Written statement of Madagascar

Note: This translation has been prepared by the Registry for internal purposes and has no official
character
19905
INTERNATIONAL COURT OF JUSTICE
OBLIGATIONS OF STATES IN RESPECT OF CLIMATE CHANGE
(REQUEST FOR ADVISORY OPINION)
WRITTEN STATEMENT OF THE REPUBLIC OF MADAGASCAR
20 March 2024
[Translation by the Registry]
TABLE OF CONTENTS
I. INTRODUCTION ................................................................................................................................ 1
II. THE COURT MUST EXERCISE ITS JURISDICTION TO GIVE AN ADVISORY OPINION IN THESE
PROCEEDINGS ................................................................................................................................ 2
A. The Court has jurisdiction to give the advisory opinion requested .......................................... 2
B. There are no compelling reasons for the Court to exercise its discretion not to give the
advisory opinion requested ....................................................................................................... 2
C. The questions submitted to the Court are clear and should not be reformulated ...................... 4
III. UNDER CONTEMPORARY INTERNATIONAL LAW, STATES HAVE LEGAL OBLIGATIONS TO
ENSURE THE PROTECTION OF THE CLIMATE SYSTEM AND OTHER PARTS OF THE ENVIRONMENT
FROM ANTHROPOGENIC EMISSIONS OF GREENHOUSE GASES ........................................................ 5
A. The context of the emergence, in international law, of obligations to protect the climate
system and other parts of the environment ............................................................................... 6
B. Obligations to protect the environment .................................................................................... 7
C. Obligations specifically aimed at combating global warming.................................................. 8
1. Obligations of mitigation ................................................................................................... 8
2. Obligations of adaptation................................................................................................. 11
D. Obligations based on international human rights law ............................................................ 12
1. The obligation of States not to deprive a people of its means of subsistence, in
compliance with its right to self-determination ................................................................ 12
2. The obligation of States to respect the right to health and the right to a clean, healthy
and sustainable environment ............................................................................................. 12
3. Other obligations ............................................................................................................. 13
IV. STATES THAT HAVE CAUSED SIGNIFICANT HARM TO THE CLIMATE SYSTEM, IN BREACH OF
THEIR INTERNATIONAL OBLIGATIONS, MUST MAKE FAIR AND ADEQUATE REPARATION TO THE
STATES INJURED BY THAT BREACH ............................................................................................. 14
A. The significant harm to the climate system resulting from breaches of the obligations of
States in respect of climate change ......................................................................................... 14
B. States which have caused significant harm to the climate system must cease the wrongful
acts giving rise to that harm .................................................................................................... 16
C. States which have caused significant harm to the climate system bear responsibility and
have an obligation to make fair and adequate reparation ........................................................ 16
1. Reparation depending on the primary obligation breached and in accordance with
agreements on the environment ........................................................................................ 16
2. Reparation under the régime of State responsibility for internationally wrongful acts ... 17
(a) Restitution .................................................................................................................... 17
(b) Compensation .............................................................................................................. 18
(c) Satisfaction .................................................................................................................. 19
V. CONCLUSION ................................................................................................................................ 19
ANNEX 1 ........................................................................................................................................... 20
ANNEX 2 ........................................................................................................................................... 21
I. INTRODUCTION
1. On 29 March 2023, the General Assembly adopted, by consensus, resolution 77/276, by which
it requests the International Court of Justice, pursuant to Article 65 of the Court’s Statute, to give an
advisory opinion on the following questions:
“Having particular regard to the Charter of the United Nations, the International
Covenant on Civil and Political Rights, the International Covenant on Economic, Social
and Cultural Rights, the United Nations Framework Convention on Climate Change, the
Paris Agreement, the United Nations Convention on the Law of the Sea, the duty of due
diligence, the rights recognized in the Universal Declaration of Human Rights, the principle
of prevention of significant harm to the environment and the duty to protect and preserve
the marine environment,
(a) What are the obligations of States under international law to ensure the protection of
the climate system and other parts of the environment from anthropogenic emissions
of greenhouse gases for States and for present and future generations;
(b) What are the legal consequences under these obligations for States where they, by their
acts and omissions, have caused significant harm to the climate system and other parts
of the environment, with respect to:
(i) States, including, in particular, small island developing States, which due to their
geographical circumstances and level of development, are injured or specially
affected by or are particularly vulnerable to the adverse effects of climate change?
(ii) Peoples and individuals of the present and future generations affected by the
adverse effects of climate change?’”
The draft resolution containing this request for an advisory opinion was submitted by Vanuatu,
on behalf of and co-sponsored by several other States from around the world, including Madagascar.
2. By an Order of 20 April 2023, the Court decided that the United Nations and its Member States
are considered likely to be able to furnish information on the questions submitted to the Court for an
advisory opinion and that they could do so within the time-limits fixed by the Court. The original timelimit
of 20 October 2023 was extended initially until 22 January 2024, by an Order of 4 August 2023,
and ultimately until 22 March 2024, by an Order of 15 December 2023.
3. In accordance with those Orders of the Court, and calling for judicial institutions to play a
greater role in combating climate change and for international conventions protecting the climate system
and other parts of the environment to be better integrated into national legal systems, so as to ensure that
the commitments made thereunder are effectively and consistently implemented at the local level, the
Republic of Madagascar has the honour and duty to participate in these important and historic advisory
proceedings, which could give rise to landmark jurisprudence which is essential for informing the
decisions of national courts in the area of environmental and climate law. This participation is especially
necessary given that Madagascar is among the States “specially affected by . . . the adverse effects of
climate change”, which unquestionably pose a threat to its present and future generations.
4. This written statement addresses three points. The first point is that the Court has the power to
exercise its advisory jurisdiction in the case at hand, and there is no reason why it should exercise its
discretionary power not to give the advisory opinion requested. The second point concerns the
obligations of States in respect of climate change, deriving from their treaty commitments and from
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customary rules already established or in the process of crystallization, as set out or reflected in the
judicial decisions and writings of public law specialists from various nations. The third point is that
States which, by their acts or omissions, have caused significant harm to the climate system, in breach
of their international obligations, bear responsibility and are therefore under an obligation to provide
adequate reparation to the States and persons affected by this breach.
II. THE COURT MUST EXERCISE ITS JURISDICTION TO GIVE AN ADVISORY OPINION IN THESE
PROCEEDINGS
A. The Court has jurisdiction to give the advisory opinion requested
5. The Court’s jurisdiction to give an advisory opinion is based on Article 65, paragraph 1, of its
Statute, which provides that it “may give an advisory opinion on any legal question at the request of
whatever body may be authorized by or in accordance with the Charter of the United Nations to make
such a request”. In order for the Court to have jurisdiction in the present case, “the advisory opinion
[must] be requested by an organ duly authorized to seek it” (condition ratione personae) and “it [must]
be requested on a legal question”1 (condition ratione materiae).
6. These two preconditions are indisputably met in the case at hand.
First, Article 96, paragraph 1, of the United Nations Charter authorizes the United Nations
General Assembly to request an advisory opinion on any legal question. The two questions put to the
Court are indeed legal questions. The first question concerns the obligations of States under international
law with regard to the protection of the climate system. It requires the interpretation of several sources
of international law, some of which are also mentioned in the request. The second question relates to the
legal consequences of the failure to comply with the obligations identified. Clearly tied to the first
question, the second is also a legal question, framed in terms of law and raising problems of international
law.
