THE HAGUE – The International Court of Justice (ICJ) holds public hearings in the advisory proceedings on Climate Change – Saint Vincent and the Grenadines; Samoa; Senegal; Seychelles and The Gambia International Court of Justice Date: 11 December 2024 Language: English Transcript: https://transcripts.un.org/en/asset/k1d/k1dr8g5crg Transcripts available through this tool are created by using automatic speech recognition and are not official records nor official documents of the United Nations. Official records and official documents are available on the Official Document System of the United Nations. --- ICJ · President [0:58]: Good morning. Please be seated. The sitting is now open. The Court meets this morning to hear Saint Vincent and the Grenadines, Samoa, Senegal, the Seychelles, and the Gambia on the questions submitted by the United Nations General Assembly. Each of the delegations has 30 minutes at its disposal for its presentation. The Court will observe a short break after the presentation of Senegal. I shall now give the floor to Mr. Edmund Jackson, speaking on behalf of Saint Vincent and the Grenadines. Saint Vincent and the Grenadines [1:58]: Mr. President, Madam Vice President, Honorable Judges of the Court, my name is Edmund Jackson, and I have the honor to introduce the delegation of Saint Vincent and the Grenadines in these advisory proceedings, as this is our first ever appearance at the International Court of Justice. Ms. Sharnell Hadaway will address, among other things, the impacts of climate change, climate finance, and the right to self-determination, after which Dr. Justin Sobien will speak to the no-harm rule and the obligation of states to protect the atmosphere. But before these submissions, Mr. President, we are going to take you to our beautiful island. through a three-minute video entitled the race survival versus death and debt which highlights the devastation caused by extreme weather events including most recently on the 1st of July 2024 2024 when our multi-island state was ravaged by the category four hurricane barrel which left some of our islands unrecognizable and thousands of families homeless. Mister President, with your leave, we will now play that video submitted to the court and then invite Michelle and Hardaway to take the floor. I thank you. ICJ · President [3:36]: Thank you. Saint Vincent and the Grenadines · Chancellor [6:39]: Madam Vice President, honorable members of this court, this video depicts our race for survival, climbing the metaphorical ladder of death and debt. Our climate injustice. These are the realities that haunt us. Greetings to this honourable court from my runa, land of the blessed, St. Vincent and the Grenadines. or in the indigenous language of our Garifuna people, Yuramey, means our homeland. They are the descendants of the cohabitation which occurred during slavery of our local Arawak population and the enslaved Africans seeking refuge. Ironically, due to colonization in the 1700s, our ancestors were exiled to Batouay and Balisou. As such, the 1700s, we suffered the loss of our people. We suffered the loss of our culture and our traditions. This wicked problem of climate change, as we deem it in the environmental world, is colonization on repeat. Let us never forget who bears the historical responsibility. To tackle an issue, we must go not to the symptoms, but beyond to the root cause. The 2022 working group, two reports of the IPCC marked a shift in the discourse by explicitly identifying colonialism as both a historical and current contributor to this climate crisis. the first reference to the influence of colonialism in the 30 years of its existence. Yet some question why our calls for reparation. The topography of the island, coupled with the socioeconomic conditions, render St. Vincent and the Grenadines highly susceptible to climate-related impacts. we have faced significant economic and social impacts from natural disasters in many years. Despite our rank on the World Risk Index, determined by exposure and vulnerability, for 2020 and 2021, at 179th and 138th respectively, apparently deemed comparatively low risk, the recent spike in environmental disasters have proven the metrics used to calculate vulnerability questionable. For context, in 2010, Hurricane Thomas caused an estimated 49. 2 million US dollars in loss. Affecting over 5000 residents. In two thousand and 21, Hurricane Elsa displaced over 200 residents caused an additional 14 million US dollars in damages, further exacerbating my country's vulnerability to climate related disasters. Mr. President, Madam Vice President, this honorable court, I will now address the applicable law. It is important to note that the UNFCCC and the Paris Agreement entered into force in 1994 and 2016, respectively, whereas the relevant conduct has persisted for over a century prior. Therefore, this has long involved taking into consideration treaty law and general international law, including customary international and jus cogens, particularly given the dynamic nature of climate change, marked with progression according to the best available science. This approach promotes the united development and implementation of international law, guaranteeing consistency among the various legal obligations imposed on States. As such, our submission firmly refutes the lex specialis arguments proffered by some States, and more so, the legal principle of lex posterior derogat priori. the Paris Agreement, the Kyoto Protocol, and the UNFCCC in no way supersede or displace these existing frameworks. But, I say, it works in tandem to offer a holistic perspective aligned with the ICHL's pronouncement that simply complying with the obligations and commitments under the Paris Agreement would not and I say not, satisfy the UNCCLOS obligations. This submission asserts that states bear an obligation under international law to act responsibly in mitigating climate change and its adverse effects. The failure, Mr. President, of the fossil fuel giants to demonstrate political will and provide adequate support to us even under the UNFCCC process made under the lex specialis arguments, constitutes a breach of these obligations. Climate change disproportionately impacts us, undermining fundamental rights enshrined in international law, including the right to self-determination and the permanent sovereignty of peoples over their natural resources. As Madam Vice President, Sebon Tindi, in the separate opinion on legal consequences of the separation of Chagos Archipelago from Mauritius in 1965, enunciated, the right to self-determination within the context of decolonization has attained pre-emptory status, jus cogens, whereby no derogation therefrom is permitted. as a direct corollary of that right is the ergo omnes obligation. Likewise, St. Vincent and the Grenadines, we submit that the principle ought to be transposed to be directly applicable within the climate change sphere, given the prevalence of sea level rise and climate-induced mobility. The preservation of sovereign and jurisdictional rights, it is not only a uniquely legal issue, fairly squarely falling within the court's jurisdiction, but one of significant systematic importance. However, as AOSIS has put forward in written submissions, even with the disappearance of a state's terrestrial space, statehood persists and thus the duty of cooperation of states to ensure that the sovereignty afforded to since in the aftermath is more than a mere title. Yet it begs the questions, what is right to life without the quality of life and its natural environment? What is a land without its people? What is a land without its tradition and culture? In the case of my homeland, Hurricane Beryl displaced over 1,600 persons, thus creating who I deem climate refugees, ripping them from their homes, ripping them from their culture, their loved ones. In essence, it pertains to the adaptation of the international legal framework in response to physical changes brought about by harmful anthropogenic activities to adequately address climate refugees. Its devastation, described as "Barry's Armageddon," category four, exemplifies the ongoing threat we face. Who feels it, knows it. It inflicted direct economic damages equivalent to 22% of Saint Vincent and the Grenadines annual GDP for 2023. This makes Hurricane Beryl one of the costliest hurricanes on record in Saint Vincent and the Grenadines. The Caribbean region, often described as the canary in the coal mine of this climate crisis, we bear witness to the intensification of extreme weather events. Hurricane Beryl, it shattered historical records. This unprecedented phenomenon underscores the urgency of addressing the systematic inequities in the global climate response. Despite the increase in severity and frequency of climate-related disasters, International financial institutions remain inadequately aligned to address our financial needs. Recovery and rebuilding efforts in Saint Vincent and the Grenadines are delayed by bureaucratic international processes with funding for reconstruction often taking years to materialize. A stark contrast to the pace of recurring disasters. This failure perpetuates systematic injustice. As our Honorable Prime Minister, Dr. Ralph Egonsave, aptly stated, the global response resembles, and I quote, going up the down escalator, end quote, highlighting the inequity and the unsustainability of the current political economy. It is unfair, it is unjust. States have an unequivocal obligation to act responsibly in addressing this crisis, recognizing their historical contributions to the problem and their capacity to mitigate its impacts. The failure to provide support to vulnerable nations constitutes a violation of international law and an affront to the principles of equity, justice and human rights. This court is called upon to affirm these obligations, to hold these states accountable and their actions and inactions regarding climate change, ensuring a just and sustainable future for all, including our future generations. The concept of climate debt and the principle of CBDRRC enshrined in Article 3, Sub-Article 1 of the UNFCCC, collectively emphasize the inequities in the responsibility for addressing the climate crisis. Over the past 150 years, the Global North have been responsible for 92% of surplus emissions, 92, with two major blocks contributing 69%. St. Vincent and the Grenadines contributes a negligible less than 0.01% of that share. Not even 1% yet. Devastation is our portion. Together, these frameworks call upon high emitting countries to contribute their fair share in reducing emissions and providing support to lower income nations to avert and address these adverse impacts of climate change in alignment with principles of equity and justice. The vulnerable, we firmly demanded 1.3 trillion per annum by 2035 from historic emitters at COP29, but developed nations balked with a paltry promise of 300 billion by 2030. Lest I say, Do not wait with bated breath as the trend mirrors empty pledges, annual talk shops, arguably raising the question whether is it really still fit for purpose? Developing and middle income states face significant limitations in addressing this crisis as a substantial portion of their GDP is allocated to debt servicing. and rebuilding following climate disasters. It's a cycle. Multilateralism is required to effectively tackle climate change, as it is a multi-dimensional ticking time bomb waiting to explode. As observed, the global financial structure remain remnants of imperialistic inequities, with borrowing costs markedly disproportionate. the Global North can secure financing at interest rates of 1% to 4%, while the Global South faces rates of 14%. That is preposterous. Such disparities significantly undermine the efficiency of certain initiatives. Hence, the important calls for reparations, the urgent support in finance, technology transfer, unfulfilled pledges for the loss and damage fund and capacity building to address adaptation across SIDS. These arguments are supported through the work of COSIS. Mr. President, Madam Vice President, this honourable court, I yield the floor to our external counsel, Dr. Sobien. ICJ · President [21:30]: I thank Madam Chancellor Hathaway. I now give the floor to Mr. Justin Sobien. Saint Vincent and the Grenadines · External counsel [21:40]: Mr. President, Madam Vice-President, Honourable Judges, it is an honour to appear before you once again. We have heard many arguments on the no harm rule, and one of the aims of this submission is to clarify the scope and applicability of this rule to this advisory opinion. There is no doubt that the no harm rule is well established. This customary law obligation goes as far back as the Corfu Channel case, which confirms that every State has an obligation not to knowingly allow its territory to be used for acts contrary to the rights of other States. The no-harm rule addresses how sovereigns must act in relation to the legal rights of other States and their populations. The obligation of ensuring that state activities within their jurisdiction do not cause damage to the environment of other states is also enshrined in both the Stockholm and Rio declarations. I would also like to add the Institut de droit international in its resolution on the environment, which provides that every state has the responsibility to ensure that activities within its jurisdiction or under its control do not cause damage which may affect the lives of the present and future generations. We therefore agree with St. Lucia that the no-harm rule existed long before the UNFCCC and the Paris Agreement. St. Vincent and the Grenadines aligns itself with the oral submission made by Nauru on the general rule laid down in the Corfu Channel