Written statement of Saudi Arabia

ROY AL EMIJM~Y OF ~AUDI ARABIA
LAHAI
PRIVILEGED & CONFIDENTIAL
I TERNATIONAL COURT OF JUSTICE
OBLIGATIONS OF STATES IN RESPECT OF CLIMATE CHANGE
(REQUEST FOR ADVISORY OPINION)
WRITTEN STATEMENT OF THE
KINGDOM OF SAUDI ARABIA
21 MARCH 2024
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WRITTEN STATEMENT OF THE KINGDOM OF AUDI ARABIA
TABLE OF CONTENTS
CHAPTER 1. INTRODUCTION ................................................................................. 1
CHAPTER 2. THE KINGDOM'S CO STRUCTIVE APPROACH TO
COMBATTING CLIMATE CHANGE ..................................................................... 11
I. Introduction ........................................................................................... I I
II. States Have Made Different Historical Contributions to Atmospheric
Greenhouse Gas Accumulation .............................................................. 12
Ill. States Have Received Different Cumulative Benefits from Activities that
Contributed to Atmospheric Greenhouse Gas Accumulation .......... ........ 14
TV. The Kingdom's Constructive Approach to Climate Action ..................... 15
V. The Emissions Transition Requires Innovative Solutions ....................... 17
VJ. Conclusion ............................................................................................. 20
CHAPTER 3. SCOPE AND MEANING OF THE QUESTIO S PUT TO THE
COURT ............................................... ........................................................................ 21
I. Introduction .......................................... ................................................. 21
II. Jurisdiction and Propriety ....................... ............................................... 22
III. The Role and Approach of the Court .............. ........................................ 23
IV. Conclusion ............................................................ ................................. 27
CHAPTER 4. THE SPECIALIZED TREATY REGIME O CLIMATE CHANGE
..................................................................................................................................... 29
I. Introduction ........................................ , .................................................. 29
II. The UNFCCC ............................................................. ............ ............... 30
A. The UNFCCC Governs the Questions Before the Court .............. 30
B. The UNFCCC Includes Key Principles and Obligations Applicable
to the Questions Before the Court.. ............................................. 3 I
I. Di fferentiation 32
2. ustainable Development and Poverty Eradication 33
3. Targets 37
4. Reporting 37
5. Financing and Means of Implementation 38
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C. The UNFCCC Includes Provisions on Compliance and the
Settlement of Disputes ................................................................ 39
I. Compliance 39
2. Dispute Resolution 39
Ifl. The Kyoto Protocol ................................................................................ 40
A. The Kyoto Protocol ls a Related Legal Instrument Applicable to
the Questions Before the Court ................................................... 40
B. The Kyoto Protocol Includes Key Principles and Obligations
Applicable to the Questions Before the Court ............................. 41
I. Differentiation 41
2. Targets 42
3. Reporting 42
4. Financing and Means of Implementation 42
C. The Kyoto Protocol Includes a Compliance Mechanism ............. 43
IV. The Paris Agreement. ............................................................................. 44
A. The Paris Agreement Is a Related Legal Instrument Applicable to
the Questions Before the Court ................................................... 44
B. The Paris Agreement Includes Key Principles and Obligations that
are Applicable to the Questions Before the Court ....................... 46
l.
2.
3.
Differentiation
ustainable Development and Poverty Eradication
Targets
46
47
48
4. ationally Determined Contributions 50
5. Reporting 52
6. Response Measures 52
7. Finance and Means of Implementation 52
C. The Paris Agreement Includes Implementation Compliance, and
Loss and Damage Mechanisms .... ............................................... 54
J. Compliance 54
2. Compliance Mechanism 54
3. Dispute settlement 55
4. Loss and Damage 55
V. Other International Norms To Which The Court Has Been Asked To Have
Regard ................................................................................................... 58
VI. Conclusion ............................................................................................. 63
II
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CHAPTER 5. QUESTION (A) - THE OBLIGATIONS OF ST A TES TO
PROTECT THE CLIMATE SYSTEM FROM ANTHROPOGENIC
GREENHOUSE GASES ............................................................................................. 66
I. Obligations of States in Respect of Climate Change Are et Out in the
Specialized Treaty Regime on Climate Change ...................................... 66
II. Obligations of States in Respect of Climate Change ............................... 68
lll. Conclusion ............................................................................................. 71
CHAPTER 6. QUE TIO (B) - LEGAL CONSEQUENCES FOR STATES
WHERE THEY HA VE CAUSED SIGNIFICANT HARM TO THE CLIMATE
SYSTEM ..................................................................................................................... 73
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Chapter 1. lNTRODUCTIO
1.1. By resolution 77/276 of 29 March 2023, the United ations General Assembly
requested the International Court of Justice (the " Court") to give an advisory opinion
on the following questions:
" (a) What are the obligations of tates 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
tates, which due to their geographical circumstances and level
of development, are inj ured 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?"1
1.2. The Kingdom of Saudi Arabia ("Kingdom") submits the present Written Statement in
accordance with the Court's Orders of 4 August and 15 December 2023, so as to furnish
information on the questions submitted to the Court, and to assist the Court in its
consideration of the questions.
UN General Assembly, Resolution A/RES/77/276. 4 Apr. 2023. The questions read as follows in French:
« a) Quelles sont, en droit international, les obligations qui incombe111 au.x £tats en ce qui concerne la
protection du systeme climatique et d 'autres composantes de I 'environnement contre les emissions
anthropiques de go= a effet de serre pour les £tats et pour les generations presenles et f utures ?
b) Quel/es sont, 011 regard de ces obligations, les consequencesjuridiques pour les £tats qui, par leurs
actions ou omissions, ont cause des dommages significatijs au systeme climatique et a d 'autres
composantes de I 'environnement, a I 'egard:
i) Des £tats, y compris, en particulier, des petits £tats insulaires en developpemenl, qui, de par
leur situation geographique et leur niveau de developpement, sont leses ou specialement atteints
par les effets nefastes des changements climatiques 0 11 sont particulierement vulnerablesface a
ces effets ?
ii) Des peuples et des individus des generations presentes et futures atteints par les ejfets nefastes
des changements climatiques ? >>
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1.3. The request for an advisory opinion by the Court on the legal obligations of tates to
protect the climate and environment from anthropogenic greenhouse gas emissions, and
on the related consequences for States that caused signi ficant harm to the climate and
environment, attests both to the importance of climate change and to the universal
recognition of its importance by States.
1.4. As a developing country with vulnerabi l ity to climate change, the Kingdom recognizes
the urgency and seriousness of climate change. As a tate with a resource-dependent
economy and historically low greenhouse gas emissions, the Kingdom appreciates the
importance of international cooperation to advance climate action.
1.5. These words are backed up by specific actions. The Kingdom is implementing
ambitious programs to reduce, reuse, recycle and remove carbon dioxide emissions,
both nationally and regionally, through the Saudi Green Initiative and the Middle East
Green Initiative.
1.6. The Kingdom welcomes the opportunity to have the Court clarify the legal obligations
of tates in this crucial area. It notes that the advisory opinion request2 to clarify the
legal obligations of States to ensure the protection of the climate system. Those
obligations are properly understood as existing legal obl igations (Lex lata).
1.7. The relevant existing legal obligations are set forth in the specialized treaty regime on
climate change, which is made up of the United Nations Framework Convention on
Climate Change ("UNFCCC") and its implementing agreements, in particular the
Kyoto Protocol and Paris Agreement. Article 2 of the Paris Agreement sets down its
central aim " to strengthen the global response to the threat of climate change, in the
context of sustainable development and efforts to eradicate poverty" by, amongst other
things, setting a target of " holding the increase in the global average temperature to well
below 2 degrees Celsius above pre-industrial levels and pursuing efforts to limit the
Request for an Advisory Opinion of the International Court of Justice on the Obligations of States in Respect
of Climate Change, AIRE /77/276. 29 Mar. 2023.
2
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temperature increase even further to 1.5 degrees Celsius above pre-industrial levels".
Article 3 goes on to recognize that " as nationally determined contributions to the global
response to climate change, all Parties are to undertake and communicate ambitious
efforts ... with the view to achieving the purpose of this Agreement as set out in
Article 2".
1.8. At the core of this regime is the obligation on States to prepare, communicate and
maintain nationally determined contributions ("NDCs") as set out in Article 4.
Article 4.3 provides that each Party's successive NDC will present a progression
beyond the Party's then current NDC and reflect its highest possible ambition,
reflecting its common but differentiated responsibi lities and respective capabi lities, in
the light of different national circumstances. This regime enjoys nearly universal
participation by States, including the Kingdom.
1.9. In formulating its request for an advisory opinion, the United Nations General
Assembly invites the !CJ to have " particular regard" to a number of specific instruments
and principles when considering the legal questions before it. However, for the reasons
that follow (and as explained in more detail elsewhere in this Written Statement), the
!CJ need look no further than the specialized treaty regime on climate change when
determining what the legal obligations on States are in respect of climate change.
1.10. Climate change presents a multifaceted challenge, and the obligations of States to take
climate action within this specialized treaty regime on climate change are shaped by
complex economic and social considerations. Recognizing these complexities, States
institutionalized climate action within a treaty framework, defining objectives and
processes for adopting obligations with respect to climate change through continuous
negotiation. The specialized treaty regime on climate change serves as the platform
for negotiating international policies concerning climate change, notably during the
annual Conference of the Parties ("COP") to the UNFCCC. Consequently, the
greenhouse gas reduction targets and procedures within th is regime have been
established through extensive negotiations among States.
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1.1 1. The specialized treaty regime on climate change adopts a bottom-up approach and does
not mandate specific measures for countries to implement at the national level in order
to achieve the objectives of the treaty regime. Instead, the means of implementation
are left to national governments, leaving flexibility to tates Parties to determine the
domestic measures implemented to participate in the achievement of the collective goal.
1.1 2. In developing the special ized treaty regime on climate change, States Parties agreed
that there should be di fferentiation among them concerning their obligations regarding
climate change. States Parties that participated in the Industrial Revolution, along with
historical contributions from the agricultural, industrial, energy, and transport sectors,
accounted for the bulk of cumulative greenhouse gas emissions in the atmosphere.
States Parties that industrialized early and engaged in these acti vities also gained early
advantages and accelerated welfare, infrastructure and economic development. These
States Parties, ident ified in Annex I to the UNFCCC, accept that they have greater
climate change mitigation responsibilities than other States Parties as well as financial
obligations to the latter.
1.13. At the same time, the specialized treaty regime on climate change recognizes that
mit igating climate change requires taking into consideration national circumstances
such as economic and social development priorities and poverty eradication, energy
security in the developing world, and the importance of fossil fuels to certain
economies3. Indeed, it recognizes that the energy trilemma of energy securi ty, equity
(accessibility and affordability), and sustainability is central to the emissions transition.
tates Parties have to balance these three dimensions to prosper and meet growing
energy demands while reducing the global carbon footprint. The specialized treaty
regime, in providing a flexible approach to climate action based on varying national
circumstances reflects that different countries face different challenges in dealing with
the energy trilemma. At the 28th COP in December 2023 ("COP28"), States Parties
reiterated the importance of responding to climate change " in a nationally determined
As outlined in Article 4. paragraph 8, of the U FCCC and reaffirmed in the preamble to the Paris Agreement.
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manner, taking into account the Paris Agreement and their different national
circumstances, pathways and approaches."4
1. 14. From the outset, and up to the present, the negotiated outcomes recognize that the
important global goal of combatting climate change must be addressed in the " broader
context" of also achieving sustainable development,5, including the eradication of
poverty6, safeguarding food production and ending hunger7, economic development8,
protecting livelihoods9, ensuring decent work and quality jobs10, addressing
socioeconomic impacts11 , promoting economic diversification 12, minimizing adverse
effects on the economyl3, and protecting economies14, including those "most affected
by the impacts of response measures, particularly developing country Parties."15 Most
recently, in December 2023, COP28 reaffirmed the need to develop the response to the
threat of climate change " in the context of sustainable development and efforts to
eradicate poverty." 16 COP28 reaffirmed17 the need to balance combatting climate
change, on the one hand, and susta inable development on the other18.
6
Draft decision -/CMA.5, Outcome of the first global stocktake, FCCC/PNCMN2023/L. 17, 13 Dec. 2023,
para. 28.
Draft decision -/CMA.5, Outcome of the first global stocktake, FCCC/PNCMN2023/L.17, 13 Dec. 2023,
preamble, para. 8 (emphasis added); see also ibid., preamble, paras. 2, 6, 8.
Paris Agreement to the United ations Framework Convention on Climate Change ("Paris Agreement'"), 12
Dec. 2015, preamble ( emphasis added).
UNFCCC, Article 2; Paris Agreement, preamble, paras. 8-9 and Article 2( l)(b).
Ibid.
9 Draft decision -/CMA.5, Outcome of the first global stocktake, FCCC/PNCMN2023/L.17, 13 Dec. 2023,
para. 6 1.
10 Ibid .. paras. 140, 143.
11 Ibid .. paras. 136, 138, 141 , 147.
12 Ibid., para. 140.
13 UNFCCC, Article 4( I )(f).
14 Draft decision -/CMA.5, Outcome of the first global stocktake, FCCC/PNCMN2023/L. 17, 13 Dec. 2023,
paras. 61. 137.
15 Ibid., para. 141.
16 Ibid .. preamble, para. I.
17 Ibid., preamble, paras. 1-2, 6. 8.11.
18 lbid .. paras.6,9,26,32,34, 43,65, 10 1.12 1, 129.146, 151 , 157, 163.
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1.15. o other environmental treaties address climate change related to anthropogenic
greenhouse gas emissions such that they cannot and do not override the specialized
treaty regime on climate change. The same can be said for the United Nations
Convention on the Law of the Sea ("UNCLOS") and any environmental or human
rights treaty.
1.16. In explaining the Kingdom's decision to join the consensus request of the United
Nations General Assembly for an advisory opinion, the Kingdom's representative
observed, after the adoption of the resolution, that the international legal obl igations of
States with respect to climate change are primarily contained in the UNFCCC and Paris
Agreement, stating in particular:
"We recognize the importance of uniting efforts to implement the
United Nations Framework Convention on Climate Change (UNFCCC)
and the Paris Agreement. We attach great importance to climate issues
and are making every effort to limit the causes of climate change . .. .
[W]e stress the need for having multifaceted solutions to address the
problem of climate change and climate issues in accordance with the
international climate conventions, foremost among which are the
UNFCCC and the Paris Agreement. The principle of common but
differentiated responsibilities and capabil ities among States requires
that we take into consideration the special circumstances of the least
developed countries when implementing the aforementioned
international principles and conventions, as noted in the seventh
preambular paragraph of[the] resolution.
We must work together to support States in addressing the negative
effects of climate-change policies. We must also take into account
historical responsibil ity for emissions which should not adversely affect
the efforts of States to achieve development." 19
19 UN General Assembly, 65th Plenary Meeting (N77/PY.65). 29 Mar. 2023, p. 4.
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1.17. Resolution 77/276 was introduced in the General Assembly by the Prime Minister of
Vanuatu, on behalf of a 'core group' of States responsible for its drafting. The Prime
Minister of Vanuatu was explicit as to his objective in promoting the request for an
advisory opinion. He explained that in his view the request could "make an important
contribution to climate action, including by catalysing much higher ambition under the
Paris Agreement."20 He went on to refer to his " desire to further strengthen D collective
efforts to deal with cl imate change, give climate justice the importance it deserves and
bring the entirety of international law to bear on this unprecedented challenge." 21
Similar statements were made by other States, effectively inviting the Court to increase
the obligations accepted by States in carefully negotiated treaties and agreements that
enjoy universal support among States, in particular the UNFCCC. But that is not the
role of the Court. Others suggested an entirely different approach, stressing that it was
not the function of the Court to impose additional obl igations on States. For example,
the European Union and its 27 Member States welcomed " the explanation provided by
Vanuatu that its intention in leading this effort has been that the Court 'will not place
additional obligations or responsibi lities' on States . .. •>22. The European Union and its
Member States continued:
"Thus, in line with the aim and the content of the resolution, we expect
the advisory opinion to, first, answer the legal questions on the basis of
the current state of international law and with regard to all States;
secondly, identify and, to the extent possible, clarify the obl igations of
States under applicable international law and the legal consequences for
all States for the breach of those obligations. The resolution does not
prejudge whether and when breaches have occurred, are occurring or
will occur in the future but rather focuses on the consequences thereof
for all States"23.
I. I 8. Others expressing similar views included Australia24, Germany25, the United
Kingdom26
, the Republic ofKorea27
, lceland28
, Norway29
, Canada30
, the United States
20 Ibid., p. 3.
21 Ibid., p. 3 (emphasis added).
22 Ibid., p. 8.
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23
24
25
26
27
28
29
30
Ibid., p. 8.
Ibid .. p. 15 (Australia): "we note that the United ations Framework Convention on Climate Change remains
the central, indispensable forum for international cooperation on, and commitments lo, climate action."