Furthermore, the General Assembly deals regularly with issues relating to climate change, in
particular through its resolutions relating to the protection of the global climate for present and future
generations of humankind. The first such resolution was adopted in 1988; in it, the General Assembly
already expressed “concern[] that certain human activities could change global climate patterns,
threatening present and future generations with potentially severe economic and social consequences”2.
7. Accordingly, and given that the two preconditions set out in Article 65 of the Court’s Statute
and Article 65, paragraph 1, of the United Nations Charter are satisfied, the Court has jurisdiction to
give the advisory opinion requested.
B. There are no compelling reasons for the Court to exercise its discretion not to give the
advisory opinion requested
8. While the Court has discretion to decide whether to exercise its already established jurisdiction,
it is clear from its consistent jurisprudence that only compelling reasons may lead the Court to refuse its
1 Application for Review of Judgement No. 273 of the United Nations Administrative Tribunal, Advisory Opinion,
I.C.J. Reports 1982, pp. 333-334, para. 21.
2 A/RES/43/53, Protection of global climate for present and future generations of mankind, 6 Dec. 1988, 2nd
preambular para. The latest resolution at the time of this submission (A/RES/77/165, Protection of global climate for present
and future generations of humankind, 14 Dec. 2022), adopted by consensus, recalls the other resolutions adopted since 1988.
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opinion in response to a request falling within its jurisdiction3. Indeed, as the Court has repeatedly noted,
its answer to a request for an advisory opinion “represents its participation in the activities of the
Organization, and, in principle, should not be refused”4.
9. The Republic of Madagascar is of the view that there are no compelling reasons for the Court
to exercise its discretion not to give the advisory opinion requested. Moreover, although the Permanent
Court of International Justice decided, on a single occasion, not to exercise its jurisdiction5, for reasons
that in no way apply to the case at hand6, the present Court, for its part, has never declined to exercise
its advisory jurisdiction.
10. For the sake of completeness, the Republic of Madagascar will nevertheless endeavour to
expand briefly on two points which may appear problematic on the surface, but which in reality are not
and which therefore do not constitute compelling reasons that could lead the Court to decline to give its
advisory opinion in this case.
11. The first point relates to whether advisory proceedings are suitable for the determination of
complex and disputed factual issues. The Republic of Madagascar is of the view that the Court has at its
disposal a range of information and amply sufficient evidence — including a clear scientific consensus
reflected in the reports of the Intergovernmental Panel for Climate Change (IPCC) — enabling it to
answer the questions before it with sufficient precision.
12. The second point concerns the question whether it would be more prudent for the Court not
to give its opinion on the questions put to it, since other international judicial institutions have been
seised of similar questions, so as to avoid any contradiction or confusion between different advisory
opinions on similar questions.
The Republic of Madagascar is of the opinion that although the questions before the Court
resemble those put to the International Tribunal for the Law of the Sea7 and the Inter-American Court
of Human Rights8, the fact remains that they are not the same. Indeed, the questions addressed to the
Court go beyond the interpretation of a single treaty, unlike the questions addressed to the other two
institutions mentioned, which are more limited because they refer specifically to the United Nations
Convention on the Law of the Sea and the American Convention on Human Rights, respectively.
Moreover, only the Court has general jurisdiction to provide the type of assistance required by the
3 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J.
Reports 2004 (I), p. 156, para. 44; Accordance with International Law of the Unilateral Declaration of Independence in respect
of Kosovo, Advisory Opinion, I.C.J. Reports 2010 (II), p. 416, para. 30.
4 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports
1950, p. 71; Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion,
I.C.J. Reports 2019 (I), p. 113, para. 65.
5 Status of Eastern Carelia, Advisory Opinion, 1923, P.C.I.J., Series B, No. 5.
6 Western Sahara, Advisory Opinion, I.C.J. Reports 1975, pp. 23-24, para. 30: “lack of competence of the League to
deal with a dispute involving non-member States which refused its intervention was a decisive reason for the Court’s declining
to give an answer”. In the case at hand, however, all the States concerned are parties to the United Nations Charter and the
Statute of the Court, and the resolution in question was adopted by consensus.
7 Case No. 31, Request for an Advisory Opinion submitted by the Commission of Small Island States on Climate
Change and International Law (Request for Advisory Opinion submitted to the Tribunal), 12 Dec. 2022,
https://www.itlos.org/fileadmin/itlos/documents/cases/31/Request_for_Advisory_Opinion_COSIS_12.12.22.pdf.
8 Request for an advisory opinion on the Climate Emergency and Human Rights submitted to the Inter-American Court
of Human Rights by the Republic of Colombia and the Republic of Chile, 9 Jan. 2023 https://www.corteidh.or.cr/docs/
opiniones/soc_1_2023_en.pdf.
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General Assembly, as reflected in the scope of the questions, which is not limited to the interpretation
of a single treaty or branch of international law.
Finally, the entities that requested the other two advisory opinions consider those proceedings to
be clearly different from the present proceedings before the Court, as demonstrated by the fact that the
Commission of Small Island States on Climate Change and International Law (COSIS) requested and
was authorized by the Court to participate in these proceedings, and Chile and Colombia co-sponsored
the General Assembly resolution requesting the advisory opinion of the Court.
13. In light of the foregoing, the Republic of Madagascar is of the view that the Court has advisory
jurisdiction and should exercise it in the present case.
C. The questions submitted to the Court are clear and should not be reformulated
14. Question (a) asks the Court to identify and clarify 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”. The obligations to be identified and clarified by the
Court are those relating to specific conduct, namely “anthropogenic emissions of greenhouse gases”.
15. The concept of a greenhouse gas is clearly understood by scientists and can be defined as a
gas which is naturally occurring (water vapour) or of anthropogenic origin (linked to human activities)
and which absorbs and re-emits part of the sun’s rays (infrared radiation), phenomena resulting in the
greenhouse effect. The main greenhouse gases (GHGs) linked to human activities are carbon dioxide
(CO2), methane (CH4), nitrous oxide (N2O) and fluorinated gases: hydrofluorocarbon (HFC),
perfluorocarbon (PFC), sulphur hexafluoride (SF6) and nitrogen trifluoride (NF3). Emissions of these
gases are weighted by their global warming potential (GWP) and expressed in terms of total CO2
equivalent emissions. The six greenhouse gases (GHGs) monitored under the Kyoto Protocol are carbon
dioxide (CO2), methane (CH4), nitrous oxide (N2O), sulphur hexafluoride (SF6), hydro[fluoro]carbons
(HFCs) and perfluorocarbons (PFCs)9.
16. The fifth preambular paragraph of resolution 77/276 confirms that question (a) concerns the
obligations that govern “the conduct of States” “over time” “in relation to activities that contribute to
climate change and its adverse effects”. Thus, the activities to which the term “anthropogenic” refers
can include those of States themselves or those of third parties under the jurisdiction or control of a
State, as long as the “conduct of States” is “in relation to” those activities.
17. In light of the preamble and the chapeau of the operative part of resolution 77/276, there is no
doubt that the General Assembly needs the Court to thoroughly examine the relevant obligations arising
from a vast body of treaties and other sources of general international law. Certain legal instruments are
specifically mentioned in the preamble and the chapeau of the operative part, but that list is not
exhaustive, as confirmed by the words “[h]aving particular regard” in the chapeau.