case, and that rule is: While the territory remains under the sovereignty of a state, it cannot be used in a way which may cause damage to other states. Any such action or negligence in this regard will result in international responsibility. Mr. President, it is a flawed argument that the no harm rule does not apply to greenhouse gases because they are diffuse or come under a wide range of activities. Yesterday, this court heard arguments from the United Kingdom to the effect that the no harm rule is limited to smelter fumes, the potential use of nuclear weapons, and the discharge of effluent into a transboundary river. The fact that this is the first time that greenhouse gas emissions have come before this honourable court, it is not an automatic bar to its applicability to the no harm rule. The scope of the no harm rule is evolutionary and not static. In this 21st century, the Court must keep up with the new circumstances and transboundary threats, such as climate change, which affect vulnerable small island developing states. If this Court accepts the argument that greenhouse gas emissions do not apply to the no harm rule, that will give the largest polluters a free pass. a free pass to continue and exacerbate the climate crisis. We therefore urge this honourable court to apply the no harm rule to this advisory opinion. I now turn to the issue of the concept of a common concern of humankind and how it relates to the climate change as well as the atmosphere. The UNFCCC provides that the change in the earth's climate and its adverse effects are a common concern of humankind. The convention goes on to recognize that the atmosphere is a critical component of the climate system. The Paris Agreement, on the other hand, acknowledges that, and I quote, "Climate change is a common concern of humankind," end of quote. But what exactly does a common concern of humankind mean? This court is positioned, it has the ideal opportunity to clarify the meaning of this term, especially as it is contained in the very climate treaties that major emitters claim are the only relevant law for the purposes of this advisory opinion. According to Shelton, an eminent American publicist, common concerns establish a general basis for the concerned community to act. A common concern of humanity means that a subject is no longer under the exclusive jurisdiction of any one state and it requires international action. Taylor, a New Zealand jurist, opines that a common concern of humankind, or CCH, can apply to global ecological concerns which occur beyond the national jurisdiction of states, such as the climate and its adverse effects. A Swiss jurist found that the common concerns of humankind are inherently transboundary and potentially affect all of humanity. Invoking humankind to common concern, therefore, depicts the commonality and collective responsibility of States. Consado Trinidad, a former judge of this Court, explained extra-judicially that the common concern of humankind embodies universal solidarity and social responsibility. It emanates from the human conscience. and reflects the basic values of the international community rather than state interests. In whaling in the Antarctic, this court, relying on the work of a UNEP group of legal experts, also examined the constitutive elements of the common concern of humanity, which include the involvement of all countries, all societies, as well as present and future generations. To sum up, a common concern centres around a specific problem, such as climate change, and implies an urgency on the international community to act. Based on the views expressed under international law, climate change falls squarely within the parameters of a CCH. As it specifically relates to the atmosphere, scientists have long warned that the earth's climate is changing rapidly due to the increasing concentrations of anthropogenic greenhouse gases. The atmosphere, one of our global commons, also lies outside the national jurisdiction of any state. The atmosphere is res nullius, nobody's thing. As a result, we align ourselves with Kiribati's statement that no state owns the atmosphere. Since no state owns the atmosphere, states do not have an absolute right to use the atmosphere as their personal dumping ground. In other words, no state has absolute sovereignty over the atmosphere. To the contrary, when it comes to the atmosphere, sovereignty must be couched in the language of responsibility. Sovereignty as responsibility means that states have to be accountable to both the domestic and the international community. We therefore invite this court to recognize that states have a collective responsibility to the atmosphere and that state behavior towards it cannot go unchecked. This is simply because anthropogenic greenhouse gases emitted into the atmosphere are harmful and continue to cause injury to present and future generations. The ILC Special Rapporteur on the protection of the atmosphere recommended that the protection of the atmosphere from atmospheric pollution and degradation is a common concern of humankind. The report added that the atmosphere should be utilized in an equitable and reasonable manner, taking into account the interests of present and future generations. This rule is also consistent with the UNFCCC, which requires states parties to protect the climate system for the benefit of present and future generations. This court, in both Pulp Mills and Whaling in the Antarctic, has acknowledged that intergenerational equity forms part of the conventional wisdom of international environmental law. In other words, when it comes to the state's obligation to protect the atmosphere from harmful greenhouse gas emissions, it must have regard to future populations. Based on the foregoing, we urge this court to find that the atmosphere is a common concern for humankind. As a common concern for humankind, states have an obligation to protect it. To fulfill this obligation, states have a responsibility to collectively act as trustees for the atmosphere. Mr. President, Judge Weremantree could not have said it better. The principle of trusteeship of the earth resources is the first principle of modern environmental law. On this, we align ourselves with the position of Grenada on its oral submissions. Mr. President, since our delegation is the last Caribbean country to address you in these proceedings, it would be remiss of me to not make this closing remark. We are proud of our other nine sister Caribbean islands. who have addressed this Corps, some for the very first time, including Saint Vincent and the Grenadines. We are confident that the impact of climate change in our region has not fallen on deaf ears. The journey continues. Mr. President, I thank you. ICJ · President [31:26]: I thank the representatives of Saint Vincent and the Grenadines for their presentation. I now invite the delegation of Samoa to address the Corps, and I call Ms. Eseta Anue Masimi to the podium. Samoa · Head of Ministry of Foreign Affairs and Trade [31:50]: Mr. President, Madam Vice-President, distinguished members of the Court, I am honoured to address this Court on behalf of the Government and people of the Independent State of Samoa. Samoa is a small island developing state in the blue Pacific continent, with more than 70% of its population living in coastal ancestral villages and more than 80% of our land a customary. Land and the ocean are central to Samoan culture and are also the basis of people's sense of belonging and inheritance. Village boundaries were marked by the age-old banyan trees on the mountain ridges and extend to the protruding reef. Such are the values that make a distinct people, where our history, traditions, identity, livelihoods and everyday lives are intimately connected to our precious island ecosystem, underpinned by our unique, communal fasamo culture and traditions. Our geographical isolation and insularity no longer shields or protect us from the increasingly complex and dynamic security challenges. The rules-based international system is being bent out of shape. Gone were the days when we took only what we needed from our environment, when we were a lot more conscious of the importance of our cultures and distinctive values. Then we did not worry much about borders because the original migrations of our peoples defined for us our ocean space and place. Unfortunately, the important connection makes us particularly vulnerable to the adverse effects of climate change. Over the past decades, we have witnessed more frequent and intense storms and cyclones, which left a trail of destruction in its wake. Homes flattened, lives lost, food crops destroyed, and constant threats to relocation. The reality of climate change and increased severity of disasters mean Many communities are at risk of losing traditional homelands as rising sea levels, king tides and storm surges wash away the shoreline. Inland communities experience landslides, leaving them devoid of safer and more disaster-resilient land. Regrettably, continuous inaction means detrimental effects on all aspects of Samoan life. As the majority of the submissions have highlighted, for islands like Samoa, climate change is more than an environmental issue. It is a health, food security, economic, social, cultural, human rights, and security concern. As large ocean states, it fundamentally affects our ability to draw sustenance from the pristine oceans and seas that surround us. Climate change continues to challenge our resolve in the development of a people and nation. We continue to pay the heaviest price for a crisis we did not create. We hope the court will not ignore the majority of the voices making this point. Even with our most ambitious nationally determined contributions, the impact is minimal. As we patiently wait for more ambitious commitments to significantly curb anthropogenic greenhouse gas emissions, we are told climate change impacts are bound to intensify, reducing the habitability of small island states even under the lowest global emission scenario of 1.5 degrees. Where is the justice in this? Mr. President and members of the court, we therefore endorse and echo the voices of the record number of small island developing states, especially those from the Pacific, that have appeared before you to argue that the harm inflicted upon us is not an unfortunate accident. It is the foreseeable result of actions taken and not taken by those who have long known the consequences of their conduct. Decades of scientific warnings and our advocacy have been ignored in favor of short-term economic, and political interests. The principle of prevention and the duty of due diligence has been cast aside, violating international law and neighborly responsibility. This case is about the violation of our fundamental human rights as much as it is about environmental degradation. The two cannot and must not be separated. Human well-being and dignity are related to environmental health and sustainability. The right to self-determination, a peremptory norm of international law, is being violated. The verities that make us Samoan are under assault. Our chiefly system, which is also a system of land and ocean governance, becomes untenable in the face of ecological collapse at a village and at a national level. And this could lead to instability. International law is not indifferent to our plight. We are here to demand justice simply by asking this court to apply the various international obligations to the conduct which has occurred over time and is known to cause significant harm to the climate system and other aspects of the environment, Samoa and our blue planet. The processes that have caused such immense harm must be corrected. It is not enough to discuss future reductions in emissions while current practices continue unabated. There must be an immediate cessation of activities that continue to damage the climate system and worsen our current situation. Mr. President and members of the court, Samoa has no regular military forces, doesn't belong to a military grouping, and has only a small, unarmed civilian police force. Its only defense and shield against any threats is the rule of law and international justice. Regional and national stability has never been more critical in order to maintain peace and security, prosperity and well-being of all Pacific peoples. Samoa appearing before the Court for the first time in its history is a testament to the confidence we have in this World Court and the seriousness of the case at the heart of these proceedings. Many of us, therefore, are counting on this Court to hear the voices of the masses versus the few. Let us not allow history to record that when faced with the clear and present danger to entire nations and cultures, we failed to act decisively. so that our people and their special relationships to their lands, seas, and environment were unjustly sacrificed for political convenience. Let this moment be a turning point where words are transformed into action, where legal principles are translated into economic measures, and where justice prevails over inertia and destruction. The eyes of the world are upon us, and the stakes are nothing less than the survival of peoples, cultures, and the integrity of our shared planet. Mr. President, I thank you for your attention. I now respectfully request that you invite Ms. Sua Helene Walwork to take the floor. ICJ · President [41:24]: I thank Ms. Pasetanoa Misimi, and I'll give the floor to Ms. Sua Helene Walwork. Samoa · Attorney-General [41:34]: Mr. President, Madam Vice-President, distinguished members of this Court, my name is Suah Helene Wallwork, and I am the Attorney-General of Samoa. It is my privilege to address the Honourable Court on behalf of Samoa, together with my