Ibid., p. 18 (Germany): ''The aim was to produce a text that clearly addresses the current obligations of all
tates on the basis of the current state of the law with regard to future developments on the issue of climate
change."
Ibid .. p. 20 (United Kingdom): ··By looking at the obligations as they are today, the questions are clearly
focused on assisting !ates in understanding their obligations under international law so that they are able to
comply with them in the future and understand the consequences if they breach them. In particular, we are
pleased lo make the following four observations on the questions. First. they are not determinative of whether
there are obligations or where they flow from. econdly, they do not prejudge whether breaches have
occurred, are occurring or will occur, but look al the consequences if and when they do. Thirdly, they are not
limited to considering the obligations and legal consequences for any specific late or States. Fourthly and
lastly, they are not determinative of whether any States have been specially affected or injured."
Ibid., p. 22: (Republic of Korea): " First,just as the questions in the resolution we have just adopted are framed
in terms of law, the opinion that the resolution seeks from the Court is firmly based on law. The applicable
law in this case is meant to be existing international law rather than law in the making. My delegation is of
the view that the established distinction between /ex lata and lexferenda still remains valid in this evolving
area of international law. We therefore expect the Court to maintain a clear legal focus and uphold judicial
integrity, distancing itself from any legislative moves." ee also the Republic of Korea's second and third
points.
Ibid .. pp. 23-24 (Iceland): ·'We expect the Court to answer the legal questions on the basis of the current
obligations of all States to ensure the protection of the cl imate system and other parts of the environment
from anthropogenic emissions of greenhouse gases .... [W]e note that the preambular part refers to a number
of matters that are not related to legal obl igations, and as such would not be expected to have any bearing on
the Court's advisory opinion .... We remain committed to climate action and recall the primary role of the
United ations Framework Convention on Climate Change 'and the Paris Agreement, in that regard."
Ibid .. p. 26 (Norway): " Responding to climate change will require both practical and legal solutions.
Discussions about the legal consequences of climate change must therefore be conducted in tandem with our
political determination to address this pressing issue. and must not overshadow it. Recognizing that the
United ations Framework Convention on Climate Change. together with the Paris Agreement on Climate
Change, is the primary negotiating forum for developing and implementing international climate framework,
it is our hope that the Court' s consideration of the questions put to it through the resolution will contribute
constructively to strengthening both global and national climate action and raising our ambitions.''
Ibid .. p. 27 (Canada): "'In Canada's view, it is important that the Court look at tales' obligations in the
context of the instruments and principles mentioned in the resolution. Due regard needs to be given to whether
the instruments mentioned are binding or not, the fact that States are bound only by those treaties to which
they are parties and the specilic temporal and territorial limits of certain obligations. Canada would also like
to note that there is currently no common. internationally agreed understanding of a number of concepts
referred to in the resolution, such as the right to a clean. healthy and sustainable environment.''
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of America31
, the Russian Federation32, China33, the United Arab Emirates34, and outh
Africa.35
1. 19. In light of the ongoing negotiations among States of their respective obligations
regarding climate change, the Court should take a cautious approach in answering the
questions put to it. In particular, the Court should take care to limit itself to exercising
its judicial function, which is to render an opinion on the law as it presently stands. The
Court should avoid seeking to formulate new or additional legal rules or obl igations
that go beyond what States already have agreed to in the specialized treaty regime on
climate change. This is a matter for States through the ongoing negot iations among the
Parties to the specialized treaty regime on climate change.
31
32
33
34
35
Ibid., pp. 27-28 (U A): ·'the United States reamnns its fundamental view that diplomacy is the best pathway
for achieving our shared climate goals .... We believe that launching a judicial process, especially given the
broad scope of the questions, will likely accentuate disagreements and not be conducive to advancing ongoing
diplomatic and other processes. In the light of those concerns, the United tales disagrees that the initiative
is the best approach to achieving our shared goals and takes this opportunity to reaffirm our view that
diplomatic efforts are the best means by which to address the climate crisis . .. with respect to the preambular
paragraphs. we note that several of thcm, such as those related to non-binding goals, address matters that are
not related to legal obligations, and therefore are not relevant to the questions posed."
Ibid., p. 16 (Russian Federation): ··We are confident that its advisory opinion on this question cannot and
should not lead to a revision of climate instruments, such as the United ations Framework Convention on
Climate Change (UNFCCC) and the Paris Agreement on Climate Change, as well as the outcomes of the
sessions of the Conference of the Parties to the UNFCCc:·
Ibid., p. 17 (China): .. China believes that the International Court of Justice, when discussing the issue of
climate change, should respect the status of the Convention as the main channel, safeguard the principles and
institutional arrangements established by the Convention al\d the Paris Agreement, and assist in advancing
the implementation of the Convention rather than interfering with the global climate governance process. In
particular, it is important to respect the principle of common but differentiated responsibilities, highlight the
historic responsibility of developed countries and requi re them to earnestly fulfil their commitments by
helping developing countries to meet the climate challenges while further reducing their own emissions.''
Ibid., p. 18 (UAE): " In line with the principle of State sovereignty, the position of the United Arab Emirates
in support of resolution 77/276 recognizes that the obligations of !ates rest in appl icable international law
and vary based on the instruments in respect of which they have consented to be bound. In addition, the
United Arab Emirates hopes and expects that the principle of equity and common but differentiated
responsibi lities, as well as the special needs and special circumstances of developing countries. will be fu lly
taken into account by the Court when it considers its response to the questions posed."
Ibid., p. 18 (South Africa): ·'We base our cl imate actions on the agreed multilateral outcomes under the United
ations Framework Convention on Climate Change and its Kyoto Protocol and the Paris Agreement, which
contain clear and specific legal obligations that are directed in particular at the developed parties. As
developing countries, we undertake our climate actions in the context of sustainable development, the
inalienable right to development enshrined under international law and j ust transitions."
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1.20. The remainder of this Written Statement is organized as follows:
• Chapter 2 provides the factual background that contextualizes the Kingdom's
positions in these advisory proceedings.
• Chapter 3 considers the questions posed to the Court, and the Court's role in
these proceedings.
• Chapter 4 describes the specialized treaty regime on climate change.
• Chapter 5 provides the Kingdom's observations on the first question put to the
Court. Section I explains that the international legal obligations of States to
ensure the protection of the climate system are contained in the specialized
treaty regime on climate change. Section II summarizes the obligations of
States in respect of climate change.
• Chapter 6 provides the Kingdom's observations on the second question put to
the Court. T his chapter explains how the specialized treaty regime on climate
change addresses the legal consequences if significant harm occurs.
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Chapter 2. THE KINGDOM'S CONSTRUCTIVE APPROACH TO COMBA TTING
CLIMATE CHANGE
I. Introduction
2.1. The challenge of climate change is complex. It is rooted in the asymmetry of States'
historic industrialization and development. Certain States, beginning in the 18th
century, largely contributed to atmospheric greenhouse gas concentrations. These
States cleared forests, produced I ivestock, consumed mass quantities of hydrocarbons,
engaged in intense manufacturing, and otherwise exploited resources, both within their
borders and in terri tories under their control.
2.2. The States that industrialized early disproportionately reaped benefits from the
emissions that contributed to atmospheric greenhouse gas accumulation. The challenge
of climate change is therefore linked to the unequal economic burdens States carry
today because of what occurred over past centuries.
2.3. The Kingdom was not one of the tates that industrialized early. The Kingdom only
recently harnessed the benefits of resources within its territory. The majority of the
Kingdom's natural resources is untapped. ln addition, the Kingdom has yet to diversify
fully its economy and is only at the early stages of promoting domestic industry and
privatization.
2.4. Given its position as a developing State with. what is effectively still a single-source
economy and high vulnerability to climate change, the Kingdom has adopted a
pragmatic approach to climate change mitigation, which involves economic
diversification, energy efficiency and sustainability. Simultaneously, the Kingdom
recognizes that innovative solutions have the potential to enhance significantly the
trajectory of climate change mitigation.
2.5. Climate change obligations must be considered in this context of historic emissions,
development aspirations and the need for innovative solutions. From its inception and
up to the present, the specialized treaty regime on climate change, namely the UNFCCC
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and its implementing agreements, has consistently provided a framework that allows
States to negotiate international policies related to climate change within a set of
agreed-upon principles, of common but differentiated responsibilities, historical
responsibility for greenhouse gas emissions, equity and sustainable development.
These principles fundamentally reflect the diverse positions that States hold regarding
their responsibility and approach to addressing climate change.
2.6. The present chapter provides factual background that contextualizes the Kingdom's
position with respect to climate change, illustrating the complexities of identifying the
State obligations with respect to cl imate change that underpin the specialized treaty
regime on climate change.
IT. States Have Made Different Historical Contributions to Atmospheric
Greenhouse Gas Accumulation
2.7. Climate change is influenced by several factors, including the cumulative total of
greenhouse gases in the atmosphere. This is because greenhouse gases, especially
carbon dioxide, can remain in the atmosphere for centuries.
2.8. During their atmospheric lifespan, greenhouse gases trap heat that factors into a
warming effect on the planet. While atmospheric greenhouse gases occur naturally,
anthropogenic activities such as the consumption of fossi l fuels, deforestation, livestock
production, fertilization, waste management,. and industrial processes increase their
concentrations.
2.9. Compared to atmospheric greenhouse gas emissions attributable to States that
industrialized early, the contributions of emissions within the Kingdom's borders are
fractional and relate only to recent history, as opposed to centuries.
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2.10. umerous datasets track global cumulative greenhouse gas emissions since the 1750s
or I 850s36. These datasets estimate global emissions based on aggregated data from
energy consumption and other activities37. While each State's greenhouse gas
emissions vary slightly per dataset, all of the datasets show the stark contrast between
the cumulative greenhouse gas emissions attributable to States that industrialized early
and those that did not38. The cumulative total of carbon dioxide in the atmosphere
attributable to anthropogenic emissions in the Kingdom amounts to less than I% of the
total amount of carbon dioxide in the atmosphere39. The Kingdom's small contribution
to global atmospheric carbon dioxide concentrations is unsurprising given that (i) more
than half of global net anthropogenic carbon dioxide emissions occurred before 19894°,
36 The "most important" global emissions datasets today include: the dataset hosted by the Carbon Dioxide
Information Analysis Center ( .. CDIAC'"), which estimates anthropogenic emissions since year 175 I and is
used by the IPCC to report cumulative emissions (see Dennis Gil fillan & Gregg Marland, Global, Regional,
and National Fossil-Fuel CO2 Emissions: I 7 5 f-20 I 7 (2021 ), available at
hups://essd.copernicus.org/articles/13/1667/202 I/); the Global Carbon Project ( .. GCP'') cumulative carbon
dioxide emissions, which includes cumulative carbon dioxide emissions estimates since 1750 (see
Friedlingstein, et al. Global Carbon Budget 2022, Earth yst. Sci. Data, 14, pp. 48 11-4900 (2022), available
at https://essd.copernicus.org/articles/15/5301/2023/); the Community Emissions Data System ('·CEDS'') for
Historical Emissions, which tracks anthropogenic emissions of reactive gases and aerosols from year 1750
(see Hoesly et al., Historical (/750-2014) anthropogenic emissions of reactive gases and aerosols from the
CEDS, Geosci. Model Dev. (2018.), available at https://gmd.copernicus.org/articles/ I 1/369/2018/); The
Potsdam Real-time Integrated Model for probabilistic Assessment of emissions Paths historical emissions
dataset ( .. PRJMAP"), which currently includes cumulative emissions since year 1850 (see Johannes
Giitschow & Mika Pfliiger, The PRJMAP-hist national historical emissions time series (/ 750-2021) (2023),
37
38
39
40
available at https://primap.org/primap-hist/). The IPCC refers to each of these datasets in its Sixth Report.
See Robbie M. Andrew, A comparison of estimates of global carbon dioxide emissions from fossil carbon
sources. EARTH SYST. SCI. DATA. p. 1458 (2020). available at
https://essd.copernicus.org/articles/12/ I437/2020/essd-I 2- I 437-2020.pdf.
DifTerences in emissions may stem from variations in system boundaries and methodological approaches.
Some datasets include certain emissions while others omit them. When system boundaries are harmonised,
deviation between datasets may drop to less than 5%. See Robbie M. Andrew, A comparison of estimates of
global carbon dioxide emissions from fossil carbon sources. EARTH YST. CL DATA (2020), available at
https://essd.copernicus.org/articles/12/ I437/2020/essd-12- I 437-2020.pdf.
Friedlingstein, et al. Global Carbon Budget 2022, Earth yst. ci. Data, 14, pp. 4811-4900 (2022), available
at https://essd.copernicus.org/articles/15/5301/2023/.
IPCC Climate Change 2023 ynthesis Report, pp. 4, 446: see also Dennis Gilfillan & Gregg Marland. Global,
Regional, and National Fossil-Fuel CO2 Emissions: 1751-2017 (2021 ), available at
https://essd.copemicus.org/articles/13/ I667/202I/: P. Friedlingstein et al.: Global Carbon Budget 2022, Earth
Syst. Sci. Data. 14, pp. 4811-4900 (2022), available at https://essd.copemicus.org/articles/ 15/5301/2023/ ("In
this period, 46 % of fossil [carbon dioxide] emissions came from coal, 35% from oil, 15 % from natural gas,
3 % from decomposition of carbonates, and I % from flaring''); Johannes Giitschow & Mika Pfliiger. The
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and (ii) nearly half of the cumulative anthropogenic carbon dioxide emissions related
to fossil fuels originate from coaI41 .
2.1 1. The divergent historical contributions to atmospheric greenhouse gas concentrations
are even more pronounced when contributions from emissions within colonies and
territories under the control of the early industrializers are considered. Historical
contributions to atmospheric greenhouse gas accumulation underscore the complexity
of addressing climate change.
III. States Have Received Different Cumulative Benefits from Activities that
Contributed to Atmospheric Greenhouse Gas Accumulation
2.12. States that industrialized early enjoyed significant economic advancement throughout
the I 8th and 19th centuries, and most of the 20th century, while deforestation, livestock
production, fertilisation, and hydrocarbon consumption was unrestricted. These States
gained advantages such as accelerated welfare and economic development due to the
pivotal role that such activities played in this period of transformative and enduring
change. And these States continue to benefit from those advantages.
2. 13. As described above, certain States had early access to abundant resources such as
timber, coal and other hydrocarbons. The consumption of these resources enabled those
States more effective production methods, which increased economic output, lowered
costs, and boosted domestic economic growth. As their economies grew, job
opportunities increased for the inhabitants of those States, as did incomes, living
standards, public health benefits, life expectancy and overall development levels.
PRJMAP-hist national historical emissions time series (! 750-2021) (2023), available at
https://primap.org/primap-hist/.
41 Friedlingstein, et al. Global Carbon Budget 2022, Earth Syst. Sci. Data, 14, p. 4826 (2022), available at
https://essd.copernicus.org/articles/15/5301/2023/.
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TV. The Kingdom's Constructive Approach to Climate Action
2. 14. The Kingdom's approach to its energy transition is pragmatic given its position as a
developing State with a single-source economy that only recently was able to harness
the benefits of natural resources within its territory. Therefore, the Kingdom's
approach emphasizes the fact that energy security enables economic growth, and
economic growth provides the means for investment in the energy transition. As such,
the Kingdom attaches great importance to the protection of the global climate system.42
2.15. The Kingdom believes the energy trilemma of energy security, equity (accessibility and
affordabili ty), and sustainability is central to the emissions transition. The Kingdom's
approach to emissions transition emphasizes the fact that energy security enables
economic growth, and economic growth provides the means for investment in the
emissions transition. The K ingdom is making strides to diversify its economy and
accelerate domestic industry and economic growth, and aims to implement systematic
changes over the long-term towards achieving sustainability goals. Economic
diversification is recognized as a key component of climate change action in the
specialized treaty regime on climate change discussed in Chapter 4 below. To support
these endeavours, hydrocarbon revenues are essential to the national economy.
2. 16. The Kingdom's 2021 updated first DC aims to remove, avoid, and reduce greenhouse
gases amounting to 278 million tons of carbon dioxide equivalent annually by 2030.
Notably, this is a two-fold increase in the Kingdom's ambition to reduce atmospheric
greenhouse gas emissions when compared to the Kingdom's earlier NDC.
2.17. The Kingdom has historically prioritized fossil fuel production that involves releasing
a lower rate of carbon dioxide into the atmosphere when compared to fossil fuel
production in other tates. For example, the Kingdom has the lowest carbon intensity
among major producers (except for Denmark) for extracting, processing, and
42 See UN General Assembly. Resolution NRE /77/276. 4 Apr. 2023, preamble, para. I .
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transporting crude oil to the refinery gate43. The Kingdom has also prioritized reducing
emissions of methane, one of the most potent greenhouse gases. Upon taking control
of its own extraction and production in the I980s, the Kingdom implemented an
ambitious and unprecedented system to collect methane from oil fields, rather than
allowing it to bum off into the atmosphere. Today, this system has all but eliminated
flaring of gas associated with production in the Kingdom, removing I 00 million metric
tons of carbon dioxide equivalent every year since it was established. Consequently,
the Kingdom has signed the Global Methane Pledge at the 26th Session of the COP,
aiming to limit global methane emissions by 30% compared with 2020 levels.