18. In this regard, the answer to question (a) lays the groundwork for the answer to the crux of
the question put to the Court in question (b), regarding the “legal consequences”, under the obligations
in question, that arise from conduct that interferes with the climate system and the environment in
general. As specified in question (b), such conduct consists in the “acts and omissions” of individual
States or groups of States, responsible for the cumulative emissions of greenhouse gases which have
9 See https://www.insee.fr/fr/metadonnees/definition/c1855.
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“caused significant harm to the climate system and other parts of the environment”, under the terms of
question (b), or, as stated in the fifth preambular paragraph, which “contribute to climate change and its
adverse effects”.
19. The Court is thus asked to determine the “legal consequences” of such conduct, in the light of
the obligations identified and clarified in response to question (a). This determination must be made
“with respect to” the two categories of victims of climate injustice identified in subparagraphs (i) and
(ii) of question (b).
20. The Republic of Madagascar respectfully asserts that these questions are specific, clear and
unambiguous and that the Court should not reformulate them. The noteworthy adoption of
resolution 77/276 by consensus, and the fact that the clarity of the wording of the questions is not in
dispute, clearly suggest that this wording was fully understood by and acceptable to all.
21. Moreover, none of the reasons for which the Court has previously reformulated or restrictively
interpreted some of the questions put to it has been invoked in the present case10. Only in exceptional
circumstances would the Court be required to reformulate a question submitted to it for an advisory
opinion, more specifically if the question prevents the Court from giving a reply “based on law” 11.
22. Finally, it cannot be claimed in good faith that the specific formulation of a resolution which
was co-sponsored by no fewer than 132 States at the time it was submitted, and which was subsequently
adopted by consensus by the Member States in the General Assembly, does not accurately reflect what
the General Assembly needs the Court to clarify.
III. UNDER CONTEMPORARY INTERNATIONAL LAW, STATES HAVE LEGAL OBLIGATIONS TO
ENSURE THE PROTECTION OF THE CLIMATE SYSTEM AND OTHER PARTS OF THE
ENVIRONMENT FROM ANTHROPOGENIC EMISSIONS OF GREENHOUSE GASES
23. Before presenting the obligations of States to ensure the protection of the climate system and
other parts of the environment from greenhouse gas emissions, it should be recalled that the protection
of the climate system has become one of the major concerns of the international community. As the
Court itself stated in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons,
“the environment is not an abstraction but represents the living space, the quality of life and the very
health of human beings, including generations unborn”12.
10 The basic rule was recalled by the Court in its Advisory Opinion on the Chagos Archipelago:
“The Court recalls that it may depart from the language of the question put to it where the question is
not adequately formulated (Interpretation of the Greco-Turkish Agreement of 1 December 1926 (Final
Protocol, Article IV), Advisory Opinion, 1928, P.C.I.J., Series B, No. 16) or does not reflect the ‘legal questions
really in issue’ (Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory
Opinion, I.C.J. Reports 1980, p. 89, para. 35). Similarly, where the question asked is ambiguous or vague, the
Court may clarify it before giving its opinion (Application for Review of Judgement No. 273 of the United
Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1982, p. 348, para. 46).”
11 Western Sahara, Advisory Opinion, ICJ Reports 1975, p. 18, para. 15.
12 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 241, para. 29.
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A. The context of the emergence, in international law, of obligations to protect the climate
system and other parts of the environment
24. The call for environmental restoration emerged as early as the 1960s as a result of the
“unprecedented disturbances” generated by technological and economic development. “It was in the
most developed societies and amongst their most affluent classes that this call would originate, because
the disturbances were already clearly perceptible at that time, and risked becoming unbearable in the
future if they continued to increase.”13
25. The pertinence of this call for action subsequently inspired States to adopt treaties on
protecting the atmosphere and the climate, supplemented by successive protocols and amendments.
These included, but were not limited to, the Geneva Convention on Long-Range Transboundary Air
Pollution of 13 November 197[9], followed by several protocols; the 1985 Vienna Convention and the
1987 Montreal Protocol on the gases depleting the stratospheric ozone layer, which were amended
several times to enhance their effectiveness; and the United Nations Framework Convention on Climate
Change (UNFCCC) of 9 May 1992, followed by the Kyoto Protocol of 11 December 1997, setting out
certain obligations of principle, and the Paris Agreement of 12 December 2015, whose main objective
is to limit global warming to 1.5°C. Concern about the global climate system has now extended beyond
the bounds of environmental law and permeated other branches of international law, notably the law of
the sea, international human rights law, international humanitarian law and international migration law.
26. The climate change from which these legal instruments seek to provide protection is defined
as “a change of climate which is attributed directly or indirectly to human activity that alters the
composition of the global atmosphere and which is in addition to natural climate variability observed
over comparable time periods”14.
27. In 1988, in the first of its resolutions on the protection of the global climate system, the
General Assembly “[r]ecognize[d] that climate change is a common concern of mankind, since climate
is an essential condition which sustains life on earth”15. For their part, the States that adopted the
UNFCCC in 1992 recognized that climate change was already a problem, which was remarkable at a
time when there was less scientific evidence of the effects of global warming than there is now. The
Convention thus bound States parties to act in the interest of human safety, despite that scientific
uncertainty, by providing for precise objectives and corresponding obligations, which will be addressed
in the next two sections of this written statement.
28. Given the scientific certainty that has been established to date, as set out in the reports of the
IPCC, this obligation to act in the interest of humanity must be further strengthened, in line with the
UNFCCC’s objective “to achieve, in accordance with the relevant provisions of the Convention,
stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous
anthropogenic interference with the climate system” (Article 2).
For example, it has been recalled that the concentration of CO2 in the atmosphere increased from
280 ppm in 1950 to 360 ppm in 2000 and 440 ppm in 2013, compared with the danger threshold of
550 ppm, which would cause a temperature increase of 5°C and an irreversible change in the climate.
Consequently, if the community of States wishes to stay below 450 ppm, a level which will be reached
quickly on account of emissions from newly industrialized countries, it is necessary to immediately
13 J.-P. Beurier, Droit international de l’environnement, Pedone, 2017, p. 18 [translation by the Registry].
14 Art. 1, para. 2, United Nations Framework Convention on Climate Change (UNFCCC), adopted on 9 May 1992,
entered into force on 21 Mar. 1994 with near-universal adherence (197 countries), and ratified by Madagascar on 2 June 1999.
15 A/RES/43/53, Protection of global climate for present and future generations of mankind, 6 Dec. 1988, para. 1.
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reduce global emissions at a rate of 1.5 per cent per year, in accordance with the main objective of the
Paris Agreement.
Similarly, 29 billion tonnes of greenhouse gases have been emitted into the atmosphere every
year since 2006. In 2015, 32 billion tonnes were emitted, yet the Earth’s soil can absorb only 13 billion
tonnes a year, the remainder being dissolved in the oceans. If nothing is done to cut emissions, they will
exceed 40 billion tonnes a year before 2030, as a result of the combination of emissions from developed
and developing countries, and thus obviously surpass the danger threshold. Beyond that, it will no longer
be possible to limit climate change, since existing changes will be irreversible (temperatures, winds,
instability, rising sea levels, droughts, floods)16.
29. It is therefore of the utmost urgency for the international community to act to protect the
climate, and, to that end, the definition of the obligations of States in respect of climate change by the
principal judicial organ of the United Nations is of paramount importance.
