THE HAGUE – The International Court of Justice (ICJ) holds public hearings in the advisory proceedings on Climate Change – Belize; Bolivia; Brazil. Burkina Faso; Cameroon and Philippines
International Court of Justice
Date: 3 December 2024
Language: English
Transcript: https://transcripts.un.org/en/asset/k1p/k1pox6k6uo
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.

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ICJ · President [0:58]:

Good morning, please be seated.

So the Court is in session. The Court meets this morning to hear Belize, Bolivia, Brazil, Burkina Faso, Cameroon and the Philippines on the questions that the General Assembly has put to us. Each delegation has 30 minutes. The Court will have a short break after the presentation of Brazil.

Now give the floor to Mr. Henry Quillem speaking on behalf of Belize. Sir, you have the floor.


Belize [1:52]:

Mr. President, Madam Vice President, distinguished members of the court, it is an honor to appear before this esteemed court on behalf of Belize, a small island developing state that faces the existential threat from climate change. This advisory opinion represents a historic opportunity for the international community to clarify the obligations of state in addressing this global crisis. For Belize, the stakes could not be higher. Belize is uniquely vulnerable to the impacts of climate change. Our nation is home to the second largest coral reef system in the world. A UNESCO World Heritage site. and the largest tract of forest outside the Amazon in Central America. These are not just natural treasures. They are lifelines for our biodiversity, economy, and cultural heritage. Yet they are under siege from rising sea levels, warming oceans, and increasingly severe storms. Hurricane Lisa alone in 2022 caused damages of nearly US $100 million, affecting nearly 40% of our population. Despite these vulnerabilities, Belize has been a beacon of commitment and action. Domestically, we have placed over 40% of our territory under legal protection, transitioned toward renewable energy, and pioneered innovative financing mechanisms including the groundbreaking blue bond for marine conservation. Internationally, Belize has consistently advocated for ambitious climate action through platforms such as the UNFCCC and as a member of the Alliance of Small Island States. Let me take one example of the profound human and environmental toll of climate change on Belize and on small island developing states more generally. That is the case of Monkey River, Once a thriving community engaged in fishing and ecotourism, it is now in crisis. Rising sea levels and intensifying storms, unmistakable markers of climate change, have stripped away its coastline, with some areas losing up to two metres annually. Mangroves and seagrass beds, which historically served as barriers and biodiversity hotspots, have been critically degraded. leaving Monkey River exposed to further damage. This devastation has upended the lives of Monkey River's residents. The tragedy of Monkey River is a reality of countless communities worldwide already enduring the impacts of climate change. The UNFCCC Standing Committee on Finance estimates that developing countries, including SIDS, require up to $584 billion annually by 2030 to address their costed needs and respond to the climate crisis. Yet, the recent COP29 decision pledged only $300 billion per year, leaving a staggering gap that delays adaptation, deepens vulnerabilities, and worsens losses. This underscores the urgent need for clarity on states' obligations under international law to protect vulnerable nations. Mr. President, Mr. Wordsworth, and thereafter, Ms. Sanders, members of Belize's counsel team will address you today, developing Belize's legal arguments. Mr. President, honorable members of the Special Chamber, that concludes Belize's opening statement. I now ask that you give the floor to Mr. Wordsworth.


ICJ · President [5:46]:

I thank Mr. Williams. I now give the floor to Mr. Sam Wordsworth. Sir, you have the floor.


Belize [5:52]:

Mr. President, members of the Court, it is a privilege to appear before you for Belize. I wish to start my brief remarks by recalling the deep importance of the current task before the Court, but also by asking whether there is such great legal complexity to one of the central issues before you, that is the application of the customary international law obligation of prevention in the current context. The Court now has before it no fewer than six lines of argument that seek to neutralise the existence or impact of the prevention obligation in the context of climate change, a display of legal firepower from those states most engaged in carbon consumption or production. that makes one raise a quizzical eyebrow as to the hope that there will ever be agreement within the COP to meaningful and binding treaty obligations to reduce emissions. The first argument on neutralisation is that greenhouse gas emissions are somehow the wrong sort of harm and thus fall outside the prevention obligation. That is despite the fact that the harm occurs outside the emitting state's borders, constitutes existential harm to neighboring and other states and is, by definition, significant transboundary harm. If that were not a relevant and applicable norm in this context, it would not be expressly referenced in the preamble to the UNFCCC. The argument is not serious, and it is irrelevant that the Court thus far happens only to have applied the prevention obligation with respect to environmental harm suffered by a neighboring state. A second and related argument is that the specific content of the prevention obligation has not been established by state practice and opinio juris in the current context of climate change. However, the relevant content is established. It is the due diligence obligation of prevention, which is universally recognised. Likewise, it must be applied in the given factual specific context of climate change and greenhouse gas emissions. The third argument aimed at neutralisation invokes lex specialis. It is as if the court had not many times confirmed that the same factual situation can readily give rise to the application of two or more sets of legal norms That is all the more unproblematic where, to quote the ILC on this topic, there is no actual inconsistency between them or else a discernible intention that one provision is to exclude the other. Well, plainly, there is no inconsistency. Where is the evidence of a discernible intention to exclude the prevention obligation? Nowhere in the UNFCCC and nowhere in the Paris agreement can one see that. Please recall the multiple declarations from states expressly clarifying that there had been no derogation. The fourth attempt at neutralisation seeks to invoke article 31 of the Vienna convention with respect to the interpretation of climate change treaties. I need not dwell on that, because the customary rule of prevention applies in parallel. The requirement that an applicable rule of international law shall be taken into account does not, in any event, mean that the rule is to be treated as displaced or neutralised by the treaty provision at issue. The fifth argument on neutralisation, which was also deployed yesterday, is that compliance with obligations under the climate change treaty will automatically mean compliance with the obligation of due diligence under the prevention obligation. That makes no sense. What is required for due diligence depends on what an individual state has itself done in the specific situation to meet the specific obligations it owes under the prevention obligation. The Court has stated in clear terms, and as can only be correct, that the notion of due diligence calls for an assessment in concreto. The final argument on neutralization is that the UNFCCC and Paris Agreement establish a self-contained regime, displacing the usual rules on state responsibility. Where, again, one might ask, can one locate any agreement to that effect? Again, there is none, and the argument is based on assertion and assumed difficulties of application alone. Mr. President, members of the Court, if I can conclude with an analogy that seems apt. It is said that in order to catch a macaque monkey in the Philippines, all that is needed is a large glass jar with a narrow neck and a small mango. Having reached in, the macaque is hard-wired to hold on to a prized morsel of food. and so cannot remove its fist from the jar, clenched as it is around the mango. Although free to escape, it will not let go and hence awaits an unpleasant fate. The analogy is, of course, entirely clear. In human terms, it currently appears impossible voluntarily to let go of the lifestyles now enjoyed, in particular in the global north, and likewise for states to let go of carbon-based revenue streams. But in terms of international law, we are in the realm of obligation, not discretion. Who knows when, or if, the competing interests of states will ever lead to meaningful treaty-based obligations of reduction within the COP, but hard-edged obligations already apply as a matter of the prevention obligation in customary international law. Mr. President, I ask you now to call on Ms. Sander, who will develop Belize's submissions on the prevention obligation and the issue of causation. I thank you.


ICJ · President [13:19]:

I thank Mr. Wordsworth. I now give the floor to Ms. Amy Sander.


Belize [13:31]:

Mr. President, members of the court, it's an honor to appear before you. There is a river. The river flows through various states, states A, B, C and D. States A and B have, to varying but significant degrees, each dumped quantities of a metal pollutant in the river. For states C and D downstream, because of the cumulative presence of the metal pollutant, their harvests are decimated and biodiversity destroyed. It could not seriously be contended that states A and B are not each subject to the well-established customary international law obligation to ensure that activities within their jurisdiction or control do not cause significant harm to the environment of other states, what Belize has termed the prevention obligation. That obligation applies with respect to harm to states C and D, as well as to any other states in the same position. It makes no difference how many states may suffer the significant harm. Yet, replace the metal pollutant with greenhouse gases and the river with the atmosphere. That is, in essence, what some states in these proceedings have contended. It has been said in categorical terms that, because the harm caused by greenhouse gas emissions results from cumulative emissions and various sources and impacts not just one neighboring state, that the prevention obligation is simply inapplicable in this context. That inapplicability contention is advanced despite the fact that the court has never formulated the obligation in such restrictive terms and despite the express reference to the obligation in the UNFCCC preamble, which reflects a clear acknowledgement that it does apply in the present context. That inapplicability contention is advanced despite the fact that we know that the best available science is unequivocal that all greenhouse gas emissions above a de minimis level contribute to the risk of serious harm through climate change. Furthermore, if that inapplicability contention were accepted, it would follow that a critical aspect of the prevention obligation namely the obligation to carry out an assessment of potentially harmful activities, what Belize has termed the assessment obligation, would not apply to states' emissions. But it would be perverse if a state were obliged under customary international law to assess the environmental impact of a factory in its territory emitting a metal pollutant into a river that risks causing significant harm to one or more states, yet not, as regards the factory next door, pumping greenhouse gases into the atmosphere, contributing to catastrophic harm to all states. The separate treaty obligation under article 4 of the UNFCCC, passing reference to impact assessments framed in broad terms as a possible appropriate method and, of course, applicable only to state parties to the treaty, does nothing to displace the independent customary obligation. Belize recognises that some element of causation is wrapped up in the content of the prevention obligation. The obligation requires a state to exercise due diligence to prevent harm being caused to the environment of other states. The proceedings present the court with an opportunity to explain how causation operates with respect to the applicability of the prevention obligation. This is, of course, a distinct issue from the subsequent question of how causation may be treated when considering reparation for a breach of the obligation. Belize first sets out four foundational points which it considers to be uncontroversial. before turning to make three submissions on causation with respect to the applicability of the prevention obligation. there is no single legal test under international law for determining whether a sufficient causal connection has been established in a given case. Depending on the context, various tests of causation have been applied by international and domestic courts. Some are more demanding than others, driven at least in part by the recognition that the just solution to different kinds of cases may require different causal tests. the applicable causal test must be informed by the precise content of the relevant international law obligation. Third, and as indicated earlier, the science is clear. Greenhouse gas emissions of state A contribute to the total greenhouse gas concentrations in the atmosphere, and the total greenhouse gas concentrations will cause climate change harms. So there's an indisputable chain of causation between state A's greenhouse gas emissions and the relevant harm. Belize referred to this in its written submissions as general causation. to be contrasted with specific causation, which refers to a specific act or policy causing a specific harm. the fact that a given harm has multiple causes does not mean that a state's obligation to take measures to avert that harm is somehow disapplying or even attenuated. You already have my example of the river and the metal pollutant. Another helpful example is drawn from the court's judgment in Bosnia genocide. The court held that the fact that a state's compliance with its preventive obligation could not have averted the relevant result would be, and I quote, "irrelevant to the breach of the obligation of conduct in question, the more so since the possibility remains that the combined efforts of several states, each complying with its obligation, to prevent might have achieved the result that the efforts of only one state were insufficient to produce. Building on those four foundational points, Belize makes three submissions. First, for the purpose of the applicability of the prevention obligation, general causation suffices to meet what the European Court of Human Rights has termed the legally relevant relationship of causation. That approach is consistent with ITLOS's position regarding the applicability of the UNCLOS obligation to prevent pollution of the marine environment in the context of climate change. The relevance of general causation is evident from the precise content of the prevention obligation. I recall my second foundational point. Specifically, international courts have consistently spoken of the need to ascertain whether there is a risk of significant transboundary harm. For the obligation to arise, it is not necessary that the state could foresee the precise form of possible harm or the precise victim states. Indeed, the prevention obligation encompasses the assessment obligation, and it is only through conducting an assessment in the first place that any such specific risks could be reliably identified. It is thus sufficient that states can foresee harm to the climate system as a whole, to all states, as a result of greenhouse gas emissions above a de minimis level. Thus, applying a threshold of general causation here is not, as has been suggested in these proceedings, an argument that rests on the court generating any novel principle of international law. It is an orthodox application of the well-established elements of the existing customary rule. Second submission, in assessing the risk of harm resulting from a particular activity or policy by reference to general causation, the cumulative impacts of other activities, whether of the relevant state or a third state, must be taken into account. Returning to my river example, before state A permits the release of the metal pollutant into the river from a factory on its territory, that state would clearly be obliged to consider the already accumulated levels of the metal pollutant in the river, as well as any reasonably foreseeable future levels of the metal pollutant to be emitted by state A or any other state. And intuitively, the same applies to greenhouse gases. and this approach is reflected in the decisions of ITLOS and the Inter-American Court of Human Rights. Third submission, as to the separate question of specific causation, that is, whether a specific act of State A in fact caused a specific identifiable harm in a given other state, That specific causation is relevant at a subsequent stage of the invocation of responsibility, when reparations are being sought and determined. That was a point squarely made by ITLOS in the context of article 194 of UNCLOS. That subsequent stage would clearly be a fact-specific assessment, and several states agree that a threshold of but-for causation would be inappropriate. One could pose hypothetical cases involving large-scale emissions where a sufficiently quantifiable harm emanating from a specific project or a specific state could, in fact, be evidenced by best available science. We have seen domestic courts engaged in aspects of such quantification. The key point for present purposes is this: Any difficulty in establishing specific causation in certain claims for reparation is not a principal basis to foreclose the applicability of the prevention obligation in this context altogether. In these proceedings, pragmatic guidance from the court is key. With that in mind, I focus now on one hard-edged, concrete aspect of the prevention obligation: the assessment obligation. ITLOS described that as a crucial application of the prevention obligation. vital for identifying risks of harm before they materialise, as well as ensuring public awareness of the impact of activities and public participation on what is or is not done to our planet. To cite the apex court of the United Kingdom earlier this year, you only care about what you know about. With reference to the well-established jurisprudence of this court, Belize identified three stages to the assessment obligation, as follows: identifying an activity having the potential to adversely affect the environment of another state; ascertaining whether the activity poses a risk of significant transboundary harm; where such risk exists, conducting the assessment itself. The application of each stage to greenhouse gas emissions is addressed in detail in Belize's written submissions. Today, I highlight the following points. First, it is well established that the assessment obligation applies to specific activities planned to occur within a state's territory or otherwise within the state's jurisdictional control. Applied to greenhouse gas emissions, it includes activities planned by a developer or contractor, including private actors, as well as a state's broader policy decisions to allow relevant emitting activities. Second, as to the threshold of a risk of significant transboundary harm, that denotes an objective assessment referring to a possibility rather than a likelihood. The due diligence standard takes into account both the degree of the risk of harm and the gravity of the consequences if the risk materialises. With respect to greenhouse gas emissions, the following are of particular relevance and significance: the best available science, as reflected in the Intergovernmental Panel on Climate Change reports; and the precautionary principle. There must be taken into account both sensitive receiving environments, such as Belize's coral reefs, and, as I indicated earlier, cumulative impacts. The information contained in the assessment must be sufficient to allow informed decision making in the state of origin. and to meet the needs of potentially affected states in understanding the degree and seriousness of the risk of adverse transboundary impact, although, while not authoritative, appendix 2 of the Espoo convention offers useful general guidance in that regard. Fourth, the states must notify in good faith potentially affected states. where that is necessary to determine the appropriate measures to prevent or mitigate the risk, as was expressly confirmed in the certain activities case. The existence of that obligation flows from both the nature of the requirement to exercise due diligence and the duty to co-operate. Finally, the obligation to undertake the assessment is a continuous one. with monitoring of the relevant activity conducted in accordance with the best available science, so as to evaluate the actual, as opposed to predicted, effects of the relevant activity. Flowing from the nature of the requirement to exercise due diligence, the duty to co-operate and the critical role of enhanced transparency and public scrutiny in the prevention of environmental harm, the monitoring reports must be made public. In conclusion, an opinion affirming the applicability of the prevention obligation to the present context, including an elucidation of the causation analysis and guiding states by identifying the hard-edged contours of the assessment aspect of that obligation, would be a concrete outcome of real pragmatic significance. Mr. President, Members of the Court, that concludes Belize's submissions.


ICJ · President [29:49]:

I thank the friends of Belize for their presentation. I now invite the delegation of Bolivia to address the Court, and I call His Excellency Roberto Calzada Salimán to the podium.


Bolivia (Plurinational State of) [30:11]:

Mr. President, members of the court, it is a great honor to appear again before you and to do so on behalf of the plurinational state of Bolivia. Mr. President, climate change stands at the defining challenge of our time and the gravest threat facing humankind, including future generations. With global temperatures already approaching the critical 1.5% threshold, we confront an unprecedented crisis that will shape the fate of generations to come. Its worst consequences are borne disproportionately by those who have contributed less to its course, making this not merely a matter of scientific fact, but fundamentally an issue of justice. Bolivia recognized that the structural causes of climate change stem from the current anthropocentric model, particularly the capitalistic system of development that has dominated the last two centuries. The system has precipitated the present climate crisis, violating basic human rights, disrupting Mother Earth's life cycles, leading to ecosystem collapse, upending traditional ways of life for hundreds of millions of people worldwide, and intensifying global hunger and poverty. The question of state responsibility for climate change cannot be divorced from this reality. Not all states bear equal responsibility for anthropogenic climate change, yet developing states, particularly as Bolivia, a landlocked developed country, bear a disproportionate burden of its consequences. This inequity fundamentally undermines the human rights of present and future generations. Mr. President. Bolivia fully maintains all positions articulated in its written statement, to which is respectfully refer you today. We will endeavour to assist the Court today on five central issues. First, we will demonstrate that this Court possesses not only the jurisdiction, but indeed the duty to render an advisory opinion on these questions, which are manifestly legal in nature and of paramount importance to the international community. We will examine the relationship between climate treaty obligations and other obligations under international law, establishing why compliance with climate treaties alone cannot absolve states of their broader international obligations. Third, we will address the principles of common but differentiated responsibilities and respective capabilities demonstrating its status as a fundamental principle of general application in international law and that must inform the interpretation of all climate-related obligations. And finally, we will examine the duty to cooperate and its specific implications for climate finance, showing how meaningful cooperation through climate finance constitutes not a discretionary act, but a necessary implementation of established legal duties. Mr. President, members of the court, given the broad consensus among participating states regarding the court's jurisdictions in this matter, we see no need to belabor this point. The questions before the court are manifestly legal in character, and the General Assembly's competence to request this opinion is clear. However, we would note that recent developments at the COP29 in Baku demonstrate precisely why the Court's guidance on this question is so vital. The ongoing struggles to secure financial commitments for climate action and the bitter division between states of responsibilities and obligations illustrate how the international community urgently needs clear legal guidance on questions of obligation and responsibility. In these circumstances, Mr. President, we submit that not only does the Court have jurisdiction, but the exercise of its jurisdiction is particularly appropriate and necessary at this moment. Mr. President, I turn to the fundamental question of the scope of states' obligations in respect of climate change. The first question posed to the court requests it to identify the obligations of states in respect to climate change. Bolivia notes that the UN Framework Convention on Climate Change regime has the fundamental and primary role in addressing climate change issues for the wide range of sources from which climate related obligations team. These obligations arise not only from the climate change treaties, but also from customary international law, human rights law, and other international instruments. It must be recorded that some of the participants appear to object to the breadth of the request, arguing that the climate treaties alone apply to the phenomenon of climate change. Others have argued that the climate treaties constitute lex specialis, with the intended implication being that compliance with these treaties should be considered in all cases sufficient, irrespective of the existence of other obligations. These views are untenable for three questions. First, The UNCCF and the Paris Agreement themselves acknowledge the relevance of the other obligations, indicating they were designed to complement, not replace, existing international law obligations. Second, the principle of systemic integration requires the treaties be interpreted in harmony with other applicable rules of international law. This means that obligations under the climate change regime must be read consistently with fundamental principles, such as the principle of prevention and the protection of human rights. Third, even if the climate treaties were to be considered lex specialis, which we submit they are not, Any displacement of obligation source elsewhere would occur as a result of a conflict. No such conflict occurs here. As a result, it cannot be said that compliance with climate treaties may absolve states from their other international obligations. The recent advisory opinion of the International Tribunal of International Law of the sea confirms this understanding, insofar as it rejected the notion that compliance with the Paris Agreement alone may satisfy states' obligations under UNCLOS. Different legal regimes create distant but complementary obligations regarding climate change. Mr. President, this conclusion carries several important implications, of which Bolivia wishes to highlight. Three, first, different legal obligations may impose varying standards of conduct which should be interpreted in conjunction to address climate change. With the UN Framework Convention on Climate Change regime playing a primary and fundamental role. Second, the historical responsibility for climate change remains relevant under general international law. Third, cross-cutting Principles of such as the common but differentiating responsibilities must be understood to operate across these different legal frameworks. In conclusion of this point, Mr. President, Bolivia submits that the court must consider the full spectrum of international legal obligation bearing on climate change, recognizing that compliance with one set of obligation does not excuse the compliance with others. In the Nuclear Weapons Advisory Opinion, the Court affirmed that this principle is part of the corpus of international law relating to the environment, and recently, in ICLOS, has confirmed that it applies to climate change. In its recent advisory opinion, the Tribunal has confirmed that in the context of UNCLOS, Article 194, paragraph 2, imposes upon States parties a particular obligation to take all measures necessary to ensure that anthropogenic greenhouse gas emissions under their jurisdiction or control do not cause damage to other states and their environment. The Tribunal emphasized that this amounts to an obligation of due diligence. The key question is whether this established principle for international environmental law applies to greenhouse gases emissions and, more broadly, climate change. While most participants agree that it does, some argue that it does not on the basis of three main objections. None withstand scrutiny. First, some argue that the global nature of climate change precludes the application of prevention principle as traditionally applied to bilateral transboundary harm. This argument fundamentally misunderstands the nature of the obligation. The principle necessarily encompasses all forms of significant harm, regardless of the precise pathways through which that harm occurs. Moreover, the global character of climate harm strengthens rather than weakens the application of the prevention principle. If states must prevent localized transboundary harm, the harm which threatens the rights of one state They must a fortiori prevent contributions to global environmental damage that threatens the fundamental rights of all states. Second, it is suggested that the cumulative nature of emission negates individual state obligations, inter alia because the resolution of climate crisis requires collective efforts and cooperation. These two must be rejected. The principle of prevention has always encompassed forms of harm resulting from aggregate conduct. Moreover, the objection is strictly speaking a classification error. Obligations do not become collective by virtue of their breach contributing to cumulative harm. Thus, it cannot be said that the nature of the harm absolves individual States of their obligations, understanding those obligations within the framework of historical responsibilities and the principles of equity and common but differentiated responsibilities. Third, this understanding is reinforced rather undermined by the fact that substantive obligations are accompanied by procedural obligations because it is only through corporations that state can effectively manage and prevent environmental risk. Procedural obligations such as of those of cooperation, notification and consultation are vital for protecting shared resources that can only be safeguarded through continuous cooperation. But the Court has emphasized that prevention requires cooperation precisely because environmental challenges cannot be addressed in isolation, but because shared challenges absolve individual states of their primary obligations. Fourth, some states point the difficulties of causation and attribution. The complexity of climate science cannot be used to evade obligations under international law, and in any event, matters of causation and attribution must be examined in relation to the relevant rules concerning the consequence of the breach of primary obligation, which Bolivia submits are to be found in the law of state responsibility. On the contrary, causation and attributions play no role in determining the existence and scope of primary obligations. Mr. President, I turn now to the principle of common but differentiated responsibilities and respective capabilities. The question of the legal status of the CBDR principle has generated significant debate. Some states contend that this principle operates exclusively with the framework of environmental treaties, particularly the climate change regime. Others maintain that it may instead inform obligations across different legal regimes. Bolivia aligns itself with this later view. Two key considerations supporting recognizing the common but differentiated responsibilities and respective capabilities as a principle of general application in international law. First, These principles may be seen as a specification of the principle of equity. It operationalizes the recognition that states which have contributed differently to the climate crisis and which have different capacities to address them, cannot be held to identical standards. Second, there is growing recognition that this principle is applicable to the question of climate change beyond the scope of environmental treaties. For example, the International Treaty on Law of the Sea recently confirmed that while the UN Convention of Law of the Sea does not explicitly refer the principle of common but differentiated responsibility, it contains elements common to this principle. Similarly, the principle has been found to shape the understanding of human rights obligation in the context of environmental protection. The implication of recognizing these principles' broader status are significant. It means that the principle must inform the interpretation of all obligations relevant to climate change, not just those under the climate treaties. In this connection, Bolivia wishes to draw attention to two specific points. First, CBDRRC affects the assessment of due diligence standards across different legal systems. What constitutes appropriate measures to prevent environmental harm necessarily varies according to both states' historical contributions and present capabilities. The standard expected of states must reflect both the differential contribution to environmental harm and their varying capacities to address it. In its advisory opinion, the ICJ confirmed that the scopes of measures to reduce anthropogenic greenhouse gas emissions may differ between developed states and developing countries. And while all states must make mitigation efforts, developed states should continue taking the lead. This differentiation is particularly relevant for landlocked developing countries such as Bolivia, whose historical contribution to climate crisis has been insignificant. Second, may be relevant not just for the assessment of the obligation of state in respect of climate change, but also for the consequence of the breach. Mr. President, on this point, some states emphasize that this principle necessarily influence how state responsibility operates in the climate context. They argue that responsibility cannot be assessed without reference to states' historical contributions to the problem. Some participants point to the paradox of applying identical standards of responsibility to states that have contributed va- vastly different amounts to cumu- cumulative emissions. Other states strongly contest the link between these principles and state responsibility. They argue that the common but differentiated responsibility is forward-looking and cooperative in nature, designed to facilitate future action rather than assign responsibility for past conduct. These states maintain that the principle cannot modify the established rules of state responsibility, which they argue operate independently of states' different circumstances or capabilities. Bolivia submits that the truth lies between these extremes. The principles neither displace nor override the law of state responsibility. The basic elements required to establish responsibility breach of an obligation, attribution and causation, absence of circumstances precluding wrongful remain unchanged. However, CPDRRC necessarily informs how these elements are assessed in the climate context, including on the basis of the historical contribution to the harm. This is particularly relevant in three ways. First, In determining whether a breach has occurred, the content of the primary obligation itself should be assessed on the basis of the principle of common but differentiated responsibilities. Second, in assessing causation, the historical dimension of greenhouse gas emission cannot be ignored, as it forms part of the factual matrix against which responsibility must be determined. Third, in considering appropriate reparation, the principle of full reparation must be understood in light of States' different capabilities and circumstances. This understanding better reflects both the reality of climate change and the fundamental nature of this principle of common but differentiated responsibilities as a specification of the general principle of equity. It allows for responsibility to be determined in a manner that accounts for historical contributions while preserving the essential features of the law of state responsibility. Third, these principles inform the duty of cooperation, to which I now turn. Mr. President, when states cooperate to address global challenges, they must do in a manner that accounts for different levels of responsibility and capability. This requires operate independently of specific treaty provisions. The duty to cooperate stands as a fundamental pillar of international environmental law, particularly in addressing the climate crisis. This obligation derives from multiple sources of international law and has been consistently recognized by international court and tribunals, given that impacts on the climate system results from cumulative actions over an extended period. Not a single state can halt it, nor address its consequences in isolation. This duty finds its expression in Article 1 of the UN Charter, which commits states to achieve international cooperation in solving international problems of economic, social, cultural, or humanitarian character. The Charter obligation is further reinforced by Article 56, under which Member States pledge themselves to take joint and separate action in cooperation with the Organization to achieve the purpose set out in Article 55. In the environmental context, the duty to cooperate is reflected in fundamental, in fundan, foundational instruments, including the principle 24 of the Stockholm Declaration, the principle seven of the Rio Declaration. Most recently, it was characterized cooperation as a fundamental principle in the prevention of pollution of the maritime environment. The climate change treaty regime provides specific expression to these cooperative duties without displacing broader obligations under general international law. The UN framework on climate change preamble explicitly acknowledge that The global nature of climate change calls for the widest possible cooperation by all countries. The Paris Agreement elaborates concrete mechanisms through Article 7 on adaptation, Article 8 on loss and damage, Article 9 on finance, Article 10 on technology, and Article 11 on capacity building. The duty to cooperate, which emerged as a specification of the principle of good faith, is not merely a general obligation under customary international law, but requires specific content to be effective. This duty extends beyond formulating and elaborating commitments in multilateral framework agreements, and it is a continuing is not nature cannot be satisfied by one time act. The duty to cooperate is neither an aspirational policy preference nor an incoherent obligation lacking any meaningful content. In the climate context, this cooperation must primarily flow from developed to developing states and constitute an obligation for developing countries, particularly as regards the provision of technical and financial support. Meaningful cooperation in climate finance represents a necessary implementation of this duty. Moreover, this duty must be informed by the principle of common but differentiated responsibilities, which requires States to conduct consistent efforts to assist developing countries with modalities of climate finance, must evolve to meet the urgency of the climate crisis and considerations of equity. Therefore, States cannot be said to have satisfied their duty to cooperate if they do so through financing mechanisms that place additional burdens on those already most vulnerable to climate impacts, or through processes that create de facto barriers to accessing necessary support. The duty to cooperate in the context of climate finance requires four fundamental transformations. First, access to climate finance must be simplified and expedited. The current bureaucratic barriers to accessing climate funds constitute a de facto limitation on developing states' ability to implement necessary climate measures. The duty to cooperate requires paying add to the special needs of developing countries and ensuring that international cooperation enables effective implementation of treaty obligation. Second, as Bolivia emphasized at the COP29, climate finance must prioritize grants over loans. and greater use of special drawing rights as debt-free financial options. This approach aligns with the established principle that cooperation must flow primarily from developed to developing countries and cannot be reduced to merely voluntary or solidarity measures. The obligations to provide financial resources represent an authentic interpretation by the parties of their obligation previously established in the climate change treaties. Moreover, the practice providing climate assistance, primarily through debt instruments, effectively transferred the burden of climate actions to those less responsibly. for the crisis and undermines, rather than respect, the principle of common but differentiated responsibilities. Third, developing countries have an obligation to provide financial assistance, technology and support. The establishment and operationalization of the loss and damage fund represent practical implementation of this obligation and constitute a core requirement. Fourth, The established obligation to cooperate requires meaningful participation and engagement in relevant processes. This obligation to cooperate meaningfully and in good faith includes participation in both technical and financial processes to support developing countries. In the context of climate change, this duty must be implemented in line with the principle of common but differentiated responsibilities, meaning states with greater capacity should conduct consistent efforts to cooperate with and assist other states in their fight against climate change. Mr. President, the plurinational state of Bolivia submits that the court advisory opinion should recognize that the adequacy of climate finance in terms of both quantity and accessibility is integral to assessing compliance with international obligations regarding climate change. This includes both procedural obligation and substantive obligations to provide meaningful support. The implications are clear. Developed states cannot claim to be meeting their international obligation while maintaining systems of climate finances that are inadequate, effectively inaccessible for those most in need, or while imposing additional debt burdens on developing states for addressing a crisis they did not create. For the avoidance of any doubt, the duty to cooperate and the rules of state responsibility operate in a complementary rather than mutual exclusive manner, as evidenced By numerous States' submission, the existence of cooperative frameworks in the climate regime does not displace the application of the general rules. The complementary nature of this obligation is particularly evident in the context of climate finance. Voluntary contribution to cooperative mechanism cannot satisfy or substitute for the legal obligation of developed countries to provide compensation for harm caused by international wrong acts. As multiple States have emphasized, the distinction between voluntary cooperative mechanisms and legally binding obligation of reparation must be maintained. The practice of cooperation through climate finance mechanism must therefore be understood as operating alongside rather than replacing obligations arising from State responsibility. Moreover, Mr. President, maintaining the distinction between cooperation and responsibility is essential for the effectiveness of the climate regime. If cooperative mechanism were to be understood as displacing responsibility, this would undermine both the deterrent effect of state responsibility and the voluntary nature of cooperation. The court should therefore affirm that while states must engage in good faith cooperation to address climate change, such cooperation operates in addition to, not in place of, their responsibility for international wrongful acts. Mr. President, members of the Court, that concludes my statement on behalf of the Plurinational State of Bolivia. I should like to thank the Court for its careful attention.


ICJ · President [1:00:00]:

I thank the representative of Bolivia for his presentation. I now invite the delegation of Brazil to make his oral statement, and I call upon His Excellency Luiz Alberto Figueiredo Macato to take the floor.


Brazil [1:00:17]:

Thank you.