colleague, the head of our Ministry of Foreign Affairs and Trade. Samoa has filed a detailed written statement in these proceedings, we also subsequently filed detailed written comments. The submissions we present this morning reaffirm our written submissions. In the interest of time, we make use of this opportunity to highlight some key points from our written submissions and to address some of the oral submissions that have been presented by other parties at this hearing. Samoa's position is clear. all states do have obligations under international law to protect the climate system and other parts of the environment from harmful anthropogenic emissions of greenhouse gases, or GHGs. Samoa respectfully urges this Honourable Court to issue an advisory opinion that confirms and clarifies these legal obligations are binding on all states to protect our environment for our current and future generations. For brevity in these oral submissions, I will use the term "conduct" to refer to the individual and cumulative releases of GHG emissions over an extended period of time from activities under the jurisdiction or control of particular states that result in significant harm to the environment. It goes without saying that when a state fails to comply with binding legal obligations, there must be legal consequences under the accepted general rules of state responsibility. A positive advisory opinion from this court would mark, in my respectful view, the most significant progress to date in our global action against climate change. Mr. President, these submissions will focus on three main topics, namely: a) the legal obligations that apply to the conduct; b) the impact of the conduct on fundamental human rights, including the right to self-determination; and c) the legal consequences for failing to comply with the legal obligations. the legal obligations that apply to the conduct. It is indisputable that the conduct at issue here amounts to a serious violation of multiple international obligations designed to prevent precisely the kind of harm now befalling on Samoa. Many of these obligations are identified in the chapeau paragraph of the operative part in the General Assembly's request for the advisory opinion. Some states have sought to narrow the applicable legal obligations to the United Nations Framework Convention on Climate Change, or the UNFCCC, and the Paris Agreement. They do so in two ways. First, some states rely on the principle of lex specialis. Second, other states argue that the UNFCCC and the Paris Agreement are not lex specialis, but have a central or primary role. Yet these countries also acknowledge the shortcomings of these agreements. For example, the submissions from Australia noted that the parties are not currently on track to achieve the goals of the Paris Agreement. This is already raising alarm bells for the vulnerable small island states such as Samoa, who are already experiencing significant harm. Our written submissions have set out in detail the legal arguments as to why the principle of lex specialis does not apply here. We note and endorse the arguments presented by various other parties that multiple international obligations are applicable to the issue before the Court and should be the focus of the advisory opinion to be provided by this honourable Court. Certain States have described the climate change agreements as the primary source of international obligations concerning climate change, or as central, or at the heart of the law on climate change. But what do these terms mean? We in Samoa cannot help but think that this language is being used to insinuate that the Paris Agreement covers the field. This is lex specialis by another name. Samoa respectfully submits that the UNFCCC and the Paris Agreement are not the only, nor even the primary or central obligations under international law that apply to the conduct, for three reasons. Firstly, The ratione temporis application of these instruments is limited to the period after March 1994 and November 2016, when the UNFCCC and the Paris Agreement, respectively, came into force. Yet, the conduct by the responsible states which is driving climate change took place long before this time. This fact is also indisputable. and well supported by science and numerous internationally accepted reports. Second, states had the requisite knowledge about climate change well before the UNFCCC and the Paris Agreement. Since at least the 1960s, the causal link was well established between anthropogenic GHG emissions, observed climate change, and related risks. A range of other treaties, as well as rules and principles of general international law, were in operation for much, if not the entirety, of the period during which States have been causing significant harm to the climate system and other parts of the environment. Samoa submits that the responsible States had the requisite knowledge from at least the 1960s. It cannot be seriously contended that the states did not have the requisite knowledge prior to 1994. As such, a broader range of international obligations would still apply to the conduct. These obligations include the right to self-determination, human rights obligations regulating state conduct vis-a-vis individuals and groups, and, of course, the obligation to prevent significant transboundary harm to the environment of other states and areas beyond national control. Third, the conduct and the significant harm it caused to the climate system and other parts of the environment had already occurred before the UNFCCC came into force. In its first report in 1990, the Intergovernmental Panel on Climate Change, IPCC, found that global mean surface air temperature had increased by 0.3 degrees to 0.6 degrees over the preceding century, and global sea level had risen by 10 to 20 centimetres. The IPCC's sixth assessment report confirms further sea level rise since 1901. Such harm underscores that the duty of prevention and due diligence under customary international law applied and had been breached well before these treaty frameworks were established. Second topic, the impact of the conduct on fundamental human rights, including the right to self-determination. Samoa strongly contends that the conduct infringes our people's fundamental human rights, including the right to self-determination. The forced displacement of our communities due to climate impacts erodes our sovereignty and disrupts our social structures. Extreme weather events create a cycle of recovery and debt. Climate impacts deny us the ability to freely pursue our economic, social, and cultural development and constitute a deprivation of our means of subsistence. The conduct also violates our cultural rights and our right to family and home life. Traditional knowledge systems, practices, and expressions are intimately related to our environment. as already explained by my colleague, the head of our Ministry of Foreign Affairs and Trade. The loss of biodiversity, destruction of significant sites, and alteration of landscapes and seascapes sever the threads that weave our cultural tapestry and belonging. Our ability to grow crops is imperiled because we are already at the threshold of heat tolerance for our food systems. These crops are not just our means of subsistence. They are part of the web of relationships that defines who we are as Samoans. I refer this honourable court to the Convention on Biological Diversity, which recognises the vital role of indigenous cultures in conservation, sustainable use, as well as with respect to traditional knowledge of biodiversity. This Convention also enshrines the prevention principle as an operative principle. This illustrates perfectly the way in which it is impossible to separate the environment from human rights considerations, which has been a dominant theme across all the small island states' submissions, including ours. Mr. President, it is Samoa's submission that these obligations have been breached by the conduct. Samoa notes with concern that some States dispute that the right to life has been violated by the relevant conduct, despite IPCC findings that climate change has already caused premature deaths. The right to life with dignity obliges States to take proactive measures to prevent foreseeable threats to life. If States continue to turn a blind eye to this and fail to take proactive preventative measures, then there will be even more widespread and serious violations of this right. The IPCC has predicted at a confidence level of very high, and I quote, "Climate change and related extreme events will significantly increase ill health and premature deaths from the near to long term," end of quote. Further, Samoa notes that the IPCC has noted that 1.5 degrees, which is one of the Paris Agreement temperature thresholds, is not safe for most nations, communities, and ecosystems and sectors. This underscores our lived reality. Dangerous climate change has sadly become part of our day-to-day experience and the worsening outlook, compounding and accelerating impacts are terrifying. Samoa is strongly committed to protecting the rights of our children, but we find ourselves unable to protect them against the conduct causing climate change. This is violating their rights and those of future generations. This is an intragenerational as well as an intergenerational issue, and human rights obligations apply to protect both present and future generations. Third topic, legal consequences for failing to comply with legal obligations. Mr. President and members of the court, Samoa urges the court to opine that a state that causes significant environmental harm violates international law and is therefore liable to legal consequences under the accepted general rules of State responsibility. On the issue of causation, Samoa submits that the science can now identify with precision the contributions of particular States to either the global mean temperature rise or to the total GHGs emitted over a certain date range. Carbon dioxide is responsible for roughly 70% of total GHGs, and it has a well-established near-linear relationship with global temperature rise. This direct causation chain extends to sea level rise, with IPCC data confirming that human-caused global warming drives melting land ice and thermal expansion of the seas. Suggestions that causation is too complex or uncertain are misplaced. Certain States have emphasised the complexity of determining causation, suffice to say, in the context of these advisory proceedings. Samoa has every confidence in the ability of this Court and other international courts and tribunals. This Honourable Court has shown itself capable to do so many times in the past. Although regional variations exist, they do not negate the fundamental causal link. Question B of resolution 77/276 refers specifically to the causal link between acts and omissions of certain states, and significant harm to the climate system itself. This causal link is unanimously recognised by the best available science, including the IPCC reports. From a legal perspective on causation, Samoa urges this Court to adopt the material contribution approach reflected in Article 47 of the Articles on State Responsibility and to view the conduct as a composite act as per Article 15. Courts have, in multiple sources of pollution cases, apportioned responsibility among multiple polluters. Equitable principles and a recognition of complex causal chains are not new to international jurisprudence, as indicated by this court's judgment in 2018. in certain activities carried out by Nicaragua in the border area. As all participants have acknowledged, the general rules of state responsibility apply when climate change obligations are breached, as with any other rule of international law. Of the consequences which generally flow from breaches of international rules, Samoa emphasizes the practical importance to us of immediate cessation of wrongdoing. Reparation, whilst important, will not assure our survival. Even if States pay compensation for their wrongful conduct, we simply cannot continue with a situation where wrongs continue to be committed and GHGs continue to be emitted. In closing, Mr. President and members of the Court, it is often said that the Court is the final bastion of hope for those seeking justice when their rights have been ignored and trampled on. Samoa is here at the esteemed International Court of Justice full of hope that justice can be achieved. We are not asking for special treatment. Together with a number of other states here, we are simply asking the Court for a fair application of sound and well-established legal principles. The Honourable Court's advisory opinion is essential in reinforcing the rule of law and protecting the rights and futures of nations such as Samoa, imperilled by climate change. Mr. President and esteemed members of the Court, that concludes Samoa's submissions. I thank you for your attention. ICJ · President [59:21]: I thank the representative of Samoa for their presentation. Let me now give the floor to the delegation of Senegal. I give the floor to Her Excellency, Madame Ramatoulaye Bafai. Senegal [59:47]: Mr. President, Madam Vice President, ladies and gentlemen of the Court, it is a great honor for me and my delegation to give the oral presentation of Senegal on the request for advisory opinion put by the General Assembly to the Court. The reasoning of Senegal will be structured in two parts and will therefore focus on two main items. First of all, the issue of the existence and identification of legal obligations of states with respect to climate change, and then the legal consequences of any breaches of such obligations. Mr. President, Madam Vice-President, Members of the Court. At its 64th plenary session on 29 