30. The large number of co-sponsors of the resolution requesting this advisory opinion, and its
adoption by consensus, indicate that States have a shared sense of responsibility for taking action on
climate change, by seeking clarification regarding their obligations in this respect and the legal
consequences of failing to perform them. Thus, in their statements before and after the adoption of
resolution 77/276, many representatives of member States stressed the importance of tackling climate
change and the need for urgent and ambitious action to limit global warming in order to prevent “climate
hell”, at a time when, as the Secretary-General has rightly noted, we “have never been better equipped
to solve the climate crisis”17.
31. In this context, the evolution of international law has given rise to obligations for States in
respect of climate change which the Court is asked to define and clarify on the basis of relevant sources
and legal principles, which are not confined to those mentioned in the General Assembly’s request. The
Court is therefore invited to answer the questions before it in the light of the entire corpus of international
law. For question (a), this includes obligations under international conventions ratified by States,
international custom, general principles of law recognized by all States, and joint declarations by States
on climate change, which are expressions of intent “capable of producing similar effects to those of legal
rules”18.
32. In the light of the jurisprudence and literature, these obligations can be divided into three
broad categories, which, while rather arbitrary, are useful for the purposes of the presentation of this
written statement: obligations to protect the environment (B), obligations relating specifically to global
warming, among which a distinction can be drawn between obligations to mitigate and obligations to
adapt (C), and obligations under international human rights law (D).
B. Obligations to protect the environment
33. The disruption of the climate system is both the consequence of the release of anthropogenic
greenhouse gases into the atmosphere  which itself constitutes atmospheric pollution which States
have the obligation to prevent, reduce or control in accordance with Guideline 3 of the Draft Guidelines
16 J.-P. Beurier, op. cit., p. 310, fn. 10.
17 See Official Record of the 64th plenary meeting of the General Assembly regarding the adoption of the resolution
requesting the advisory opinion, A/77/PV.64, 29 Mar. 2023.
18 C. Dominicé, “La société internationale à la recherche de son équilibre. Cours general de droit international public”,
Recueil des cours de l’Académie de La Haye, Vol. 370, 2014, p. 120 [translation by the Registry].
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on the Protection of the Atmosphere adopted by the International Law Commission (ILC) in 202119 
and the cause of cascading damage to all parts of the environment, be it the oceans, fauna, flora,
biodiversity or, more generally, the framework within which human beings exercise their rights under
international human rights law.
34. Yet customary international law, as expressed by Principle 21 of the 1972 Stockholm
Declaration and reaffirmed by Principle 2 of the 1992 Rio Declaration, places an obligation on all States
“to ensure that activities within their jurisdiction or control do not cause damage to the environment of
other States or of areas beyond the limits of national jurisdiction”.
35. The International Court of Justice itself has repeatedly acknowledged that
“[t]he existence of the general obligation of States to ensure that activities within their
jurisdiction and control respect the environment of other States or of areas beyond national
control is now part of the corpus of international law relating to the environment”20.
36. Consequently, all States have an obligation to ensure that greenhouse gas emissions from
activities carried out within their jurisdiction or by entities or persons within their control do not directly
or indirectly cause damage to the environment of other States by disrupting the climate system.
37. This obligation is all the more pressing because the science is conclusive: all greenhouse gas
emissions exacerbate the disruption of the climate system. It takes the form of an obligation to prevent
significant damage to the environment, which in this instance translates into an obligation for each State
to take all necessary measures on greenhouse gas emissions to prevent, reduce or control the disruption
of the climate system which those emissions cause.
C. Obligations specifically aimed at combating global warming
1. Obligations of mitigation
38. Since the above-cited resolution 43/53 of 1988, the General Assembly has regularly addressed
the question of the protection of the climate for present and future generations. Its successive
resolutions21 have, on the one hand, gradually extended and clarified the objective of mitigating the
effects of climate change and, on the other, drawn attention to the efforts already made and those still
needed in order to achieve that goal.
39. The original source of the obligations of mitigation incumbent on States is Article 2 of the
UNFCCC, whose objective is to:
“achieve . . . stabilization of greenhouse gas concentrations in the atmosphere at a level that
would prevent dangerous anthropogenic interference with the climate system. Such a level
should be achieved within a time-frame sufficient to allow ecosystems to adapt naturally
19 Text adopted by the International Law Commission (ILC) at its 7[6]th session, in 2021, and submitted to the General
Assembly as part of its report on its work at that session, A/76/10, para. 39.
20 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, pp. 241-242, para. 29.
21 See documents received from the United Nations Secretariat, Part V: Protection of the climate system and other parts
of the environment, (A): General Assembly resolutions on Protection of global climate for present and future generations.
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to climate change, to ensure that food production is not threatened and to enable economic
development to proceed in a sustainable manner”.
The reduction of emissions is thus intended to form a core part of States’ mitigation obligations,
requiring States to adopt national policies and communicate them at the multilateral level, and provide
support for developing countries.
40. The Kyoto Protocol22 served to articulate these obligations and give them binding effect.
Indeed, it obliges industrialized countries to reduce and limit their greenhouse gas emissions according
to a quota on their allowed emissions, referred to as the “assigned amount”. The commitments of States
in this respect concern two periods, the five-year period between 2008 and 2012 and the eight-year
period between 2013 and 2020.
41. The Protocol provides that industrialized countries must reduce their overall greenhouse gas
emissions during the period between 2008 and 2012 by 5.2 per cent on average compared with 1990
levels. During the 2013-2020 commitment period, a seventh greenhouse gas, NF₃, was added, and the
overall reduction target was 18 per cent, also compared with 1990 levels23.
42. Taking into account the successive efforts that have been made, as well as expert opinions on
the matter, the Paris Agreement adopted at COP21 in 2015 established an objective and time frame for
mitigation. It aims to hold “the increase in the global average temperature to well below 2°C above
pre-industrial levels” and to pursue “efforts to limit the temperature increase to 1.5°C above
pre-industrial levels”, which would “significantly reduce the risks and impacts of climate change”
(Article 2). This provision should be read in the light of Article 4, which provides for parties to “aim to
reach global peaking of greenhouse gas emissions as soon as possible”, to establish the nationally
determined contributions (NDCs) that they intend to achieve, and to “pursue domestic mitigation
measures, with the aim of achieving the objectives of such contributions”. The Paris Agreement obliges
signatory countries to prepare, communicate and maintain NDCs with a view to reducing their
greenhouse gas emissions, and provides for a periodic process to assess the collective progress made by
countries in implementing their NDCs and achieving the Agreement’s objectives, including the global
stocktake (GST) 24.
43. Specifically, mitigation obligations include, but are not limited to, facilitating energy
efficiency, protecting and enhancing carbon sinks, promoting sustainable agriculture and forestry,
facilitating renewable energy sources, utilizing environmentally sound technologies, implementing tax
measures and structural reforms in the sectors concerned, limiting or reducing greenhouse gases in the
transport sector, and managing waste25.
44. With regard to these undertakings, in its above-cited resolution 77/165, the General Assembly
reaffirms the temperature goal established by the Paris Agreement (paragraph 5). It welcomes the
submission of NDCs (paragraph 6), notes with concern that the NDCs presented by the parties to the
Paris Agreement are not sufficient (paragraph 7), and recalls that countries are requested to revisit and
strengthen the targets in their NDCs (paragraph 8).
22 See https://unfccc.int/sites/default/files/resource/docs/cop3/l07a01.pdf.
23 https://unfccc.int/files/kyoto_protocol/application/pdf/kp_doha_amendment_english.pdf.