Mr. President, members of the Court, I am deeply honored to appear before this distinguished Court today. It's been Brazil's longstanding policy to support the International Court of Justice, to stand up for the rule of law in international affairs, and to embrace multilateralism and international cooperation to combat climate change. As we prepare to host next year the 30th Conference of the Parties to the UN Framework Convention on Climate Change, I take personal pride in representing my country in these proceedings, We aim to deepen our collective understanding of states' obligations regarding climate change. At the outset, I would like to thank the government of Vanuatu for the initiative of bringing this fundamental issue to the consideration of the Court. In these opening remarks, I will outline Brazil's perspective on climate change and the notion of historical responsibilities that underpins it. Brazil is acutely aware of the devastating impacts of climate change. Our people have been enduring extreme weather events, from severe droughts in the north to relentless rain and floods in the south. Intense forest fires have ravaged vital biomes such as the Amazon, the Cerrado, and the Pantanal. Sadly, these extreme events disproportionately affect our most vulnerable populations. Our vision for the next decades is deeply rooted in the principle of climate justice. At its core, climate justice seeks to combine environmental protection and social inclusion, ensuring that individuals, economies, and nature interact sustainably. On a global scale, it requires prioritizing the needs of the most vulnerable, those who have contributed the least to climate change but bear its heaviest burden, including indigenous peoples, traditional communities, women and children. This vision reflects the broader tenet of common but differentiated responsibilities and respective capabilities, CBDR-RC. Each nation must contribute to combating climate change in proportion to its social economic capacity and historical role in global emissions. Furthermore, to achieve climate justice, our collective action must address inequalities, both among nations and within them, leaving no one behind. Brazil, as a developing country, still faces significant social economic challenges. Ranking 89th in the Human Development Index, our primary focus remains eradicating poverty, hunger, and inequality. In 2022, 12.7 million Brazilians lived in extreme poverty, with government social programs accounting for 67% of the household income for this population segment. Despite these challenges, Brazil has demonstrated ambition and leadership. Last month, we unveiled a new and enhanced Nationally Determined Contribution, NDC, pledging to reduce greenhouse gas emissions by 59 to 67% by 2035 compared to 2005 levels. This represents a 13 to 29% increase in ambition compared to our previously established 2030 target. Our range-based target allows flexibility to adapt to evolving economic conditions, international cooperation, and technological progress. Brazil's commitment, reflected in its new NDC, extends far beyond what could be reasonably expected based on our historical responsibility for global temperature rise. As a developing country with multiple economic and social challenges, we have nevertheless adopted an economy-wide absolute emissions reduction target. The ambition, scale, and scope of Brazil's effort reflect a level of ambition that often surpasses those of historically high-emitting developed countries. This is the ambition of a nation that faces much higher costs of capital and less fiscal space than developed countries, to finance its just transition towards low-carbon and climate-resilient development. Mr. President, the issue of historical responsibilities has been a recurring theme in these procedures. I wish to address its scientific basis. The Intergovernmental Panel on Climate Change, in its sixth assessment report, acknowledges that global greenhouse gas emissions have risen sharply since the Industrial Revolution. These emissions have disproportionately resulted from unsustainable energy use, land use, and land use change, lifestyles, and patterns of consumption and production in developed regions. The warming we face today is predominantly the result of historical emissions accumulated over the last 250 years. According to science, the causality link between greenhouse gas emissions and global warming involves a three-step process. First, emissions increase atmospheric concentrations of greenhouse gases. Then, the higher concentration drives temperature rises, which in turn result in associated harm. However, this is not a linear process. but rather a dynamic interaction in which past emissions contribute exponentially more to current global warming than present-day emissions. Moreover, historical emissions have significantly depleted the remaining carbon budget, which is the amount of greenhouse gases that can still be emitted while limiting warming to 1.5 or well below 2 degrees Celsius as required by the Paris Agreement. IPCC has estimated that approximately 45% of historical greenhouse gas emissions remain in the atmosphere today. The unequal appropriation of the global carbon budget by developed countries not only creates new constraints to the economic and social development of developing countries, but also dramatically affects the livelihoods of the most vulnerable populations. Thus, the main provision differentiated between developed and developing countries, enshrined in the three core instruments of the climate regime, the UNFCCC and the instruments adopted thereunder, namely the Kyoto Protocol and the Paris Agreement, reflect not only different capabilities and circumstances, but also varying historical responsibilities. Climate justice demands that nations benefiting the most from historical emissions that still deplete the global carbon budget must bear the greater burden in addressing climate change. Mr. President, our legal advisor will take you through the main elements of our legal reasoning. He will comment on topics that may hopefully assist the court in rendering its opinion. I must point out that legal issues not covered in this intervention, such as the strong relationship between climate change and human rights, cannot be construed as unimportant to us. or that Brazil agrees to a particular legal reasoning we are not commenting on. I would now most kindly ask you, Mr. President, to invite Professor Jorge Galindo to continue the presentation of Brazil's case. I thank you very much for your attention.


ICJ · President [1:11:30]:

I thank His Excellency Luiz Alberto Figueiredo Baccado. I now give the floor to Professor Jorge Galindo. Professor, you have the floor.


Brazil · Professor [1:11:44]:

Mr. President, Members of the Court, Brazil concurs with many states that the advisory opinion requested by the General Assembly through Resolution 77/276 raises issues of international law of paramount importance. These questions fall within the court's jurisdiction, and we trust the court will provide its invaluable guidance. In its written comments, Brazil stressed the centrality of the principle of common but differentiated responsibilities and respective capabilities to the advisory opinion to be delivered by this court. and to the climate change international legal regime as a whole. Brazil views the CBDRRC principle as the cornerstone of the international climate change legal framework. This principle underpins the UNFCCC and the two instruments adopted under it, namely the Kyoto Protocol and the Paris Agreement, ensuring equity in both interpretation and implementation. In many senses, it is the translation of the idea of historical responsibilities to international legal terms. The fact that many states in their written comments refer to it as the cornerstone of the regime or its core principle is not a rhetorical statement. Such comments represent a strong opinion that recognizes the centrality of the principle. The International Tribunal for the Law of the Sea, in its last advisory opinion on climate change and international law, was straightforward in recognizing the principle as established in the UNFCCC and the Paris Agreement thereunder as, and I quote, "a key principle in their implementation." End of quote. The Paris Agreement states unequivocally, and I quote, This agreement will be implemented to reflect equity and the principle of common but differentiated responsibilities and respective capabilities in the light of different national circumstances." It is clearly a principle paramount to the entire implementation of that agreement. The reason for differentiation in the Paris Agreement and previous treaties on climate change is more than evident. States have historically contributed differently to anthropogenic emissions of greenhouse gases and have distinct capabilities and resources to prevent and cope with the adverse effects of climate change. The Paris Agreement did not diminish the CBDRRC principle. Rather, it expanded the ambition and commitments of all parties. Developed countries must take the lead, reflecting their historical responsibilities and greater capabilities. In this sense, developed nations, which historically emitted the most greenhouse gases, must lead by achieving net zero emissions earlier, investing in transformative technologies, and providing financial and technical support for developing nations to fulfill their commitments. Brazil sees no reason why the Court's case law on the obligations of States to prevent transboundary harm should not be applicable in the domain of climate change. These are undoubtedly due diligence obligations and, thus, obligations of conduct. Since due diligence obligations can only be understood on a case-by-case basis, differentiation among States must be considered while assessing the reach of such obligations. In other words, the CBDRRC principle is widely applicable in due diligence obligations under the climate change international legal regime. We understand that the CBDRRC principle does not exempt developing States from their obligations of due diligence. However, This does not mean that due diligence expected from developing states will be the same conduct expected from developed states. Differentiation still applies. In the history of negotiations of all climate change treaties, differentiation has always preceded the idea of setting international legal obligations. Once more, the International Tribunal for the Law of the Sea, in its advisory opinion on climate change and international law, properly understood the issue by stating that the implementation of the standard of due diligence, and I quote, "may vary according to states' capabilities and available resources. Such implementation requires a state with greater capabilities and sufficient resources to do more than a state not so well placed." This Court's Pope Mails case corroborates such understanding of the International Tribunal for the Law of the Sea by referring to the term, and I quote, "the means at its disposal," end of quote, in its paragraph 101. Regarding the types of obligations a state has in the climate change international legal regime, Brazil wants to stress that these treaties also establish obligations of result. That is the case, for example, of Article 9.1 of the Paris Agreement, one that undoubtedly establishes the legal obligation of developed states, parties to, and I quote, provide financial resources to assist developing country parties with respect to both mitigation and adaptation in continuation of their existing obligations under the Convention." This obligation is of the utmost importance for the Court to emphasize in its advisory opinion, especially considering that the recent COP29 once more showed the centrality of financial resources to tackle the harmful effects of climate change in all parts of the world. Mr. President, Brazil highlights that the core climate change international legal regime treaties are the UNFCCC, as well as the Kyoto Protocol and the Paris Agreement adopted thereunder. They fulfill different and complementary regulatory functions. Although a few States are not parties to the Kyoto Protocol, it is undeniable that those treaties were framed to form the basis of the regime. Obligations arising from those treaties are essential to tackle the harmful effects of climate change. The climate change legal regime must be understood and applied in an integrated and systemic way. It is a matter of fact that the Kyoto Protocol and the Paris Agreement were adopted under the UNFCCC. They support and enhance the core provisions of the Convention. It is self-evident that they do not replace the UNFCCC or revoke it. Quite the opposite. As set out in Article 2, the very purpose of the Paris Agreement is to enhance the implementation of the Convention, including its ultimate objective. Financial obligations by developed countries under the Paris Agreement are expressly, and I quote, "in continuation of their existing obligations under the Convention," end of quote, as I mentioned above. From Brazil's perspective, the treaties composing the climate change international legal regime provide for cooperation among states and establish a genuine duty of cooperation in light of the CBDRRC principle. Such a duty may be found in several parts of the UNFCCC. Still, Article 4 of the Convention clearly shows how essential cooperation is to the fulfillment of all obligations of the climate change regime, both for mitigation and adaptation. References to cooperation in instruments such as the Kyoto Protocol and the Paris Agreement shall be read in light of the essential role the UNFCCC attributes to cooperation as a duty of States. Brazil would like to point out four remaining issues. We understand that the Court should address the following issues in its advisory opinion. First, It is time for the court to recognize the legal value of at least some of the decisions of the countries of the parties to the climate change international legal regime. They can at least constitute agreements and subsequent practice for the interpretation of the treaties composing the regime in the sense of Article 31.3 of the Vienna Convention on the Law of Treaties, one of a customary nature. Judge Charlesworth's opinion in the whaling in the Antarctic case before this court suggested such an understanding. Specifically, Brazil believes that the decisions of the COPs which established, in light of the CBDRRC principle, the need for developed countries to mobilize resources to address the adverse effects of climate change in developing countries represent an authentic interpretation by the parties of their obligations previously established in the climate change treaties. Second. The use of specific terms in climate change treaties, such as "may" or "will," is not the only factor determining whether provisions should be viewed as binding. Assessing the intention of parties while adopting those terms is essential to determining the binding character of a given provision. Third, Brazil is concerned about some states' growing use of climate change rhetoric to breach free trade obligations. In this regard, it is useful to recall that, according to the General Agreement on Tariffs and Trade, GATT, and the World Trade Organization, WTO, case law, trade-related environmental measures must not, as a rule, result in discrimination between like products. On similar lines, UNFCCC Article 3.5 provides that, and I quote, "measures taken to combat climate change, including unilateral ones, should not constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade." End of quote. Fourth, although we recognize how complex causality-related issues are in climate change. Brazil has already proposed a methodological work to enable state parties to climate change treaties to quantify their national historical responsibility to global warming. Contrary to what some states argued, such a methodology is scientifically possible and feasible. In conclusion, Mr. President, Brazil wants to emphasize its full commitment to international cooperation and multilateralism to combat climate change. Our vision on the issue is grounded in the idea of climate justice, and we expect that the Court will contribute to making climate change a central topic to the rule of law in international affairs. taking into due consideration the importance of historical responsibilities for the climate crisis. Brazil repudiates the CBDRRC as a central legal principle to the whole international legal regime. Obligations in that regime must be of conduct, but also of result. While the UNFCCC, the Kyoto Protocol, and the Paris Agreement are the core treaties of the regime, the latter two were established under the first and must be interpreted in light of it. Furthermore, a duty of cooperation, especially from developed states towards developing states, is key to the regime. Additionally, Brazil expects that the Court recognizes that COP decisions, especially those related to the need for developed countries to mobilize resources to address the adverse effects of climate change, are at least subsequent agreements and subsequent practice regarding the interpretation of treaties. We also expect that the court recognizes that intention, instead of the mere usage of some terms, determines the binding character of provisions in climate change treaties. The court should also recognize that climate change may not excuse states from breaching their free trade obligations. Moreover, a methodology to assess past emissions is possible and feasible. Finally, Brazil avails itself of the possibility of responding to further questions posed by this Court in written form at a later stage. I thank you very much indeed, Mr. President.