March 2023, and in accordance with Article 96 of the Charter of the United Nations, the General Assembly of the United Nations passed Resolution 77/276, titled "Request for an advisory opinion of the International Court of Justice on the obligations of States in respect of climate change". The Republic of Senegal was invited to voice its opinion on the questions of law put to the Court, and it considers that the following initial comments are necessary to help frame the discussion. It is first a matter of establishing the very existence of these obligations and of identifying them. These obligations on States the obligations that states may have in the field of climate change. Then we will have to look at the consequences of any breaches to such legal obligations, meaning that we would have to make sure that these obligations exist. Then We must specify the object of these international obligations. It is related to the words of the resolution put to the court and therefore to the climate system itself, but also to other parts of the environment. And lastly, we'll have a look at the breaches committed by states. from various points of view. First of all, the breaches from the point of view of States, those of small island developing States, and also of peoples and of present and future generations. This having been said, we will therefore share our views relating to the two questions put to the Court, taking them one by one. First of all, on the question of the existence and identification of legal obligations of States in respect of climate change. Senegal considers that there are a number of things in international law which would establish the obligation of states in respect of climate change. Such rules exist both in general international law and in specific fields of international law, including the international environmental law and international human rights law. So what of general international law? An initial principle which may help to identify international obligations in climate change is the no harm rule. It is now a customary rule and is therefore in theory applicable to all states. It was stated in the arbitral award on the Trail Smelter of 1941, a case which brought together the US and Canada. This crucial jurisprudence generally states that the activities on a territory of the state may not cause harm to other states. So the no harm rule was also restated in the Rio Declaration on Environment and Development in principle 2, which states that states have the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or others. or areas, sorry, beyond the limits of national jurisdiction. States must therefore ensure that activities within their jurisdiction or control respect the environment of other states, do not damage it or by inducing or speeding up climate change. In international environmental law, states also have specific obligations which in context, may apply to climate change. Two legal obligations may be identified in this respect: an obligation to protect and a precautionary obligation, which is sometimes knowingly confused with the duty of prevention. Those obligations are to be found in a number of international treaties, such as, for instance, the UNFCCC, and more specifically in paragraph 3 of article 3. The general obligation to protect is also found in principle 4 of the Rio Declaration. The obligation of environmental protection is there linked to the imperative of sustainable development. In the Law of the Seas, article 192 of UNCLOS, sets out a general obligation of states to protect the marine environment as a whole, whether or not it comes under the jurisdiction of a state. Lastly, according to the UNESCO Convention concerning the protection of the world cultural and natural heritage, states also have, under Article 4, and I quote, "a duty of ensuring the identification, protection, conservation, and transmission to future generations of the cultural and natural heritage." This duty of environmental protection has also been enshrined in international jurisprudence, including by the ICJ itself at least twice. Now, it must be said in this respect that the Court has a very clear position as concerns the general obligation of environmental protection. It is neither a hortatory nor philosophical principle, but indeed a truly legal obligation. In its opinion of 8th of July 1996 on the legality of the threat or use of nuclear weapons, The Court stated that States remain under a general obligation to ensure that activities within their jurisdiction and control respect the environment. Moreover, the Court remarks in passing that said general obligation is now part of the corpus of international law relating to the environment in paragraph 29. Then, in its ruling of 20 April 2020 in the pulp mills case, the Court specified that the obligation to preserve the aquatic environment entails not only the adoption of appropriate rules and measures, but also a certain level of vigilance in their enforcement. The Court linked this obligation to the obligation of due diligence. The precautionary principle may also come into play in defining States' obligations stemming from climate change. It may then lead States to not delay the adoption of measures to mitigate serious or irreversible damage to the environment. As concerns the identification of States' obligations with respect to climate change, the Republic of Senegal considers it may be useful to mention the precautionary principle, and this for a number of reasons. First of all, the principle is upgraded into legally obligation incumbent on all states in a number of international conventions. For instance, Article 3, paragraph 3 of UNFCCC, Article 9 and 10 of the Convention on Biological Diversity, and the Cartagena Protocol on Biosecurity, and also other conventions on the marine environment. At a regional level, you could also mention Article 2 of the African Convention on the Conservation of Nature and Natural Resources of 1968. Second, international jurisprudence itself has changed over time and must be taken account of. In some international courtrooms, the precautionary principle hasn't always been seen as a legal obligation. However, we feel the scope and the urgency of the climate threat should help us overcome this reluctance. We feel we are indeed faced with a textbook example of a need to change the law to adapt to new circumstances fraught with danger. Indeed, ITLOS seems to echo this when, in its opinion of 21 May 2024 on climate change, it states that the standard of due diligence is stringent, given the high risk of serious and irreversible harm, in paragraph 441. Now, as the threat has become more pressing, scientific uncertainty has reduced, scientific understanding of effects of climate change has improved and become more precise and specific. The Republic of Senegal holds that this should lead us to take greater account of the precautionary principle in defining climate-related obligations. The European Court of Human Rights in Tatar v Romania on 27 January 2009 stated that the precautionary principle had moved from a philosophical concept to a legal standard. The International Court of Justice itself seemed more open to the qualitative change relating to the precautionary principle in the pulp mills case again. It stated indeed that the precautionary approach may be relevant in the interpretation and application of the status of the River Uruguay. The Republic of Senegal still considers that the determination of obligations of states related to climate obligations may afford an opportunity to look at the precautionary principle in a more direct and pragmatic way, through the obligation that would apply to states to not delay the adoption of measures to prevent serious and irreversible environmental climate damage in the context of relative scientific uncertainty. Now, this forward-looking approach is very welcome and necessary, given the fact that we are looking at damage likely to be inflicted on future generations. Addressing these existing threats, such as climate change, requires a transgenerational approach and pioneering legal solutions breaking away from conservative habits. It lost in its opinion of the 21st of May 2024 has highlighted three obligations of states in the field of climate change, an obligation to prevent, an obligation to reduce, and an obligation to control the pollution from greenhouse gas emissions in paragraph 441. advisory opinion of the 1st of February 2011 relating to the obligation of states sponsoring activities in the area, ITLOS had already mentioned the due diligence obligations of states, meaning anticipating potential risk in cases of scientific uncertainty. As concerns now international human rights law, a number of rights granted to individuals by a number of conventions are likely to be affected by the climate threat. For instance, the right to life, to food, to health, to adequate housing, et cetera. Given the crucial significance and the pull that this right of life exerts over other rights, it may indeed be mentioned briefly. It is a specific right with a great echo in the field of climate when looking at the climate threat. In a report submitted to the General Assembly of the United Nations on the 15th of January 2009 on climate change related and induced threats to human rights, the United Nations High Commissioner on Human Rights highlighted the centrality of human rights and the right to life faced with climate change. Looked at from a transgenerative point of view, the right to life takes on a collective and no longer individual approach. It has to do with a number of social and systemic constraints akin to the right of access to vital resources such as water, air, level biodiversity, and climate balance. And there's a certain amount of international case law that bolsters what the view, the Inter-American Court of Human Rights and its advisory opinion of 15 November 2017. and did down subsequent to a request from Colombia and upheld that climate change can affect the right to life and physical integrity and other human rights, right to health, right to water or housing. In a decision of 9 April 2024, the European Court of Human Rights censured Switzerland for its inertia in face of climate change. Now, this judgment is of interest because it demonstrates that states have positive obligations with respect to climate change and that emissions may, in such context, amount to reach that's the f klimas in sch and others un ander from Switzerland sch and of the sch already back in 1994 that's 30 years earlier the same Court had considered that serious harm to the environment may impact a person's well-being and deprive them of the enjoyment of their home such that it harms their private life and family That's the 9 December 1994 judgment. The decision of 272001 handed down by the African Commission on Human and People's Rights in the SERAC and Sessa against Nigeria with regarding the degradation of living condition of the Ogoni people is also of interest to the extent that it highlights the intertwining of human rights and cascading violations which take place once the right to a healthy environment has been breached. That's para. 58 et seq. The ECOWAS Court of Justice has, in a judgment of 14 December 2012, censured a state for omission to prevent the degradation of the environment. Let's point out that these two decisions were given in respect of people's rights to enjoy a healthy environment, as laid down by the African Charter on Human and People's Rights, that's article 24 of that Charter, and that they are unquestionably relevant to respond to the question posed by the General Assembly, which also turns on climate harm that peoples may face. Now, having sketched out some state obligations in respect of climate change, right now we're going to move on to the questions posed to the court in their order posed to examine the consequences of a breach of such obligations. Now, regarding the legal consequences attached to a breach of these obligations, the treatment of this question implies scrutiny of the very terms in which the General Assembly couched its questions to the court. Regarding the constituent elements of breaches, particular focus is devoted to significant harm and adverse effects. One must thus attempt to define these expressions. Now it is possible, regarding the concept of significant harm, to seek guidance from the work of the ILC. Indeed, the International Law Commission explained and gradually consolidated its definition of the concept of significant harm in three draft principles and articles which I refer you to. The last of which, dated 2022, summarizes the thrust of the expression in these terms: "Significant harm is a harm which is more than detectable without necessarily reaching the level of serious or substantial." Regarding the second expression, that's adverse effects, the Vienna Convention for the Protection of the Ozone Layer 1985 defines them as, I quote, "changes in the physical environment or biota, including changes in climate, which have significant deleterious effects on human health, or on the composition, resilience and productivity of natural and managed ecosystems, or on materials useful to mankind." That's articles 1 and 2. This approach has literally been taken up by article 1, the first article in other words, of the UNFCCC. Resolution 53/6 adopted by the Human Rights Council on 12 July 2023 and headed Human Rights and Climate Change may also shed light on the concept of adverse effects. The HRC, relying on a report from an intergovernmental group of experts on climate evolution, underscored that the adverse effects of climate change have a series of impacts, both direct and indirect, on the effective exercise of human rights which worsens