2.18. The Saudi Green Initiative, which the Kingdom inaugurated in 202 1, unites
environmental protection, emissions transition and sustainability programs with the
overarching aims of reducing, recycl ing, reusing, and removing greenhouse gas
emissions and addressing climate change44. Since the launch of the Saudi Green
Initiative in 202 1, 77 initiatives have been activated, including the Kingdom's aim to
achieve net-zero emissions by 2060 through the Circular Carbon Economy approach 45.
Key components of the Initiative are reducing emissions by increasing public
transportation, renewable energy capacity, carbon dioxide capture and removal
technologies' deployment, and energy efficiency.
2. 19. The Saudi Green Initiative aims to increase to 50% the Kingdom's local power
generation capacity from renewable sources. by 2030. To that end, the Kingdom
implemented a ational Renewable Energy Plan, through which it develops regulations
and policies to stimulate private sector investment, research, and development of
renewable energy. Specific technologies for deployment include solar photovoltaic
systems, concentrated solar power, wind power, geothermal energy, waste to energy
43 See Mohammad S. Masnadi et al., Global Carbon Intensity of Crude Oil Production, 36 1 CIENCE 85 1
(20 18).
44 SCI: steering Saudi Arabia towards a green future. SAUDI & MIDDLE EAST GREEN INITIATIVES, available at
https://www.greeninitiatives.gov .sa/about-sgi/ ( last visited 5 Dec. 2023).
45 ee SCI: steering Saudi Arabia towards a green future. SAUDI & MIDDLE EAST GREEN INITIATIVES, available
at https://www.greeninitiatives.gov.sa/about-sgi/ (last visited 5 Dec. 2023).
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and green hydrogen. The Saudi Energy Efficiency Program, launched in 20 12, includes
I 00 energy efficiency initiatives.
2.20. In addition, the Kingdom supports climate change action efforts in other countries,
including through leading the Middle East Green Initiative. This initiative focuses on
encouraging Middle Eastern countries to implement circular carbon economy activities
to boost clean energy use and reduce regional greenhouse gas emissions, including
through nature-based carbon dioxide removal solutions and facilitating access to clean
energy46.
2.21. The Kingdom used its presidency of the G20 in 2020 to promote the Circular Carbon
Economy framework, with the goal of reducing, reusing, recycling and removing
carbon emissions from the system. This initiative received the endorsement of the G20,
signal ing the K ingdom's global leadership in this area47.
V. The Emissions Transition Requires Innovative Solutions
2.22. Providing energy to the inhabitants of the planet and mitigating the adverse effects of
climate change involves reducing greenhouse gas emissions. This is why the
specialized treaty regime on climate change is primari ly focussed on greenhouse gas
emissionsfrom all sources48. However, solving an emissions transition does not allow
for an immediate end to supplying global consumers with energy and other hydrocarbon
based products. Ensuring energy security, , equity (accessibility and affordabil ity), and
sustainability, the energy trilemma, instead requires a multitude of solutions and
46 Kingdom of Saudi Arabia, Upda1ed Firs/ alional/y De/ermined Conlriblllion, 2021 ubmission to
UNFCCC, p. 11 , available al https://unfccc.int/sitcs/default/files/resource/202203 111 154--K
A %20NDC%20202 1.pdf; see also, Aboul SGI: s1eering Saudi Arabia 1owards a green fu1ure. SAUDI
GREEN INITIATIVE, available al https://www.greeninitiatives.gov.sa/about-sgi/ ( last visited 5 Dec. 2023).
47 Circular Carbon Economy Na1ional Program. https://www.cce.org.sa/Pages/Home.aspx ( last visited 30 Nov.
2023)
48 ee Chapter 4 below.
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investment in new technologies that mitigate greenhouse gas emissions into the
atmosphere.
2.23. Despite a focus on reducing greenhouse gas emissions, energy exporting States
continue to face rising demands for their exports from global population growth.
Current investment levels in oil and gas, even if unchanged, will create large gaps
between supply and demand in the present decade. Sustained investments in traditional
energy sources alongside ongoing efforts to reduce emissions, including through
scaling up renewables and carbon dioxide capture and removal technologies, are
therefore necessary to ensure an orderly transition that preserves both economic
prosperity and energy security. Recent geopolitical events underline the importance of
energy security.
2.24. Global energy consumption patterns do not allow States that supply energy to the world
immediately to stop exporting oil and gas to their customers. Throughout the world,
States that supply energy to customers abroad cannot diversify overnight the
components of their economies that rely on international trade to become less reliant
on international energy exports. This is because international energy consumers
continue to rely on energy exporting States for basic necessities such as heating,
cooking and electricity, despite significant efforts to increase the use of renewables. If
States that supply oil and gas internationally were to attempt to instantly stop supplying
their international customers with energy, the~ these customers would not have energy
for these basic necessities. States that supply hydrocarbon products internationally
therefore have a responsibility to the global community to support global energy
markets.
2.25. Some of the most pressing energy demands are in areas where populations remain
without access to energy. Despite accounting for two-thirds of the global population,
developing States presently receive only one-fifth of global investment in clean energy.
Energy poverty rates remain high in the developing world with more than 675 million
people lacking access to electricity and 2.3 billion people lacking access to clean
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cooking. Most of the oil produced in the Kingdom today is exported to developing
States that need support in closing the energy access gap.
2.26. To meet these global demands, oil and natural gas will play a critical role in the energy
transition as affordable, reliable supplies of energy are necessary in many parts of the
developing world. Furthermore, hydrocarbon-based products, such as petrochemicals,
are components of wind, solar and battery storage projects. Accelerating the energy
transition will involve increased reliance on those types of renewable energy sources,
along with reducing carbon intensity, minimizing flaring, and addressing methane
emissions.
2.27. Technology also remains a key enabler for achieving global climate goals, as set forth
in the specialized treaty regime on climate change49. More than two-thirds of the
technologies needed to reduce cumulative greenhouse gas emissions to transition
towards pathways consistent with the ambitions of the Paris Agreement are still at early
stages of development or not yet commercially deployable. Technologies are being
developed to produce new fuels with reduced greenhouse gas emissions, including
green and blue hydrogen50.
2.28. Supporting these technologies can help accelerate strategies to ensure an orderly and
affordable emissions transition. The Kingdom's constructive approach to climate
change mitigation is rooted in the need to ensure energy security for all and consider
all available options and solutions that address greenhouse gas emissions.
49 See Chapter 4, ections 11.8.4 and IV.8.7. below.
50 Blue hydrogen is produced by splitting hydrocarbons into hydrogen and carbon dioxide, with carbon capture
and storage used to trap permanently carbon dioxide associated with its production. Green hydrogen, on the
other hand. is produced from water using renewable energy and is low in greenhouse gas emissions, but up
to 7.5 times more costly to produce than hydrogen obtained from natural gas. Production and use of green
hydrogen could become more affordable as the technology advances and is scaled up, but blue hydrogen
could make a significant contribution towards lower-carbon fuels sooner.
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VI. Conclusion
2.29. As discussed in the present chapter, addressing climate change is notoriously complex
and is rooted in asymmetry of States' historic industrialization and development.
2.30. While the Kingdom did not play a significant role in early industrialization, it is
nonetheless susceptible to the adverse impacts of climate change given its location,
topography, and climate.
2.31. The Kingdom 's vu lnerabi lity is unique because the Kingdom today supplies energy to
many parts of the developing world. Therefore, the Kingdom's success at mitigating
climate change has been driven by, and will continue to be driven by, what the Kingdom
can do to address greenhouse gas emissions from activities that occur within the
Kingdom's national borders. This includes economic diversification, capturing
methane and carbon dioxide, displacing the use of liquid fuels domestical ly, and
increasing public transportation, renewable energy capacity, and energy efficiency.
20
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~ -..,. r,..•
*
Chapter 3. SCOPE AND MEANING OF THE QUESTIONS PUT TO THE COURT
I. Introduction
3. 1. This Chapter examines the scope and meaning of the legal questions addressed to the
Court, and suggests how the Court might best approach the questions given their
apparent breadth and their complexity.
3.2. The questions put to the Court are set out in General Assembly resolution 77/276,
adopted on 29 March 2023. While the resolut ion was adopted without a vote, concerns
were expressed on a number of grounds. lt was even suggested that seeking an advisory
opinion might have adverse repercussions on ongoing climate change negotiations51 .
And the particular terms of the resolution were criticized as being unclear and
potentially prejudicial. Iceland, for example, noted " that the preambular part refers to
a number of matters that are not related to legal obligations, and as such would not be
expected to have any bearing on the Court's advisory opinion"52.
3.3. The chapeau to the questions does indeed list a number of instruments outside the
specialized treaty regime on climate change53, which cannot and do not purport to
override the obligations specialized treaty regime on cl imate change54. Those other
instruments were not negotiated to address climate change, and do not refer to legally
binding rights or obligations in respect of climate change. Such instruments do not
53 The chapeau to the questions reads: "Having particular regard to the Charter of the United Nations, the
International Covenant on Civil and Poli tical Rights. the International Covenant on Economic, ocial and
Cultural Rights, the United ations 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 .. .''. UNGA Res. 77/276, 29 Mar. 2023.
54 UN General Assembly. 77th ession, 64th Plenary Meeting (A/77/PV.64), 29 Mar. 2023, p. 28 (U A)
( .. [ W]ith respect to the chapeau of the question. while the Paris Agreement sets forth a number of climate
change obligations, as well as many non-binding provisions, the reference to other treaties should not be
understood to imply that each of those treaties contains obligations to ensure the protection of the climate
system. In addition. we emphasize that references to certain principles and duties should not be understood
as renecting any conclusion about the nature, scope or application of any such principles or duties to the
question at hand .. ).
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override or alter rights and obligations under the specific treaty regime on climate
change agreed by the Parties to the treaties.
3.4. This chapter is divided into the fo llowing sections. Section II considers questions of
jurisdiction and propriety. Section III then turns to the role and approach of the Court.
Section IV concludes the chapter.
H. Jurisdiction and Propriety
3.5. The Kingdom does not question the Court's jurisdiction to give the advisory opinion
requested by the General Assembly. The Court has jurisdiction under Article 96,
paragraph I of the Charter of the United ations and Article 65, paragraph I, of its
Statute to render an advisory opinion at the request of the General Assembly on "any
legal question". The questions are framed as legal questions. However, the Court
should take care in exercising its jurisdiction because of the political nature of ongoing
negotiations on the international law of climate change, and because the primary
international obligations of States in relation to climate change are laid out in the
uni versally accepted set of international agreements consisting of the UNFCCC, the
Kyoto Protocol, and the Paris Agreement.
3.6. The Court's mandate under Article 38 of its Statute is' to decide [the questions put to
it] in accordance with international law". As the Court has repeatedly made clear, the
basic requirement of the judicial function applies to advisory proceedings as it does to
contentious cases:
"Article 65, paragraph I, of the Statute, which establishes the power of
the Court to give an advisory opinion, is permissive and, under it, that
power is of a discretionary character. In exercising this discretion, the
International Court of Justice, like the Permanent Court oflnternational
Justice, has always been guided by the principle that, as a judicial body,
22
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it is bound to remain faithful to the requirements of its judicial character
even in giving advisory opinions' 55.
3. 7. The Court will need to exercise caution in determining how to respond to the two
questions put to it. This is because of the complexity of the underlying circumstances
and the highly political nature of the ongoing negotiations on climate change.
3.8. The specialized treaty regime on climate change comprises the legal instruments that
are relevant to answering the questions put to the Court, namely the UNFCCC, the
Kyoto Protocol, and the Paris Agreement. In keeping with its judicial function and
given the highly political nature of the ongoing policy negotiations, the Court should
be cautious not to upset the agreement struck among States.
Ill. The Role and Approach of the Court
3.9. As the Court has consistently acknowledged, it cannot seek to make policy choices, to
make new law, or to establ ish new obligations by re-interpreting existing law that was
carefully and specifically negotiated56. In the context of climate change those are
matters for States, and multilateral negotiations in the framework of the UNFCCC are
ongoing57
• Effective action on climate change will only be achieved through
55 Western Sahara, Advisory Opinion of 16 October 1975, I.C.J. Reports 1975. p. 2 1, para. 23 (citing
Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, I. C.J. Reports 1950,
p. 72; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970), I. C. J. Reports 1971. p. 27). See also Staflis
of Eastern Carelia, Advisory Opinion of 23 July 1923, P.C.I.J. Series 8, No. 5, p. 29 ("The Court, being a
Court of Justice, cannot, even in giving advisory opinions, depart from the essential rules guiding their activity
as a Court."); Constitution of the Maritime Safety Commiuee of the Inter-Governmental Maritime
Consultative Organi=ation, Advisory Opinion of 8 June 1960. l.C.J. Reports 1960, p. 153 ("The Statements
submitted to the Court have shown that linked with the question put to it there are others of a political nature.
The Court as a j udicial body is however bound. in the exercise of its advisory function, to remain faithful to
the requirements of its judicial character.").
56 See Fisheries Jurisdiction (United Kingdom of Great Britain and Northern Ireland v. Iceland), Judgment,
I. C.J. Reports 1974, pp. 23-24, para. 53 ("'[T]he Court. as a court of law. cannot render judgment sub specie
legisferendae, or anticipate the law before the legislator has laid it down.").
57 ee below, Chapter 4. ection II.A. and Chapter 5 [setting out ongoing COP negotiation process].
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international cooperation, which requires negotiation and decisions made by States
individually and collectively.
3. 10. The role of courts in advisory proceedings, if they are to remain within their judicial
function, is to apply the existing law. Indeed, in its previous advisory opinions, the
Court has taken great care to distinguish between determining existing ru les of law and
legislating. Thus, the Court has defined the requirement of a "legal question" in Article
96 of the UN Charter and Article 65 of the Court's Statute to mean that the question is
"by [its] very nature susceptible of a reply based on law"58. Further, in Legality of the
Threat or Use of Nuclear Weapons, the Court stated that "[i]t is clear that the Court
cannot legislate. . . . Rather its task is to engage in its nonnal judicial function of
ascertaining the existence or otherwise of legal principles and rules applicable to the
threat or use of nuclear weapons"59. The Court "states the existing law and does not
legislate•>6o_ In Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, the Court explained it would "only have to do what it has often
done in the past, namely identify the existing principles and rules, interpret them and
apply them ... , thus offering a reply to the question posed based on law">61.
3.1 1. States are currently engaged in negotiations regarding legal obligations with respect to
climate change. The development of new international law is a political matter,
requiring often difficult negotiations. This is especially true for effectively combatting
the global phenomenon of climate change, which requires active participation,
cooperation, and thus agreement by virtually all States. Many different interests and
58 Western Sahara, Advisory Opinion of 16 October / 975, I.CJ. Reports 1975, p. 18, para. 15; Accordance with
International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion of
22July20/0, I.CJ. Reports 2010. pp. 414-4 15, para. 25.
59 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of8 J uly / 996, I.CJ. Reports 1996. p.
237, para. 18.
60 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July /996, I.C J. Reports 1996. p.
237, para. 18.
61 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territo,y, Adviso,y Opinion
of 9 July 2004, I.CJ. Reports 2004. p. 154. para. 38 (quoting Legality of the Threat or Use of Nuclear
Weapons, Advisory Opinion of 8 July /996, I.CJ. Reports / 996, p. 234, para. 13).
24
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circumstances are at stake. Negotiations with respect to implementation of the
specialized climate treaty regime and State obligations with respect to climate change
are ongoing, including at each annual session of the COP to the UNFCCC,
intersessional meetings and negotiations involving UNFCCC subsidiary bodies that
occur throughout each year, and through constant bilateral and multilateral discussions
among States outside formal UNFCCC negotiations. Although the existence of
ongoing negotiations does not legally prevent the Court from exercising its judicial
function, as the Court has recognized62, it is not the role of the Court to exercise a
political function by establishing new legal rules or obligations. In any event, the Court
is in no position to weigh all the relevant political, economic, environmental, and
scientific factors related to climate change to impose upon States obligations and legal
consequences based on rules or principles that have not been negotiated and agreed in
the existing specialized climate treaty regime. Were the Court to re-interpret existing
rules or obligations in a manner contrary to the Parties' specific intentions, this could
jeopardize the ability of States to rely on the carefully negotiated texts of existing
agreements as well as their willingness to negotiate further agreements to address
climate change.