ICJ · President [1:26:19]:

I thank the representative of Brazil for their presentation. Before I invite the next delegation to take the floor, the Court will observe a break of 15 minutes. The hearing is suspended.


Speaker 14 [1:43:20]:

Oh.


ICJ · President [1:44:13]:

Good evening.

Please be seated. The court is now in session. And I now invite the delegation of Burkina Faso to take the floor and invite His Excellency Leopold Bonkongo to the bar.


Burkina Faso [1:44:52]:

Mr. President, Madam Vice-President, distinguished members of the Court. It is an honor for me to appear before your esteemed court on behalf of my country, Burkina Faso. A resilient country in the Sahel region, Burkina Faso is profoundly wed to the ideal that law is the path to justice. And this is why Burkina Faso remains an enthusiastic supporter of the court and has never hesitated to appear before you. Today, Burkina Faso is equally confident. Indeed, the current advisory proceedings frame an elementary question of justice. Anthropogenic greenhouse gas emissions due to the acts and emissions of a limited number of States have caused significant and varied harm to the climate system, shifting the heaviest burdens on states such as Burkina Faso. Burkina Faso had nothing to do with creating them in the first place and are unable to tackle them alone. These well-known facts form the framework of the instant proceedings and have been disputed by no participant in them. They are corroborated by the reports of the IPCC, whose findings are of the highest evidential value when viewed in the light of the criteria established by your jurisprudence. Now, the case of Burkina Faso is symptomatic of this injustice, according to certain assessments. Burkina Faso has only contributed 0.12% to global GHG emissions. However, the key drivers of its development, namely resources in water, agriculture, animal farming, fish resources, health, energy, infrastructures and habitat, have already been seriously impacted by the adverse effects of GHG emissions and attendant changes in the climate. According to the IPCC, the economy of Burkina Faso has lost between 1991 and 2010 more than 20% of its per capita GDP on account of the adverse effects of climate change caused by anthropogenic GHG emissions, the future is even more somber. Burkina Faso is the 29th most vulnerable state to climate change and the 158th state best prepared to address it. Climate action, including that undertaken by this court, has never been more urgent. Mr. President, climate change, it's not just sea level rise. Chronologically speaking, desertification was the first climate catastrophe the members of the Court doubtless will recall: the huge drought of 1973. This came exactly two decades after the staggering increase of GHG emissions. The General Assembly of the United Nations characterized it at the time as a tragedy and called for assistance and support for the Sahel region. As of the 1980s, Burkina Faso, under its President Thomas Sankara, had decried the discharge of pollutants changing the natural order. President Sankara called for the accountability of, I quote, "of all those who, though far removed from where we are, directly and indirectly cause climate and ecological change," end of quote. In 1986, during the Paris Conference on Forestry and Water Management, he proposed, "at least 1% of the astronomic sums sacrificed in the quest for living on other planets be used in compensation to finance projects to save our forests and our lives." Both the alarm call and the solution proposed by Burkina Faso were ignored. Since the 1973 major drought, all of Sahel, the desert strip running from Senegal to Somalia via Mauritania, Mali, Burkina Faso, Niger, Chad, Sudan, Ethiopia, Eritrea and Djibouti, all of that region, is fraught with domestic conflicts which mortgage any hope of development. In the view of both the Security Council and the IPCC, climate change and thus GHG gas emissions are one of the causes of these conflicts and explains their frequency, their increased duration, and their intensifying level of violence. Mr. President, confronted by this huge injustice, Burkina Faso places its confidence in international law and the Court, because you are the most authoritative voice thereof. Burkina Faso is delighted that no state truly challenged the jurisdiction of the Court to render an advisory this advisory opinion. Some states have timidly suggested that the court should cautiously examine the questions posed, alleging that ongoing negotiations on climate change and other arguments, but all of these lines of argument run counter to the settled jurisdiction of the court, jurisprudence of the court, excuse me. Burkina Faso will thus not dwell on them at greater length. For Burkina Faso, the Court must contribute, pursuant to the Charter, to the work of the United Nations, of which the Court is the principal judicial organ. The Court must exercise its jurisdiction as usual and avoid giving a partial response which would not be effective and might lead the General Assembly astray on the scope of the relevant obligations. The Court thus under question a) indicate all the obligations of states in respect to GHG emissions, and under question b) clarify all the legal consequences of their breaches. In so doing, the Court should place particular emphasis on the human, environmental and socio-economic woes resulting from GHG-induced decertification. I would like, Mr. President, distinguished members of the Court, thank you for your kind attention. and request you to please give the floor to Professor Mamadou Ebie. We'll provide the court with a few responses to those questions, those two questions posed by the General Assembly.


Speaker 17 [1:52:59]:

Leo.


Burkina Faso [1:52:59]:

Thank you, Your Excellency, Leopold Bonkongou. I will now give the floor to Professor Mamadou Ebie.


Burkina Faso · Professor [1:53:15]:

Mr. President, Madame Vice-President, distinguished members of the Court. It's a signal honor for me to appear before your esteemed court and to do so on behalf of my country, Burkina Faso. Now, what I'm going to do is look at the two questions seriatim, which have been posed by the General Assembly. But before doing any of that, Burkina Faso would like to point out that all participants in the instant proceedings recognize that international law imposes obligations to states. with respect to GHG emissions and attaches legal consequences to their breach. No state maintains that emissions, GHG emissions, occupy a legal vacuum. However, and that's the principal contradiction in the instant proceeding, some states allege on the basis of the lex specialis doctrine that only the UNFCCC Protocol of Kyoto and the Paris Agreement and allege that these are the only elements of applicable law both in terms of the content of the obligations as well as for the legal consequences of their breaches. However, none of these participants has shown proof of an express or implied derogation to these treaties of these obligations, as is required by international law. In the view of these participants, the simple fact that these treaties were concluded, these treaties on climate change were concluded, is in itself evidence of the implicit intention of states to derogate from all primary and secondary norms of international law, including both the rules of jus cogens and the obligations erga omnes. The Court, which has shown considerable reservation regarding the doctrine of lex specialis, will certainly not be able to accept this petitio principii. The provisions of the UN climate treaties themselves indicate that they are based on the principles of mutual support with the other obligations of international law, inter alia those that protect human rights and the marine environment. According to the jurisprudence of the Court, any waiver of the right to implement international responsibility must be clear and not equivocal. However, no evidence has been shown that all the countries that adhered to these treaties, and certainly not Burkina Faso, have waived in any way their right to receive reparation for harm caused by GHG emissions. Burkina Faso thus concludes that the entire corpus of international law remains applicable to the questions posed by the General Assembly.

Mr. President, this brings me to reviewing question A. under which the Court is requested to describe what are the obligations of States to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases. Mr. President, the question put by the General Assembly is very clear. It is not requesting a determination of obligations that would have specifically adopted relating to climate change. It is only about, and let me say this again, obligations of states to ensure the protection of the climate system and other parts of the environment from anthropic emissions of greenhouse gases. So for Burkina Faso, these obligations, the ones we are talking about, are those whose main purpose is indeed the protection of the climate system, which we have covered in our written submissions, but also those that incidentally require the state to protect the climatic system to abide by other obligations and undertakings, such as the obligation to ensure human rights, the rights of peoples to existence and development and obligations under the Charter to cooperate in good faith. However, Burkina Faso considers that the Court shouldn't only give a list of these sources of international law and the corresponding standards, as it has done in the past. The Court should make this practice user-friendly and operational for the General Assembly. Work in Africa considers that this body of norms, primarily or incidentally, that cover and protect the climate system and a rich corresponding state practice, indicate the existence in opinio juris of specific customary obligations relating to anthropic emissions of greenhouse gases. Some are applicable to all states, others only to developed. countries. The obligations applicable to all the AIGA omnes obligations, which no one can depart from, are the general obligation to protect and preserve the climate system. This general purpose obligation implies a number of specific obligations, amongst which the obligation to refrain from causing significant harm to the climate system, the obligation to refrain from exacerbating existing vulnerabilities of the climate system, the obligation to refrain from adopting legislative, administrative or other measures that facilitate the emissions of greenhouse gases by third parties, including private persons, the obligation to protect, preserve and improve, both in terms of quantity and quality, the absorption capacity of greenhouse gas reservoirs and sinks, the obligation to take the necessary measures of prevention to ensure that activities taking place on their territories do not cause significant harm to the climate system and that they do not adversely affect the effective enjoyment of the rights of states, peoples and individuals, including the individuals outside their national jurisdiction. the obligation to adopt the necessary adaptation measures to strengthen the resilience of the climate system and its various parts in the face of the adverse effects of greenhouse gas emissions; and, lastly, the obligation to co-operate in good faith to resolve the challenges of greenhouse gas emissions, climate change and their adverse effects. concerns the additional obligations applicable only to developed States under the principle of common but differentiated responsibility. We are talking here of the obligation to take the lead in combating climate change by drastically curbing their anthropogenic greenhouse gas emissions. and the obligation to provide the technical and financial assistance and technology transfer required by developing countries so that they may discharge their climate change-related obligations, adapt to the adverse effects of climate change and, lastly, fulfil the right to development of their peoples. Mr. President, this now brings me to the second question, question B, which requires the court to establish what are the legal consequences for states where they, by their acts or omissions, have caused significant harm to the climate system and other parts of the environment in breach of their aforementioned obligations. But can I first of considers that question B requires the court to establish the principle of international responsibility of states which by their significant emissions of greenhouse gases have caused significant harm to the climate system and only that to do so there is no need to identify individually which state has emitted what amount of greenhouse gas and what adverse effect on the climate system is related to that. It is enough to note that an overwhelming majority, including Burkina Faso, have nothing to do with it. and that a minority of countries, which have been quite well identified under annex 1 of the framework convention, a small group of countries, as I was saying, has allowed the emission of exorbitant amounts of greenhouse gases, which have caused significant harm to the climate system in breach of the obligations applicable to all the members of said group. So, So as to give the General Assembly a useful opinion, the court only needs to answer two questions. First of all, which international obligations have been breached by the acts and emissions of those states which have caused significant emissions of greenhouse gases and related harms? And secondly, what are the legal consequences of such violations? So to address this first question, in its written submissions, Burkina Faso has established in answering question B that such states have violated and breached, one, the obligation to take the necessary measure of preventing to ensure that activities taking place on their territories do not cause significant harm to the climate system and that they do not adversely affect the effective enjoyment of the rights of states, peoples, and individuals. They have also breached their obligation to take the lead in combating climate change and its adverse effects by failing to drastically curb their greenhouse gas emissions. They have also breached the obligation to refrain from adopting legislative, administrative or other measures that encourage or facilitate the emission of greenhouse gases by third parties, including private persons, and the obligation to revoke any such measures already adopted. They have also breached the obligation to provide the technical and financial assistance and the technology transfer required so that developing countries, and more specifically those subject to desertification in the Sahel region, to discharge their and perform their climate change obligations and fulfill the right to development their peoples. And lastly, they have breached the obligation to cooperate in good faith to resolve the challenge of greenhouse gas emissions, climate change, and their adverse effects. On this last note, Burkina Faso is fully aware that good faith should be presumed at all times. However, the This simple presumption should be waived in the current circumstances. Indeed, good faith requires that any state subject to international obligation refrain from any act calculated to prevent the due execution or otherwise frustrate its object. However, these states, rather than drastically curbing their greenhouse gas emissions in line with their obligations, have granted subsidies to the production, consumption, transport and storage of fossil fuels. thereby tremendously increasing greenhouse gas concentrations and the adverse effect on the climate system. Now, contrary to the determination and energy which they demonstrated when there was a need to fight against the depletion of the ozone layer, which affected them more directly. In these circumstances, in the current circumstances, they are dragging their feet to perform their obligation of financial and technical assistance and transfer of technology, which would enable the most seriously affected states, including the countries in the Sahel, to tackle the adverse effects of climate change. Moreover, they object to any change of the international system that would enable the most seriously affected states to have fair access to the capital they need to tackle their existential threat. Let me now move to the second question. that the court must answer to address question B of the request for advisory opinion. Burkina Faso holds that the ordinary legal consequences of international responsibility, such as cessation, non-repetition, and full reparation, apply. As concerns cessation, the states involved must, first of all, revoke all the administrative and legislative and other measures, namely, aids, subsidies, and other measures inciting to the production and storage, transport, and consumption of fossil fuels. They must take all the necessary measures to make sure that the activities taking part on their territory, including those of the oil companies, do not cause greenhouse gas emissions that would affect the effective enjoyment by states, peoples and individuals of their rights. Thirdly, they should provide the technical and financial assistance and the technology transfer required so that the developing countries, and more specifically those affected and subject to desertification, may address the challenges of climate change. More specifically, they should support the Great Green Wall initiative, which was initially supported by or led by Burkina Faso and has since been endorsed by the African Union as a measure of active restoration to return the environment of the Sahel to its initial state. Fourthly, they must now cooperate in good faith. to resolve the challenges caused by climate change. In practice, these States, which are the main architects of the current global economic and financial system and their main beneficiaries, must now take the lead and initiate a reform, following in the footsteps of the declaration on the establishment of a new international economic order and the Charter of Economic Rights and Duties of States. Indeed, the overwhelming majority of treaties aimed at protecting the climate system and other components and other parts of the environment recognize that the inequalities of the current monetary and economic and financial system are indeed a major obstacle to achieving these goals. As concerns the reparation for harm caused, the States targeted by question B must offer sufficient, adequate and effective compensation to the specially injured States, injured by the breach of their obligations, by giving these countries subject to desertification and to small island developing states adequate reparation. They should also compensate the immense socioeconomic harm caused by anthropogenic emissions of greenhouse gases and the adverse effects, including desertification, as more specifically includes the aforementioned GDP losses. Lastly, as this obligation to protect and preserve the climate is an erga omnes and as its core, the obligation to not cause significant harm to the climate change, is jus cogens, then all the legal consequences of the specific regime of international responsibility are applicable in these proceedings. Mr. President. It is time for the Court to recognize that the general obligation for all states to protect and preserve the climate system is indeed an erga omnes obligation applicable to all members of the international community. The time has also come to recognize that the obligation to not cause significant harm to the climatic system is indeed jus cogens. By way of conclusion, Mr. President, if we were to sum up the current proceedings in one single question, it would be the following. It might be a bit of a lengthy question, but let me try. Can a small group of states, in accordance with international law, destroy with impunity a common good that is indispensable for the survival of mankind, namely the climate system, just to get rich and at the same time shift the burden of the adverse effects of their actions on third states, peoples and individuals, while at the same time pushing back as far as possible and possibly indefinitely the issue of their own responsibility and of solidarity. The answer of Burkina Faso, the country and the land of honest men, the answer is no. one may get rich unjustly and achieve economic development at the expense of the rights of third states and States, peoples and individuals. No, these States are bound by all the obligations under international law and all the legal consequences of their internationally wrongful acts. Thank you, Mr. President, Madam Vice-President, Honourable Members of the Court, for your kind attention. Thank you.