global warming increases. Another resolution of the Human Rights Council adopted on 6 October 2022 in relative of the rights of human rights to drinking water and sanitation goes in the same direction. Now that we've identified those elements characteristic of breach, we must examine right now the potential victims of such breach referred to in the quest and also the possible legal consequences of this breach of climate related state obligations. Victims, particularly small island developing states, and peoples and individuals of present and future generations. Now, looking at Small Island Developing States, SIDS, it is worth recalling that according to the World Bank, out of the 193, 193 states which are members of the United Nations Organization, 152 are included in the category of developing countries. Amongst these 152 states, 38 are included in the Small Island Developing States. If no measure is taken to reduce greenhouse gases in the short term, sea level rise could have as a consequence the reduction and even the disappearance of the land territory of a number of these countries. Oceans absorb, after all, 90% of the heat surplus caused by GHG emissions. and are on this account subject to physical and chemical change which directly harms the development process of these island countries. Looking now at peoples, it would be helpful to recognise a right for peoples to a healthy environment confronted with climate threats. Sanctions of such a right certainly exist in the, for example, in the Inter-American and African human right protection systems. We've seen it in their case law. Looking at current and future generations, present and future, the court must recognize that the stability of the climate system and the maintenance of biodiversity are absolutely key for the very survival of mankind and that of future generations right now. Climate change lies not only at the origin of natural catastrophes, but also lead to the displacement of individuals and populations, giving relevance to the concept of climate refugee, as can be seen from two reports of the United Nations 2022-2023. Let me underscore on this point the existence of a very pioneering treaty concluded under the auspices of the African Union. with respect to the acuity of the question on this continent. That's also the Kampala Convention of 22 October 2009 on the protection and assistance to displaced persons in Africa and the world's first regional legally binding treaty on the protection and assistance to internally displaced people within our country. within Africa for climate related reasons and environmental reasons. Now looking at the real legal implications, reparation and standing. Regarding reparation, it is recognized by a number, a slew indeed, of international texts as the Principle 22, the Stockholm Declaration of 72, Principle 13 of the Rio Declaration, Article 235 of the UN Convention on the Law of the It is true that the question remains open as to the ways and means of reparation of ecological harm in general and climate harm in particular, given that states do not agree as yet on the definition of a legal framework and their responsibility. Such a framework cannot be found in the UNFCCC, nor in the Cura Te Procul, nor in the Paris Agreement. In the view of Senegal, we consider the instant advisory proceeding an unprecedented opportunity to map out the legal responsibility of states in respect to the climate and the necessarily attendant reparation. These two ideas should guide the court. The first is the principle of common but differentiated responsibilities, which attests to the fact that if climate change affects all states, they do not all bear the same responsibility for global warming. When ascertaining responsibilities and subsequent reparation, the approach must necessarily be discriminatory. And I mean that literally, in other words, modulated according to the respective portions states contribute to global warming. This requirement can be seen in the advisory opinion of ITLOS, which I've already referred to, handed down on 21 May 2024, where it's clearly set out, I quote, as a specific obligation to assess developing countries in their efforts to combat the effects of climate change. The second idea relates to the specificity of the situation of the African continent in regard to climate change. Now, a number of surveys have highlighted the fact that this continent remains particularly vulnerable to this change, even though it's not to be found among the major contributors to this disruption. Resolution 77/376 of the General Assembly seizing your court mentioned that Africa was in a situation of manifest vulnerability, particularly on account of desertification brought about by climate change. The UNFCCC recognizes, moreover, in its preamble, in its article 3.1, and I quote them, "The largest share of historical and current global emissions of greenhouse gases has originated in developed countries, and that, accordingly, they should take the lead in combating climate change and the adverse effects thereof. Regarding the question of standing to combat climate disruption, the Republic of Senegal feels that it can take many forms, and not solely in a courtroom. It falls to states and to a certain extent to the court to determine or to suggest ways and means that such action may take. It is, however, imperative that this standing should be broadened as widely as possible. Climate litigation cannot be handled in the same way as classic proceedings. that is to say with a blinkered and rigorously bilateral vision of the stakes in play. To the contrary, here we can be quite sure and objectively certain that the stakes are planetary, global and transversal. As a consequence, all states should be able to have standing to act against the effects of climate change, there being no need for them to demonstrate their interest therein. Mutatis mutandis, the Court should At this juncture, seek inspiration from the ILC on State Responsibility for Internationally Wrongful Acts, whose chapter 3 prescribes erga omnes obligations where "pre-emptory norms" of international law have been breached, as well as the duty of all states to cooperate in the fight against such breaches. A provision wedded to this philosophy of solidarity could equally be asserted in the field of climate change. In conclusion, and to sum up, Mr. President, Vice President, distinguished members of the Court, the Republic of Senegal is of the opinion that the Court should: First, affirm its jurisdiction to entertain this request for an opinion; Second, define the contours of state obligations with respect to the climate, inter alia the no-harm obligation towards other states as well as the precautionary and anticipatory obligations. Set down the principle, in third place, of responsibility of acts harming the climate system and other components of the environment, this responsibility resulting from acts or omissions. Fourth, set down the principle of an obligation of reparation for the harm, taking into account the effective responsibilities of states and the objective inequality in which they find themselves confronted by climate change. The most vulnerable should receive the compensation due. In fifth place, to broadly define the legal standing in such circumstances, which standing should be given to each member of the international community who are all under the obligation to cooperate to bring the climate-related breaches to a halt. Finally, Senegal would like to share the same concerns formulated by the African Union on the consequences of climate change. Mr. President, Madame Vice-President, distinguished members of the Court, these are the observations that the Republic of Senegal wishes to submit in the instant proceedings of the request for advisory opinion. Thank you very much for your attention. ICJ · President [1:29:17]: I'd like to thank the representative of Senegal. And now the Court will have a short break. The floor is yours. Speaker 14 [1:44:38]: That's cool. ICJ · President [1:45:32]: Please be seated. The sitting is resumed. I now invite the next participating delegation, the Seychelles, to address the Court, and I give the floor to Mr. Clavion Jubert. Seychelles [1:45:58]: Mr. President, Madam Vice-President, distinguished members of the Court, it is an honour to appear before you today. I bring special greetings from the people of Seychelles, or, as we say in Creole, "imbozu special zotu". Let me start by emphasizing that these proceedings are both timely and critical, and of critical importance for the people of Seychelles and, in fact, for all humanity, whether acknowledged or not. Mr. President, Seychelles is a small island developing state in the middle of the Indian Ocean. We are 115 islands, of which 42 are granitic and the remainder coralline. Our population is only 100,000, and our territory is 99.99% ocean and 0.01% land. Seychelles was first settled by French colonists and the African slaves in the 18th century. We are today a proud Creole people with big aspirations gathered from the five corners of this earth. We are considered one of the most successful examples of racial integration living in one of the most exotic spots in the world with majestic mountains, green forests, pristine beaches, and a clear blue sea. But we face special vulnerabilities to climate change. Our coraline islands are low-lying and located on average between two to four meters above sea level. Our main granitic islands, all our beaches and coastal areas are within the same elevation, and some are even lower. Our coral reefs are susceptible to and impacted by global climate warming. Rising sea level, increasing temperatures, and extreme weather events harm our people, our land, our economy, and our future generations. Climate change also endangers our right to self-determination and our ability to shape our own destiny. The ocean, our lifeline, is becoming heated, acidified and deoxygenated. The ecosystems that provide our food, economic livelihood and cultural heritage are suffering. Apart from our people, this ecosystem also supports all forms of life, including 409 flora of global importance. This is particularly worrying because Seychelles is home to two UNESCO World Heritage Sites, that is the Vallau de Mer Nature Reserve and the Aldabra Atoll, and is also an ecologically and biologically significant marine area. In 2016, the country experienced a mass coral bleaching event resulting from an exceptionally intense El Nino phenomenon, which caused water temperature to rise and exceed seasonal averages by one to two degrees for months. This bleaching event reoccurred in 2024. We ask the Court to consider that the loss of ecosystems within the multiple island states scattered throughout our oceans will irreversibly and negatively impact the entire world's ecosystem. Seychelles is significantly impacted by the consequences of the massive anthropogenic emission of greenhouse gases. but Seychelles' contribution is less than 0.003% of the world's cumulative emissions. This is unfair. This is unjust. Seychelles expects that this Court's advisory opinion will ensure that States are reminded of their obligations and are held accountable for their actions and their inactions. We pray the Court to duly confirm that, first, as already clarified by the International Tribunal for the Law of the Sea in relation to UNCLOS, that States have a legal obligation to take urgent action to limit global warming to 1.5 degrees Celsius above pre-industrial levels. This is essential for the very survival of small island States like Seychelles. Second, that every State has an individual obligation to take all measures objectively necessary to prevent further significant harm to the climate system and other parts of the environment by, at the very least, implementing their nationally determined contributions. Third, that these obligations are erga omnes. Fourth, that states' responsibility to protect human rights from harm due to climate change is not territorially limited in scope. Fifth, that breaches of the relevant treaty and customary obligations by states causing significant harm to the climate system and other parts of the environment make them responsible. And sixth, that those states held responsible are obliged to make full reparation. Mr. President, members of the court, to develop these points, the court will hear three submissions. the first of which will be delivered by Professor Thouvenin, whom I will respectfully ask you to call to the podium. Thank you. ICJ · President [1:51:18]: I thank Mr. Flavien Joubert. Let me now give the floor to Professor Jean-Marc Thouvenin. Seychelles · Professor [1:51:28]: Yes, thank you, Mr. President. Well, Despite climate change, I don't seem to have any water here, or do I? Yes. Mr. President, distinguished members of the court, it's a great honor for me to represent the Seychelles in these proceedings to which this vulnerable country attaches the greatest importance. Seychelles has high expectations. In contrast, we have to note that this isn't the case for the majority of countries who bear the greatest responsibility for massive emissions of GHGs over the ages. Evidently, they fear that they will be singled out and essentially tell you that the Agreement of Paris or Paris Agreement and the Framework Convention of 1992 protect them and provide a lex specialis shield which only contains procedural obligations, with a morv daring among them obligations of due diligence, but gives them broad nay total margin of discretion. This calls for four observations. First, nobody has asked you to identify by name states responsible, but to adjudge that both the law and the facts, informed by science, allow certainty in the identification of states whose