3. 12. The difficult and detailed negotiation of the UNFCCC, the Kyoto Protocol, and the
Paris Agreement have resulted in a highly nuanced set of treaty provisions, which
recognize differentiated national circumstances through NDCs and an asymmetrical
allocation of climate change mitigation roles· between high greenhouse gas emitting
countries that industrialized early and other countries as well as financial obligations
on developed countries63. This specialized treaty regime also contains a mechanism to
62 Application of the Interim Accord of 13 September 1995 (the former Yugoslav Republic of Macedonia v.
63
Greece), Judgment, I.CJ. Reports 2011. p. 664, para. 57 ("·[T)he fact that negotiations are being actively
pursued during the present proceedings is not, legally any obstacle to the exercise by the Court of its j udicial
function.'") ( quoting Aegean Sea Continental Shelf (Greece v. Turkey), Judgmenr, I. C.J. Reports I 987, p. 12,
para. 29).
ee Paris Agreement, Article 4 ("2. Each Party shall prepare, communicate and maintain successive
nationally determined contributions that it intends to achieve. Parties shall pursue domestic mitigation
measures, with the aim of achieving the objectives of such contributions. 3. Each Party's successive
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ensure compliance with States' common but differentiated climate responsibilities,
which consists of an expert-based and facilitative committee that is expressly directed
to " pay particular attention to the respective national capabilities and circumstances of
Parties•'64. Consistent with these provisions, the UNFCCC, Kyoto Protocol, and Paris
Agreement did not provide for compulsory third-party adjudication of disputes65.
3. 13. For these reasons, the Court should be cautious in exercising its j urisdiction to render
its advisory opinion in this case. It will be recalled that recently the Lnternational Law
Commission was similarly cautious when adopting guidelines on the " Protection of the
atmosphere", which, as the Commission explained, " were elaborated on the
understand ing that they were not intended to interfere with relevant political
negotiations or to impose on current treaty regimes rules or principles not already
contained therein''66. The Commission did so despite the fact that- unlike the Court-
64
65
66
nationally determined contribution will represent a progression beyond the Party's then current nationally
determined contribution and reflect its highest possible ambition. reflecting its common but differentiated
responsibilities and respective capabil ities, in the light of different national circumstances.").
Paris Agreement, Article 15 ('" I. A mechanism to facilitate implementation of and promote compliance with
the provisions of th is Agreement is hereby established. 2. The mechanism referred to in paragraph I of this
Article shall consist of a committee that shall be expert-based and facilitative in nature and function in a
manner that is transparent, non-adversarial and non-punitive. The committee shall pay particular attention to
the respective national capabilities and circumstances of Parties.").
Rather, a separate consent to the jurisdiction of the International Court of Justice or of an arbitral tribunal is
required. ee U FCCC, 9 May 1992. 1771 UNT I 07. Article 14 ('·f. In the event of a dispute between any
two or more Parties concerning the interpretation or application of the Convention. the Parties concerned
shall seek a settlement of the dispute through negotiation or any other peaceful means of their own choice. 2.
When ratifying, accepting, approving or acceding to the Convention, or at any time thereafter, a Party which
is not a regional economic integration organization may declare in a written instrument submitted to the
Depositary that, in respect of any dispute concerning the interpretation or application of the Convention, it
recognizes as compulsory ipso facto and without special agreement, in relation to any Party accepting the
same obligation: (a) Submission of the dispute 10 the International Court of Justice, and/or (b) Arbitration in
accordance with procedures to be adopted by the Conference of the Parties as soon as practicable, in an annex
on arbitrati on."); Kyoto Protocol. 10 Dec. 1997, 2303 UNTS 162, Article 19 ("The provisions of Article 14
of the Convention on settlement of disputes shall appl) mutatis mutandis to this Protocol.·•); Paris Agreement,
Article 24 ("The provisions of Article 14 of the Convention on settlement of disputes shall apply mutatis
m/llandis to this Agreement. .. ).
UN General Assembly resolution 76/ 112 of9 Dec. 202 1; Report of the ILC 2021 (A/76/ 10), pp. 13, 20; Draft
Guidelines on the Protection of the Atmosphere, with commentaries 202 1, preamble. para. 8, and commentary
( 10), pp. 13 20.
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its mandate includes ''the promotion of the progressive development of international
law"67.
3. l 4. In these circumstances, the Court should exercise its recognized power to interpret the
broad questions put to it in order to enable it "to answer rationally and effectively ' the
legal questions really in issue"'68. As the Court has done in the past, it should " identify
the existing principles and rules, interpret them and apply them ... , thus offering a reply
to the question posed based on law"69.
3. 15. The questions put to the Court ask it to assess the obligations of States with respect to
climate change, and the legal consequences under these obligations, under existing rules
of international law, as many participants in the General Assembly debate on 29 March
2023 explained70.
3. 16. With respect to climate change, these existing rules are set out in the specialized climate
treaty regime consisting of the UNFCCC, Kyoto Protocol, and Paris Agreement, as
explained further in Chapter 4, below.
TV. Conclusion
3. 17. The following conclusions may be derived from the discussion in this chapter, and will
be confirmed in the chapters which fo llow:
67 UN General Assembly resolution 174(11) of 21 ov. 1947. Statute of the International Law Commission,
Article 1(1); UN Charter, Article 13(1)(a).
68 See Application for Review of Judgment No. 273 of the United Nations Administrative Tribunal, Advisory
Opinion o/20 July 1982, I.CJ. Reports 1982, p. 325, at pp. 348-349, paras. 46-47 (confirming that the Court
may interpret the question presented to it, in order '10 bring out what it conceives to be the real meaning of
the ... request, and thereafter [to] proceed to attempt to answer rationally and effectively 'the legal questions
really in issue."').
69 Legality of the Threat or Use of Nuclear Weapons, Adviso,y Opinion of 8 July 1996, I.CJ. Reports 1996. p.
226, at p. 234. para. 13; Legal Consequences of the Constniction of a Wall in the Occupied Palestinian
Territory, Advisory Opinion o/9 July 2004, I.CJ. Reports 2004, p. 136, at p. 154. para. 38 (same).
70 See above, Chapter I - Introduction, paras. 1.9.
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(a) ln exercising its j urisdiction to give an opinion, the Court will need to consider
the factual and legal complexities surrounding the questions addressed to it,
having regard to the limitations inherent in its judicial function and the advisory
nature of the proceedings.
(b) The Court's function is to state existing law. Just as in the case of contentious
proceedings, it is no part of its task to make new law.
(c) The specialized treaty regime on climate change (UNFCCC, Kyoto Protocol
and Paris Agreement) plays the central legal role in respect of States'
obligations in regard to climate change.
(d) The Court should avoid any pronouncements that will contradict the
compromises reached in the negotiations within the specialized treaty regime
on climate change.
28
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Chapter 4. THE SPECIALIZED TREATY REGIME ON CLIMATE CHANGE
I. Introduction
4. 1. This chapter describes the rules of international law which are decisive for the questions
put to the Court.
4.2. The relevant rules are set forth in the specialized treaty regime on climate change, which
governs the obligations of States under international law with respect to climate change
and comprises the UNFCCC, the Kyoto Protocol, and the Paris Agreement, and may
be further agreed upon through other related legal instruments by the COP thereunder.
Reference is also made, in Section V, to certain other international norms that do not
reference climate change to which the Court has been asked to have regard.
4.3. The UNFCCC, concluded in 1992, was carefully negotiated by States, with the aim of
addressing anthropogenic greenhouse gas emissions accumulating in the atmosphere.
Nearly every State is a party to the UNFCCC71 . The UNFCCC sets forth the overall
framework for actions with respect to climate change. It is discussed further in Section
II of this Chapter. The UNFCCC is the product of a series of lengthy and complex
negotiations among nearly 200 equal and sovereign States, each with their own distinct
context, level of economic development, history and pol icy interests.
4.4. The Kyoto Protocol and the Paris Agreement, which are discussed in Sections III and
IV of this Chapter, operate within the institutional framework of the UNFCCC. These
instruments were introduced to enhance implementation of the UNFCCC and build
upon the principles and provisions established in the UNFCCC. They do not
renegotiate, rewrite, restructure, reinterpret, or override the obligations and legal
principles set out in the UNFCCC. Rather, the Kyoto Protocol and Paris Agreement
add specific and ambitious targets for addressing climate change that serve to further
implement the UNFCCC.
71 As of January 2024, 198 States and regional economic integration organizations are parties to the UNFCCC.
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4.5. The specialized treaty regime on climate change does not mandate the specific
measures that countries are to implement at the national level in order to achieve the
objectives of the treaty regime. Instead, the means of implementation are left: to national
governments.
I l. The UNFCCC
A. The UNFCCC Governs the Questions Before the Court
4.6. In ratifying the UNFCCC, its Parties reached consensus on a shared concern: that
climate change poses "a common concern of humankind",72 and " [d]etermined to
protect the climate system for present and future generations"73. To address this
concern and determination, the ultimate objective of the UNFCCC is to achieve
"stabilization of greenhouse gas concentrations in the atmosphere at a level that would
prevent dangerous anthropogenic interference with the climate system .. . within a time,
frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that
food production is not threatened and to enable economic development to proceed in a
sustainable manner" 74
. This objective makes clear that the UNFCCC's focus is on
greenhouse gas emissions from all sources. It also makes clear that a balance between
the protection of the climate and other sustainable development goals is hardwired into
the specialized treaty regime on climate change.
4.7. The UNFCCC is a ' framework' convention, which establishes an international legal
regime for climate change that sets out the objective, insti tutions, and processes for
adopting obligations. States have laid down an institutional structure for the adoption
of obligations through the negotiation of protocols, amendments and further agreements
72 U FCCC, preamble, para. I.
73 UNFCCC, preamble, para. 23.
74 UNFCCC, Article 2.
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implementing the UNFCCC75, which include the Kyoto Protoco176, and the Paris
Agreement77
. In that respect, the COP is the "supreme decision-making body" of the
UNFCCC78.
4.8. Parties convene regularly at meetings of the COP to negotiate the implementation and
further development of the specialized treaty regime on climate change, and adopt
decisions and other related legal instruments within the ' framework' convention
structure79. This structure allows Parties over time to consider appropriate targets and
address climate change on the basis of the most up to date science and developments in
innovation and technology.
4.9. The UNFCCC's abil ity to adapt and evolve based on international agreement is part of
a deliberate effort to harmonize cooperative action and allow Parties' obligations to
protect the climate system to develop through a continuous negotiation process, while
maintaining global consensus on climate change.
B. The UNFCCC Includes Key Principles and Obligations Applicable to the
Questions Before the Court
4. 10. The UNFCCC addresses greenhouse gas emissions from all sources. The actions of
States to achieve the objective of the UNFCCC are guided by principles set out in
Article 3 of the UNFCCC. These principles include differentiation, equity80, the
75 UNFCCC, Articles 15, 17.
76 Kyoto Protocol, preamble.
77 Paris Agreement, preamble, para. I; ibid., Article 2( I).
78 Conference of the Parties, UNFCCC, available at https://unfccc.int/process/bodies/supremebodies/
conference-of-the-parties-cop (last visited 12 Oct. 2023); see also UNFCCC, Article 7.2 ("The
Conference of the Parties. as the supreme body of this Convention, shall keep under regular review the
implementation of the Convention and any related legal instruments that the Conference of the Parties may
adopt, and shall make, within its mandate, the decisions necessary to promote the effective implementation
of the Convention").
79 See UNFCCC. Article 7(2).
80 UNFCCC, Article 3( 1).
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specific circumstances of developing country Parties, especially those particularly
vulnerable to the adverse effects of climate change81 , the precautionary principle82, the
right and duty of Parties to promote sustainable development83, the principle of
cooperation84, and protecting the climate system for the benefit of present and future
generations85. The UNFCCC does not mandate the specific measures that countries are
to implement at the national level to achieve the objectives of the treaty regime. Instead,
the means of implementation are left to national governments.
I. Differentiation
4. 11 . The UNFCCC is premised on the principle of common but differentiated
responsibilities ("CBDR")86. CBDR implies that all States have a role in addressing
climate change, but that that role varies depending on facts that differentiate States,
including their historical " contributions to the enhancement of the greenhouse effect" 87.
4.12. The UNFCCC sets forth general obligations that apply to all Parties. Reflecting CBDR,
these general obligations are qualified to acknowledge inter alia that States have
asymmetric abilities to mitigate climate change. taking into consideration national
circumstances and economic and social development priorities, such as demand for
energy in the developing world and the importance of fossil fuels to certain
economies88. Thus, to achieve the objective of the specialized treaty regime on climate
change, the Parties are to " tak[e] into account their common but differentiated
81 UNFCCC, Article 3(2).
82 U FCCC. Article 3(3) (applying to environmental hann).
83 UNFCCC, Article 3(4).
84 UNFCCC. Article 3(5).
85 UNFCCC. Article 3(1).
86 UNFCCC, Article 3(1).
87 UNFCCC. preamble, paras. 3. 18; Articles 3( I), 4( I).
88 UNFCCC, preamble, paras. 3. 4. 6. 8. 19. 20. 2 1.
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responsibil ities and their specific national and regional development priorities,
objectives and circumstances" 89.
4. 13. The UNFCCC also creates differentiated obl igations for " developed country Parties"
which "should take the lead in combating cl imate change and the adverse effects
thereof''90. CBDR is operationalized through the distinct ion between Parties l isted in
Annex I to the UNFCCC and those not listed in Annex I. The Annex I Parties have
greater obligat ions under the specialized treaty regime on climate change91 . The Annex
I Parties agreed to this differentiation, thus accepting they have a higher level of
responsibi lity to mitigate the adverse effects of climate change and acknowledging that
their emissions exceeded those of the non-Annex I Parties92. The other States, the " nonAnnex
I Parties," industrialized later or have not yet industrial ized, and have fewer
obligations under the specialized treaty regime on climate change93 . The UNFCCC
thus reflects the internat ional consensus that countries with a greater historical share of
greenhouse gas emissions accept heightened obligations with respect to action on
climate change.
2. Sustainable Development and Poverty Eradication
4. 14. The specialized treaty regime on cl imate change at its core emphasizes a balancing of
climate action against the need for "economic development to proceed in a sustainable
manner" and "on the basis of equity, and in the context of sustainable development and
89 UNFCCC, Article 4( I) ('·to the extent feasible").
90 UNFCCC, Article 3( I).
91 UNFCCC, Articles 4(2)-4(5), 12(2)- 12(3); see generally ibid., Article 3.
92 The UNFCCC"s preamble reflects th is acknowledgment, noting "the largest share of historical and current
global emissions of greenhouse gases has originated in developed countries'· and, as a result, recognizes " the
need for developed countries to take immediate action ... as a first step towards comprehensive response
strategies." UNFCCC, preamble. paras. 3, 18. During the UNFCCC negotiations, industrialized countries
accounted for around three-quarters of global carbon dioxide emissions, despite constituting only one-fi fth of
the global population.
93 Annex I generally includes the 1992 members of the Organisation for Economic Co-operation and
Development, together with the Russian Federation, the Baltic States, and Central and Eastern European
tates.
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efforts to eradicate poverty"94. In that respect, the UNFCCC is based upon the
promotion of "sustainable development."95 Notably, the UNFCCC proclaims its
" ultimate objective" to achieve "stabilization of greenhouse gas concentrations ...
within a time frame sufficient to allow ecosystems to adapt ... , to ensure that food
production is not threatened and to enable economic development to proceed in a
sustainable manner''.96 The U FCCC requ ires climate change considerations to be
taken into account, to the extent feasible, in each Party's relevant social, economic, and
environmental policies and actions97. It balances the general obligation to control
emissions by an injunction to " minimize adverse effects on the economy".98 One of its
basic principles is that Parties "have a right to, and should, promote sustainable
development".99 Their policies and measures should take into account that "economic
development is essential for adopting measures to address climate change" . 100
4.15. It thus recognizes and seeks to address the energy trilemma of energy security, equity
(accessibility and affordabi lity), and sustainability at the heart of the emissions
transition.
4.16. The UNFCCC further recogn izes the sovereign right of States, in accordance with the
Charter of the United Nations, to exploit their own resources10 1, which further
underscores the need for a flexible approach and the need to have regard to the
differentiated positions of States 1°2. The right of permanent sovereignty over natural
resources was shaped in the historical contex~ of decolonization and the need for the
94 UNFCCC, Article 2; Paris Agreement, Article 4( I).
95 UNFCCC, Article 3(4).
96 UNFCCC, Article 2 (emphasis added).
97 UNFCCC, Article 4(1)(f). ee also Chapter 2 above.
98 UNFCCC, Article 4( I )(f) (emphasis added).
99 UNFCCC, Article 3(4).
100 UNFCCC, Article 3(4).
101 See U FCCC, preamble. para. 8.
102 See, e.g., UNFCCC. preamble. paras. I 0, 20, 2 1, 22; Articles 3( 1)-3(3). 4( I )-4(2).
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economic development of States that did not industrialize early. The General Assembly
gave expression to this right in its resolut ion 1803 (XVII) of 14 December 1962, in
which it declared that ' [t]he r ight of peoples and nations to permanent sovereignty over
their natural wealth and resources must be exercised in the interest of their national
development and of the well-being of the people of the State concerned" 103. In its 2005
Judgment in Armed Activities on the Territory of the Congo, the Court " recogniz[ed]
the importance'· of permanent sovereignty over natural resources as "a principle of
customary international law"104 . In resolution 1803, the General Assembly emphasized
" the inalienable right of all States freely to dispose of their natural wealth and resources
in accordance with their national interests" 105 and acknowledged that this right includes
a State's freedom to explore, develop and dispose of its natural resources, and its right
to regu late such use 106. Resolution 1803 further declares that violation of the right of
permanent sovereignty over natural resources is contrary to the spirit and principles of
the UN Charter107
. Implementing that right, Article 4(1) of the UNFCCC provides for
flexibil ity in the implementation of Parties' commitments by allowing Parties to ''tak[e]
into account their common but differentiated responsibilities and their specific national
and regional development priori ties, objectives and circumstances" 108.
