INTERNATIONAL COURT OF JUSTICE
Obligations of States in respect of Climate Change
(Request for an Advisory Opinion)
WRITTEN REPLIES OF THE REPUBLIC OF CHILE TO THE QUESTIONS PUT
BY JUDGES CLEVELAND, TLADI, AURESCU AND CHARLESWORTH
1. In accordance with the rules of the Court, at the end of the oral proceedings
concerning the request for an advisory opinion on the Obligations of States in
respect of Climate Change, Judges Cleveland, Tladi, Aurescu and Charlesworth
posed some questions. The President invited all participants to the oral
proceedings to provide, if they wish to do so, written replies to the questions by
Friday 20 December 2024 at 6 p.m. at the latest.
2. Chile takes this opportunity to comment on the issues raised by the judges,
accordingly.
I. QUESTION PUT BY JUDGE CLEVELAND
3. The question reads as follows:
During these proceedings, a number of participants have referred to the
production of fossil fuels in the context of climate change, including with respect
to subsidies. In your view, what are the specific obligations under international
law of States within whose jurisdiction fossil fuels are produced to ensure
protection of the climate system and other parts of the environment from
anthropogenic emissions of greenhouse gases, if any?
4. The Court has been asked to identify the obligations of States under international
law to ensure the protection of the climate system and other parts of the
enviromnent from anthropogenic emissions of greenhouse gases for States and for
present and future generations.
5. In relation to this question, a number of participants in these advisory proceedings
have referred to the production of fossils fuels, claiming that States, in compliance
with their obligations under international law, are required not only to cut down
greenhouse gas (GHG) emissions, but also to reduce the production of fossil fuels,
and abstain from actions that promote their extraction and use, such as subsidies.
6. In this connection, Judge Cleveland asks about the obligations of States in the
jurisdiction of which fossil fuels are produced, if any. In this regard, Chile would
like to recall that all States shall abide by the general obligation not to cause harm
to the territory of other States and areas beyond national jurisdiction. Fossil fuels
account for a at least 75% of GHG emissions and, therefore, are responsible to a
large extent for global warming and the deleterious effects on the climate system
and other parts of the environment.1 The direct cause of climate change lies, then,
on GHG emissions, which explains why the UNFCCC, the Kyoto Protocol and
the Paris Agreement have focused on their reduction. In turn, States should reduce
fossil fuel consumption. Hence, the question about the obligations under
international law of States that produce and commercialize fossil fuels, even if
these fuels are burned outside the territory of those States, is entirely pertinent in
the context of these advisory proceedings.
7. The need to reduce fossil fuel production and use in order to respond to the
detrimental effects of climate change is an established fact. In this regard, COP
28 reached an agreement on the fact that to achieve the l .5°C goal, States should,
among other actions: (a) Triple renewable energy capacity globally and double
the global average annual rate of energy efficiency improvements by 2030; (b)
Accelerate efforts towards the phase-down of unabated coal power; ( c) Accelerate
efforts globally towards net zero emission energy systems, utilizing zero - and
low-carbon fuels well before or by around mid-century; ( d) Transition away from
fossil fuels in energy systems accelerating action in this critical decade; and ( e)
Phase out inefficient fossil fuel subsidies that do not address energy poverty or
just transitions, as soon as possible.2
8. It is possible to conclude, therefore, that there is a general consensus that the
prevention of damage to the climate system and the environment requires
1 As explained by the IPCC: "Fossil fuels are the dominant form of energy utilized in the world (86%), and
account for about 75% of current anthropogenic CO2 emissions". IPCC, Special Report on Carbon Dioxide
Capture and Storage (2005), p. 55.
2 Conference of the Parties to the Paris Agreement, United Arab Emirates, 30 November to 12 December
20 I 3, Agenda Item 4, First Global stocktake, Proposal by the President, Draft decision -/CMA.5, Outcome
of the First global stocktake, FCCC/PA/CMA/2023/L. I 7, para. 28.
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significant reduction of the production and consumption of fossil fuels. Therefore,
in the context of the obligation not to allow knowingly the use of their territory to
harm the territory of other States or areas beyond national jurisdiction, States need
to show that they are acting with due diligence in abandoning fossil fuels and
abstaining from expanding fossil fuel extraction and commercialization, including
phasing out inefficient fuel subsidies that do not address energy poverty or just
transitions.
II. QUESTION PUT BY JUDGE TLADI
9. The question reads as follows:
In their written and oral pleadings, participants have generally engaged in an
interpretation of the various paragraphs of Article 4 of the Paris Agreement.