responsibility is engaged with respect to the climate disaster impacting all those people. harm is not due to the international community at large in English by the speaker. Small island states and their populations, just to take them as an example, had nothing whatsoever to do with it. Second, even if you were to admit, quod non, the argument of the lex specialis shield, it would nonetheless remain crucial that you state your opinion on lex generalis, because you can always withdraw from a climate treaty, but that leaves lex generalis intact. Third, for the supporters of lex specialis, said lex essentially contains procedural obligations. Now, such obligations have no impact on the applicability of substantive obligations from other sources because the two categories of rules apply to two different questions. And finally, in any event, the lex specialis argument has already been dismissed by ITLOS. It just doesn't fly, as has already been demonstrated quite rightly by very many other participants and speakers. Mr. President, distinguished members of the court, your judgment, your opinion, I believe, should touch on clearly on the principle of prevention. How long has this been part of customary international law? It has been asked. Well, 1941 is the date of the Trail Smelter Award, and that's to be considered together with the fact that it's in the 1960s at the very latest that states became fully aware that massive emissions of CO2 cause climate warming, a phenomenon that the scientist Eunice Newton Foote had already anticipated back in 1856. In any event, in 1972, Principle 21 of the Stockholm Conference unequivocally recalled the existence of the principle of prevention and positive law. Since then, distinguished members of the court, you have found that during these hearings that substantial harm has been caused by massive anthropogenic emissions of greenhouse gases disrupting the climate. Some states necessarily bear the responsibility. Moreover, the best science confirms since 2015 that a general increase of temperature beyond 1.5 degrees C would lead to even greater catastrophes. As such, any conduct running counter to the goal of the Paris Agreement would necessarily cause substantial harm to the climate, to the environment, and to vulnerable states, and would constitute a conscious breach of the obligation of prevention. As to the Paris Agreement, let me recall, and I quote them, as nationally determined contributions to the global response to climate change, all parties are to undertake and communicate, undertake, let me repeat that, and communicate ambitious efforts as defined in articles 4 et seq with a view to achieving the purposes of this agreement. So there's not only an obligation to communicate, but more than that, to undertake ambitious efforts with the view, as Article 4 spells out, to reach the goal established by Article 2, which is to limit the increase of temperature to 1.5 degrees C. So this is an obligation of conduct. whose content is to be assessed in the light of the due diligence standard. Now, I haven't got the time to get into detailed description of the contents of the standard, but let me just point out that the Seychelles maintain that the NDC of a state reflects what that state itself considers as a minimum reasonable measure. that it must and can implement to achieve the goal of the Paris Agreement. As such, if that state does not meet its NDC, it cannot comply with the obligation of due diligence which it has itself defined. Of course, implementing an NDC in no way suffices. NDCs are generally insufficiently ambitious. That's why they are but a standard of non-compliance, not of compliance, of states with their due diligence obligations. Distinguished members of the Court, Seychelles requires or requests you to rule on the extraterritoriality of the principle of obligations with regard to human rights and climate change. The Inter-American Court of Human Rights recognized that climate changes are a form of environmental transboundary harm. This harm threatens directly the rights of human beings and vulnerable populations, inter alia, right to life, integrity of the person, water, food, and of course, the right to not be forcibly displaced. This same court has felt in 2017 that. When the redamage occurs that affects treaty-based rights, it is understood that the persons whose rights have been violated are under the jurisdiction of the state of origin if there is a causal link between the. Act that originated in this territory and the infringement of the human rights of persons outside its territory. The Committee on the Rights of the Child considered this jurisprudence fully applicable to transboundary harm arising from climate warming as a result of massive emissions of greenhouse gases. The exception to this comes from the European Court of Human Rights, which is of a different opinion, but its jurisprudence only pertains to the European Convention on Human Rights. On these bases, the Seychelles suggest to the Court to clarify that the obligation of States to respect and to ensure respect of the rights of the individuals and groups extends in principle to the harmful extraterritorial effects of greenhouse gases emitted under their jurisdictional control and which contribute to climate disruption. Mr. President, distinguished members of the court, this concludes my brief presentation, and I would be grateful if you would call To the podium, my colleague, Mr. Villegas. ICJ · President [2:00:00]: I'd like to thank Jean-Marie Touvenel. I now give the floor to Mr. Villegas. Seychelles [2:00:10]: Mr. President, distinguished members of the Court, it is a great honour to appear before you on behalf of the Republic of Seychelles. My task now is to address question B on the legal consequences. Most States appearing before you have presented their views in favor of the applicability of the rules on State responsibility as outlined in the ILC Articles on Responsibility of States for Internationally Wrongful Acts, or ARSIWA for short. A few others disagree on the basis of two main objections. One is related to the climate change treaties being an all-encompassing specialized or self-contained regime which, consistent with Article 55 of our CIWA, excludes the applicability of the general rules on state responsibility. The other question its applicability due to the alleged difficulties in the determination of attribution and causation. In this presentation, I will address these two objections. Mr. President, as we all know, Article 55 of our CIOA provides that the rules on state responsibility do not apply, and I quote, "where and to the extent that the conditions for the existence of an internationally wrongful act or the content or implementation of the international responsibility of a state are governed by special rules of international law," unquote. So the question is whether the climate change regime treaties contain such special rules. The answer is they do not. A good faith interpretation in accordance with the ordinary meaning to be given to the terms of the Paris Agreement, and in particular, Article 8, confirms this view. The key points are as follows. This article focuses on cooperation, facilitation, enhancing understanding, action, and support in relation to loss and damage. On the context, it is enlightened by the Conference of State Parties who, in adopting the Paris Agreement, explicitly agreed that Article 8 does not involve or provide a basis for any liability or compensation. As it comes to the object and purpose, the agreement, and I quote, aims to strengthen the global response to the threat of climate change." All this is further supported by the position of various parties who, upon ratification, lodged declarations manifestly stating that they were not renouncing to any rights under international law concerning state responsibility or reparations. Consequently, Your Excellencies, A correct interpretation of the Paris Agreement confirms that it never sought to create a self-contained regime or specific provisions on wrongful acts or state responsibility, nor to make any derogation therefrom. The condition provided for in Article 55 of our CIWA is thus not triggered, and the general rules on state responsibility are applicable in the context of question B. An interpretation of the UNFCCC would yield the same result. Mr. President, Your Excellencies, having established that the general rules on state responsibility apply, Articles 14, 15, 42, 46, and 47 of our are particularly relevant as they address breaches consisting of continuing or composite acts, invocation of responsibility, and plurality of injured and responsible states. This framework is particularly relevant in the context of climate change, as it paves the way for those most responsible to be held accountable. It is crucial for the Court to acknowledge the applicability of the rules enshrined in these articles in addressing question B, as they reflect the precise dynamics of climate change. Cumulative emissions from numerous actors over an extended period across various regions globally, impacting a multitude of stakeholders. However, as mentioned, some states have cited difficulties in the determination of the key elements of attribution, causation, or both. This would ultimately render the rules on state responsibility inapplicable. To rebut these arguments, the role of the best available science ought to be highlighted. The reports of the Intergovernmental Panel on Climate Change, IPCC, whom you've recently met, and reflect scientific consensus. They have been endorsed by nearly all participants in these proceedings and have received high praise from other tribunals. Moreover, numerous scientific reports have been appended by states and international organizations to support their arguments before the Court in these advisory proceedings. All these represent but a sample of the more extensive and well-established body of climate change science. Now, the central point of the matter, Your Excellencies, is that this best available science provides data linking anthropogenic emissions of greenhouse gases to significant harm to the climate system and other parts of the environment. They help in determining the specific source of the emission, its overall effects, and the resulting damage. They thus bridge over questions of attribution and causation. The science also clarifies that there is nothing like, and I quote, an indivisible injury suffered by vulnerable and small island developing states that would render impossible for them to link any of this injury to any particular wrongdoer. Each high-emitting state has its own measurable share in this injury since their cumulative emissions can be calculated. The injury is inherently divisible and attributable to each wrongdoer accordingly. And even though, and I quote, "the court is not the arbiter of scientific issues and is charged with deciding disputes brought to it on the basis of the law," unquote, this judicial body has had ample experience in dealing with cases which have a scientific dimension to them. This advisory opinion, Your Excellencies, should not be the exception. Mr. President, Members of the Court, the general rules on state responsibility apply in the context of question B, and any concerns in relation to their application can well be dispelled through the use of the best available science. I appreciate your time and attention today and respectfully call you, Mr. President, to call upon Minister de Jax. ICJ · President [2:07:51]: I thank Mr. Andreas Villegas-Jaramillo. I now give the floor to Mr. Anthony DeJong. You have the floor, sir. Seychelles [2:07:59]: Thank you. Mr. President, Madam Vice-President, Members of the Court, I join my colleagues in expressing how honoured I am to convey this plea of the Tsehlwa people before you today. As you have heard, the Seychelles submits that the rules of state responsibility are applicable when the no harm obligation, the climate change regime, and other treaty obligations are breached by states' massive emissions of greenhouse gases. Some of these obligations are of due diligence. The best available science and NDCs allow for an objective basis upon which to assess their non-compliance. With this in mind, one can envisage several kinds of breaches. Breach of procedural obligations under the Paris Agreement, which is the case, for example, when a state does not respect Article 4, paragraph 2. obligations, breach of due diligence obligations under UNCLOS or under the Paris Agreement, breach of customary no harm obligations, and breach of human rights obligations. Each of these breaches involve an obligation to make reparation in an adequate form. As to the adequate form of reparation for vulnerable and small island developing states, the basic principle is that these states, including Seychelles, have a right to full reparation. But what does full reparation mean in this context? First, Concerning breaches of continuous character, in particular regarding the no harm obligations and the conventional due diligence obligation, the very first form of reparation is a declaration of the duty of performance cessation and obligation of non-repetition. This is urgent and critical. The catastrophic heating of the planet beyond +1.5 degrees is close, but not unavoidable. We certainly have a right to reparation for the injuries we have already suffered, but that does not mean that we accept further harm to be inflicted to the climate system. This must stop. This is the first step for climate justice. And this is what the law of international responsibility requires. We request those states causing significant harm to the climate system and other parts of the environment to cease their harmful actions or