Speaker 20 [2:13:03]:

I thank the representatives of Burkina Faso for their presentation. Let me call now on the representative of Cameroon. Let me call on Her Excellency Madeleine Ligimou Ntoua.


Cameroon · Ambassador [2:13:25]:

Mr. President, Madam Vice President, distinguished members of the court, honourable members of the court, The Republic of Cameroon, by its Ambassador, would like to echo statements made by other parties to welcome once again the significant contribution of your Court to the unstoppable creation of an international society based on the rule of law. Today's docket marks an historic step Given that it calls upon your esteemed court to rule on a question of signal importance, namely, climate change which may put at risk the shared future of humankind, the court must recognise, solemnly recognise and then enshrine the inextricable link which exists between climate change and human rights and to finally assert the responsibility of the parties for those climate changes identified. Consequently, the Court must certainly adopt the principle of common but differentiated responsibilities of states, recognized in international law since the Rio Conference, but above all infer the obligations deriving from it and which are incumbent upon developed countries who are responsible for the overwhelming majority of carbon in the atmosphere, which weighs down on developing countries' human and economic development. This is an honour to pay praise to the Court and to thank the Court for settling international disputes and also for developing international law. The court was particularly in demand over the last years, which shows to what extent the states rely on it. The current analysis also implies the importance of recognizing the right of future generations in the context of the right of peoples, particularly in the light of the African Charter on Human and Peoples' Rights of 1993. 81 and other relevant international norms.

For this noble cause to be.

Mr. President, for this noble cause to be heard for the good of our States, the Republic of Cameroon, I ask the Court to recognize the crime of ecocide, to complete the legal framework essential to the recognition pleine et entière de la responsabilité des États pour les catastrophes écologiques décrites et, le cas échéant, déduire les mesures compensatoires y afférentes. Monsieur le Président, je vous prierai de bien vouloir donner la parole à notre expert, le maître.

Of the legal point defended by the Republic of Cameroon.

Thank you for your kind attention.


ICJ · President [2:17:24]:

Before giving the floor to the next speaker, to Mr. Pierre-Olivier Savoy, there seems to be a slight technical problem.


Speaker 23 [2:17:40]:

It's okay now.


Cameroon · Expert [2:17:44]:

There may have been a problem with translation channel because... Monsieur le Président, Madame Vice-President. Distinguished members of the Court, Your Excellencies, it's a great pleasure to be back here at the Court. Now, the first part of Cameroon's oral presentation should have been presented by Dr. Mounir Siddi. head of legal affairs at the Ministry of External Relations and Plenipotentiary Minister of Cameroon, who signed the written observations of Cameroon. I'm very sorry to tell you that he couldn't come today, and thus I transmit his apologies. He would have very much liked to have been here today. He would have dearly liked to have been here to resolve this issue. So, I will try to do justice to the ideas and positions of Dr. Sidi that he wanted to present on behalf of Cameroon and the Cameroon nation. This is a major responsibility for me, which I will attempt to discharge with honor and respect. I would like to thank Her Excellency, Madame Ambassador Extraordinary and Plenipotentiary of Cameroon, the Netherlands, Madeleine Nigamut-Andoua, for her introductory remarks. I'd also like to flag in advance that I'm going to alternate between English and French during this presentation. They're the two official languages of the Court and of Cameroon. Now, to start with, the Court clearly has jurisdiction to respond to the request for advisory opinion of the General Assembly, and The Cameroon thanks in advance the Court for its contribution to the development of international law and to the United Nations. By the opinion, it will be handed down. The first question put to the Court requests the Court to identify the obligations falling to states with respect to the protection of the climate system, including present and future generations. There are obligations linked to the protection of the climate system in a slew of international treaties, over and above those specifically devoted to the subject. We mentioned a number of these in our written observations, including the Charter of the United Nations, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the UNFCCC, the Paris Agreement of course, and also the UN Convention on the Law of the Sea. Now the following obligations also fall to states. In this respect the obligation of due diligence, I'd like to support what Brazil said about due diligence this morning. Also, the rights recognized in the Universal Declaration of Human Rights, the principle of preventing significant harm to the environment, including transboundary harm, and the obligation to protect and preserve the marine environment. Cameroon would also like to draw the attention of the court on a type of obligations recognized and let me underscore recognized rather than created by the Paris Agreement. These are obligations which must be considered as existing on top of and independently to that agreement. They are talking about here obligations of differentiated obligations respective capabilities mentioned in the Paris agreements. Now, these obligations are very important for Cameroon and from them flow important consequences where we'd like to invite the court to dwell and elaborate as far as possible. Indeed, African states and developing countries are not and did not create the climate crisis, nor did they enjoy the economic advantages resulting from high levels of industrialization. Developed countries thus must ensure financial support to developing countries in order to enable them to reach the climate objectives. The court is also invited to clarify as far as possible financial obligations of developed countries in this respect. Also we have to look at generations, the right of generations, not only present generations but future ones. The right of generations to come was recognized by the Court in your advisory opinion on the legality of the threat or use of nuclear weapons in 1996. The Court also referred to intergenerational equity in your judgment Gabchikovo-Nagymaros in 1997. Now, 14 years back, Judge Cançado Trindade set out a principle that the Court could certainly recognize today. I quote him, "Today, in 2010, one scarcely doubt that the recognition of intergenerational equity flows from the wisdom of the treaties of international environmental law." So, a large number of treaties and other international instruments, which we set out in our written observations, including the Paris Agreement, also refer to intergenerational equity. Let us also recall that Cameroon brought to the attention of the court the African Charter on Human and People's Rights and specifically articles 19 through 24 regarding the equality of peoples. Now you've got an extract of that in your folders of the African Charter in both language versions and articles 19 to 24 which you have also. are relevant not only in terms of intergenerational equity, but also because they confirm broad extant obligations in respect of common but differentiated obligations, which I mentioned earlier on, well beyond the terms in the Paris Agreement. Now, with respect to the right of future generations, the court might seek inspiration from the African tradition of international law Inter alia, the principles set out in Article 24 of the AU Charter, in French, and in English, all peoples shall have the right to a general satisfactory environment favorable to their development. Now who says right of peoples also says the rights of future generations that have to be taken on board today. That's the observations of Vanuatu yesterday, certainly went to that point. Now, this is one of the reasons why Cameroon invites the court to recognize the concept of ecocide and the legal consequences which must arrive therefrom. For Cameroon, there certainly is a peremptory norm of international law that no one, natural legal, may commit or allow to be committed acts of such gravity that they could be considered as leading to the destruction of the environment, the planet, or peoples or territories, especially if their environment is threatened. The level of seriousness required to constitute ecocide would have to be assessed on a case-by-case basis and doubtless would evolve over time. What is clear today is that such a crime must exist and that such actions which could lead to the destruction of the planet, peoples or their territory must be prohibited as such. The Court could recognize that grave acts of such nature would clearly cause the regime of Article 41 of the Articles of State Responsibility to come into play, which requires the cooperation of all states to put an end to such a violation, and all the other consequences flowing from them. We also noted the reference to jus cogens, which Burkina Faso made. We think very similarly. The recognition of such a responsibility regime requires also that States exercise their criminal jurisdiction over individuals concerned, which is also in the interest of future generations. This interest also includes the necessity of substantial financial transfers towards developing countries so that they may meet climate objectives. As Cameroon has already pointed out, the Court is invited to consider the details of these obligations as far as possible. In the interest of future generations, it might also be appropriate for the Court to underscore the importance of the anti-corruption obligations applicable to all States to ensure that the protection system functions smoothly and also to promote a fitting energy transition, as Cameroon pointed out in its second round of written observations. So now it falls to me to move from Laferriere to Senghor to the language used by Mandela, Mbube and Morrison.