4.17. A rticle 4(8) of the U FCCC further requires Parties to consider actions necessary to
meet the specific needs and concerns of Parties not listed in Annex I that are affected
by response measures to climate change, including countries whose economies are
highly dependent on fossil fuel production and·export.
103 General Assembly resolution 1803 (XVI I) of 14 December 1962, para. I.
104 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment,
I. C J. Reports 2005, p. 251, para. 244.
105 General Assembly resolution 1803 ( XVll) of 14 December 1962. preamble.
106 General Assembly resol ution 1803 (XVII) of 14 December 1962, para. 2.
107 General Assembly resolution 1803 (XVll) of 14 December 1962, para. 7.
108 UNFCCC, Article 4( I ).
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4.18. The UNFCCC also requires States, as they take actions to protect the cl imate system,
to minimize negative impacts on other States with economic dependence on fossil
fuels109
• The UNFCCC provides that Parties, particularly non-Annex I Parties with
economies that are highly dependent on fossil fuel production and export, are to be
given particular consideration so as to avoid exacerbating vulnerabilities and adverse
impacts to these economies when States implement climate system protection
actions110 .
4. 19. Obligations of States to protect the climate system require taking into account that
countries that industrialized late and have non-diversified, fossil-fuel dependent
economies still need room to develop and need to rely on their natural resources to do
so. Therefore, these countries stand in a different position from countries that
industrialized early. This accords with the overarching CBDR principle because a
State's role in addressing climate change varies depending on its dependency on fossil
fuel s.
109 UNFCCC, Article 4(8)(h) ('·In the implementation of the commitments in this Article, the Parties shall give
full consideration to what actions are necessary under the Convention, including actions related to funding,
insurance and the transfer of technology, to meet the specific needs and concerns of developing country
Parties ar ising from the adverse effects of climate change and/or the impact of the implementation of response
measures, especially on: ... [c]ountries whose economies are highly dependent on income generated from
the production, processing and export, and/or on consumption of fossil fuels and associated energy-intensive
products").
110 UNFCCC. Article 4( I 0) ("The Parties shall, in accordance with Article I 0. take into consideration in the
implementation of the commitments of the Convention the situation of Parties. particularly developing
country Parties, with economies that are vulnerable to the adverse effects of the implementation of measures
to respond to climate change. This applies notably to Parties with economies that are highly dependent on
income generated from the production, processing and export. and/or consumption of fossil fuels and
associated energy-intensive products and/or the use of fossil fuels for which such Parties have serious
difficulties in switching to alternatives." ).
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3. Targets
4.20. Consistent with its status as a framework convention, the UNFCCC governance
framework allows States to take an incremental approach in addressing climate change.
The UNFCCC does not specify fixed mandatory targets.
4.21. Instead, under Article 4(2)(a) and (b ), each of the Annex l Parties undertook to " adopt
national policies and take corresponding measures on the mitigation of climate change,
by limiting its anthropogenic emissions of greenhouse gases and protecting and
enhancing its greenhouse gas sinks and reservoirs", and communicate information
"with the aim of returning individually or jointly to their 1990 levels" of anthropogenic
emissions of carbon dioxide and other greenhouse gases by 2000111 . Accordingly,
under the UNFCCC, the Annex l Parties commitments, but without fixed mandatory
targets. In contrast, and despite its long-term objective to reduce greenhouse gas
emissions, the UNFCCC recognized that the non-Annex I Parties' share of greenhouse
gas emissions " will grow to meet their social and development needs" 112.
4.22. Additionally, under Article 4( I ), all Parties must develop national inventories of their
emissions and promote efforts towards and cooperate in undertaking mitigation and
adaptation measures113.
4. Reporting
4.23. The UNFCCC requires all Parties to report on their emissions114. The reporting
requirement prompts States to adopt a nationally defined policy for climate mitigation
111 UNFCCC, Article 4(2) (a-b).
112 See U FCCC, preamble ("the share of global emissions originating in developing countries will grow to
meet their social and development needs'").
113 U FCCC, Article 4( I).
114 UNFCCC, Articles 4( l)(a). 7(2)(d). 12(1).
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and adaptation. Such national reports are to be communicated to the COP, which will
review them and assess each Party's implementation 11 5.
4.24. Annex l Parties also have to report on the national policies and measures adopted
towards mitigating climate change' 16.
5. Financing and Means of Implementation
4.25. Financing obligations are imposed solely on the Annex I Parties which are also listed
in Annex II (i.e., the OECD countries, but not economies in transition).
4.26. Annex TI Parties must provide financing to non-Annex r Parties " to meet the agreed full
costs incurred" in complying with their reporting obligations' 17. They are also required
to provide financing to non-Annex I Parties "to meet the agreed full incremental costs"
of their other obligations under Article 4( I ) 11 8. Annex II Parties "shall also assist the
developing country Parties that are particularly vulnerable to the adverse effects of
climate change" in meeting adaptation costs to those effects• 19.
4.27. Annex II Parties committed to assist all Parties and non-Annex I Parties especially, by
taking " all practicable steps to promote, facilitate and finance, as appropriate, the
transfer of, or access to, environmentally sound technologies and know-how ... to
enable them to implement the provisions of the Convention" 120.
4.28. All Parties also have an obl igation to "(p]romote and cooperate in the development,
application and diffusion, including transfer, of technologies, practices and processes
that control, reduce or prevent anthropogenic emissions of greenhouse gases .. . in all
115 UNFCCC, Article 12(1).
116 ee UNFCCC, Articles 4(2)(b), 12(2).
117 UNFCCC. Articles 4(3), 12( 1).
118 UNFCCC, Articles 4(3), 4(1).
119 UNFCCC, Article 4(4).
120 UNFCCC, Article 4(5).
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relevant sectors .. . " 121. Additionally, Article 4(8) requires all Parties to consider
actions necessary- including actions related to funding, insurance, and the transfer of
technology- to meet the specific needs and concerns of non-Annex 1 Parties affected
by response measures to climate change, including States whose economies are highly
dependent on fossil fuel production and export122.
C. The UNFCCC Includes Provisions on Compliance and the Settlement of Disputes
1. Compliance
4.29. The COP is responsible for reviewing the implementation of the UNFCCC by
periodical ly examin ing the obligations of the Parties and assessing States' progress
towards achieving the objectives of the UNFCCC123. Compliance with the UNFCCC
is further strengthened by the Subsidiary Body for Implementation, which assists the
COP in reviewing the effective implementation of the UNFCCC124.
2. Dispute Resolution
4.30. With respect to States' progress towards achieving the objectives of the UNFCCC, the
climate change regime facilitates compliance and promotes cooperation, rather than
dispute resolution through adversarial procedures.
4.3 1. Article 13 of the UNFCCC calls for the establishment of a non-adjudicatory mechanism
that would enable cooperation and provide a consultative process to help with
implementation of the UNFCCC. While States Parties did not immediately adopt such
121 UNFCCC, Article4(1)(c).
122 UNFCCC, Article 4(8)(h) ("In the implementation of the commitments in this Article, the Parties shall give
full consideration to what actions are necessary under the Convention, including actions related to funding,
insurance and the transfer of technology, to meet the specific needs and concerns of developing country
Parties arising from the adverse effects of climate change and/or the impact of the implementation of response
measures, especially on: [c]ountries whose economies are highly dependent on income generated from the
production. processing and export, and/or on consumption of fossil fuels and associated energy-intensive
products.").
123 UNFCCC. Articles 7.2(a) and (e).
124 UNFCCC. Article I 0.
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a mechanism under the UNFCCC, they did adopt similar mechanisms pursuant to the
Kyoto Protocol and the Paris Agreement, addressed below in Sections Ill and JV of this
Chapter.
4.32. In addition, Article 14 of the UNFCCC provides for the settlement of disputes
concerning the interpretation or application of the UNFCCC. It provides for negotiation
or other peaceful means of their own choice (which may include the International Court
of Justice or arbitration). If the Parties concerned are unable to settle the dispute, either
Party may refer it to conci liation.
Ill. The Kyoto Protocol
A. The Kyoto Protocol Is a Related Legal Instrument Applicable to the Questions
Before the Court
4.33. The Kyoto Protocol was adopted "[i]n pursuit of the ultimate objective of the
[UNFCCC] as stated in its Article 2" to stabilize greenhouse gas concentrations in the
atmosphere at a level that will prevent dangerous human interference with the climate
system 125.
4.34. The Kyoto Protocol was the resu lt of COP meetings, where the Parties to the UNFCCC
agreed to establish a process to negotiate strengthened commitments for Annex I
Parties126 . The Parties specifically ruled out new commitments for non-Annex I
Parties 127 . The Parties acknowledged that industrial activities of certain countries over
the past 150 years had primarily contributed to the elevated levels of greenhouse gas
emissions in the atmosphere. On that basis, the Annex I Parties committed to setting
125 Kyoto Protocol, preamble.
126 Report on the Conference of the Parties on its First Session (FCCC/CP/ 1995/7/Add. l ), 6 June 1995, p. 4,
available at https://unfccc.int/resource/docs/cop 1 /07a0 I .pd f.
127 Ibid.
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internationally binding emission reduction targets for greenhouse gas emissions for
Annex I Parties128.
4.35. While several States withdrew from Kyoto and the commitment periods for States'
greenhouse gas reduction commitments have now expired, this negotiation and the
resulting instruments show that when States intend to impose top-down, legally binding
obligations, they do so explicitly.
4.36. While the commitment periods for State reduction obligations under the Kyoto Protocol
have expired, the Kyoto Protocol's principles remain important for climate negotiations
and action.
B. The Kyoto Protocol Includes Key Principles and Obligations Applicable to the
Questions Before the Court
4.37. Like the UNFCCC, the Kyoto Protocol addresses greenhouse gas emissions from all
sources. The Kyoto Protocol built on the principles and provisions of the UNFCCC
and set forth obligations of States with respect to climate change-legally binding
targets for Annex I Parties.
f. Differentiation
4.38. Like the UNFCCC, the Kyoto Protocol differentiated between Annex J and non-Annex
I Parties. The Kyoto Protocol cited the CBDR principle as a basis for not introducing
new commitments for non-Annex I Parties129. It also explicitly recognized specific
needs and concerns of non-Annex I Parties. For example, the Kyoto Protocol required
Annex I Parties to strive to implement their greenhouse gas emission reduction
obligations in a way that minimizes adverse effects on non-Annex I Parties 13°.
128 Report on the Conference of the Parties on its econd ession (FCCC/CP/ 1996/ 15/Add.1), 29 Oct. 1996,
p. 73. available at https://unfccc. int/resource/docs/cop2/l 5a0 I .pd f.
129 Kyoto Protocol, Article I 0.
130 ee. e.g., Kyoto Protocol, Articles 2(3), 3( 14).
41
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2. Targets
4.39. In the Kyoto Protocol, Annex I Parties131 agreed to meet individualized greenhouse gas
emissions reductions tied to those States' historic greenhouse gas emissions within
national borders132.
4.40. The Kyoto Protocol provided that Annex I Parties "shall" individually or jointly "ensure
that their aggregate anthropogenic carbon dioxide equivalent emissions of the
greenhouse gases ... do not exceed their assigned amounts ... with a view to reducing
their overall emissions of such gases by at least 5 per cent below 1990 levels in the
commitment period 2008 to 2012" 133. The country-specific reduction commitments
were set out in an Annex to the Kyoto Protocol. Non-Annex I Parties were not subject
to greenhouse gas reduction commitments. Under the December 2012 "Doha
Amendment" to the Kyoto Protocol, the Annex I Parties accepted new emissions
reductions obligations for the period from 2013 through 2020.
3. Reporting
4.4 1. The Kyoto Protocol established procedural obl igations for Annex I Parties, including
the requirement to report on annual inventory of anthropogenic emissions 13
4
, and issue
a periodic national communication135.
4. Financing and Means of Implementation
4.42. The Kyoto Protocol affirmed the commitment of Annex l Parties to provide new and
additional financial resources136.
131 The Annex I tales are listed in Annex B to the Kyoto Protocol.
132 Kyoto Protocol, Article 3( I).
133 Kyoto Protocol, Article 3(1).
134 Kyoto Protocol, Article 7( I).
135 Kyoto Protocol, Article 7(3).
136 Kyoto Protocol, Article 11(2).
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4.43. Article 12(8) of the Kyoto Protocol also required that Annex I Parties assist non-Annex
I Parties that are particularly vulnerable to the adverse effects of climate change in
meeting adaptation costs. The Kyoto Protocol provided that the Annex I Parties will
provide "such financial resources, including for the transfer of technology, needed by
the [non-Annex I] Parties" to meet certain agreed costs 137.
C. The Kyoto Protocol Includes a Compliance Mechanism
4.44. States Parties of the UNFCCC negotiating the Kyoto Protocol expressly provided for a
mechanism that would address non-compliance, and established a Compliance
Committee, with an Enforcement Branch and a Facilitative Branch. The Facilitative
Branch is responsible for providing advice and facilitation to support Protocol
implementation, promoting compliance through non-punitive measures, while the
mandate of the Enforcement Branch is to assesses the compliance of Annex I Parties
with their emissions limitation or reduction commitments, reporting, and eligibility for
emissions trading and the clean development mechanism 138.
137 Kyoto Protocol, Article 11 (2)(b).
138 Report of the Conference of the Parties serving as the Meeting of the Parties to the Kyoto Protocol -
Addendum Part Two: Action taken by the Conference of the Parties serving as the meeting of the Parties to
the Kyoto Protocol at its first session, Decision 27/CMP. l ("Kyoto Protocol compliance procedure"),
FCCC/KP/CMP/2005/8/Add.3, ection II, para. I (30 Mar. 2006); KP compliance procedure,§§ IV, V. Each
branch must include a member from each of the UN's five geographical groups; one from the small island
developing tates; and two members each from Annex I and non-Annex I Parties, respectively.
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el)~l&
*
IV. The Paris Agreement
A. The Paris Agreement Is a Related Legal Instrument Applicable to the Questions
Before the Court
4.45. The Paris Agreement was adopted in 2015, and aims to " enhance[] the implementation
of the [UNFCCC], including its objective" and "strengthen the global response to the
threat of climate change"139
. A lmost all UNFCCC Parties are Parties to it 140.
4.46. Partly due to the lack of commitment of some Annex I Parties under the Kyoto
Protocol'41
, States decided to strengthen the focus on '·cooperative action' instead of a
top-down approach to climate mitigation 142. The Paris Agreement sets out its objective
to enhance the implementation of the UNFCCC and thereby "strengthen the global
response to the threat of climate change'.143. In particular, the Paris Agreement "aims
to strengthen the global response to the th reat of climate change, in the context of
sustainable development and efforts to eradicate poverty, including by" taking three
steps: (a) holding the increase in the global average temperature to speci fied
temperature benchmarks; (b) increasing the abi lity to adapt to the adverse impacts of
climate change and foster climate resilience and low greenhouse gas emissions
development; and (c) making finance flows consistent with a pathway towards low
greenhouse gas emissions and climate-resilient development. 144 States Parties are to
139 Paris Agreement, Article 2( I).
140 195 !ates and regional economic integration organizations are parties to the Paris Agreement. ee Paris
Agreement, UNITED ATIONS TREATY COLLECTION, available at
hnps://treaties.un.org/pages/ViewDetai ls.aspx?src=TREA TY &mtdsg_ no=X:X VI I-7-
d&chapter=27 &clang= _en (last visited 12 Oct. 2023).
141 Certain developed Annex I Parties refused to ratify the Kyoto Protocol, others withdrew from it. and others
fell short of their emissions reduction obl igations.
142 Report of the Conference of the Parties on its thirteenth session (as amended) (FCCC/CP/2007/6/ Add. I) 14
Mar. 2008, p. 3; see also UNFCCC, Articles 3(3). 3(5).
143 Paris Agreement, Article 2( I ).
144 Paris Agreement. Article 2.
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undertake and communicate ambitious efforts with respect to their contributions to
achieve the purpose of the Paris Agreement. 145
4.47. Unlike the Kyoto Protocol, however, the Paris Agreement does not impose greenhouse
gas emissions reduction targets for individual States, A nnex I or otherwise. Indeed, the
history of the Paris Agreement negotiations shows that States decided to strengthen the
focus on "cooperative action" instead of a top-down approach to cl imate mitigation 146.