omissions. We are at the brink of an abyss. The transition to a clean, green and sustainable economy must no longer be delayed. It is imperative that they meet their international commitment. Urgent and diligent action is required now. Stop harming us. Second, for all breaches, reparation also entails restitution, compensation and satisfaction. Regarding harm done to individuals and indigenous people, the regimes of protection of human rights are, of course, when relevant, to be properly applied and corresponding remedies be afforded. As to harm done to vulnerable and small island developing states, "Compensation may be an appropriate form of reparation, particularly in those cases where restitution is materially impossible or unduly burdensome." Indeed, Seychelles contends that there are instances where restitution is likely to be both impossible and insufficient. it is hard to envisage that any restitutive measures could reverse the damage done to Seychelles' islands caused by sea level rise and coastal erosion. Furthermore, the potential for mass displacement, the adverse impacts on the economy, the extinction of species and ecosystems due to ocean acidification, and the destruction of our way of life, our culture, cannot be undone. Compensation is thus the relevant relief. It must cover any financially assessable damage, including loss of profits, insofar as it can be established." Assessment of damage needs not be accounted for with absolute precision. As the Court has said, "The absence of adequate evidence as to the extent of material damage will not, in all instances and situations, preclude an award of compensation for that damage." And the court has even determined that the amount of compensation can be based on equitable considerations. But let me let me add that the traditional means of compensation might fall short as it comes to harm caused by climate change, the magnitude of which is totally unprecedented. Figures in the in the in the measure in the order of millions and trillions of dollars were recently touted in COP 29 in Azerbaijan. It is in this context that the African Union and the African states have proposed innovative satisfactory mechanisms including debt relief and debt cancellation. Seychelles strongly echoes these proposals and prays for the court to endorse such just and fair alternatives while being cognizant that some small island developing states like Seychelles currently only has access to limited funding because of our income status, yet being one of the most affected. Mr. President, As we said earlier, we are a proud Creole people brought together from the four corners of the world to our Ashpilego. Yet we now face the dire threat of being dispersed back to these distant corners. Are we condemned to be scattered to the four corners of the world yet again? Thank you, Mr. President. Thank you, esteemed members of the Court. ICJ · President [2:15:54]: I thank the representative of the Seychelles for their presentation. I now invite the delegation of the Gambia to make its oral statement, and I call His Excellency Pa Musa Jor Bah to the podium. Gambia · Prime Minister [2:16:22]: Mr. President, Madam Vice-President, distinguished members of the Court, it is an honour to appear before you on behalf of the Republic of The Gambia. The Gambia remains steadfast in our commitment to international law and to this Court's role as the principal judicial organ of the United Nations. The more than 100 participants in these proceedings all recognize the need to confront the urgent realities and fundamental inequalities of climate change. And yet, for far too long, we have put aside the question of what states are required by international law to do while the climate crisis has worsened by the day. These proceedings present a historic opportunity to address this gaping hole. That is why The Gambia proudly co-sponsored the resolution that requested this advisory opinion under the leadership of Vanuatu. We salute the next generation of youth, especially those whose dedication and efforts have brought us here today. They stood and reminded the world of the responsibility that our generations owe to them and to future generations. Mr. President, all states are affected by climate change. But for some, like us, the stakes are incomparably higher. The Gambia ranks among the countries most vulnerable to climate change. This, despite our country accounts for less than 0.01% of the world's carbon emission each year. The Gambia is one of the world's lowest-lying coastal states. About half of our country's total area lies less than 20 meters above sea level. For states like us, sea level rise is an immediate and existential threat. The Gambia's vulnerability to flooding is only further exacerbated, given that the Gambia River spans the entire length of the country. Nine out of ten Gambian households are vulnerable to coastal erosion. A one-meter rise in sea level could inundate 60% of our mangrove forest, one-fifth of our rice-growing areas, and 10% of our total land area, including our capital city. In addition to displacing our people and damaging our infrastructure, sea level rise has devastating impact on the productivity of our fisheries and agricultural crops. This, in turn, threatens the food and economic security of Gambians, many of whom depend on rain-fed subsistence farming and fisheries. Climate change also represents a major threat to national treasures that have historical, cultural, and social value to our people, including the Kunta Kinte Island, a UNESCO World Heritage site. As we stand here today, the island is eroding as the Atlantic also moves landward. Mr. President, the Gambia is one of the world's least developed countries. making it disproportionately exposed to the most severe impacts of the climate crisis. In the summer of 2021, we faced severe windstorm floods which displaced more than 1,500 people. That is a lot of victims for a small country like the Gambia, because in comparison to a country like Germany, That would be equivalent to about 60,000 affected people. The following year, we suffered the heaviest rainfall the country experienced in three decades. We know that Gambia is not alone in this predicament. Over the last 50 years, almost 70% of worldwide deaths caused by climate-related disasters who have suffered in LDCs. Every single death is a stark reminder of the price we are paying for failing to take immediate, coordinated, and ambitious action. Mr. President, the questions before the Court are the most urgent questions of our time. We reiterate the African Union's plea for considering these proceedings as an opportunity for the international community to adopt bold, legally required steps to combat climate change and assist the most vulnerable states in doing so. The stakes are too high to confine our obligations to timid statements that simply echo the bare minimum. As resoundingly confirmed by the best available evidence, the window for us to secure a livable future on this planet is rapidly closing. Mr. President, please, let's remind ourselves that these proceedings are not merely a tick box exercise. This is a collective call for action. because the fate of more than half of the world's population is dependent on the future of the climate's future, which is now partly in your hands. The Gambia is hopeful that the court's advisory opinion will provide much needed judicial guidance on the concrete and actionable obligations that states have to address the existential threats to climate change. And that is why we intend to be present in New York after this opinion is rendered to assist the General Assembly in giving concrete effect to it. Mr. President, Madam Vice-President, distinguished members of the Court, I thank you for your kind attention. I now ask you to call to the podium Professor Charles Cherno Jalloh. Thank you. ICJ · President [2:23:42]: I thank His Excellency, Prime Minister Jor Batay. I now give the floor to Professor Charles Cherno Jalloh. Gambia · Professor [2:23:54]: Mr. President, Honourable Judges, I feel privileged to appear before you again and to do so on behalf of Gambia. Given the late stage of the proceedings and the fact that we have made extensive written submissions, for today we will focus on three key points of divergence. I will discuss what international law requires when it comes to the proper interpretation of the obligations of states in respect of climate change. Mr. Lowenstein will then address the prevention principle. He will be followed by Ms. Eures, who will then address human rights law and remedies. The General Assembly has posed two broad questions on the obligations of states concerning climate change. And in so doing, it has underlined the relevance of many treaties and instruments from various fields of international law. The Gambia submits that climate change, understood generally and in the context of this specific request, is regulated by different areas of international law. Thus, the rules of treaty interpretation under customary international law are crucial. The rules of treaty interpretation in Article 31 of the Vienna Convention on the Law of Treaties provide that a treaty is to be interpreted in good faith in accordance with the ordinary meaning of the words in the treaty in their context, taking into account the wider context. We must also consider, together with the context, any subsequent agreements between the parties regarding the interpretation of the treaties or application of their provisions, and as well any subsequent practices when applying those treaties. The reference in paragraph 3 of Article 31 of the VCLT to, quote, "any relevant rules of international law," unquote, And specifically, the use of the word any indicates that the set of potentially relevant rules should be inclusive. It extends to all sources of international law, which can be of assistance in interpreting state obligations on climate change, whether found in treaties, customary international law, or general principles of law. Judicial and other decisions from this court and other tribunals, as well as teachings, are also relevant under Article 38 of the ICJ Statute, as confirmed recently by Conclusions 4, 5 and 8 of the ILC topic on subsidiary means. The Gambia's submission on the proper approach to the interpretation of the present request reflects the premise that all the relevant treaties and sources of international law must operate harmoniously in order to avoid fragmentation. As this court explained in its Namibia opinion in 1970, an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of interpretation. The ILC has likewise repeatedly confirmed, both generally and on topics addressing environmental matters, that when several norms bear on a single issue, they should be interpreted so as to give rise to a single set of compatible obligations. Indeed, key climate change treaties themselves indicate that states understand the overlap of obligations in different areas of international law. States also endorse the principle of systemic integration. For instance, the Paris Agreement's reference to states' respective obligations on human rights, as well as the UNFCCC's reference to the prevention principle under general international law, makes this clear. The reference in the request to, among other instruments, and relevant principles and relevant obligations of customary international law, and to about 15 treaties and instruments in various areas of international law, confirm the same understanding. Indeed, the General Assembly expressly invited the Court to pay, and I quote, "particular regard," unquote, to the UN Charter, the International Bill of Rights, the UNFCCC, the Paris Agreement and UNCLOS, as well as the due diligence and the no harm principles. The fact that the request was adopted by consensus demonstrates that States recognize the relevance of those treaties, instruments and rules to the Court's advisory opinion. It follows that the Court must consider all relevant principles and rules when determining the obligations of states under international law. The Court should also consider the numerous climate change and other human rights resolutions adopted by competent UN bodies. The relevance of all subsequent agreements of the parties when interpreting state obligations has been clarified by the ILC in conclusions 10 and 11 of its 2018 conclusions on subsequent agreements and subsequent practice. Equally important are the decisions of the conferences of the parties, which are authentic means of interpreting treaty obligations. Some such decisions reiterate the CBDR principle and the financial and technical assistance provisions in climate treaties. Mr. President, given the above, The Gambia respectfully disagrees with the minority of participants urging the Court to adopt a restrictive approach to the applicable law. Not only would this risk fragmenting international law and contradict the principle of systemic integration, it will also undermine the value of the requested opinion. The importance of systemic integration of international human rights law with international environmental law is well settled in Africa. Article 24 of the 1981 Banjul Charter enshrines the right to a general satisfactory environment. More broadly, the Banjul Charter treats individual and collective rights, as well as civil and political rights, and economic, social, and cultural rights as integrated and indivisible. The first preambular paragraph of the 1991 Bamako Convention requires parties to be mindful of the growing threat to human health and the environment posed by hazardous waste. And in the landmark decision, SERAC versus Nigeria, the African Commission stated, and I quote, A clean and safe environment is closely linked to economic