2016).

182 See ICESCR, supra note 178.

183 Universal Declaration of Human Rights, supra note 169.

184 Sustainable Development Goal 4, UNITEDNATIONS.ORG, https://sustainabledevelopment.un.org/sdg4

(last visited Aug. 15, 2016) [hereinafter “SDG4”]

https://sustainabledevelopment.un.org/sdg4


48

of youth and adults who have relevant skills for employment, eliminate gender disparity in

education, all youth and most adults achieve literacy and numeracy, and increase the supply of

qualified teachers. Additionally, goal four suggests that by 2030, states should ensure that all

learners: “acquire the knowledge and skills needed to promote sustainable development,

including, among others, through education for sustainable development and sustainable

lifestyles, human rights, gender equality, promotion of a culture of peace and non-violence,

global citizenship and appreciation of cultural diversity and of culture’s contribution to

sustainable development.”185

These education goals further states’ abilities to adapt to climate

change by providing individuals with the knowledge they will need to help maintain their

communities’ health and well-being over time.

Article 26 of the Universal Declaration of Human Rights provides that everyone has the

right to education and access to technical, professional, and higher education.186

By following

the guidelines set forth in SDG 4, states will be meeting their obligation to provide an education

to all persons while preparing their citizens to handle changes associated with climate change

that will impact other human rights.

The right to education was ratified later in the ICESCR and the ICCPR.187

Article 13 of

the ICESCR provides that States recognize that everyone has the right of to education and

respect for human rights, which presumably includes respect for a healthy environment.188

These principles, to which States are bound under Article 13 of ICESCR, extend beyond the

right to education and have impacts on personhood, national identity, access to employment, and

185

Id.

186 Universal Declaration of Human Rights, supra note 169 at Art. 26.

187 ICESCR, supra note 178 at Art. 13; ICCPR, supra note 178 at Art.19.

188 ICESCR, supra note 178 at Art. 133.


49

general well being which are embodied in all of the SDGs.189

c) The right to a nationality and protection from arbitrary loss of

nationality

The right to nationality is a fundamental human right. Climate induced sea level rise is

already threatening the existence of several pacific island nations, including Tuvalu,190

Kiribati,191

and the Marshall Islands.192

While others may not be losing their nations entirely,

catastrophic weather events, severe drought, flooding, and excessive heat are leading many to

seek refuge elsewhere.193

The term “climate refugee” is being used by some, though many

displaced people may not meet all of the criteria to be classified as refugees.194

SDG 13 urges

States to take immediate action to combat climate change. Taking action against climate change

will allow nations to adapt more readily to loss of land and resources.

The Universal Declaration of Human Rights and the International Covenant on Civil and

Political Rights (ICCPR) establish that everyone has the right to nationality, and shall not be

arbitrarily denied of that right.195

As more States become aware of the potential impacts of

climate change to the well being of their citizens and government operations, it is imperative that

States take action to mitigate the harm and adapt so as to meet their obligations under the

189

See SDGs, supra note 167.

190 Disappearing Tuvalu: First Modern Nation to Drown?, WORLDATLAS,

http://www.worldatlas.com/articles/tuvalu-and-climate-change-rising-sea-levels-threatening-pacific-islands.html

(last visited Aug. 15, 2016).

191 Mike Ives, A Remote Pacific Nation, Threatened by Rising Seas, THE NEW YORK TIMES (July 2, 2016),

http://www.nytimes.com/2016/07/03/world/asia/climate-change-kiribati.html?_r=0.

192 Coral Davenport, The Marshall Islands Are Disappearing, THE NEW YORK TIMES (Dec. 2, 2015),

http://www.nytimes.com/interactive/2015/12/02/world/The-Marshall-Islands-Are-Disappearing.html.

193 Climate Change and Disasters, UNHCR, http://www.unhcr.org/en-us/climate-change-and-disasters.html

(last visited Aug. 19, 2016).

194 Id.

195 Universal Declaration of Human Rights, supra note 169 at Arts. 15, 27, 28; ICCPR, supra note 178 at

Arts. 1, 12, 24.