The travaux preparatoires for Article 2 show that language which might have entailed
binding, goal-or ientated obligations or obligations of result, was rejected by States. For
example:
a. A Working Group text on February 25, 2015, proposed that " [a] II Parties shall take
action and cooperate to further implement the Convention in order to reach its
ultimate objective[ ... ] by achieving an emission pathway consistent with limiting
the global average temperature increase to below 2°C or I .5°C above pre-industrial
levels."147
b. On November 6, 20 15, the same Working Group proposed the following, less
prescriptive, wording: "The purpose of this Agreement is to enhance the
implementation of the Convention and to achieve its objective of the Convention as
stated in its Article 2. In order to strengthen and support the global response to the
urgent threat of climate change, Parties shall agree to take urgent action and
enhance cooperation support so as to: a. hold the increase in the global average
temperature." 148
145 Paris Agreement, Article 3.
146 Report of the Conference of the Parties on its thirteenth session (as amended) (FCCC/CP/2007/6/ Add. I) 14
Mar. 2008, p. 3; see also UNFCCC, Articles 3(3), 3(5).
147 Ad Hoe Working Group on the Durban Platform for Enhanced Action, Negotiating text, second session. part
eight. FCCC/ADP/20 15/ 1, 25 Feb. 2015, p. 6 (Negotiating text, C. General/Objective, Option 3) (emphasis
added; cleaned up).
148 ADP, Draft Agreement and Draft Decision on Workstreams I and 2 of the Ad Hoe Working Group on the
Durban Platform for Enhanced Action.ADP.20 15.11. Informal ote, 6 Nov.2015, p. 3 (Article 2, Option I,
para. I).
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B. The Paris Agreement Includes Key Principles and Obligations that are
Applicable to the Questions Before the Court
4.48. Like the UNFCCC and the Kyoto Protocol, the Paris Agreement addresses greenhouse
gas emissions from all sources. It contains careful ly negotiated provisions with varying
legal character, including objectives, ambitions, principles, and obligations.
1. Differentiation
4.49. The Paris Agreement differentiates between the responsibilities of States 149. The Paris
Agreement states that the Agreement "wi ll be implemented" to reflect the principles of
equity and CBDR150.
4.50. The general obl igations set forth in the Paris Agreement are qualified by the
acknowledgment that States have common but differentiated responsibilities.
Numerous provisions of the Paris Agreement recognize diffe rentiation with respect to
States' responsibilities. To achieve the objective of the Paris Agreement, States Parties
are to take into account "different national circumstances" 151 and "the specific needs
and special circumstances of developing country Parties"152, and "the specific needs
and special situations of the least developed countries ["LDCs"]" 153.
4.51. The Paris Agreement also specifies what States that industrialized early should do. It
provides that developed country Parties "should continue taking the lead by undertaking
economy-wide absolute emission reduction targets" in their NDCs, as further discussed
149 See, e.g., Paris Agreement, preamble, para. 3, Articles 2(2), 4(3), 4( 19).
150 Paris Agreement. Article 2(2).
151 Paris Agreement. preamble, para. 4. Articles 2(2), 4(3).
152 Paris Agreement, preamble, para. 5.
153 Paris Agreement, preamble, para. 6.
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below154. Developing country Parties, on the other hand, are " encouraged to move over
time" towards such targets155.
2. Sustainable Development and Poverty Eradication
4.52. States Parties acknowledge in the Paris Agreement that due regard should be given to
the right to development in addressing climate change156. The Paris Agreement
emphasizes the importance of addressing the specific needs and unique circumstances
of " those that are particularly vulnerable to the adverse effects of climate change" 157
and "the intrinsic relationship that climate change actions, responses and impacts have
with equitable access to sustainab le development and eradication of poverty" 158.
4.53. Parties have therefore undertaken to reduce emissions "in the context of sustainable
development and efforts to eradicate poverty" 159. Implementation should consider the
concerns of Parties " with economies most affected by the impacts of response
measures, particularly developing country Parties" 160. Climate adaptation measures
are to be undertaken " with a view to contributing to sustainable development" 161 .
4.54. Article 7 also emphasizes the importance of transparency and participation of
vulnerable groups and communities in developing adaptation policies, 'with a view to
integrating adaptation into relevant socioeconomic and environmental policies and
actions"162.
154 Paris Agreement, Article 4(4).
155 Paris Agreement, Article 4(4).
156 Paris Agreement, preamble.
157 Paris Agreement, preamble, para. 5.
158 Paris Agreement. Preamble, para. 8.
159 Paris Agreement. Article 4( I).
160 Paris Agreement, Article 4( 15).
161 Paris Agreement, Article 7( I).
162 Paris Agreement. Article 7(5).
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4.55. In view of these principles, the Paris Agreement affords flex ibi lity for each State to
design its own just transition in pursuit of a common goal 163. A just transition requires
that the transition to clean energy allow for consultation with affected producers and
workers, as well as time for economic adj ustments by communities affected by the
transition. The energy trilemma of energy security, equity (accessibility and
affordability), and sustainabi lity plays a central role in effecting the emissions
transition.
3. Targets
4.56. Rather than fixing greenhouse gas emissions reduction targets like the Kyoto Protocol,
the Paris Agreement gives States latitude to determine and implement their own
approach.
4.57. In its Article 2, the Paris Agreement sets forth the aim to strengthen the global response
to the threat of climate change, " including by .. . [h]olding the increase in the global
average temperature to well below 2°C above pre-industrial levels and pursuing efforts
to limit the temperature increase to l .5°C above pre-industrial levels, recognizing that
this would significantly reduce the risks and impacts of climate change" 164.
4.58. The text of Article 2 makes clear that the goal to limit the global temperature increase
does not give rise to an obligation on States to act or refrain from taking any particular
actions. Nor can it be read to impose any obligation of result to achieve temperature
reduction targets.
4.59. Article 2 provides that the Agreement "aims" to strengthen the global response to the
threat of climate change " including" by holding the increase in the global average
163 ee Draft decision -/CMA.5, Outcome of the lirst global stocktake. FCCC/PA/CMA/2023/L.17, 13 Dec.
2023, paras. I 0, 28(h), 42, I 40, 15 1, 152.
164 Paris Agreement, Article 2( I )(a).
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temperature to the specified targets. The use of the word "aims" indicates that this is a
hortatory objective.
4.60. The hortatory nature of the Paris Agreement's temperature goal is even more apparent
for the l .5°C target, which refers to " pursuing efforts'· to limit the temperature increase
to l .5°C above pre-industrial levels.
4.6 1. To guide Parties towards the achievement of these temperature goals, the Paris
Agreement encourages mitigation and adaptation measures.
4.62. The Paris Agreement encourages the undertaking of mitigation measures in Article 4,
though it does not impose obligations on States in that regard. Indeed, there is an
important qualification in Article 4, as the Parties '•aim" to reach global peaking of
greenhouse gas emissions as soon as possible. Reflecting the principle of CBDR, the
Parties also recognize that " peaking will take longer for developing country Parties"165.
Furthermore, the goal set out in Article 4( I) is to be achieved "on the basis of equity,
and in the context of sustainable development and efforts to eradicate poverty"166.
4.63. The Paris Agreement also emphasizes the importance of enhancing adaptive capacity
and strengthening resilience particularly in vulnerable countries. The Paris Agreement
sets out three overall actions for Parties to undertake in connection with their adaptation
efforts: (i) strengthening cooperation, (ii) engaging in adaptation planning and
implementation, and (iii) preparing and submitting communications on adaptation
efforts. Article 7( 13) requires that " [ c ]ontinuous and enhanced international support"
shall be provided to non-Annex I Parties for the implementation of adaptation efforts167.
As explained in Chapter 2 above, the Kingdom is particularly vulnerable to climate
165 Paris Agreement, Article 4( I).
166 Paris Agreement, Article 4( I).
167 Paris Agreement. Article 7( 13).
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change, and is leading efforts to address climate change adaptation and mitigation,
including by multilateral, regional, and national efforts.
4. Nationally Determined Contributions
4.64. The Paris Agreement establishes a process wherein each State prepares and
communicates successive NDCs to advance the Paris Agreement's objective 168. NDCs
are the main instrument for achieving the Paris Agreement's long-term ambitions.
Through their NDCs, Parties are able to self-differentiate their climate action efforts
and have flexibility to decide the type and scope of their contributions.169
4.65. Each Party "shall communicate" an NDC " every five years"170. While Parties are not
legally bound to achieve their NDCs, they are legally bound to outline clearly their
pledges and to report on their progress in achieving their NDCs17 1.
4.66. DCs exist on the basis of sel f-differentiation. That is, Parties are to justify their
contribution as "fair and ambitious"172 and "should strive to formulate and
communicate long-term low greenhouse gas emission development strategies, mindful
of Article 2" taking into account CBDR173. That also means that " Parties shall take into
consideration in the implementation of this Agreement the concerns of Parties with
economies most affected by the impacts of response measures, particularly developing
country Parties"' 74
.
168 Paris Agreement, Article 4(2).
169 Paris Agreement, Art. 3.
170 Paris Agreement, Article 4(9).
171 Paris Agreement, A rticles 4(8), 13(7).
172 Paris Agreement, A rticle 2; Decision I /CP.2 1, Adopt ion of the Par is Agreement (FCCC/CP/20 I 5/ 10/ Add. I),
29 Jan. 20 16, para. 5 1.
173 Paris Agreement. Article 4( 19).
174 Paris Agreement, Article 4( 15).
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4.67. Thus, the Paris Agreement requires States Parties to identify and publish NDCs, which
are ambitious in light of a State's national circumstances. It is through an NDC that a
State articulates the extent to which the State can prevent, reduce and control its own
greenhouse gas emissions. This is because the NDC is where the State sets out its
ambition to reduce greenhouse gas emissions that occur within its own national borders
based on its national circumstances. As further carefully negotiated, States are required
to "aim" to achieve the objectives of their NDCs through domestic measures 175. States
are not legal ly bound to meet targets or goals set forth in their NDCs.
4.68. However, States Parties did not agree to be bound by any obligations which regulate
the content or enforcement of their NDCs. States Parties continue to enjoy flexibility
and discretion in this respect. The negotiating history of the Paris Agreement
demonstrates that States rejected earlier text which sought more strictly to regulate the
contents of an NDC, including by prescribing a list of specific criteria on which an DC
would be based176.Almost all Parties have submitted NDCs.
4.69. The transition to the Paris Agreement's nationally determined approach for NDCs
emphasizes the functionality of the UNFCCC as a framework agreement, providing
Parties with the flexibility to adapt their climate action strategies over time in a lignment
with sustainable development.
4.70. Neither the treaties, nor the guidance set by the COP, nor the methodologies prescribed
by the IPCC, require States Parties to account ·for Scope 3 emissions in their national
inventories of anthropogenic emissions or DC. Indeed, according to the IPCC's
Guidelines for National Greenhouse Gas Inventories (as revised in 2019), "( n]ational
inventories include greenhouse gas emissions and removals taking place within
national territory and offshore areas over which the country has jurisdiction."
175 Paris Agreement, Article 4(2).
176 Ad Hoe Working Group on the Durban Platform for Enhanced Action, Negotiating text, second session. part
eight, FCCC/ADP/2015/ 1, 25 Feb. 20 15, p. 13,
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5. Reporting
4.71. In line with the obligations of all Parties to adopt DCs and the cooperative framework
established by the Paris Agreement, all Parties must report on their progress with
reaching the targets set out in their NDCs177. Annex I Parties have the additional
obligation to report on their " financial, technology transfer and capacity-building
support provided to developing country Parties under Articles 9, I O and I I " 178.
6. Response Measures
4. 72. Like the UNFCCC, the Paris Agreement recognizes that States may be affected not only
by climate change, but also by the impacts of the measures taken in response to it. The
Paris Agreement emphasizes the " intrinsic relationship" between climate change
responses and equitable access to sustainable development and eradication of poverty
and recognizes the "fundamental priority" of safeguarding food security and ending
hunger179
. In addition, the Paris Agreement states that the Parties have taken into
account the issue of the "just transition of the workforce and the creation of decent work
and quality j obs in accordance with nationally defined development priorities" 180.
7. Finance and Means of Implementation
4.73. The Paris Agreement addresses finance and means of implementation by establ ishing
mechanisms to mobilize financial resources, facilitate technology transfer and enhance
capacity-building to support climate action in developing countries181 . According to
Article 9.4, ''the provision of scaled up financial resources should aim to achieve a
balance between adaptation and mitigation, taking into account countries driven
strategies, and the priorities and needs of developing country parties .. . " . The
177 Paris Agreement, Article 13(7).
178 Paris Agreement, Article 13(9).
179 Paris Agreement. preamble, paras. 8-9.
180 Paris Agreement, preamble, para. I 0.
181 Paris Agreement, Articles 9-11.
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provisions on finance and means of implementation again underscore differentiation in
the specialized treaty regime on climate change as the Paris Agreement refers to climate
finance in the context of the needs, priorities, and national strategies of non-Annex I
Parties, and only Annex I Parties are required to provide financing. This is further
reinforced by the Paris Agreement reflecting the concepts of differentiation and CBDR
by referring to climate finance in the context of the needs, priorities, and national
strategies of non-Annex I Parties.
4. 74. Developed country Parties "shall provide financial resources to assist developing
country Parties with respect to both mitigation and adaptation"182. However, other
countries are also permitted- indeed "encouraged"- to provide such financing:
" [o]ther Parties are encouraged to provide or continue to provide such support
voluntarily"183.
4. 75. Annex I Parties are obligated to report their financial contributions: Annex I Parties
"shall" communicate biennially " indicative quantitative and qualitative information" 184
related to their climate finance efforts, including projected levels of public financial
resources to be provided to developing country Parties. The financing information
reported "shall" be taken into account as part of the global stocktake185.
182 Paris Agreement, Article 9( I ).
183 Paris Agreement, Article 9(2).
184 Paris Agreement Article 9(5). As part of these efforts, developed country Parties are also required to
provide "transparent and consistent information on support for developing country Parties" biennially in
accordance with modalities, procedures, and guidelines to be adopted by the COP serving as the meeting of
the Parties to the Paris Agreement at its first session. See Paris Agreement, Articles 9(7), 13( 13).
185 Paris Agreement, Article 9(6).
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C. The Paris Agreement Includes Implementation, Compliance, and Loss and
Damage Mechanisms
I. Compliance
4. 76. The Paris Agreement establishes a transparency framework that tracks the Parties'
progress towards achieving their individual NDCs and adaptation actions186. As part
of this mechanism, the progress of Parties is submitted to a technical expert review, and
Parties participate in a consideration of progress to assess the implementation and
achievement of the nationally determined contribution 187. The review identifies areas
of improvement for the Party 188.
4. 77. Article 14 also provides that the COP will " periodically take stock of the
implementation of [the Paris Agreement] to assess the collective progress towards
ach ieving the purpose [of the] Agreement and its long-term goals"189.
2. Compliance Mechanism
4. 78. Paris Agreement Article 15 establishes a mechanism to "to facilitate implementation of
and promote compliance" with the Agreement. The mechanism "shall consist of a
committee that shall be expert-based and facilitative in nature and function in a manner
that is transparent, non-adversarial and non-punitive." The committee "shall pay
particular attention to the respective national capabi lities and circumstances of
Parties"190.
186 Paris Agreement, Article 13.5.
187 Paris Agreement, Article 13( 11).
188 Paris Agreement, Article 13( 11 ).
189 Paris Agreement, Article 14( I).
190 Paris Agreement, Article 15.
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4. 79. This is a " non-adversarial" and " non-punitive" procedure, designed to facilitate and
promote compliance. The express reference to " national capabilities and
circumstances" reinforces this conclusion.
3. Dispute settlement
4.80. Article 24 of the Paris Agreement, by reference to Article 14 of the UNFCCC includes
a dispute resolution mechanism providing for negotiation, conciliation, or adjudication
in the event of a dispute between Parties. ln the event that there is a dispute between
State Parties to one of the climate change treaties as to its application or interpretation
and such dispute cannot be resolved through negotiation or conciliation, there is
provision for resolution of a dispute by the Court or arbitration. However, jurisdiction
is conditional on an express opt-in by the relevant State under Article 14 of the
UNFCCC.
4. Loss and Damage
4.81. Efforts under the specialized treaty regime on climate change to address " loss and
damage", or injuries from, and vulnerabi lities to, adverse effects of climate change due
to geographical circumstances and levels of development, began in 20 I 0. This is when
the Parties to the UNFCCC implemented a program to consider loss and damage
associated with climate change, as well as the impacts on countries that were
particularly vulnerable to catastrophic physical events caused by climate change 191 .