24 See the website dedicated to the global stocktake of efforts to combat climate change, https://unfccc.int/fr/node/627059.
25 IPCC (2014), pp. 28, 30 and 109 et seq.
- 10 -
45. Accordingly, States and the international community as a whole must provide support for the
conversion of developing countries’ NDCs into a series of financially viable projects capable of
attracting large-scale private sector investment. This could involve private investment stimulated by
government policies aimed at risk reduction, as well as enhanced tax policies promoting the inflow of
private climate finance.
46. States are also required to take proactive measures to prevent, reduce and control greenhouse
gas emissions, by protecting and restoring the environment within their respective national borders.
These measures must include, in particular, legislation to reduce fossil fuels and promote the energy
transition, with a view to tripling the capacity of renewable energies globally and doubling the global
average annual rate of energy efficiency improvements by 2030.
47. In this regard, the Republic of Madagascar has identified two obligations which are
inextricably linked. The first is an obligation of means, since States must make every effort to achieve
the goal of holding the increase in the global average temperature to well below 2°C above pre-industrial
levels and pursuing efforts to limit the temperature to 1.5°C above pre-industrial levels. The second
obligation, closely tied to the first, is for States to establish the NDCs that they intend to achieve in order
to reach that goal. This is an obligation of result.
48. It remains for the Court to determine how wide a margin of discretion States have in this
respect, in particular by making a pronouncement on the level of effectiveness and temporal scope of
the NDCs envisaged, as well as on their limits — for example, the fact that any measures contemplated
must respect the public’s rights with regard to equity and non-discrimination. The Court is invited to
make clear that the more urgent and serious the situation, as is the case here, the more limited States’
margin of discretion must be.
49. Similarly, the Court must recall that the efforts to be made depend on the capability of each
State. Indeed, as the International Tribunal for the Law of the Sea has noted, the requirements for
complying with an obligation may be stricter for developed States than for developing States26. In this
regard, the principle of common but differentiated responsibilities is generally accepted. According to
Article 3, paragraph 1, of the UNFCCC,
“[t]he Parties should protect the climate system for the benefit of present and future
generations of humankind, on the basis of equity and in accordance with their common but
differentiated responsibilities and respective capabilities. Accordingly, the developed
country Parties should take the lead in combating climate change and the adverse effects
thereof.”
50. The next paragraph provides that
“[t]he specific needs and special circumstances of developing country Parties, especially
those that are particularly vulnerable to the adverse effects of climate change, and of those
Parties, especially developing country Parties, that would have to bear a disproportionate
or abnormal burden under the Convention, should be given full consideration”.
26 Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area,
Advisory Opinion, 1 Feb. 2011, ITLOS Reports 2011, p. 54, para. 161.
- 11 -
51. Thus, references to the climate obligations of States are made with the understanding that
developed and developing countries are to be treated differently. Only then will the solutions be in
keeping with the climatic and socio-economic realities of the countries most vulnerable to climate
change.
52. Finally, the obligations of States in respect of climate change fall squarely under international
environmental law and must therefore take account of its inherent principles, such as solidarity and
intra- and intergenerational justice27. Thus, in light of the differential treatment referred to above,
obligations such as ensuring the transfer of technology and providing technical assistance and financial
aid to developing countries are appropriate and should be included among the obligations incumbent on
countries which bear a greater responsibility in respect of climate change.
2. Obligations of adaptation
53. The IPCC defines adaptation as measures or initiatives that reduce the sensitivity of natural
and human systems to the effects of climate change. Adaptation measures have less of an impact than
mitigation measures on the effects of climate change. Nevertheless, they form a core part of the
responsibility of States28. Climate adaptation options include, but are not limited to, disaster prevention,
insurance schemes, the strengthening of citizen participation and political engagement, early warning
systems, shelters, rainwater and wastewater management, dikes and embankments, desalination, and
financial incentives29. The development of national adaptation plans pursuant to the UNFCCC is another
State obligation arising from the effects of climate change and relating specifically to adaptation.
54. The establishment in 2007 of the Adaptation Fund30, whose aim is to finance concrete
adaptation projects and programmes in developing countries, confirms that States have an obligation to
adapt to climate change, as the Fund’s contributors are comprised of States. The Glasgow Climate
Pact31, which was adopted at COP26, called for the doubling of the finance provided to developing
countries for adaptation and resilience.
55. Given the clear gap between adaptation needs and opportunities32, caused primarily by a lack
of funding, the Republic of Madagascar considers that clarification of the obligations relating to
adaptation in the Court’s advisory opinion would provide a basis for greater engagement of States.
56. Under the UNFCCC and the Paris Agreement, and in light of the foregoing discussion, there
are three types of obligations relating to adaptation. The first requires taking action to adapt, which
usually involves planning and implementation in the form of national adaptation plans and programmes
of action. The second type entails the provision of financial and technological support for adaptation,
which requires States to provide financial assistance and share technologies with a view to helping
27 A. Gosseries, “Les théories de la justice intergénérationnelle”, in Raison Publique, Vol. 8 (2008),
http://hdl.handle.net/2078.1/125934.
28 See IPCC (2014), p. 18.
29 IPCC (2014), pp. 28, 30 and 109 et seq.
30 See https://www.adaptation-fund.org/.
31 See https://unfccc.int/sites/default/files/resource/cma3_auv_2_cover%2520decision.pdf.
32 See Adaptation Gap Report 2020, UNEP 2021.
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vulnerable countries enhance their adaptive capacity and resilience. The last type implies a duty of
co-operation33.
57. In implementing these obligations of adaptation, and in accordance with the operative
principles of the climate change régime as set out in Article 3 of the UNFCCC, the precautionary
principle must be applied. Thus, States are obliged to take preventive action to avoid serious or
irreversible harm, and to condemn inaction based solely on uncertainty.
D. Obligations based on international human rights law
58. The Republic of Madagascar would note in particular the obligation to respect the right of
peoples to self-determination, the obligation to ensure the right to health and a healthy environment, and
other obligations relating to human rights threatened by climate change.
1. The obligation of States not to deprive a people of its means of subsistence, in compliance with
its right to self-determination
59. The right to self-determination of all peoples, which is both customary and treaty-based34 and
respect for which is an obligation erga omnes35, implies the right of a people not to be deprived of its
own means of subsistence. However, the effects of climate change pose a threat to people’s means of
subsistence, lives, lifestyles and survival. Indeed, in the short and long terms, climate change causes
problems associated with the loss of territory and the unsuitability of certain land for agriculture. Faced
with food insecurity and losses of property, some marginalized populations are forced to leave their
homes and are thus deprived of their natural and usual territories.
60. The Republic of Madagascar asks the Court to make clear that States remain under an
obligation to respect the rights to self-determination of peoples threatened by the adverse effects of
climate change.
2. The obligation of States to respect the right to health and the right to a clean, healthy and
sustainable environment
61. Numerous scientific studies have proven the adverse effects of climate change on human
health, especially for the most vulnerable. In light of this, the right to health (guaranteed in Article 25
of the Universal Declaration of Human Rights and Article 12 of the International Covenant on
Economic, Social and Cultural Rights) and the right to a clean, healthy and sustainable environment
must be respected.