and social rights insofar as the environment affects the quality of life and safety of the individual. Systemic integration has also been endorsed on the international level. To take one out of many possible examples, the Paris Agreement provides that states parties should, when taking action to address climate change, respect, promote, and consider their respective obligations on human rights. In short, the General Assembly requested the Court's guidance on the concrete obligations of states under international law. This means that, although vital, the climate change treaties that anchor this request should not be read in clinical isolation from the rest of public international law. Thus, the Court has been entrusted with interpreting the obligations of states concerning climate change under all of international law. The Gambia hopes that, given the oral submissions to date, our highlighting the rules of interpretation and the principle of systemic integration could be of assistance to this Court. Mr. President, with your leave, if you may ask Mr. Lowenstein to take the floor. Thank you very much. ICJ · President [2:32:18]: I thank Professor Charles Cherno Jalloh. I now give the floor to Mr. Andrew Lowenstein. Gambia [2:32:29]: Mr. President, members of the court, it is an honor to appear before you on behalf of The Gambia. I will present The Gambia's views concerning the relationship between the prevention principle and the climate change treaties. I begin by responding to the argument that the principle does not apply to climate change. The basis for this argument is that greenhouse gas emissions are said to be materially different from conventional cases of transboundary harm. That is mistaken. As the ILC has explained, The only activities that are excluded from the concept of transboundary harm are those which cause harm only in the territory of the state within which the activity is undertaken, without the possibility of any harm to any other state. It is thus immaterial whether the harm is direct or temporally proximate to the activity. That is why, for example, UNCLOS includes indirect introduction of harmful substances into the marine environment in its definition of marine pollution. Nor is it relevant that the cases involving transboundary harm that have been litigated to date have concerned an identifiable source spreading between neighboring states, or that harm caused by greenhouse gases may be experienced far from the source of emissions. The duty of prevention is not geographically limited. It is owed by all states to all states. The sovereign equality of states demands no less. The argument that the principle does not apply to harm caused by greenhouse gas emissions because a rule of customary international law concerning this particular form of transboundary harm has not crystallized is equally baseless. The principle is a rule of general application. There is no predetermined list of harms that qualify. As the ILC put it, the Commission cannot forecast all the possible future forms of transboundary harm. Thus, in all instances, a state must prevent its territory from being used to harm that of another. Mr. President. Some try to redefine the obligations imposed by the prevention principle by reducing them to those owed under the climate change treaties. This is flawed as well. A state that fails to comply with the treaties cannot be said to have acted with due diligence, but it does not follow that the treaties encompass the totality of what due diligence requires. Such treaty provisions do not occupy the due diligence field. In pulp mills, the parties had concluded a treaty governing the protection and use of their shared water course. It contained elaborate, substantive, and procedural obligations. Nonetheless, the court interpreted the treaty obligations by reference to the requirements of due diligence, not the other way around. Mr. President, Those who equate the climate change treaties with due diligence emphasize the Paris Agreement's provisions concerning NDCs and their establishment, but they avoid mentioning the pillars upon which the obligations pertaining to NDCs are based: the temperature goal in Article 2 and the timeline in Article 4. Each, the temperature goal and the timeline, and thus the NDC obligations to which they are tied, Each is based on the state of science as existed in 2015. This is crucial because due diligence requires continual monitoring, evaluation, and reassessment, always having regard to the best available science as it exists at the time of the activity. The scientific consensus today regarding risk and what may be required to mitigate that risk may be different from what science may say about these issues in the future. Thus, the standard of due diligence may change over time, given that scientific and technical information, risk of harm, and the degree of urgency all constantly evolve. Freezing what due diligence requires with the Paris Agreement's temperature, goal, and timeline, and the NEC obligations on which they are based, all reflecting scientific consensus in 2015, cannot be squared with due diligence's evolutionary requirements. advances in our understanding of climate change, risk is not a theoretical possibility. Although Article 2 provides for a 2 degree increase in temperature as a goal and 1.5 degrees as an ambition, the best available science today understands the latter not as an ambition but as a threshold that cannot be crossed. Indeed, just three years after the Paris Agreement, in its 2018 special report, the IPCC concluded that the risk of unacceptable harm is significantly lower at 1.5 degrees than 2 degrees. In other words, the Paris Agreement's temperature goal is no longer adequately protective. Yet the agreement's NDC obligations, no matter how carefully negotiated or detailed, are tethered to that scientifically outdated goal. Mr. President, we do not know what the best available science will tell us about the risks of greenhouse gas emissions in five years, much less in 10 or 50. But the court's opinion will determine the content of the legal rules that will apply. Nothing you have heard provides any basis for fossilizing the due diligence obligation in the state of science as it existed nearly a decade ago. However, that is precisely what some participants ask you to do. Mr. President, those who argue that due diligence requires only compliance with the climate change treaties also do not acknowledge what this leaves out. That includes EIA, as the climate change treaties contain no EIA obligations. Thus, if the due diligence obligation is confined to complying with the treaties, A state will be under no obligation to carry out an EIA for an activity that emits greenhouse gases, even though, as Judge Owada observed, EIA can play a crucial role in ensuring that the state in question is acting with due diligence under international environmental law. Mr. President, the participants who argue that due diligence requires just compliance with the treaties made a similar argument at ITLOS. The tribunal rejected it. Those same participants do not explain how a state could be obligated to discharge the full range of due diligence obligations with respect to the marine environment, but must do less with respect to other parts of the environment. That disjuncture is irreconcilable with systemic integration. This brings me to the content of the due diligence obligation. The acts required to discharge the obligation must be determined by reference to the IPCC's conclusion that limiting the increase in global temperature to 1.5 degrees is needed to prevent irreversible harm. Whether a state acts with due diligence must be considered against this objective, which can change over time. As it was determined, given the IPCC's findings, The standard of due diligence is stringent to discharge its obligation to prevent pollution in the marine environment, and it's even more stringent in a transboundary context. A state is thus required to do the utmost and to observe its best possible efforts to minimize the emission of greenhouse gases, having regard for the need to prevent the 1.5 degree threshold from being exceeded, and taking into account the CBDR principle. In the words of the Silala judgment, a state must take all appropriate measures to prevent significant transboundary harm. Mr. President, in the climate change context, as in every other, all means all. It does not mean only those climate change treaty obligations. Thus, it is not the NDCs nor the process for their establishment that provides the benchmark for assessing due diligence. Rather, it's the IPCC's scientifically agreed standard that determines the concrete measures which a state must adopt, implement, and enforce. Mr. President, this concludes my presentation. I ask that you invite Ms. Juarez to the podium. ICJ · President [2:41:16]: I thank Mr. Andrew Oenstein. I now give the floor to Ms. Cristina Juarez. Gambia [2:41:27]: Mr. President, distinguished members of the court, it is an honor to appear before you on behalf of The Gambia. My presentation will focus on two key issues: the proper interpretation of human rights law in the context of climate change, and certain legal consequences resulting from the due diligence standard. On question A, some have expressed the view that human rights treaties should be interpreted in line with obligations states have undertaken under treaties that specifically address climate issues. Thus, the argument goes, states fulfilling the Paris Agreement thereby simultaneously fulfill their human rights obligations. We respectfully disagree. As Professor Jalloh just outlined, the Gambia supports the systemic integration of relevant bodies of law in ascertaining the climate change obligations of states. But this does not mean that the Paris Agreement can both limit and fulfill human rights obligations. Take the Human Rights Committee decision in Portillo Caceres versus Paraguay, which some states invoke to argue otherwise. The relevant passage is as follows. States parties should take all appropriate measures to address the general conditions in society that may give rise to the threat to the right to life, and these conditions include environmental pollution. In that respect, the Committee observes that the State party is also bound by the Stockholm Convention on Persistent Organic Pollutants. So, as you can see, The Human Rights Committee did not consider that compliance with the relevant environmental treaty would necessarily fulfill the obligation in respect of the right to life. Rather, it is only one relevant consideration. The Committee also clarified that the relationship between human rights law and environmental law is not a one-way street, as some suggest. In its General Comment No. 36, the Committee observed that while international environmental law should inform the content of Article 6 of the ICCPR, the obligations to respect and ensure the right to life should also inform obligations under international environmental law. Put simply, the Paris Agreement must be interpreted in line with human rights obligations, not just the other way around. Finding otherwise would be to override the obligations states have under human rights treaties. International jurisprudence, including from the African continent, confirms that states have mitigation obligations under human rights law that go beyond what is set out in the climate change treaties. For example, in holding that the African Charter on Human and People's Rights requires states to conduct and permit environmental and social impact studies prior to any major industrial development. The African Commission in SERAC versus Nigeria went beyond what is required under the UNFCCC and the Paris Agreement, neither of which mandates environmental and social impact assessments. As this court has held, decisions of the African Commission are given due account. Likewise, the Grand Chamber of the European Court of Human Rights recently found that legislation a State had enacted to reflect the commitments in its updated NDC under the Paris Agreement was insufficient to meet the State's duty to protect individuals from the adverse effects of climate change on their rights to life and health. Mr. President, I will now briefly address question B. The Gambia agrees with most participants that states must swiftly bring to an end any breach of the duty of due diligence. This obligation may entail both negative and positive actions, including changes to national policies, enforcement of climate targets, and the phasing out of fossil fuels. In this regard, The Gambia endorses the views expressed by Albania, Cameroon, Sierra Leone, Kenya, the Ivory Coast, and Mexico that the Court should reinforce the principle of the margin of appreciation enjoyed by states to regulate in the public interest. The ITLOS advisory opinion itself recognized that due diligence obligations in respect of climate change under UNCLOS require them to regulate activities carried out by both public and private actors. Recognition of the deference owed to the judgment of states would help thaw the regulatory chill that has resulted from investment arbitration claims threatened or brought by the fossil fuel industry in response to state measures aimed at addressing climate change. Mr. President, distinguished members of the Court, this concludes the submissions of The Gambia. We thank you for your kind attention. ICJ · President [2:46:29]: I thank the events of The Gambia for their presentation. This concludes this morning's sitting. The oral proceedings will resume this afternoon at 3:00 p.m. in order for Singapore, Slovenia, Sudan, Sri Lanka, Switzerland, and Serbia to be heard on the questions submitted to the Court. The sitting is closed.