I will address three further issues. First, I will address the importance of the human rights framework in relation to climate change obligations. Second, I will address certain issues arising from state responsibility and the consequences stemming from violations of obligations related to climate change. Finally, I will conclude on the interaction between international law for the protection of foreign investment international law obligations on climate change, a subject on which Cameroon believes the Court could help clarify legal obligations and the hierarchy of norms in the interest of a good and proper energy transition. In respect of human rights, Cameroon invites the Court to recognize the links between climate change and human rights obligations. For Cameroon, paragraph 11 of the preamble of the Paris Agreement, which recalls that parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights, actually applies more generally and in reality stems from and reflects an independent, binding obligation on all states to do so. There is no conflict for Cameroon. between human rights obligations and climate change obligations, since the relationship is one of both interpretation and integration. The same applies to other international obligations, whether conventional or customary, outside the climate change agreements framework. Tamron respectfully requests the court to recognize the impact of climate change on human rights, in particular the right to self-determination, which includes the right to territorial integrity, as recalled by our friends from island nations yesterday, the right to life, the right to access to water, the right to food, the right to health, the right to private and family life, and the right to development. Moreover, The court should also recognize the repercussions of climate change on these rights, and that such repercussions are all the more significant for vulnerable persons. With respect to specifically the right to development, Cameroon would like to associate itself with the position of the African Union that the right to development must be interpreted in the light of the objective of eradicating poverty, an issue referenced by Brazil earlier today, which is essential for sustainable development. Cameroon would also like to associate itself with the request from the European Union that the court confirm the existence of the right to a healthy environment as a customary international law norm. Cameroon recalls, again, because it is important, that Article 24 of the African Charter of Human and Peoples' Rights confirms right of all peoples to a general satisfactory environment favorable to their development. The African Commission on Human and People's Rights has significantly developed this right, as underscored in Cameroon's second written submission.

Let me now look at a number of things relating to state responsibility. For Cameroon, the legal consequences stemming from the breach of climate protection obligations are to be seen in light of the general law of responsibility of states, as reflected in the articles on responsibility of states for internationally wrongful acts. There are a number of customary obligations which apply to the climate protection regime, as has been already stated. Breaching them triggers responsibility under the general responsibility regime, and it is important, Mr President, for the Court to confirm that. Cameroon also considers that there is a distinction between developed countries and developing countries, which are more vulnerable to the consequences of climate change and have only marginally contributed to greenhouse gas emissions. Therefore, in light of the historic contribution of developed countries, developing countries, the main victims of these climate changes, should receive compensation for the harm endured. Compensation as reparation is key to support the actions of developing countries, and this may be done through dedicated funds or through other ways.

the interaction between states' compliance with international climate change obligations and international obligations pertaining to the protection of foreign investment. To recall, the first question to be addressed by the court is, what are the obligations of states under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases for states and present and future generations. As the court has held before, it can rewrite advisory questions posed to it or reinterpret them when answering the question. That said, what Cameroon will now outline are obligations, including how they are to be applied in relation to the protection of the climate system. In its second submission, Cameroon brought to the court's attention The Continental African Free Trade Area Investment Protocol, exhibit 12, which you have with you, was adopted by 54 African countries in October 2022. We have provided you with an extract, as I mentioned, so you can read it for yourself and look at article 24, which we will examine together. We have provided the 2022 final version adopted by States Parties, as well as a later 2023 identical text in French and English. What matters for our climate change purposes is that relevant parts of the treaty, and in particular its Article 24, because of how it is drafted, reflects a consensual position of all 54 African States from which the Court can and should draw conclusions. The text of Article 24, Right to Regulate, of the CAFTA investment protocol provides: In accordance with customary international law and other general principles of international law, each State Party has the right to regulate, including to take measures to ensure that investment in its territory is consistent with the goals and principles of sustainable development with other national in the English or legitimate in the French so with other national legitimate environmental health climate the word we're looking for social and economic policy objectives and essential security interests and now let's note the next three words for greater certainty measures taken by a state party to comply with its international obligations under the relevant treaties like the Paris agreement or the other treaties that we have mentioned, do not constitute a violation of this protocol. Then it says, for the avoidance of doubt, the exercise of the right to regulate under paragraphs 1 and 2 shall not give rise to any claim by an investor for compensation. So, the measures adopted to ensure the compatibility of investments with the objectives and principles of sustainable development and other good faith, national, legitimate environmental, health, climate policy objectives do not violate the investment protection obligations of the Pan-African Investment Protocol or, in essence, international investment obligations more generally and cannot give rise to compensation. Article 24 uses the words in French and for greater certainty in English, to recall that compliance with climate obligations is not a breach of investment protection obligations, as reflected by other Cameroonian treaty practice, pointed out in Cameroon's second written submission. and for greater certainty in treaty drafting, means that the parties having concluded a treaty containing such terms consider that the relevant obligation or principle referred to applies, even absent a treaty obligation. Article 24 of the investment protocol of the African continental free trade agreement therefore demonstrates a continent-wide view that the rules I have referred to apply apply even in the absence of treaty standards. The application in good faith of legitimate climate obligations, such as the Paris agreement or other rules that we have talked about, by states therefore cannot lead to breach of investment protection obligations and the grant of compensation. Cameroon, as one of the 54 African states, therefore considers that this norm generally reflects custom. The court, or judges in any individual opinions, are thus invited to recognize at least a regional custom applicable to the entire African continent and, possibly, a larger universal one. To this effect, whether or not the CAFTA or any other treaty is directly applicable, That is, a good faith application of climate obligations cannot lead to a breach of foreign investment protection obligations or compensation. Such clarification from the court would be very helpful for states' implementation of the right to regulate in the application of climate obligations and, as such, the protection of the climate system.

Lastly, Mr. President, Madam Vice-President, Excellencies, Members of the Court, let me thank you for your kind attention. By way of conclusion, let me add the following. You may feel this week and next week that the submissions are very similar in what they say. But that, in fact, is a virtue and does not distract from the creativity or ingenuity of those pleading here in the Great Hall of Justice. If you do get this sense of deja vu when listening to one advocate or another, it is simply because there is basically consensus on most of the major issues which are crucial for mankind and the future of the planet. the peoples, the United Nations, and present and future generations. It is a consensus that the Court will undoubtedly recall in its opinion. The Republic of Cameroon is particularly grateful in advance for it. Thank you, Mr. President.


ICJ · President [2:40:56]:

I thank the representatives of Cameroon.

The delegation of the Philippines. to address the Court, and I call upon His Excellency Eduardo Malaya to take the floor.


Philippines [2:41:30]:

Mr. President, distinguished members of the Court, it is an honor and privilege to appear before this Court on behalf of the Republic of the Philippines. Together with the head of our delegation, Solicitor General Menardo Guevarra, Ambassador Carlos Sorreta, and Assistant Solicitor General Bernard Hernandez, the Philippines will address an issue which pertains to the greatest existential threat that we as a humanity face, the climate change crisis. The Philippines, as we speak, is at the tail end of the tropical cyclone season. But the recent seven destructive typhoons that successively burrowed through the country within a month's time were unprecedented in its frequency. In a matter of hours, homes were inundated, livelihoods shattered, years of development work swept away, and precious lives lost. Filipinos are resilient and have coped with calamities. But the typhoons increasing severity is outstripping adaptive capacities. The reality of extreme weather events, rising sea levels, and other adverse effects of warming temperatures around the world, all of which are beyond natural climate variability, requires all of us to take bold and decisive actions. Mr. President, The Philippines has consistently understood the nexus between the environment, the well-being of states and peoples, and international peace and stability. For one, the Philippines now host the Loss and Damage Fund Board, a mechanism operationalized at COP28 as a lifeline for vulnerable peoples and places. In addition, President Ferdinand R. Marcos, Jr., in his statement at the high-level general debate of the 77th session of the UN General Assembly, characterized the threats to kalikasan, the Filipino word for the natural environment, as the greatest threat affecting our nations and peoples. It is this understanding that informs our submissions to the court as we address the request of the General Assembly. In fact, in September 2023, the Philippines urged the International Tribunal for the Law of the Sea to view the warming of our planet and the resulting changes to the natural environment as a threat to humanity and a key risk to international peace and stability. As we convey our gratitude to the Court for convening these oral proceedings, we look to it to provide authoritative guidance to address the worsening global catastrophe and to fulfill our respective obligations in ensuring the well-being of present and future generations in this shared home we call Earth. Mr. President, may I introduce Solicitor General Menardo Guevara, who will speak on the scientific consensus and Philippine situation. be followed by Permanent Representative to the UN in Geneva, Carlos Soreta, to speak on the UN Charter, human rights, and UNCLOS. The Solicitor General will speak again to make further legal arguments and conclude with the Philippine Government's submission. I thank you.


ICJ · President [2:45:35]:

I thank His Excellency Eduardo Malaya. I now give the floor to Mr. Menardo Guevarra. you have.


Philippines · Solicitor General [2:45:46]:

Mr. President, your honors. The denial of climate change and the impact of anthropogenic emissions is negated by overwhelming scientific consensus. The 2023 synthesis report of the Intergovernmental Panel on Climate Change shows unprecedented global warming of 1.1 degrees Celsius above pre-industrial levels from 2011 to 2020, and has predicted that the warming will more likely reach or surpass 1.5 degrees Celsius between 2021 and 2040. This prediction has come to pass. As of August 2024, the Earth's temperature crossed a critical barrier never experienced in all of human history. The dire consequences of the increasing global temperature, such as severe and extreme weather events, intense heat waves, devastating typhoons with violent storm surges, prolonged droughts, wildfires, Catastrophic floods and their tremendous human toll are life and death realities for many developing states like the Philippines. They are not obstructions. The Philippines, a mid-ocean archipelago, perennially suffers the brunt of devastating tropical cyclones. Historically, East Asia experiences 20 tropical cyclones annually, and about eight or nine of them batter the Philippines with increasing frequency and intensity due to the climate change crisis. In December 2012, Super Typhoon Bopha locally known as Pablo, made landfall in Davao Oriental Province and crossed over to Davao de Oro. These two provinces in southern Philippines have never before experienced super typhoons. Torrential rains generated enormous debris flow from the Mayo River watershed and wiped out an entire village. And in the process, displaced thousands of families, damaged billions of pesos worth of infrastructure and livelihood, and caused the loss of lives of hundreds of Filipinos. Coming on the heels of such devastation was Super Typhoon Haiyan, locally known as Yolanda, which made landfall as a category 5 storm in the Philippines in November 2013. Its deadly and extremely destructive winds exceeded 315 kilometers per hour, causing storm surges that reached up to 5 meters high. It affected more than 14 million people across 44 provinces, claiming over 8,000 lives and displacing 4 million Filipinos. While undoubtedly the most powerful tropical cyclone to ever make landfall in recent memory, Super Typhoon Haiyan is less likely to hold this record for long. Over the course of six weeks, from 1 October to 14 November 2024, the Philippines experienced seven typhoons. Of this number, three reached super typhoon category, namely, Krosa, Kongree, and Mani. And one reached tropical cyclone warning signal number four, namely, Yin Shing. Two of those typhoons alone affected an estimated 9.6 million people, damaged 208,000 homes, displaced 258,000 people, and resulted in 158 deaths. While the typhoon and monsoon seasons bring torrential amounts of rain, the dry months, on the other hand, cause unprecedented levels of extreme heat indices. When we are not being drenched, we are being scorched. In May 2024, the highest recorded heat index in the Philippines reached an alarming 55 degrees Celsius, an extreme danger category which caused successive class suspensions, significantly affecting the quality of education of hundreds of thousands of schoolchildren. Data from the Philippine Education Department show that in recent past, an annual average of almost 15 days of on-site learning were lost on account of extreme heat. Not only that, the extreme danger heat index contributed to serious loss in agricultural productivity, affected power supply, and exposed vulnerable sectors of society, such as the elderly, children, pregnant women, and persons with respiratory illnesses to heat stroke, and in some cases, death. Moreover, in our oceans, higher atmospheric temperature has caused major concerns about rising sea temperatures, ocean acidification, and coral bleaching. This phenomena ultimately affect the ocean biodiversity that is essential to food security and the livelihood of millions of Filipino fisherfolk. Filipino marine biologists have found extensive coral damage in Escoda Shoal, which they attribute to the anomalous warming of the waters in the West Philippine Sea.