50

aforementioned treaties. Failing to adhere to SDG 13 and failing to take action on climate

change will likely lead to loss of terrestrial resources in many areas, creating an inability for

citizens to return to their home countries. Article 12 of ICCPR provides that “no one shall be

arbitrarily deprived of the right to enter his own country.”196

If States have knowledge of the

likely loss of land and resources that make areas viable for life will increase as climate change

worsens, and fail to act, it may be deemed that this loss of country is similar to a loss of

nationality and home land. Furthermore, this loss of nationality may be deemed arbitrary if there

is something that could have been done to mitigate the loss, such as following the suggestions set

forth in SDG 13. Climate change will affect different regions and persons in different ways, and

States will need to react appropriately to protect the rights of men, women, and children to

ensure that everyone is still afforded their basic human rights.

d) All people regardless of sex, religion, nationality or status are

equal and shall be afforded the same rights and opportunities

The concept of equality is prevalent throughout the SDGs as well as the international

human rights treaties. Article 3 of the Universal Declaration of Human Rights provides

specifically that everyone has the right to life, liberty, and security of person. As such, each

person’s right to self-realization, dignity, and development as a human being is incorporated

throughout human rights treaties and general assembly resolutions, regardless of their gender,

religion, nationality, or age.197

Article 25 of the declaration states that all persons are entitled to

a standard of living that provides adequate health and wellbeing, with motherhood and childhood

being entitled special care and assistance.198

Recognizing that women and children will be more

196

ICCPR, supra note 178 at Art.12.

197 See ICESCR, supra note 178; ICCPR, supra note 178; Universal Declaration of Human Rights, supra

note 169.

198 Universal Declaration of Human Rights, supra note 169 at Art. 25.


51

greatly affected by climate induced changes, the sustainable development goals include goal 5,

gender equality, as well as references to equality as part of the subset of the objectives for other

goals.199

Part II Article 2 of ICESCR provides that the rights enunciated in the treaty will be

“exercised without discrimination of any kind as to race, colour, sex, language, religion, political

or other opinion, national or social origin, property, birth or other status.” Article 3 goes n to

state further that the States will ensure that men and women have equal right to the enjoyment of

all economic, social and cultural rights set forth in the covenant.200

This enumerated right is

echoed in the targets of SDG 5, which suggests that States “end all forms of discrimination

against women and girls everywhere.”201

The ICCPR holds the same principles in regards to the

equality of men and women as expressed through Part II Article 2, 3, 16, 24, and 26. Article 2

states that all persons are entitled to equal rights “without any distinction of any kind.”202

States

have a duty to ensure men and women both receive equal treatment and equal access the

necessities for life. As climate change affects weather patterns, disrupts agriculture, and forces

migration, it will be imperative that women are given equal opportunity to adapt, which may

require additional accommodations. States are obligated under both ICESCR and ICCPR to

provide equal protections of the law to men and women. 203

3. Practical implications of SDGs on states’ responsibility to address

climate change:

199

SDGs, supra note 167 at Goals 1-6, 13, 16; Women, Gender Equity, and Climate Change, UNITED

NATIONS WOMEN WATCH, http://www.un.org/womenwatch/feature/climate_change/ (last visited Aug. 15, 2016).

200ICESCR, supra note 178 at Part II, Arts. 2-3.

201 Sustainable Development Goal 5, UNITEDNATIONS.ORG, https://sustainabledevelopment.un.org/sdg5

(last visited Aug. 15, 2016) [hereinafter “SDG5”].

202 ICCPR, supra note 178 at Part II, Art. 2.

203 ICCPR, supra note 178 at Part II, Art. 2.


52

The sustainable development goals function as guidelines for meeting human rights

obligations in the face of climate change and operate to support the principles enumerated in the

Paris Agreement of the United Nations Framework Convention on Climate Change

(UNFCCC).204

The UN General Assembly in the 2030 Agenda for Sustainable Development

acknowledges that the United Nations Framework Convention on Climate Change is the primary

international, intergovernmental forum for negotiating the global response to climate change.”205

In addition, as stated above, many of the SDGs are actually enforceable in principle under other

binding international laws. Because those goals contribute toward the preservation and

improvement of rights of all people, they are relevant in the climate context and support any

arguments and laws that aim to mitigate climate change impacts and improve adaptation

responses.

