Written reply of Egypt to the questions put by Judges Cleveland, Tladi, Aurescu and Charlesworth at the end of the hearing held on 13 December 2024

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INTERNATIONAL COURT OF JUSTICE
OBLIGATIONS OF STATES IN RESPECT OF CLIMATE CHANGE
(REQUEST FOR ADVISORY OPINION)
Written Replies
by the Arab Republic of Egypt
to the questions
put by Judges Cleveland, Tladi, Aurescu and
Charlesworth
20 December 2024
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TABLE OF CONTENTS
Contents
I- Introduction ................................................................................................................... 3
II- The Questions................................................................................................................. 4
A- Question put by Judge Cleveland ................................................................................ 4
Egypt’s reply to the question put by Judge Cleveland ................................................ 4
B- Question put by Judge Tladi ...................................................................................... 11
Egypt’s written reply to the question put by Judge Tladi ........................................ 11
C- Question put by Judge Aurescu ................................................................................. 14
Egypt’s reply to the question put by Judge Aurescu ................................................. 14
D- Question put by Judge Charlesworth ....................................................................... 18
Egypt’s written Reply to the question put by Judge Charlesworth ........................ 18
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I- Introduction
1. On 29 March 2023, the United Nations General Assembly (hereinafter the “UNGA”)
adopted by consensus resolution 77/276 (hereinafter the “Resolution 77/276”) to
request the International Court of Justice (hereinafter the “ICJ” or the “Court”) to
render an advisory opinion on the following questions:
“Having particular regard to the Charter of the United Nations, the International
Covenant on Civil and Political Rights, the International Covenant on Economic, Social
and Cultural Rights, the United Nations Framework Convention on Climate Change,
the Paris Agreement, the United Nations Convention on the Law of the Sea, the duty of
due diligence, the rights recognized in the Universal Declaration of Human Rights, the
principle of prevention of significant harm to the environment and the duty to protect
and preserve the marine environment,
(a) What are the obligations of States under international law to ensure the
protection of the climate system and other parts of the environment from
anthropogenic emissions of greenhouse gases for States and for present and future
generations;
(b) What are the legal consequences under these obligations for States where they, by
their acts and omissions, have caused significant harm to the climate system and other
parts of the environment, with respect to:
(i) States, including, in particular, small island developing State which due to
their geographical circumstances and level of development, are injured or
specially affected by or are particularly vulnerable to the adverse effects of
climate change?
(ii) Peoples and individuals of the present and future generations affected by the
adverse effects of climate change?”
2. By order of 15 December 2023, the Court extended the time-limit within which
written statements on the questions may be submitted to the Court to 22 March
2024, date on which the Arab Republic of Egypt duly submitted its written
statement to the Court.
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3. By order of 30 May 2024, the Court extended the time-limit within which States and
organizations having presented written statements may submit written comments
on the other written statements submitted to the Court, date on which the Arab
Republic of Egypt duly submitted its written statement to the Court.
4. By letter dated 15 October 2024, the Court indicated the date for the hearing for
States and international organizations participating in the oral proceedings. Egypt
participated on 4 December 2024 in the oral proceedings held before the Court for
this request for advisory opinion.
5. By letter dated 13 December 2024, the Registrar of the Court transmitted to States
and International Organizations participating in the oral proceedings the texts of
the questions put by Judges Cleveland, Tladi, Aurescu, and Charlesworth at the end
of the public sitting of 13 December 2023. The letter indicated 20 December 2024
as the time-limit within which written replies to the questions can be submitted to
the Court [hereinafter the “Questions”].
6. Egypt seizes this opportunity to submit its written replies to the Questions.
II- The Questions
A- Question put by Judge Cleveland
“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?”
Egypt’s reply to the question put by Judge Cleveland
1- In response to this question, Egypt will first briefly outline 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, followed by
an explanation of how these obligations should translate in States within whose
jurisdiction fossil fuels are produced.
2- In Egypt’s view, under international law, in order for States to ensure the protection of
the climate system and other parts of the environment from anthropogenic emissions
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of greenhouse gases, they are required to comply with the obligation of not causing
harm to the environment, which includes the climate system.