Speaker 29 [2:52:38]:

My name is Jonathan Nantacamara. So my main research is on coral reefs. We go around the Philippines to survey different coral reefs around the country from the northern part, Aparri, all the way to Tawi-Tawi. The most recent surveys and research that I did were in the West Philippine Sea. In April, we went to Pagasa Island, and then in June, we went to Iskuda Shoal. to look at what's the status of corals. Both in Pagasa and in Escoda Shoal, most of the corals, in fact, majority of the corals are either dead or dying, like bleached, and they are now covered in algae. So it's in various stages of degradation. So my conclusion that they're extensively dead, this was mainly due to climate change, such as warming, was drawn mainly from our observation first in Escoda, where in almost 100% of all the corals are bleached. This kind of bleaching cannot be attributed to localized pressure or disturbances such as pollution. We thought that this phenomenon or this trend is actually attributable to the warming that we experience in the summer. So this must be a climate impact.


Philippines · Solicitor General [2:53:58]:

It is our humble submission, Mr. President, that this environmental crisis attributed to anthropogenic GHG emissions is surely not experienced in isolation by the Philippines. As we have learned from Vanuatu, the Bahamas, Bangladesh, and South Africa, among others, these unusual and unprecedented climate changes have become a global phenomenon. Mr. President, At this point, I turn over the floor to Ambassador Sorreta.


ICJ · President [2:54:35]:

I thank Mr. Guevara. I now give the floor to His Excellency Carlos Sorreta. You have the floor.


Philippines · Permanent Representative [2:54:44]:

Mr. President, Your Honors, I will speak on the UN Charter, human rights, and UNCLOS. Mr. President, climate change is a critical environmental issue. But it is also a serious threat to the maintenance of peace and security of mankind, the maintenance of which is a solemn obligation under the UN Charter. Rising sea levels, extreme weather events and resource scarcity, fuelled by the climate crisis, destabilize regions, exacerbate conflicts, displace peoples and imperil sovereignty and territorial integrity. The complex crisis creates unprecedented challenges, particularly for marginalized and resource-limited populations. The request pays special attention to small island developing states, and the Philippines finds affinity with their plight as a nation with thousands of small populated islands facing very complicated maritime disputes. The Charter's provisions on sovereignty and territorial integrity resonate in this context. Climate change-induced sea level rise poses a severe threat to the territorial integrity of low-lying and island nations, analogous to the loss of territory by invasion through the use of force, but without the possibility of exercising the inherent right of self-defence. This can also ignite boundary conflicts. Although climate change was not foreseen when drafted, the Charter is a living document and provides a constitutional basis for interpreting obligations relevant to this crisis and exemplifies what Judge de Visser described as the unforeseen and indeed unforeseeable events that the Charter must address. The Charter's was created to save the succeeding generations from the scourge of war. It must now save future generations from the ravages of climate change. Mr. President, climate change is, at its core, also an existential human rights issue. States have clear obligations to protect and respect these rights, including those impacted by climate change. These obligations are rooted in the foundational principles of the UN Charter and elaborated in the Universal Declaration of Human Rights, a crucial interpretative framework affirming the inherent right to dignity and well-being, all seriously threatened by climate change. The International Covenant on Civil and Political Rights and on Economic, Social and Cultural Rights enshrine these obligations. General Assembly resolution 7630 recognizes the right to a clean, healthy, and sustainable environment as essential for the enjoyment of all other human rights. The Human Rights Council has also passed several resolutions on human rights and climate change. The Our Henda and Future Generations decisions, as well as recent decisions by the European and Inter-American Courts of Human Rights, provide compelling legal arguments that states bear obligations to prevent foreseeable human rights harms caused by climate change. The Office of the United Nations High Commissioner for Human Rights has outlined specific obligations for human rights harms caused by climate change, including accountability and effective remedy. Mr. President. The United Nations Convention on the Law of the Sea is the fundamental legal framework, the constitution for our seas and our oceans, so fundamental and organic that the International Tribunal for the Law of the Sea applied it and extensively discussed UNCLOS obligations in relation to climate change, even though this phenomenon was not contemplated when UNCLOS was negotiated. The Tribunal, citing the 2016 South China Sea arbitration award, emphasized that UNCLOS obligations extend to both protection from future damage and preservation. Mr. President, States are bound to address the climate crisis within a legal framework that maintains peace and security, respects sovereignty, and upholds human rights. Law is essential to ensure a future where all can live with dignity, security, and resilience in the face of a dramatically changing climate. With the Court's permission, I would now like to turn to Solicitor General Guevara to continue and conclude our oral presentation. Thank you, Mr. President.


ICJ · President [2:59:39]:

I thank the Excellency Carlos Fretta. I give the floor back to Mr. Guevara. You have the floor, sir.


Philippines · Solicitor General [2:59:52]:

Mr. President, in addressing UNGA request, the Philippines submits that any act or omission attributable to a state which results or has resulted in anthropogenic GHG emissions over time, thereby causing climate change, is a breach of a state's obligation under international law. Such act or omission is an internationally wrongful act, which necessarily gives rise to a corresponding legal consequence pursuant to international law. Contrary to the submission of some states and non-state parties, the Philippines respectfully proffers that the obligations in respect of the environment cannot be confined within the strict limits of specific international agreements. The insidious effects of climate change require that the entire plethora of customary international law, general principles of international law, and various conventions and treaties be correlated and applied simultaneously. On customary international law, the Philippines submits that the obligation not to cause transboundary harm, enunciated in the early cases of Trail Smelter and Corfu Channel, reiterated in this Court's Nuclear Weapons Advisory Opinion, The Iron Rhine arbitration and the pulp mills case, and included in various multilateral treaties involving the protection of the environment, management of hazardous wastes, and prevention of marine pollution, compels all states to ensure that activities within their territory and control must respect the environment of other states or of areas beyond national jurisdiction. Hand in hand with the obligation not to cause transboundary harm is the state's obligation to exercise due diligence. Attendant to this obligation is the adoption of appropriate measures and the exercise of vigilance in their enforcement. as well as the exercise of administrative control applicable to all public and private entities under its jurisdiction. On the general principles of international environmental law, the Philippines submits that the principles of sustainable development and intergenerational equity are twin principles that are most fundamental when looking into the actions of states and non-state actors as they relate to anthropogenic GHG emissions. While the Philippines concedes that economic development is necessary to further the growth of countries and peoples, it posits that actions relative thereto must operate within a paradigm of non-compromise. We should not compromise the long-term sustainability of resources. We should not compromise the ability of future generations to meet their own needs. On treaties, conventions, and other international agreements, the Philippines respectfully puts forward that the entire gamut of international environmental treaties and documents as well as that relating to international human rights law, are relevant in the present proceedings. At the core of the actions of states and non-state actors is the most basic of all principles, that the fundamental rights of all races and nationalities, present and future generations alike, must, with no exception, be respected. Mr. President, within the context of customary international law, general principles of international law, and various conventions and treaties, the Philippines maintains that when a state, by itself or through its state actors or other entities whose actions or omissions may be attributable to the state, commits acts or omissions that do not faithfully conform to its international obligations, the same constitutes a breach of a state obligation and under international law is an internationally wrongful act. The commission of such internationally wrongful act triggers state responsibility with its necessary consequences. and carries with it the obligation of the responsible state to cease the wrongful conduct and make full reparation therefore. Accordingly, states affected by internationally wrongful acts of other states in respect of climate change may demand the enforcement of remedial actions, including cessation and/or reparation following the injury caused by such internationally wrongful acts. In the Philippine context, these remedial measures are set out in our Rules of Procedure for Environmental Cases, or RPEC. The rules govern cases involving the enforcement of environmental and other related laws, rules, and regulations, including enforcement of remedies and redress for violation of said environmental laws. The RPEC provides for the remedy of a writ of Kalikasan, or writ of nature, a unique and innovative legal remedy espoused by the Philippines, and which appears to be the very first of its kind in the entire world. The writ of kalikasan is an extraordinary remedy covering environmental damage of such magnitude that will prejudice the life, health, or property of inhabitants in two or more cities or provinces. It is designed for a narrow but special purpose, to accord stronger protection for environmental rights aiming, among others, to provide a speedy and effective resolution of a case involving the violation of one's constitutional right to a helpful and balanced ecology that transcends political and territorial boundaries, and to address the potentially exponential nature of large-scale ecological threats. Upon the grant of the writ of Kalikasan, The reliefs of permanent cessation and desistance, rehabilitation or restoration, strict compliance, periodic reports, and such other reliefs which relate to the right of the people to a balanced and healthful ecology may be granted. Indeed, while the sui generis remedy of our writ of Kalikasan is considerably still of municipal application, Such remedial innovation is of value in the present discourse, where climate change is of such magnitude that it imperils present and future generations. Thus, the Philippines respectfully submits the proposition that a similar remedial measure be considered and adopted in the international setting to afford seriously affected states and their peoples with immediate recourse and relief from environmental damage arising from breaches of state obligations under international law. To conclude, Mr. President, Your Honors, the Philippines has no inch of doubt that the entire gamut of international law informs the obligation of states for their anthropogenic GHG emissions. emissions in a matter that is far more encompassing than what has already been achieved by the international community under the climate change regime. Now, more than ever, the authoritative guidance of this court is being sought to express in no uncertain terms that the contributory conduct of states in relation to climate change is bound by established conventions, customary law, and general principles. We hope and trust that the Court will do so. On behalf of the Republic of the Philippines, we thank the Honourable Court for your time and consideration.


ICJ · President [3:09:49]:

I thank the Attorney of the Philippines for their presentation. This concludes this morning's sitting. The oral proceedings will resume this afternoon at 3:00 p.m. in order for Canada, Chile, China, Colombia, the Commonwealth of Dominica, and the Republic of Korea to be heard on the questions submitted to the Court. The sitting is closed.