4.82. ln 2013, the Parties established an international mechanism for loss and damage
associated with climate change impacts (the "Warsaw International Mechanism"). The
decision also outlined that the functions of the Warsaw International Mechanism to
include inter a/ia (i) developing knowledge and understanding of loss and damage; (ii)
19 1 The Cancun Agreements in 2010 listed examples of loss and damages events: "sea level rise, increasing
temperatures, ocean acidi fication, glacial retreat and related impacts, salinization, land and forest degradation,
loss of biodiversity and desenification." COP 16, l/CP. 16, para. 2S ( IS Mar. 20 11 ).
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strengthening dialogue among Parties on loss and damage; and (iii) enhancing action
and support, including financial support, technological support, and capacity building
to address loss and damage through providing technical support, in formation and
facilitating the enhancement of support 192.
4.83. The Paris Agreement also addresses loss and damage, providing in Article 8 that the
Warsaw International Mechanism shall be subject to the authority and guidance of the
COP serving as the meeting of the Parties to the Paris Agreement, "and may be
enhanced and strengthened," as determined by that body193. The decision adopting the
Paris Agreement explicitly states that Article 8 of the Paris Agreement does not
determine liabil ity or compensation 194.
4.84. Recognizing the complex nature and asymmetric al location of duties to protect the
climate system, Parties continue to address loss and damage through faci litating access
to finance, improving coordination and oversight and enhancing knowledge, including
by technology and capacity building (the "Loss and Damage Mechanism")195.
4.85. Al the 27th Session of the COP in ovember 2022, State Parties agreed to establish a
new Loss and Damage Fund (the "Fund") "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" 196. The Parties further establ ished a Transitional Committee "with a
192 Report of the Conference of the Parties on its Nineteenth Session ("'COP 19") (FCCC/CP/2013/ 10/Add.l),
31 Jan. 20 14. paras. 5-7.
193 Paris Agreement, Article 8(2).
194 Decision I/CP.2 1, Adoption of the Paris Agreement (FCCC/CP/2015/ I 0/Add. I ), 29 Jan.20 16, para. 51.
195 Decision l /CP.21, Adoption of the Paris Agreement (FCCC/CP/20 15/10/Add. I). 29 Jan. 2016, para. 47
(deciding on continuation of the Warsaw Institutional Mechanism for Loss and Damage associated with
Climate Change Impacts); Decision 3/CP. I 8, Adoption of the Paris Agreement (FCCC/CP/2012/8/ Add. I ),
28 Feb. 20 13, para. 51 (Approaches to address loss and damage associated with climate change impacts in
developing countries that are particularly vulnerable to the adverse effects of climate change to enhance
adaptive capacity); Decision 2/CP. I9. Adoption of the Paris Agreement (FCCC/CP/20 13/ 10/Add. I), 31 Jan.
2014 (Warsaw international mechanism for loss and damage associated with climate change impacts).
196 UNFCCC Decision 2/CP.27 (FCCC/CP/2022/10/Add.l). 17 Mar. 2023, p. 12. para. I.
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view to operationalizing the funding arrangements," including identifying sources of
funding 197.
4.86. On 4 November 2023, the Transitional Committee formalized its recommendations in
relation to the proposed organization of the Fund, the Fund's Governing Instrument and
recommending the establishment of a 26-member board with legal personality and a
secretariat198. The Transitional Committee also recommended that the World Bank
serve as interim trustee of the Fund and administer the Fund's assets 199. The Governing
Instrument states that funding will be able to receive contributions from public and
private entities, including " from innovative sources, as appropriate," and specifies that
the board " will prepare a long-term fund raising and resource mobilisation strategy and
plan for the Fund to mobilise new, additional, predictable and adequate financial
resources from all sources of funding"200. The Governing Instrument also established
factors to be used in allocating the Fund·s resources, including a " minimum percentage
allocation floor for LDCs and S1Ds"201 . The Transitional Committee
recommendations, which were adopted by Parties at COP28, recalled the understanding
that the decision to establish the Fund and funding arrangements does not involve
liability or compensation202.
197 VNFCCC Decision 2/CP.27 (FCCC/CP/2022/ 10/Add.l), 17 Mar. 2023, p. 12, para. 4.
198 Proposal of Lhe Fi fth Meeting of Lhe TransiLional Committee on the Opcralionalization of the ew Funding
ArrangemenLs for Responding Lo Loss and Damage and Lhc Fund Established in Paragraph 3 of Decisions
2/CP.27 and 2/CMA.4 (TCS/2023/4/Rev.2). 4 ov. 2024, paras. 2-3. 7. 15. Annex I para. 2 1.
199 Proposal of Lhe Fi flh Meeling of Lhe Transitional Commillee on the OperaLionalization of the ew Funding
Arrangements for Responding to Loss and Damage and the Fund Established in Paragraph 3 of Decisions
2/CP.27 and 2/CMA.4 (TCS/2023/4/Rev.2). 4 ov. 2024, paras. 15, 35.
200 Proposal of the Fiflh Meeting of the Transitional Committee on the Opcrationalization of the ew Funding
Arrangements for Responding to Loss and Damage and the Fund Established in Paragraph 3 of Decisions
2/CP.27 and 2/CMA.4 (TCS/2023/4/Rev.2), 4 ov. 2024, Annex I, para. 55.
201 Proposal of the Fiflh Meeting of the Transitional Committee on the Operationalization of the ew Funding
Arrangements for Responding to Loss and Damage and the Fund Established in Paragraph 3 of Decisions
2/CP.27 and 2/CMA.4 (TC5/2023/4/Rev.2), 4 ov. 2024. Annex I, para. 59.
202 Proposal of the Fi fth Meeting of the Transitional Committee on the Operationalization of the New Funding
Arrangements for Responding to Loss and Damage and the Fund Established in Paragraph 3 of Decisions
2/CP.27 and 2/CMA.4 (TCS/2023/4/Rev.2), 4 Nov. 2024, p. 1.
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4.87. At COP28 in November-December 2023, the Parties adopted the Transitional
Committee's recommendations, which included provisions for a mechanism to
operationalize the Fund203. In adopting the recommendations of the Transitional
Committee, Parties decided to; " urge developed country Parties to continue to provide
support and encourage other Parties to provide, or continue to provide support, on a
voluntary basis, for activities to address loss and damage" and " invite financial
contributions with developed country Parties continuing to take the lead to provide
financial resources for commencing the operationalization of the Fund".
4.88. As of 13 December 2023, at COP28, pledges to the Fund amounted to USO 792
million204.
4.89. The establishment of the Loss and Damage Fund shows consensus on the response to
the needs of non-Annex I Parties experiencing the adverse effects of climate change. It
also represents an acknowledgement by States that a means exists within the framework
of the specialized treaty regime on climate change to support non-Annex I Parties that
are most vulnerable to the adverse effects of climate change due to their geographical
circumstances and level of development.
V. Other International Norms To Which The Court Has Been Asked To Have
Regard
4.90. As shown in the preceding sections, the international law obligations of States relating
to climate change are set forth in the special ized treaty regime on climate change. Those
obligations are not altered or superseded by other sources of law.
203 Draft decision -/CP.28 -/CMA.5 Operationalization of the new funding arrangements, including a fund, for
responding to loss and damage referred to in paragraphs 2- 3 of decisions 2/CP.27 and 2/CMA.4
(FCCC/CP/2023/L. l-FCCC/P NCMA/2023/L. I). 29 ov. 2023, paras. 1-2. 27.
204 Draft decision -/CMA.5, Outcome of the first global stocktake (FCCC/P NCMA/2023/L.17). 13 Dec. 2023,
para. 79.
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4.9 1. There are certain issues related to greenhouse gases that are operational ized in other
treaty regimes. Given the unique nature of the subject matters covered in these treaties,
States expressed willingness to cooperate and have effectively managed these legal
regimes separately:
• The impacts of specific ozone-depleting substances on the ozone layer are
addressed in the 1985 Vienna Convention for the Protection of the Ozone Layer,
the 1987 Montreal Protocol on ubstances that Deplete the Ozone Layer, and
the 2016 Kigali Amendment (the "Ozone regime"). These set out international
legal requirements and reductions in the production of certain ozone depleting
substances. Because some ozone depleting substances are also potent
greenhouse gases, the Ozone regime has contributed to mitigating climate
change. Indeed, the 2016 Kigali Amendment has a "co-benefit" of reducing
greenhouse gas emissions from emissions of those ozone depleting
substances.205 Nevertheless, the specialized treaty regime on climate change
and the Ozone regime both provide that the Ozone regime is not intended to
address the climate effects of controlled substances, which would instead be
addressed under the specialized treaty regime on climate change.206
• Other specific regimes deal with sector-specific greenhouse gas emissions.
These include:
205 UN Environment Program, The Montreal Protocol, Phase down of HFCs - the Kigali Amendment, available
at https://www.unep.org/ozonaction/who-we-are/about-montrealprotocol#:~:
text=The%20Parties%20to%20the%20Montreal,cent%20by%,20the%201ate%202040s (last
visited 19 Jan. 2024).
206 UNFCCC, Article 4( I )(a) ( .. All Parties, taking into account their common but differentiated responsibilities
and their speci fic national and regional development priorities, objectives and circumstances. shall: (a)
Develop. periodically update, publish and make available to the Conference of the Parties, in accordance with
Article 12, national inventories of anthropogenic emissions by sources and removals by sinks of all
greenhouse gases not controlled by the Montreal Protocol."); see also U FCCC Article 4(1 )(b)-{j). Article
Ill of the Kigali Amendment provides that the Kigali Amendment does not except hydrofluorocarbons from
commitments contained in Articles 4 (Commitments) and 12 (Communication of Information Related to
Implementation) of the U FCCC, and Articles 2, 5. 7. and I 0 of the Kyoto Protocol.
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■
■
Emissions from aircraft, which are regulated by the International Civil
Aviation Organization (" lCAO"). ICAO, under the Chicago
Convention, has adopted provisions to curb greenhouse gas emissions
from international civil aviation, encompassing fuel efficiency standards
(Volume III) and the Carbon Offsetting and Reduction Scheme for
International Aviation (CORSIA) (Volume IV).
Emissions from shipping, which are regulated by the International
Maritime Organization ("IMO"'). The IMO's mandate includes, among
others, the prevention of marine and atmospheric pollution by ships2°7.
As was confirmed in the Kyoto Protocol, Annex I Parties agreed to
pursue reductions of greenhouse gas emissions from maritime shipping
through IM0208.
4.92. The law of the sea, consisting of both multi lateral treaties and customary international
law, includes a number of rules concerning the protection and preservation of the
marine environment. But UNCLOS makes no express reference to climate change or
greenhouse gas emissions. Part XII of UNCLOS addresses in broad terms obligations
of States to protect and preserve the marine environment,209 but also expressly reserves
the sovereign right of States "to exploit their natural resources pursuant to their
environmental policies and in accordance with their duty to protect and preserve the
marine environment." 210
4.93. UN CLOS Part XII is essentially a framework agreement, as is common for international
environmental law. Part XII expresses the expectation that States will in the future
207 International Maritime Organization Convention, Article I (a).
208 Kyoto Protocol, Article 2(2) ('·The Parties included in Annex I shall pursue limitation or reduction of
emissions of greenhouse gases not controlled by the Montreal Protocol from aviation and marine bunker
fuels. working tllrough the International Civil Aviation Organization and the International Maritime
Organization, respectively.'").
209 UNCLOS (Dossier# 45). Articles 192. 194.
210 UNCLOS (Dossier# 45), Article 193.
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establish more specific " rules" and "standards" to prevent, reduce, and control
pollution.211 These subsequent laws and regulations will thus regulate the
implementation of a State's obligation to prevent, reduce and control specific types of
pollution. In the area of climate change, these are the specialized treaty regime
consisting of the UNFCCC, the Kyoto Protocol and the Paris Agreement.
4.94. The general framework provisions in UNCLOS Part XII are not intended to supplant
or alter the more detailed rights and obligations set out in these specific international or
regional conventions. In this vein, Article 237( I) of UNCLOS states that "[t]he
provisions of [Part Xll] are without prejudice to the specific obligations assumed by
States under special conventions and agreements ... which may be concluded in
furtherance of the general principles set forth in this Convention." Article 3 11 (2)
likewise provides that '[t]his Convention shall not alter the rights and obligations of
States Parties which arise from other agreements compatible with this Convention and
which do not affect the enj oyment by other States Parties of their rights or the
performance of their obligations under this Convention."212
4.95. The Kingdom recalls that the re levant provisions of the UNCLOS must be interpreted
in harmony with the specialized treaty regime on climate change, which amounts to /ex
specialis in relation to climate change and greenhouse gas emissions. There is no legal
basis under UN CLOS or any of its implementing agreements to impose obligations on
States in this field which go beyond or are inc~nsistent with those obligations which
States have already agreed to in the specialized treaty regime on climate change. For
present purposes, the Kingdom refers to its oral statement made before the International
Tribunal for the Law of the Sea on 13 eptember 2023213. The Kingdom reserves the
right to comment on the advisory opinion to be delivered by the Tribunal in due cour se.
211 UNCLO (Dossier # 45), Articles 207, 212.
212 UNCLOS (Dossier # 45), Article 311 .
213 Request for an Advisory Opinion Submitted by the Commission of Small Island States on Climate Change
and International Law, Kingdom of audi Arabia Oral tatemcnt to ITLOS (ITLOS/PV .23/C3 l/5), 13 Sept.
2023.
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4.96. The Kingdom is a tate Party to a number of specialized environmental regimes and
treaties (referenced in the preamble to the advisory opinion request to the Court) which
enjoy nearly universal ratification. These regimes or treaties predate the UNFCCC and
Paris Agreement and seek to regulate, at an international level, tates Parties' efforts to
prevent or reduce other, specific forms of environmental harm, and not climate
change.214
4.97. The United ations General Assembly Request makes reference to international
treaties on human rights. Quite apart from the fact that such treaties do not bind nonparties,
they simply do not deal with the obligations of tates under international law
to ensure the protection of the climate system from anthropogenic greenhouse gas
emissions. No interpretations of human rights treaties by treaty committees or
rapporteurs could impose climate change obligations beyond those painstakingly
negotiated and agreed to by States in the legally binding treaty regime on climate
change. Nor can national or regional court decisions rewrite or override the universally
agreed, specialized treaty regime on climate change.
4.98. Important as they are, even if human rights treaties could in principle override the !ex
specialis of climate change law (which they cannot), there are additional grounds why
they do not do so. The main human rights treaties lack universality. Many States,215
including at least twelve small island States,216 are not parties to either or both of the
International Covenant on Civil and Political . Rights (ICCPR) ( 174 Parties) or the
International Covenant on Economic, ocial and Cultural Rights (ICESCR) ( 172
214 Convention on Biological Diversity of 5 June I 992 ( I 760 U. .T .. 79); United Nations Convention to
Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly
in Africa of 14 October 1993 (1954 U.N.T .. 3).
215 For example, Malaysia, ingapore, the United Arab Emirates. and the Kingdom are not parties to either the
!CPR or the IESCR. China is not party to the ICPR and the United tales of America is not party to the
IESCR.
216 At least the following mall Island tates arc not parties to either the ICPR or the IE CR: Comoros. Cook
Islands, Kiribati , Micronesia, auru, Niue, Palau, t. Kitts and Nevis. t. Lucia, and Tuvalu. In addition,
olomon Islands is not party to the !CPR and Vanuatu is not party to the IESCR.
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Parties). This contrasts with the near universality of the UNFCCC ( 198 Parties) and
the Paris Agreement (195 Parties).
4.99. Finally, to the extent the United Nations General Assembly advisory opinion request
asks the Court to have " particular regard" to various principles, the request does not
contend that they amount to customary international law in the context of climate
change. or could it. Under current international law, the best evidence of a general
practice of States and of opinio Juris is provided by the practice of States in adopting
and implementing the specialized treaty regime on climate change.
VI. Conclusion
4. 100. As discussed in the present chapter, the universally accepted specialized treaty regime
on climate change comprehensively sets out international law applicable to greenhouse
gas emissions and climate change.
4.10 I . An important principle of the specialized treaty regime on climate change relevant to
the answer to the questions now before the Court is the principle of CBDR. CBDR
recognizes that certain States that industrialized early and historically saw signi ficant
greenhouse gas emissions from within their territories are included in Annex I to the
UNFCCC and have greater responsibilities to protect the climate system. CBDR is a
cornerstone of the specialized treaty regime on climate change, and application of the
regime must ensure differentiation on th is basis.
4. 102. While climate action is important, other elements of sustainable development are also
of vital and urgent importance. Climate change mitigation may ease some harmful
effects of poverty, but it is imperative to acknowledge that certain measures
implemented to attain climate obj ectives could inadvertently impede the goal of ending
poverty. As the Parties noted at COP28, "the global transition to low-emissions and
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~ . ! '. . •
-~ ....