Many participants have, on the basis of this interpretation, come to the
conclusion that, to the extent that Article 4 imposes any obligations in respect of
Nationally Determined Contributions, these are procedural obligations.
Participants coming to this conclusion have, in general, relied on the ordinary
meaning of the words, context and sometimes some elements in Article 31 (3) of
the Vienna Convention on the Law of Treaties. I would like to know from the
participants whether, according to them, "the object and purpose" of the Paris
Agreement, and the object and purpose of the climate change treaty framework
in general, has any effect on this interpretation and if so, what effect does it
have?
10. During the oral proceedings, Chile explained that the duty to establish a
Nationally Determined Contribution. (NDC) under Article 4 of the Paris
Agreement is a binding legal obligation. However, the extent of the specific
reductions of greenhouse gas emissions that States commit to in their NDCs is
discretionary.
11. Nonetheless, this does not mean that the obligation to submit and NDC is merely
a procedural obligation. While it is true that States are the ones to determine the
extent and content of their commitments, based on their respective capabilities
and in the light of their national circumstances, it is not less true that these
contributions need to comply with two requirements: (i) they must reflect the
States' highest possible ambition, and (ii) they need to represent a progression
between one NDC and the next, meaning that the level of ambition needs to
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increase. 3 Therefore, the Paris Agreement does reqmre certain substantial
elements within the obligation to submit NDCs.
12. In this regard, in interpreting the meaning of the phrase "highest possible
ambition" the object and purpose of the Paris Agreement and of the Climate
Change Regime in general, helps to clarify the nature of this obligation as a due
diligence obligation.
13. Indeed, the object and purpose of the United Nations Framework Convention on
Climate Change (UNFCCC), as clearly stated in its Article 2, is to achieve the
"stabilization of greenhouse gas concentrations in the atmosphere at a level that
would prevent dangerous anthropogenic interference with the climate system".
Furthermore, the object and purpose of the Paris Agreement is to enhance the
implementation of the Convention, including its objective, and "strengthen the
global response to the threat of climate change, in the context of sustainable
development and efforts to eradicate poverty" while reflecting "the principle of
common but differentiated responsibilities and respective capabilities".4
14. Thus, in light of this object and purpose, the phrase "highest possible ambition"
"requires that the mitigation target be set at a level of maximum available
resources."5 This requires that States "deploy all political, legal, socioeconomic,
financial and institutional capacities and possibilities in defining their NDC
objectives... [ aligning] their level of ambition with their respective
responsibilities and capabilities, in light of national circumstances."6
15. In setting their level of ambition, States are also required to take into account the
objective established in Article 2 of the Paris Agreement, namely "[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 preindustrial
Ievels"7.
3 Paris Agreement to the United Nations Framework Convention on Climate Change, Dec. 12, 2015, 3156
U.N.T.S. 79 (Paris Agreement), Article 4(3).
4 Ibid, Article 2.
5 Christina Voigt, 'The power of the Paris Agreement in international climate litigation' (2023) 32 Review
of European, Comparative & International Environmental Law (RECIEL) 237, p. 241.
6 Ibid
7 Paris Agreement, Article 2(l)(a).
4
16. Moreover, while State Parties are not obliged to meet the objectives set out in their
NDCs, they are required to "pursue domestic mitigation measures, with the aim
of achieving the objectives of such contributions".8
17. Again, the Paris Agreement sets a clear standard of appropriate conduct. States
are not only mandated to set the goals in their NDCs at the highest possible
ambition, but they are required to pursue them with due diligence. This means that
State Parties are under the obligation "to adopt measures that are necessary,
meaningful, timely and, indeed, effective to function as a means to this end. This
implies that parties may need to engage in legislative and political processes and
adopt laws and regulatory frameworks with the purpose of establishing,
administrating and enforcing the objectives expressed in the NDC."9
18. The Paris Agreement also includes a provision that allows all Parties to update
their NDCs at any moment, "with a view to enhancing the level of ambition, in
accordance with guidance adopted by the Conference of the Parties serving as the
meeting of the Parties to this Agreement". 10 However, the Conference of the
Parties has not delivered an agreed outcome on this mandate, which could provide
significant clarity on what "enhancing ambition" actually means for the
contributions of individual Parties to the collective goals of the Agreement.
19. Regretfully, as explained in Chile's oral presentation, even if State Parties
managed to fully implement their NDCs as currently declared, their combined
commitments will not achieve the collective goals outlined in Article 2. Therefore,
the ambition levels reflected in the next round ofNDCs to be submitted in 2025,
and the subsequent mitigation policies that States are required to adopt, need to
be aligned with the Article 2 objectives, in order to reestablish adherence to the
relevant substantive obligations.