62. The right to a clean, healthy and sustainable environment was first enshrined at the global
level in resolution 48/13 of the Human Rights Council, which was adopted on 8 October 2021. That
33 L. Nishimura, “Adaptation obligations and adaptive mobility”, www.fmreview.org/sites/default/files/FMRdownloads/
en/climate-crisis/nishimura.pdf.
34 See Art. 1 of the United Nations Charter; common Art. 1 of the International Covenant on Civil and Political Rights
and of the International Covenant on Economic, Social and Cultural Rights; Art. 3 of the United Nations Declaration on the
Rights of Indigenous Peoples.
35 Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, I.C.J.
Reports 2019, p. 139, para. 180; East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 102, para. 29; Barcelona
Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment, I.C.J. Reports 1970, p. 41,
para. 66, p. 32, para. 33.
- 13 -
resolution should serve as a catalyst for the right in question to be universally recognized in
constitutions, legislation and regional human rights treaties, and should accelerate action to address the
global environmental crisis36. International recognition of this right was endorsed by the General
Assembly in its resolution 76/300, adopted on 28 July 2022, in which the Assembly “[r]ecognize[d] the
right to a clean, healthy and sustainable environment as a human right” and “[a]ffirm[ed] that the
promotion of [this] right . . . requires the full implementation of the multilateral environmental
agreements under the principles of international environmental law” (paragraphs 1 and 3). The
connection between international environmental law and international human rights law is clearly
established by the General Assembly in that resolution.
63. In addition, the protection of the right to a healthy environment can only be achieved through
recognition of climate justice37, acceptance of the principle of equity38 and promotion of the concept of
“common concern of humanity”39.
64. The Republic of Madagascar invites the Court to clarify the obligations of States in this respect
on the basis of the connections between their human rights commitments and their commitments under
multilateral environmental agreements.
3. Other obligations
65. Beyond environmental rights, other rights affected by climate change include the right to life,
the right to property and the right to be free from racial discrimination. Reserving its observations on
the obligations of States to respect these rights relating to climate change for future phases of these
advisory proceedings, the Republic of Madagascar requests the Court to reiterate the obligations of
States in this respect, in the light of the scientific evidence of the impact of global warming on the rights
in question.
66. Finally, States also have climate change obligations which fall outside the scope of
international environmental law and international human rights law. These include:
 the prohibition of military or any hostile use of environmental modification techniques, including
any technique for changing — through the deliberate manipulation of natural processes — the
dynamics, composition or structure of the Earth, including its biota, lithosphere, hydrosphere and
atmosphere, or of outer space40;
 the prohibition to employ methods or means of warfare which are intended, or may be expected, to
cause widespread, long-term and severe damage to the natural environment41; and
36 A/HRC/49/53, Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment
of a safe, clean, healthy and sustainable environment, 12 Jan. 2022, paras. 2.
37 Paris Agreement, preamble, para. 13.
38 See A. Michelot, Équité et environnement, Larcier, 2012, pp. 355-376.
39 P. Gérard, F. Ost and M. Van de Kerchove, Images et usages de la nature en droit, Brussels, Presses universitaires
Saint-Louis, 2019, pp. 165-206.
40 Geneva Convention of 10 Dec. 1976.
41 Additional Protocol I to the Geneva Conventions of 12 Aug. 1949, 8 June 1977, Art. 35, para. 3, and Art. 55.
- 14 -
 the responsibility of all States to protect, preserve and enhance the environment for present and
future generations; States must endeavour to establish their own environmental and developmental
policies in conformity with that responsibility42.
IV. STATES THAT HAVE CAUSED SIGNIFICANT HARM TO THE CLIMATE SYSTEM,
IN BREACH OF THEIR INTERNATIONAL OBLIGATIONS, MUST MAKE FAIR AND
ADEQUATE REPARATION TO THE STATES INJURED BY THAT BREACH
67. The question relating to the “legal consequences” of States that breach their obligations in
respect of climate change falls under the law of State responsibility for internationally wrongful acts.
The engagement of this responsibility is based on the existence of an internationally wrongful act and,
once the responsibility of a State is established, that State is required to make reparation for the harm
resulting from the act in question. It is therefore appropriate first to consider the significant harm
mentioned in the question put to the Court (A), before examining the two legal consequences of the
internationally wrongful acts giving rise to the harm, in this case the obligation to cease those acts and
offer a guarantee of non-repetition (B), and the obligation to make reparation for the harm (C).
A. The significant harm to the climate system resulting from breaches
of the obligations of States in respect of climate change
68. Since 1850, each of the four most recent decades has been successively warmer than all the
previous decades. The average global surface temperature in the first two decades of the twenty-first
century (2001-2020) was 0.99°C higher than it was between 1850 and 1900. Between 2011 and 2020,
the global surface temperature was 1.09°C higher than it was between 1850 and 1900, with larger
increases over land (1.59°C) than over the ocean (0.88°C). The estimated increase in global surface
temperature since the Fifth Assessment Report of the IPCC (AR5) is principally due to further warming
since the period between 2003 and 2012 (+0.19°C). Additionally, methodological advances and new
datasets have contributed to a forecast adjustment of around 0.1°C compared with the updated warming
estimate published in the Sixth Assessment Report of the IPCC (AR6) (adapted from IPCC, 202143).
69. For Madagascar in particular, the adverse effects of global warming are as follows:
 Between 2001 and 2020, Madagascar lost 4.13 million hectares of tree cover, equivalent to a
24 per cent decrease in tree cover since 2000, and to 2.02 gigatonnes of CO2. An unprecedented peak
loss of almost 510,000 hectares was recorded in 2017 (Global Forest Watch, 2021).
 Thirty-five per cent of the population is experiencing severe food insecurity (National Adaptation
Plan, 2021), requiring Madagascar to import more than 300,000 tonnes of rice on average [per year]
between 2010 and 2019 (USDA, Index Mundi 2022). Since the farming and production systems are
rainfed, both agriculture and livestock farming are strongly dependent on climatic variations.
 The country is also experiencing climate-induced migration, which, in turn, is one of the recognized
causes of the problems of deforestation and the degradation of natural resources. The populations
of the far south have fled this drought-affected region en masse for other regions, in particular the
south-west and the north-west, which are among the areas most affected by deforestation44.
42 Charter of Economic Rights and Duties of States, Ann. to General Assembly resolution 3281 (XXIX), 12 Dec. 1974,
Art. 30.
43 IPCC, 2021, data updated in the Sixth Assessment Report of the IPCC.
44 D. Andriantsoa, “Migration climatique : les gens du Sud fuient le Kere”, L’Express de Madagascar, 13 Jan. 2021.
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70. With regard to the climate, Madagascar is experiencing the following trends45:
 Across its territory, a temperature increase was observed during the period between 1961 and 2017:
in particular, minimum and maximum temperatures increased by 0.04°C and 0.05°C respectively
each year.
 Annual precipitation is falling, in particular in the east and south-east of the island. Although this
downward trend remains weak, there is a marked increase in the annual variation in precipitation.
The most notable dips are observed at the end of the dry season and the beginning of the rainy
season.
 Maximum temperatures are showing an upward trend of 0.23°C per decade. During the hot, rainy
season, the increase has been 0.20°C per decade. During the winter, maximum temperatures have
risen by 0.25°C per decade.
 The sea temperature in the western basin of the Indian Ocean, which includes the Mozambique
Channel, increased by 0.60°C between 1950 and 2009.
 No definite trend is yet evident as regards the frequency and intensity of tropical cyclones in the
southern Indian Ocean region around Madagascar.