*
climate resi lient development [ ... ] poses challenges to sustainable development,
economic growth and eradication of poverty." 217
4.103. For example, energy shortages resulting from extreme climate change measures would
significantly set back the eradication of poverty and impair economic growth. Indeed,
reducing investment in responsible production or abruptly curtai ling the use of
petroleum could lead to severe economic shock. Recent history shows that oil or gas
shortages and accompanying price increases arising from war or geopolitical instability
can cause widespread economic harm.
4.104. The specialized treaty regime accounts for the complexity of these interrelations,
emphasizing the need to balance climate objectives with broader sustainable
development goals, including poverty eradication.
4.105. The specialized treaty regime on climate change further establishes a compliance and
implementation mechanism which is facilitative and cooperative in nature, tailored to
the specific character of the obligations and commitments of States thereunder. It also
addresses loss and damage, or how States that are injured by, specifically affected by,
or particularly vulnerable to the adverse effects of climate change due to their
geographical circumstances and level of development can be provided with financial
support.
4.106. The Paris Agreement sets out an obligation. of all States Parties to prepare and
communicate NDCs, which have become the main instrument for achieving the treaty
regime's ambitions. States have flexibility in deciding on the type and scope of their
contributions.
4.107. In this respect, the specialized treaty regime on climate change does not mandate the
specific measures that countries not included on Annex I to the UNFCCC are to
217 Drafi decision -/CMA.5. Outcome of the first global stocktake, FCCC/PA/CMA/2023/L. l 7, 13 Dec. 2023,
para. 150.
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implement at the national level in order to achieve the objectives of the treaty regime.
Instead, the means of implementation for countries not included on Annex I is left to
national governments.
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Chapter 5. QUESTION (A)-THE OBLIGATIONS OF STATES TO PROTECT THE
CLIMATE SYSTEM FROM ANTHROPOGENIC GREENHOUSE GASES
5. 1. This Chapter addresses question (a), which reads as follows:
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 for
present and future generations?
5.2. As described in Chapter 4, specific obligations with respect to climate change are set
out in the specialized treaty regime on climate change, which currently consists of the
UNFCCC and the decisions and agreements adopted thereunder, including the Kyoto
Protocol and the Paris Agreement. This regime has been carefully negotiated by States,
in light of a number of factors, including their particular circumstances, history, level
of economic development and need for innovative solutions.
5.3. The specialized regime has been carefully developed to account for, inter alia: (i) the
extent and impact of historical emissions since the Industrial Revolution; (ii) the
asymmetric benefits States received from early industrialization, and the resulting place
States have on their trajectory to development; (ii i) asymmetric vulnerabilities of States
to climate change; (iv) critical differences in possible responses to climate action across
States; and (v) other national circumstances.
5.4. No basis exists for imposing legal obligations that go beyond what States have agreed
to in the UNFCCC, the Kyoto Protocol, and the Paris Agreement.
l. Obligations of States in Respect of Climate Change Are Set Out in the
Specialized Treaty Regime on Climate Change
5.5. The specialized treaty regime on climate change cannot be interpreted based on a
different legal regime, such as human rights or environmental law. Rather, assessment
of the content of States' obligations with respect to climate change requires special
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consideration of the function of the specialized treaty regime on climate change
separate from other legal regimes218.
5.6. The specialized treaty regime on climate change constitutes /ex specialis. As explained
by the International Law Commission's Study Group, " [t]he maxim /ex specialis
derogat legi genera/i is a generally accepted technique of interpretation and conflict
resolution in international law. It suggests that whenever two or more norms deal with
the same subject matter, priority should be given to the norm that is more specific." 219
5.7. The Court recognized and applied this maxim in, among other decisions, its advisory
opinion in Legality of the Threat or Use of Nuclear Weapons, where it described the
relationship between human rights law and the laws of armed conflict as follows:
·'The Court observes that the protection of the International Covenant
of Civil and Political Rights does not cease in times of war . . . . In
principle, the right not arbitrarily to be deprived of one's life applies
also in hostilities. The test of what is an arbitrary deprivation of life,
however, then falls to be determined by the applicable /ex specialis,
namely, the law applicable in armed conflict which is designed to
regulate the conduct of hostilities. Thus whether a particular loss of
Ii fe, through the use of a certain weapon in warfare, is to be considered
an arbitrary deprivation of life contrary to Article 6 of the Covenant,
can only be decided by reference to the law applicable in armed conflict
and not deduced from the terms of the Covenant itself."220
218 Conclusions of the work of the tudy Group on the Fragmentation of International Law: Di mculties arising
from the Diversification and Expansion of International Law, adopted by the International Law Commission,
58th session. p. I 77, para. 247-248 (2006) ("New types of specialized law do not emerge accidentally but
seek to respond to new technical and functional requirements ... [i)n order for the new law to be efficienL it
often includes new types of treaty clauses or practices that may not be compatible with old general law or the
law of some other specialized branch. Very often new rules or regimes develop precisely in order to deviate
from what was earlier provided by the general law .... It is quite important to note that such deviations do
not emerge as legal-technical " mistakes··. They renect the differing pursuits and preferences of actors in a
pluralistic (global) society."').
219 International Law Commission, Conclusions of the Work of the Study Group on the Fragmentation of
International law: Difficulties Arising From the Diversification and Expansion of International lmv, Vol. II
YEABOOK INT"L L. COMM0 N, p. 178, Conclusion 5 (2006).
220 legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, I.CJ. Reports 1996,
p. 240, para. 25.
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5.8. By virtue of its specific nature, the special ized treaty regime on climate change
constitutes /ex specialis with respect to any obligations potentially relevant to climate
change contained in other instruments and principles of a more general nature, such as
human rights 221 .
5.9. Reliance on obligations outside the specialized treaty regime on climate change would
undermine the importance of cooperation embedded within the specialized regime itself
to ensure that States over time adopt decisions and other legal instruments by consensus
to stabilize concentrations of greenhouse gas in the atmosphere at a level that would
prevent dangerous anthropogenic interference with the climate system as described in
Chapter 4.
5. 10. Therefore, no basis exists for imposing specific legal obligat ions that go beyond what
States have agreed to in the UNFCCC, Kyoto Protocol and Paris Agreement.
II. Obligations of States in Respect of Climate Change
5. 11 . This section summarizes the obligations of States to ensure the protection of the climate
system and other parts of the environment from anthropogenic emissions of greenhouse
gases, as set out in the specialized treaty regime on climate change described in
Chapter 4 above.
5. 12. Obligations of CBDR and implementation of right to development:
• While pursuing the common goals under the specialized treaty regime on
climate change, obligations of States are differentiated. This differentiation is
clearly articulated in the language of the specialized climate treaties and the
distinction between Annex I Parties and non-Annex I Parties.
221 See Military and Paramilita,y Activilies in and against Nicaragua (Nicaragua v. Uniled States), Merits,
Judgment o/27 June /986, I. C.J. Reports /986, p. 137. para. 274 ('·Jn general, treaty rules being /ex specialis,
it would not be appropriate that a State should bring a claim based on a customary-law rule if it has by treaty
already provided means for settlement of such a claim."}
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• Non-Annex I Party obl igations in the specialized treaty regime on climate
change "will take fully into account" that "economic and social development
and poverty eradication are the first and overriding priorities of the developing
country parties" 222. In line with States' right to their natural resources and right
to development, the specialized treaty regime on climate change underscores
that efforts to mitigate climate change must be balanced along with ending
energy poverty, geographic and resource constraints and the rights of States,
and particularly States not listed in Annex I to the UNFCCC, to develop and use
their natural resources and pursue sustainable development in light of national
circumstances.
5. 13. Historic contributions to greenhouse gas emissions:
• Throughout adoption of the specialized treaty regime on climate change, and
decades of negotiations within the UNFCCC continuing to the present day,
States have recognized that the largest share of historical global greenhouse gas
emissions originated within the territories and territories in control of Annex I
Parties. Historic contributions to climate change should be accorded proper
weight in providing content to the obligations of States in respect of climate
change, through CBDR.
• Annex I Parties should take the lead in combating climate change and the
adverse effects thereof. These States reaped the main benefi ts of
industrialization and emissions within their own terri tory or territories under
their control, which in tum resulted in the spike in greenhouse gas emissions.
5.14. Obligations to communicate NDCs:
• All States, regardless of whether they are Annex I Parties or non-Annex I
Parties, are obl igated to prepare, communicate, and maintain NDCs. While the
222 UNFCCC, Article 4(7).
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specialized treaty regime on climate change imposes obligations of conduct and
of a procedural nature with respect to the preparation, communication, and
maintenance of DCs is legally binding, the NDCs themselves (content,
implementation, and achievement) are not legally binding.
5. 15. Emissions reduction obligations:
• An Annex I Party has an obligation to " adopt national policies and take
corresponding measures on the mitigation of climate change, by limiting its
anthropogenic emissions of greenhouse gases and protecting and enhancing its
greenhouse gas sinks and reservoirs"223. rn contrast, and not diminishing its
long-term objective, the specialized treaty regime on climate change recognizes
that the non-Annex I Parties' share of greenhouse gas emissions " will grow to
meet their social and development needs"224 .
5. l 6. Adaptation:
• The Paris Agreement obligates all Parties, regardless of whether a State is an
Annex I Party or a non-Annex I Party, to "engage in adaptation planning
processes and the implementation of actions" 225, with the goal of "enhancing
adaptive capacity, strengthen resilience and reduce vulnerability to climate
change, with a view to contributing to sustainable development" 226. The
obligation with respect to adaptation i~ forward looking, aimed at prevention.
Adaptation demands differ from one State to another and across industries, and
often vary widely.
5. 17. Financing and means of implementation obligations:
223 UNFCCC, Article 4(2).
224 UNFCCC, preamble.
225 Paris Agreement, Article 7(9).
226 Paris Agreement, Article 7( 1 ).
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• The UNFCCC, Kyoto Protocol, and Paris Agreement all impose financing
obligations on Annex I Parties, as well as obligations for Annex I Parties to
assist non-Annex I Parties in their mitigation and adaptation efforts, including
through technology transfer and capacity building.
5.18. Reporting obligations:
• Under the Paris Agreement all Parties must report on their anthropogenic
emissions and on "the progress made in implementing and achieving its
[NDC]" 227. Additionally, Annex I Parties have to report "on financial,
technology transfer and capacity-building support provided to developing
country Parties under Articles 9, I O and 11 •>228.
TU. Conclusion
5. 19. The specialized treaty regime on climate change was negotiated to reflect the interests
of all States with respect to climate change, poverty reduction and sustainable
development. The international community agreed to an asymmetrical allocation of the
burden of climate change mitigation as between high greenhouse gas emitting Parties
that industrialized early listed in Annex land other Parties, consistent with the principle
of CBDR.
5.20. This comprehensive regime sets out Parties' obl igations with respect to climate change
and is legally binding on the Parties to the treaties concerned, which includes nearly all
States.
5.21. The obligations of Parties with respect to climate action must be considered in light of
the commitments reflected in the above specialized treaty regime on climate change,
recognizing that States have common but differentiated responsibilities.
227 Paris Agreement, Article 13(7).
228 Paris Agreement, Article 13(9).
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5.22. The Parties to the UNFCCC and Paris Agreement have not adopted more stringent
measures, such as specific greenhouse gas emissions reduction requirements or
penalties for non-compliance. The imposition of legal obligations that go beyond what
States agreed to in these multilateral agreements would undermine the importance of
cooperation embedded within these instruments.
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Chapter 6. QUESTION (B)-LEGAL CONSEQUE CES FOR STATES WHERE
THEY HA VE CAUSED SIGNIFICANT HARM TO THE CLIMATE SYSTEM
6. 1. This Chapter addresses question (b), which reads as fo llows:
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:
States, including, in particular, small island developing States,
which due to their geographical circumstances and level of
development, are injured or specifically affected by or are
particularly vulnerable to the adverse effects of climate change?
Peoples and ind ividuals of the present and future generations
affected by the adverse effects of climate change?
6.2. As a preliminary point, it is important to note that the question is hypothetical. The
Court has not been asked to adj udicate whether any violation of State obl igations has,
in fact, occurred. And where no breach has been authoritatively determined or
adjudicated, no remedy is required.
6.3. As explained in Chapters 4 and 5, State obligations to protect the climate system and
other parts of the environment from anthropogenic greenhouse gas emissions are set
out exclusively in the special ized treaty regime on climate change (with the exception
of certain discrete cases described in Chapter 4, Section V). Thus, the legal
consequences of any breach of these obligations must be determined by reference to the
specialized climate treaty regime.
6.4. Through Artic le 8 of the Paris Agreement, the Warsaw International Mechanism and
decisions at the COP, States have already committed to a mechanism to address loss
and damage associated with the adverse effects of climate change and begun to
operationalize and implement this. However, this mechanism does not provide a basis
for liabil ity, and is instead rooted in the consultative, cooperative and non-adversarial
framework of the specialized treaty regime on climate change. States by consensus
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determined that there is no basis for the imposition of a separate mechanism which
would provide for compensation for loss and damage on the basis of remedy for breach
of a State· s climate obligations.
6.5. In the event that a Party to the lJNFCCC, Kyoto Protocol, or Paris Agreement considers
that another Party has failed to abide by its commitments, such as if an Annex I Party
allegedly fails to meet its obligation to assist developing country Parties that are
particularly vulnerable to the adverse effects of climate change in meeting adaptation
costs229, or a State al legedly fai ls to prepare an NDC, recourse may be had to the
relevant compliance and dispute settlement mechanisms, including under Article 14 of
the U FCCC or the compliance mechanisms in the Kyoto Protocol or the Paris
Agreement. As explained in Chapter 4, the compliance mechanism in the Paris
Agreement is " transparent, non-adversarial and non-punitive", reflecting the need for
cooperation in dealing with the global effects of climate change230.
6.6. If a case concerning a State's alleged failure to abide by its commitments under the
U FCCC, Kyoto Protocol, or Paris Agreement were to be brought to an international
court or tribunal with jurisdiction, the legal consequences would be determined in
accordance with the provisions of the UNFCCC, Kyoto Protocol, or Paris Agreement
and, only secondarily, if necessary, by the general rules on State responsibility to the
extent they might be applicable.
6.7. The purpose of the specialized climate treaty regime is not to assign responsibil ity or
liability for the adverse effects of climate change to particular States or groups of States.
The Parties made clear upon the adoption of the Paris Agreement that the Warsaw
International Mechanism " does not involve or provide a basis for any liability or
229 VNFCCC, Article 4(4).
230 Paris Agreement, Article 15(2); see also Chapter 4. ection IV .C.2, above.
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compensation" 231. In any event, the general rules of State responsibility are likely to
be of limited utility in the context of cl imate change for the following reasons inter alia:
• First, there must have been a breach of a relevant international obligation. A
certain level of greenhouse gas emissions would not result in the breach of any
such international obligation, and likewise there is no international obl igation
to achieve a specific temperature reduction target.
• Second, the breach must be attributable to a Party. Acts by private actors not
under State control that cause harm to the climate system, including most
greenhouse gas emissions, would not, by themselves, implicate the
responsibility of the State. Rather, the UNFCCC, Kyoto Protocol, and Paris
Agreement impose certain climate change-related obligations on States-for
example, all States have the obligation to prepare and submit NDCs- but do
not impose obligations on private actors, as explained in Chapters 4 and 5 above.
• Third, for a State or its nationals to be entitled to reparation, there must be a
proximate causal link between a specific breach of a relevant international
obligation which is attributable to a Party or group of Parties and the resulting
injury incurred by another Party. Given that the harms resulting from cl imate
change are the result of historical accumulations of greenhouse gas emissions
over many decades from many tates, the existence of a causal link to any
particular Party is highly problematic. •
6.8. In the event of a breach of a relevant international obligation in the specialized climate
treaty regime that is attributable to a Party, the legal consequences of such breach would
be l imited to cessation of the wrongful conduct in question and reparation to reestablish
the situation affected by the breach.232 In the context of a breach of an obligat ion under
231 FCCC Decision l/CP.21 (FCCC/CP/2015/ 10/Add.1), 29 Jan. 2016. para. 51.
232 ILC. Draft Articles on Responsibil ity of States for Internationally Wrongful Acts (200 1), Article 28 cmt. 2
('The core legal consequences of an internationally wrongful act . . . are the obligations of the responsible
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the specialized climate treaty regime, cessation could mean, e.g. , ceasing to fail to
prepare and publish NDCs. Reparation could include, e.g., assurances to produce and
publish NDCs in the future and/or preparing and posting a previously omitted NDC.
Ziad M.D AIAtiyah
bassador of the Kingdom of Saudi Arabia to the
e ethelands
21 March 2024
tate to cease the wrongful conduct (art. 30) and to make full reparation for the injury caused by the
internationally wrongful act (art. 31)."); Article 31 cmt. 2 (emphasizing that the function of reparation is "the
re-establishment of the situation affected by the breach"). See also id. ("[R]eparation must, as far as possible,
wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability,
have existed had that act not been committed .. ) (quoting Facto1y at Chor=6w, Judgment of 13 September
1928, P.C.I.J. Series A, No. 17. p. 47).
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