3- This Court in its Nuclear Weapons Advisory Opinion reaffirmed the above by stating
that: “the existence of the general obligation of States to ensure that activities within
their jurisdiction and control respect the environment of other States or of areas
beyond national control is now part of the corpus of international law relating to the
environment”1. This was reiterated by the Court in its Gabcikovo-Nagymaros
judgement2. Further, in the Pulp Mills case, this Court asserted that the no-harm
principle or the principle of prevention is a customary rule3. Egypt submits that the no
harm principle entails a State-to-State Duty not to cause transboundary harm to the
atmosphere as well as an erga omnes obligation4 not to cause harm to the climate
system.
4- The no-harm principle entails a due diligence obligation, which is “an obligation to
deploy adequate means, to exercise best possible efforts, to do the utmost, to obtain
[a] result”5. It is a positive obligation to protect the environment from activities causing
significant harm6.
5- The International Tribunal for the Law of the Sea (hereinafter “ITLOS”) further
clarified that “due diligence is a variable concept. It may change over time as measures
considered sufficiently diligent at a certain moment may become not diligent enough
in light, for instance, of new scientific or technological knowledge”7. It has also
emphasized that “the standard of due diligence has to be more severe for the riskier
activities”8.
6- The IPCC has indicated in its report issued in 2023 that fossil fuels amount to the
largest share of GHG emissions (from CO2) in 20199. It further asserted that “if the
annual CO2 emissions between 2020 – 2030 stayed, on average, at the same level as
2019, the resulting cumulative emissions would almost exhaust the remaining carbon
1Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226, para. 29 [hereinafter “The
Nuclear Weapons Advisory Opinion”]; Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ. Reports 1997, p.7,
para. 53, [hereinafter “Gabcikovo-Nagymaros Judgement”].
2 Gabčíkovo-Nagymaros Judgement, p. 41, para 53.
3 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, para. 101 [hereinafter “Pulp Mills
Case”]; Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a
Road in Costa Rica Along the San Juan River (Nicaragua v. Costa Rica), Judgment, ICJ. Reports 2015, para. 104,
[hereinafter “Certain Activities Carried out by Nicaragua 2015”].
4 Barcelona Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 1970, para. 33.
5 Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion, 1 February 2011, ITLOS
Reports 2011, para. 110, [hereinafter “Responsibilities and Obligations of States in the Area Advisory Opinion”]
6 Ibid.
7 Responsibilities and Obligations of States in the Area Advisory Opinion, para. 117.
8 Ibid.
9 IPCC, 2023: Summary for Policymakers. In: Climate Change 2023: Synthesis Report. Contribution of Working Groups I,
II and III to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change [Core Writing Team, H. Lee
and J. Romero (eds.)], para. A.1.4. IPCC, Geneva, Switzerland, pp. 1-34, doi: 10.59327/IPCC/AR6-9789291691647.001
[hereinafter “IPCC 2023”].
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budget for 1.5°C (50%), and deplete more than a third of the remaining carbon budget
for 2°C (67%). Estimates of future CO2 emissions from existing fossil fuel
infrastructures without additional abatement already exceed the remaining carbon
budget for limiting warming to 1.5°C (50%) (high confidence). Projected cumulative
future CO2 emissions over the lifetime of existing and planned fossil fuel infrastructure,
if historical operating patterns are maintained and without additional abatement, are
approximately equal to the remaining carbon budget for limiting warming to 2°C with
a likelihood of 83% (high confidence)”10.
7- The United Nations Environment Programme indicated in its 2024 Emissions Gap
Report “No more hot air … please!”, that “fossil fuel CO2 emissions account for
approximately 68 per cent of current GHG emissions. These emissions are driven by
the combustion of coal, oil and gas in the energy sector, as well as industrial processes
associated with the manufacture of metals, cement and other materials”11.
8- In light of the above, and in light of the obligation of States to mitigate climate change
under the climate change treaty framework (the UNFCCC12, the Kyoto Protocol13, and
the Paris Agreement14), States within whose jurisdiction fossil fuels are produced are
required, in compliance with their due diligence obligation, to protect the environment
by taking all possible measures to prevent the occurrence of significant harm to the
climate system.