VI. THE LAW OF STATE RESPONSIBILITY IS APPLICABLE TO CLIMATE

CHANGE

The Articles of State Responsibility affirm that “[e]very internationally wrongful act of a

State entails the international Responsibility of that State.”206

The internationally wrongful act of

a State consists in an action or an omission which “(a) [i]s attributable to the state under

international law and (b) [c]onstitutes a breach of an international obligation of the state.”207

The

law of State responsibility applies to all binding obligations of international law, which includes

environmental principles, including climate change. Several small island developing States took

204

See SDGs, supra note 167; See Paris Agreement, supra note 117.

205 https://sustainabledevelopment.un.org/post2015/transformingourworld Number 59; SDGs

206 ILC, Draft Articles on Responsibility of States for Internationally Wrongful Acts, in: Report of the

International Law Commission on the work of its Fifty-third session, Official Records of the General Assembly,

Fifty-sixth session, Supplement No. 10 (A/56/10), chp.IV.E.2, art. 1 (Hereinafter “ILC, Articles on State

Responsibility”).

207 Id. at Art. 2.

https://sustainabledevelopment.un.org/post2015/transformingourworld


53

the precaution of declaring formally that the UNFCCC and the Kyoto Protocol in no way

constitute a renunciation of any rights under international law concerning state responsibility for

the adverse effects of climate change, and that no provisions in the Convention could be

interpreted as derogating from the principles of general international law. 208

The law of State responsibility is applicable to climate change when a State breaches its

treaty obligations, especially when a State does not comply with its commitment to limit or

reduce its greenhouse emissions under the UNFCCC and the Kyoto Protocol.209

A

complementary ground can be found in treaty obligations, specifically the obligation to combat

pollution of the marine environment.210

Climate change causes serious harm to human societies.211

The damages suffered by

human societies are a result of environmental phenomenon that depend on a multitude of

political, social, and economic proxy factors. Therefore, the no harm principle is best invoked, in

the context of climate change, as an obligation owed to the international community as a

whole.212

A State responsible for a continuing breach of an international obligation is mainly under

two obligations: to cease wrongful acts and to make full reparations.213

Article 54 of the ILC,

Articles of State Responsibility concluded that a breach of an obligation owed by the

208

See e.g. UNFCCC, supra note 31 at 317-318 (Declarations of Kiribati, Fiji, Nauru and Tuvalu upon

signature of the UNFCCC).

209 On the obligation of States to mitigate climate change, see UNFCCC, supra note 31 at 107, recital 2, art.

4; Kyoto Protocol, supra note 110 at 148, & Art. 3 ¶ 9 (the Doha Amendment).

210 See UNCLOS, supra note 40 at Art. XII.

211 See generally, INTERNATIONAL PANEL ON CLIMATE CHANGE, SUMMARY FOR POLICYMAKERS, CLIMATE

CHANGE 2014: IMPACTS, ADAPTATION, AND VULNERABILITY (2013), available at

http://www.ipcc.ch/pdf/assessment-report/ar5/wg2/ar5_wgII_spm_en.pdf. [hereinafter “IPCC Impacts Report”].

212 ILC, Articles on State Responsibility, supra n.206, at Arts. 42(b) and 48.1(b).

213 Id. at Arts. 30 and 31.


54

international community as a whole, “to take lawful measures against that State to ensure

cessation of the breach and reparation in her interest of the injured State or of the beneficiaries of

the obligation breached.” In addition, a recent study concludes that, “present-day international

law recognizes a right of all States, irrespective of individual injury, to take countermeasures in

response to large-scale or systematic breaches of obligations erga omnes”.214

A. Obligation to cease an internationally wrongful act and international action

on climate change mitigation

The Articles on State Responsibility provides that “[t]he State responsible for the

international wrongful act is under an obligation […] to cease that act, if it is continuing.215

States responsible for failing to prevent excessive greenhouse gas emissions within their

jurisdiction must act without unreasonable delay to reduce these emissions. The UNFCCC,

which was adopted shortly after the achievement of a scientific consensus on the anthropogenic

causes of climate change,216

requires each developed country party to “adopt national policies

and take corresponding measures on the mitigation by limiting its anthropogenic emissions of

greenhouse gases and protecting and enhancing its greenhouse gas sinks and reservoirs.”217

In

addition, the Kyoto Protocol attributed individual quantified emissions limitation and reduction

commitments to each developed State for a first commitment period from 2008 to 2012.218

The

Doha Amendment defines a second commitment period from 2013 to 2020.219

Developing

214

CHRISTIAN TAMS, ENFORCING OBLIGATIONS ERGA OMNES IN INTERNATIONAL LAW 250 (Cambridge

Univ. Press, 1 ed. 2010).