Ill. QUESTION PUT BY JUDGE AURESCU
20. The question reads as follows:
8 Paris Agreement, Article 4(2).
9 Christina Voigt, 'The power of the Paris Agreement in international climate litigation' (2023) 32 Review
of European, Comparative & International Environmental Law (RECIEL) 237, p. 242.
'° Paris Agreement, Article 4(11).
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Some participants have argued, during the written and/or oral stages of the
proceedings, that there exists the right to a clean, healthy and sustainable
environment in international law. Could you please develop what is, in your view,
the legal content of this right and its relation with the other human rights which
you consider relevant for this advisory opinion?
21. The human right to a clean, healthy and sustainable environment is a universal
human right, recognized as such by States in their domestic legislation as well as
in treaties and other international instruments. The nature of this right has been
further recognized in the decisions of international and domestic courts, as well
as in the resolutions of international human rights bodies. In 2022 the United
Nations General Assembly Resolution 76/300 recognized the right to a clean,
healthy and sustainable environment as a human right and noted that this right is
related to other rights and existing international law. In tum, the Inter-American
Court of Human Rights has explained that this right has an individual and
collective dimension, which "constitutes a universal value that is owed to both
present and future generations". 11
22. Chile would like to further stress the linkage between the basic obligation of all
States to prevent significant environmental damage, based on the no-harm
principle, and the fulfillment of the right to a clean, healthy and sustainable
environment. From a procedural perspective, this right entails access to
information, access to meaningful participation, and access to justice and effective
remedies, including their safe exercise free from intimidation, reprisals, and
criminalization 12. The fulfilment of all these procedural aspects is necessary to
ensure accountability, transparency, and monitoring of climate change impacts.
23. From a substantive perspective, all States have an obligation to refrain from
conduct that foreseeably contributes to or causes environmental impacts,
including to the climate system. This obligation extends to the adoption of all
necessary measures to prevent conduct by others under its jurisdiction that
foreseeably contribute or cause such impacts, including transboundary harm, that
11 Inter-American Cou11 of Human Rights, Advisory Opinion 23/ 17, available at:
https://www.corteidh.or.cr/docs/opiniones/seriea 23 ing.pdf
12 Ibid. , para. 212.
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negatively affects the rights of communities, groups, and individuals located
outside its territory.
24. The right to a clean, healthy and sustainable environment is crucial for the
enjoyment of all human rights, based on their interdependent, inalienable, and
indivisible nature. 13 Loss of habitable and cultivable land derived from sea level
rise, the increasing frequency and intensity of extreme weather phenomena, and
the associated population displacement are clear demonstrations of how the lack
of a clean, healthy and sustainable environment endangers the enjoyment of other
human rights.
25. It is important to note that the UN Human Rights Council has recognized, "the
right to a clean, healthy and sustainable environment as a human right that is
important for the enjoyment of human rights" 14
. Similarly, the Inter-American
Court of Human Rights has affirmed that this right "may have a direct and an
indirect impact on the individual owing to its connectivity to other rights, such as
the rights to health, personal integrity, and the right to life. 15
26. Chile acknowledges the duties outlined above and their interlinkages and recalls
that the preamble of the Paris Agreement states that "Parties should, when taking
action to address climate change, respect, promote and consider their respective
obligations on human rights". As the UN Human Rights Committee recognized,
fulfilling these obligations, including the right to life, "depends, inter alia, on
measures taken by States parties to preserve the environment and protect it against
harm, pollution and climate change caused by public and private sector". 16
27. Finally, Chile highlights the disproportionate impacts that vulnerable
communities, groups, and individuals are suffering in the enjoyment of human
rights and how those impacts can even compromise their enjoyment by young and
future generations.
13 Ibid., para. 64.
14 Human Rights Council Resolution 48/ 13. UN Doc. HRC/RES/48/ 13.
15 Inter-American Court of Human Rights, Advisory Opinion 23/ 17, available at:
https://www .corteidh.or.cr/docs/opin iones/seriea 23 ing.pdf
16 UN Human Rights Committee, General Comment 36, (2019) Article 6: right to life, para. 62. UN Doc.
CCPR/C/GC/36.
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28. In Chile's view, adaptation cannot be forgotten in the process. We are already
experiencing climate change impacts, which " ... exacerbates existing health
inequities and threatens the very notion of intergenerational equity because its
impacts will be felt most severely by children and future generations who have
contribute little or nothing to its making"17.