 The sea level around the island increased by 1.57 mm/year between 1993 and 2017, which, though
lower than the global average of 2.87 mm/year, remains worrying.
71. The climate scenarios for Madagascar46 indicate that the changes will intensify depending on the
time frames considered and the extent of global radiative forcing. Here are the established trends:
 a generalized increase in temperature, more pronounced in the west and south as far as the western
edge of the Highlands, and in the south-west;
 a more marked increase in rainfall on the western side, alongside a more pronounced drop in rainfall
in the Highlands, extending towards the far south-east;
 a 46 per cent increase in cyclone intensity by 2100, together with a northward shift in cyclone path;
and
 an increase in the sea level of 0.28 to 0.48 m by 2100.
72. The Court is invited to refer to the two documents annexed to this written statement, which relate to
the risks posed by climate change in Madagascar — by sector and by region (Annex 1), and by hazard
and by sector (Annex 2) — which have a high probability of occurring.
45 See Sixth Assessment Report of the IPCC.
46 These projections were established using the resources of Phase 5 of the Coupled Model Intercomparison Project
(CMIP5) and the Fifth Assessment Report of the IPCC.
- 16 -
B. States which have caused significant harm to the climate system
must cease the wrongful acts giving rise to that harm
73. In international law, the first legal consequence of an internationally wrongful act is the
obligation to cease that act and offer a guarantee of non-repetition. Pursuant to Article 30 of the ILC’s
Articles on Responsibility of States for Internationally Wrongful Acts47,
“The State responsible for the internationally wrongful act is under an obligation:
(a) to cease that act, if it is continuing;
(b) to offer appropriate assurances and guarantees of non-repetition, if circumstances so
require.”
74. States which, by their acts and omissions, have caused significant harm to the climate system
and other parts of the environment, are thus under an obligation to cease that harmful conduct. They are
also bound to perform the obligation breached, in accordance with Article 29 of the ILC Articles on
State Responsibility.
C. States which have caused significant harm to the climate system bear responsibility
and have an obligation to make fair and adequate reparation
1. Reparation depending on the primary obligation breached and in accordance with agreements
on the environment
75. What constitutes adequate reparation essentially depends on the content of the primary
obligation identified to have been breached. In particular, as regards mitigation measures, a State which
establishes NDCs but fails to achieve them bears responsibility.
76. Further, generally speaking, as mentioned above, breaches of State obligations in respect of
climate change give rise to violations of other human rights obligations, notably the right to a clean,
healthy and sustainable environment; the right to life; the right to health; the right to privacy; and the
right to property.
77. Thus, adequate reparation must be made for each breach. Moreover, making reparation for
one breach does not relieve the responsible State of its obligation to make reparation for other breaches.
78. As regards adaptation measures, a State which breaches its obligations in that respect bears
international responsibility, and what constitutes adequate reparation varies depending on the actual
harm caused, in accordance with the régime of State responsibility for internationally wrongful acts,
which will be discussed below.
79. One clarification is necessary at this stage, however: the Paris Agreement and the Kyoto
Protocol sought to address procedures for non-compliance with State obligations.
47 ILC, Articles on Responsibility of States for Internationally Wrongful Acts, Ann. to General Assembly
resolution 56/83, hereinafter “ILC Articles on State Responsibility”.
- 17 -
80. Decision -/CP.27 -/CMA.4, entitled “Funding arrangements for responding to loss and
damage associated with the adverse effects of climate change, including a focus on addressing loss and
damage”, acknowledges
“the urgent and immediate need for new, additional, predictable and adequate financial
resources to assist developing countries that are particularly vulnerable to the adverse
effects of climate change in responding to economic and non-economic loss and damage
associated with the adverse effects of climate change, including extreme weather events
and slow onset events, especially in the context of ongoing and ex post (including
rehabilitation, recovery and reconstruction) action”.
The emphasis is on new funding arrangements. Hence the creation of a fund for responding to
loss and damage.
However, the adoption of this decision was accompanied by a note of caution, stressing that the
creation of a fund did not imply recognition of international responsibility. Similarly, the mechanism
established by Article 15 of the Paris Agreement “function[s] in a manner that is transparent,
non-adversarial and non-punitive”.
The Compliance Committee of the Kyoto Protocol, for its part, may decide on actual sanctions in
the case of non-compliance by States with their environmental obligations. However, the consequence
of non-compliance with such obligations is merely a renewed request to the State concerned to restore
compliance.
81. The Republic of Madagascar encourages the development of such mechanisms, which must
be effective and must benefit the populations of developing countries. Financial aid must also be
commensurate with the local measures envisaged, given that the resources of Madagascar, and of other
developing countries, fall far short of the needs identified. By way of example, the estimated cost of the
core programmes focusing on the main national priorities set out in the Malagasy Government’s
National Adaptation Plan is around US$250 million.
82. In any event, the existence of a fund does not preclude the implementation, additionally or
alternatively, of the régime of State responsibility for internationally wrongful acts.
2. Reparation under the régime of State responsibility for internationally wrongful acts
83. Under international law, “[t]he responsible State is under an obligation to make full reparation
for the injury caused by the internationally wrongful act”48. Such reparation takes three forms:
restitution, compensation and satisfaction49; the appropriate measures for injury resulting from the
adverse effects of climate change will now be explored.
(a) Restitution
84. Restitution, which consists in restoring the situation that existed before the wrongful act was
committed, can, in the case of climate injury, take the form of a thorough clean-up of polluted or
damaged land and rivers, or the restoration of degraded land and ecosystems. It can also involve
introducing into the wild equivalent replacements for declining, weakened or damaged components of
48 Ibid., Art. 31.
49 Ibid., Arts. 35 to 37. The following presentations of these forms of reparation paraphrase those articles.
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biodiversity50. Restitution may further include a commitment by world leaders to take concrete measures
to collectively reduce CO2 emissions by at least 45 per cent by 2030, compared with 2010 levels, and to
“reach net zero by 2050”51.
85. Finally, restitution for harm suffered as a result of climate change requires the reform of an
entire system rooted in the consequences of colonialism and an unjust international economic system.
(b) Compensation
86. The requirement to provide compensation, which covers any financially assessable damage,
including loss of profits, can be fulfilled by paying financial compensation to the victims of climate
change, and by providing financial and logistical assistance to enable the resettlement in other regions
of people who are forced to leave their usual place of residence because of climate change.
Compensation can also take the form of ensuring that persons who are internally displaced because of
the adverse effects of climate change are able to enjoy their rights, as recognized in the Convention for
the Protection and Assistance of Internally Displaced Persons in Africa (2009 Kampala Convention),
which is the first international instrument in the world to impose legal obligations on States to provide
protection and assistance to displaced persons.
87. In addition, compensation is due for the care of people obliged to leave their homes because
of coastal erosion, severe cyclones and other natural disasters caused by global warming. The amount
of compensation must cover the expenses incurred by States for providing them with accommodation
and assistance.
88. The Republic of Madagascar considers that the achievements of COP27 must serve as
guidelines for reparative measures, and that every effort must be made to operationalize the Loss and
Damage Fund agreed at that conference, and to ensure that the new pledges made to the Adaptation
Fund at COP27, which total more than US$230 million, are effectively delivered52.