215 ILC, Articles on State Responsibility, supra note 206, at Art. 30(a).

216 See generally SPENCER WEART, THE DISCOVERY OF GLOBAL WARMING (Harv. Univ. Press, 2

nd ed.

2008).

217 UNFCCC, at Art. 2(a).

218 Kyoto Protocol, supra note 110, at Art. 3(1).

219 Status of the Doha Amendment, UNFCCC,

http://unfccc.int/kyoto_protocol/doha_amendment/items/7362.php (last visited Aug. 15, 2016) (As of Aug. 1, 2016,


55

States have some obligations to “implement measures to mitigate climate change”220

under the

UNFCCC and the Kyoto Protocol, although these obligations are less demanding, given the

lesser degree of responsibility of developing States.

B. Obligation to make full reparation and international action on climate

change adaptation

State responsibility may be applicable in the context of climate change when a state

breaches its international obligations, particularly when a state does not comply with a

commitment to reduce greenhouse gas emissions. The Articles on State Responsibility provide

that “[t]he responsible State is under an obligation to make full reparation for the injury caused

by the internationally wrongful act” 221

through restoration, compensation, or satisfaction. Article

48 of the ILC’s Articles on State Responsibility also recognizes that, following the breach of an

obligation owed to the international community as a whole, any State is entitled to claim “the

performance of the obligation of reparation in accordance with the preceding articles, in the

interest […] of the beneficiaries of the obligation breached”.222

The interest in the good

administration of justice requires that innovative means of distributing compensation to the

“international community” be conceived to ensure reparation to breaches of an obligation due to

the international community as a whole when restitution is not materially possible.

VII. CONCLUSION

AOSIS submits this memorial in response to The Court’s invitation for interested parties

only 66 States have deposited their instrument of acceptance of the Amendment, whereas 143 acceptances are

required for the amendment to enter into force. Nevertheless, ¶ 5 of Decision 1/CMP.8 encourages the parties to

implement the Amendment pending its entry into force. See UNFCCC, Doha Amendment to the Kyoto Protocol ¶ 5

(2012), available at http://unfccc.int/files/kyoto_protocol/application/pdf/kp_doha_amendment_english.pdf.

220 UNFCCC, supra note 31 at Art. 4.1(b); See also, Kyoto Protocol, supra note 110 at Art. 10

221ILC, Articles on State Responsibility, supra note 206, at Art. 34.

222 Id. at Art. 48(2).


56

to submit memorials in response to the question: “what is the responsibility under international

law of states to address the global climate crisis for the benefit of present and future generations

of humankind,” to aid the ICJ in its the advisory opinion to the UNGA under Res/70/xxx. In this

memorial, AOSIS submitted that customary international law principles are applicable to

international environmental law and are binding. More specifically, AOSIS submitted that three

instruments of international law – UNCLOS, the Paris Agreement, and the UN SDGs – embody

the binding principles of customary international law of the precautionary principle, the duty to

cooperate and notify, the duty to do no harm, and the polluter pays principle. Because these

legal instruments are comprised of binding principles of customary international law, and

because they clearly pertain to environmental and human rights issues that are and will be

negatively impacted by climate change, UNCLOS, the Paris Agreement, and the UN SDGs all

represent the obligation of states to address climate change. The law of state responsibility

provides enforcement mechanisms for these legal instruments by requiring cessation of

intentional wrongful acts and violations of the law, and reparations, and is similarly applicable to

climate change issues.

AOSIS members have contributed relatively small amounts of the greenhouse emissions

causing the adverse impacts of climate change, but are disproportionally impacted. As a result of

anthropogenic GHG emissions, primarily from developed countries, AOSIS members face the

threat of irreparable and irreversible losses as their coastal waters produce less, their lands

recede, and their very statehood and lives loom in the balance. AOSIS urges the ICJ to consider

this memorial and enforce these obligations upon the international community for the very

survival of its people and future generations of the world.

written submission on behalf of aosisblog.hawaii.edu/elp/files/2016/04/aosis-memorial.pdf ·...

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