29. In that regard, the elements contained in Article 7(5) of the Paris Agreement could
contribute to fulfill human rights obligations, following "a country-driven,
gender-responsive, participatory and fully transparent approach, taking into
consideration vulnerable groups, communities and ecosystems, and should be
based on and guided by the best available science and, as appropriate, traditional
knowledge, knowledge of indigenous peoples and local knowledge systems, with
a view to integrating adaptation into relevant socioeconomic and environmental
policies, where appropriate". 18
IV. QUESTION PUT BY JUDGE CHARLESWORTH
30. The question reads as follows:
In your understanding, what is the significance of the declarations made by some
States on becoming parties to the UNFCCC and the Paris Agreement to the effect
that no provision in these agreements may be interpreted as derogating from
principles of general international law or any claims or rights concerning
compensation or liability due to the adverse effects of climate change?
31. During the written and oral phases of these advisory proceedings Chile has argued
that the compliance mechanisms established within the Climate Change Regime,
such as the Warsaw Mechanism for Loss and Damage associated with Climate
Change Impacts, are not meant to regulate liability for damages arising from
breaches of obligations under the treaties, or other rules of general international
law. As explained, they are instead focused on collaborative actions with the
purpose of strengthening the capacity of the Parties and, in particular, developing
States, to manage climate risk and implement adequate adaptation strategies.
17 Analytical study on the relationship between climate change and the human right of everyone to the
enjoyment of the highest attainable standard of physical and mental health, (A/HRC/32/23), 6 May 2016,
para. 27.
18 UNFCC website, available at https://unfccc.int/topics/adaptation-and-resilience/the-bigpicture/
introduction.
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32. In this context, these mechanisms cannot be deemed special rules that govern the
implementation of the international responsibility of a State related to their
climate change obligations because they do not address liability and compensation
for climate harm, and as such are not /ex specialis for the purposes of Article 55
of the Articles on State Responsibility for Internationally Wrongful Acts.
33. In Chile's view, the declarations that some States made when becoming parties to
the UNFCCC and the Paris Agreement, stating that no provision in these
agreements may be interpreted as derogating from principles of general
international law or any claims or rights concerning compensation or liability due
to the adverse effects of climate change, only confirms the fact that Climate
Change compliance mechanisms cannot be deemed a waiver of any rights to
liability claims.
34. Indeed, these are interpretative declarations which, according to the International
Law Commission "purport to specify or clarify the meaning or scope of a treaty
or of certain of its provisions."19 The character of such a declaration "is
determined by the legal effect that its author purports to produce".20
3 5. In order to understand the intention of these declarations it is necessary to
remember that the inclusion of Article 8 in the Paris Agreement, that addresses
loss and damage and refers to the Warsaw Mechanism explicitly, was subject of
great contention during the negotiation of the agreement. On the one hand,
developed States were wary of any potential admission of liability; on the other,
developing States were pushing for an independent article on Loss and Damage,
separate from the provisions on adaptation measures.
36. In this context, the negotiating Parties of the Agreement reached a compromise
solution that clarified that Article 8 "does not involve or provide a basis for any
liability or compensation".21
19 Yearbook of the International Law Commission, 2011, vol. II, Part Three, p. 51, 1.2 Definition of
interpretative declarations.
20 Yearbook of the International Law Commission, 2011, vol. II, Part Three, p. 57, 1.3 Distinction between
reservations and interpretative declarations.
21 UNFCCC COP Decision l/CP.21 (29 January 2016), para. 51, UN Doc FCCC/CP/2015/10/Add.1.
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37. Hence, in order to elucidate some of the reasons behind this compromise formula,
the intention behind these declarations was to spell out the meaning of the agreed
language by clarifying that in becoming Parties to the Agreement, and accepting
the provisions on Loss and Damage, States were not waiving any liability claims
under the law of State Responsibility related to climate-related harm.
38. It is important to note that no State has thus far objected to the interpretation in
these declarations, which further reaffirms that the Parties' understanding has
always been that these compliance mechanisms are neither meant to address
climate-related harm nor liability claims.
39. Therefore, the significance of these declarations is that they clarify the scope and
meaning on the provisions of Loss and Damage included in the Climate Change
Regime by explaining that the general rules on State Responsibility are applicable
to the Climate Change Regime, and to other climate-related rules.
THE HAGUE, 20 December 2024
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Written reply of Chile to the questions put by Judges Cleveland, Tladi, Aurescu and Charlesworth at the end of the hearing held on 13 December 2024