89. Along similar lines, compliance with the recommendation of the United Nations Environment
Programme (UNEP) to scale up the initial goal of US$100 billion per year set by the Paris Agreement
will be a suitable compensation measure, in particular thanks to the establishment of a new finance goal,
the New Collective Quantified Goal on Climate Finance (NCQG)53, which is based on a more precise
and evidence-based approach and recommends climate finance of up to US$300 billion per year by
2030.
90. Effective delivery of the expected pledges to the Loss and Damage Fund, and the transparent
and efficient provision of such funding, must also be regarded as part of the reparations owed by States
responsible for the effects of climate change to States which are the victims of those effects.
50 B. Queffelec and J. Hay, “L’évaluation du préjudice environnemental en droit international”, in A. Cudennec and
C. de Cet Bertin (eds.), Mer et responsabilité, Paris, Pedone, 2009, pp. 125-126.
51 “For a livable climate: Net-zero commitments must be backed by credible action”, https://www.un.org/en/
climatechange/net-zero-coalition.
52 https://unfccc.int/news/cop27-reaches-breakthrough-agreement-on-new-loss-and-damage-fund-for-vulnerable-countries.
53 https://unfccc.int/NCQG?gad_source=1&gclid=Cj0KCQjwqdqvBhCPARIsANrmZhNZmR-v_oI_G01hFIYiADytfDdHgUOT8YGUQe743EA5IppAaeAV7waAqpsEALw_
wcB.
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91. For Madagascar, adequate compensation for the adverse effects of climate change on its
territory and for present and future generations includes not only access to the funds established by the
aforementioned mechanisms, but also humanitarian aid for the loss and damage suffered by the
population, as well as additional financial and technical aid to help Madagascar adapt to the
consequences of climate change, in particular increasingly long and intense periods of drought.
92. However, such financial support cannot be regarded as reparation if the funds are granted in
the form of loans, interest-bearing or not. Donors declared average climate finance of US$59.5 billion
per year in 2017 and 2018. Yet, according to Oxfam, 80 per cent of that sum was allocated in the form
of loans, and will therefore need to be repaid. Moreover, only 20.5 per cent of the funding was
earmarked for Least Developed Countries and 3 per cent for Small Island Developing States, even
though they are very vulnerable to the effects of climate change.
(c) Satisfaction
93. As regards satisfaction, which “may consist in an acknowledgement of the breach, an
expression of regret, a formal apology or another appropriate modality”, in Madagascar’s view,
appropriate satisfaction would consist, for a start, in being recognized as a State which is a victim of
climate injustice.
94. It would also involve putting in place more sustainable and viable solutions in developing
countries, which are seeing their lands erode and slide slowly into the ocean. Such solutions should
include effective transfers of technology to increase resilience to the effects of climate change and to
implement solutions adapted to their specific needs.
95. Finally, measures of satisfaction also include anticipating solutions which are fair and
respectful of human rights, for present and future populations doomed to be displaced within or beyond
national borders as a result of climate change.
V. CONCLUSION
96. In contemporary international law, the obligations of States in respect of climate change have
developed over the years as the threat to the climate system has intensified. These obligations derive
from the entire corpus of international law, which it is for the Court to identify and clarify.
97. Alongside these obligations, a practice within State-owned and international companies has
been established or is crystallizing with regard to forms of reparation for victims of the adverse effects
of climate change. Such forms of redress have already been recognized in domestic judicial systems.
98. The Republic of Madagascar requests the International Court of Justice to follow the lead of
domestic courts by making a pronouncement that States which, by their acts and omissions, have caused
significant harm to the climate system and other parts of the environment are under an obligation to
make reparation to the States and people affected by that harm. In this regard, the Court should specify
the forms that such reparation should take, on the basis of State practice and the general principles of
law relating to environmental litigation observed by most members of the international community.
Indeed, it is a matter of effecting “climate justice” at the international level, as sought by both the
collective of current victims of climate change and the coalition of representatives of future generations.
___________
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ANNEX 1
LEVEL OF RISK DUE TO CLIMATE CHANGE, BY SECTOR AND REGION
Agriculture — Forests and biodiversity — Water — Coastal areas
Infrastructure  Housing and new towns  Health
[Key: very high
high
moderate
low
(white: insufficient
data)]
___________
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ANNEX 2
CLIMATE-RELATED RISKS FOR MADAGASCAR, BY HAZARD AND BY SECTOR
Sector Climate-related hazard
Rising temperatures Decreasing precipitation Possibly more intense
tropical cyclones
Rising sea levels
Agriculture Rising temperatures affecting current
crop yields;
Elevated risks when night-time
temperatures rise;
Higher evapotranspiration rate, causing
reduced soil moisture and increased soil
degradation;
Increased livestock mortality (cattle in
particular).
Increased need for irrigation,
especially for rice cultivation.
Damage to crops (sensitive
crops in particular) and
supply chains.
Seawater intrusion and
surface and groundwater
salinization in low-altitude
coastal agricultural areas,
adversely affecting
agricultural yields.
Public health Acute respiratory illnesses;
Spread of vector-borne diseases such as
malaria;
Heat stress in people, causing
acclimatization difficulties and
aggravating pre-existing medical
Availability of drinking water
resources;
Water scarcity, affecting
sanitation and hygiene;
Changes in vector-borne
diseases as a result of a shift
in the distribution of
Public health following the
degradation of water quality
and sanitation.
Health risks associated with
well drilling in coastal areas
(groundwater salinization).
- 22 -
conditions such as cardiovascular
problems.
precipitation between dry and
wet periods.
Water resources Higher evapotranspiration rate, causing
reduced soil moisture and groundwater
replenishment;
Decrease in run-off and surface water.
Increased need for irrigation,
especially for rice cultivation;
Reduced drinking water
resources, due to a lack of
groundwater replenishment.
Damage to water
infrastructure caused by
cyclones.
Seawater intrusion and
surface and groundwater
salinization in coastal areas.
Risk and disaster
management
Heat stress in people, causing
acclimatization difficulties and
aggravating pre-existing medical
conditions such as cardiovascular
problems.
Drought, leading to crop
damage, water scarcity and
other socio-economic
impacts.
Damage to crops,
infrastructure, supply chains,
services, etc.
Seawater intrusion and
surface and groundwater
salinization in coastal areas.
Infrastructure Weakening of structures due to
dilatation during extreme heat events.
Degradation of infrastructure;
Destruction of infrastructure.
Degradation of infrastructure;
Destruction of infrastructure.
Management of
coastal areas,
biodiversity and
forestry
Degradation of biodiversity and
ecosystems.
Degradation of biodiversity
and ecosystems.
Degradation of coral reefs
and coastal marine
ecosystems;
Increased coastal flooding,
affecting coastal ecosystems;
Degradation of terrestrial
ecosystems.
Seawater intrusion and
surface and groundwater
salinization in coastal areas,
and destruction of
salt-intolerant terrestrial
coastal habitats.
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Fishing Changes in fish populations and
alteration of reproduction cycles.
Longer low-water periods,
which disrupt life cycles and
lead to [sic]
Higher production costs, due
to infrastructure destruction
and supply chain disruptions.
Land use planning Diminishing arable land and bodies of
water.
Diminishing arable land and
bodies of water.
Degradation of infrastructure;
Degradation of farmland.
Increased soil erosion on
littoral fringe.
Housing and new
towns
Degradation of housing;
Ventilation during heatwaves.
Lower productivity. Collapsed buildings;
Impacts of flooding on
infrastructure.
Degradation of infrastructure.
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