9- Egypt submits that when assessing the efficacy of the mitigation measures adopted by
States, the Court should conduct its assessment based on the principles of the UNFCCC
and the Paris Agreement (Equity and CBDR) and on objective of the UNFCCC stipulated
in its article 2, as well as the temperature goal of the Paris Agreement in its article 2. 1
(a). Particular attention should also be given to scientific knowledge and technological
advances specially in developed countries, which further require of them a stricter
compliance with the due diligence obligation in light of their higher capabilities.
10- Measures that should be taken in States within whose jurisdiction fossil fuels are
produced start firstly by reducing GHG emissions resulting from fossil fuels to
10 IPCC 2023, para. B.5.3
11 United Nations Environment Programme (2024). Emissions Gap Report 2024: No more hot air … please! With a massive
gap between rhetoric and reality, countries draft new climate commitments, para. 2.2, Nairobi.
https://doi.org/10.59117/20.500. 11822/46404.
12 The United Nations Framework Convention adopted in 1992, entered into force in 1994, 198 States are parties to this
Convention [hereinafter the “UNFCCC”], available at:
https://treaties.un.org/pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXVII7&chapter=27&Temp=mtdsg3&clang=_
en
13 A Kyoto Protocol to the United Nations Framework Convention on Climate Change, adopted in 11 December 1997,
entered into force in 16 February 2005, ratified by 192 States, can be accessed through:
https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-7-a&chapter=27&clang=_en
14 The Paris Agreement, adopted 12 December 2015, entered into force 4 November 2015, ratified by 195 States, can be
accessed through: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-7-
d&chapter=27&clang=_en
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effectively mitigate climate change. As indicated by the IPCC in its 2023 report, “rapid
and far-reaching transitions across all sectors and systems are necessary to achieve
deep and sustained emissions reductions and secure a liveable and sustainable future
for all”15, and it further demonstrates that “net zero CO2 energy systems entail: a
substantial reduction in overall fossil fuel uses, minimal use of unabated fossil fuels”16.
11- To this end, in COP28 decision 1/CMA.5, Parties agreed to “transition away from fossil
fuels in energy systems, in a just, orderly, and equitable manner, accelerating action in
this critical decade, so as to achieve net zero by 2050 in keeping with science”17.
12- Second, States within whose jurisdiction fossil fuels are produced are required to
comply with their due diligence obligation in that it also encompasses both the principle
of prevention and the precautionary principle. In this regard, and as noted by this Court
in its Gabcikovo Nagymoros case that it was “mindful that, in the field of environmental
protection, vigilance and prevention are required on account of the often-irreversible
character of damage to the environment and of the limitations inherent in the very
mechanism of reparation of this type of damage”18.
13- This is further asserted by the precautionary principle, found in principle 15 of the Rio
Declaration19, which is, as indicated by the International Tribunal for the Law of the Sea,
“an integral part of the general obligation of due diligence”20. The Tribunal stated that
“this obligation [of due diligence] requires States ‘to take all appropriate measures to
prevent damage … [and] applies in situations where scientific evidence concerning the
scope and potential negative impact of the activity in question is insufficient but where
there are plausible indications of potential risks”21.
14- When it comes to fossil fuels, their adverse impact on the climate is not an uncertainty
but an established, proven scientific fact. As indicated plainly on the official page of the
United Nations, “since the 1880s, human activities have been the main driver of climate
change, primarily due to the burning of fossil fuels like coal, oil and gas. Burning fossil
fuels generates greenhouse gas emissions that act like a blanket wrapped around the
Earth, trapping the sun’s heat and raising temperatures”22. Further, it is indicated in the
15 IPCC 2023, para. C.3.
16 IPCC 2023, para. C.3.2, “In this context, ‘unabated fossil fuels’ refers to fossil fuels produced and used without interventions
that substantially reduce the amount of GHG emitted throughout the life cycle; for example, capturing 90% or more CO2 from
power plants, or 50–80% of fugitive methane emissions from energy supply”, see more: IPCC 2023.
17 Report of the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement on its fifth session,
held in the United Arab Emirates from 30 November to 13 December 2023, Decision 1/CMA.5, can be accessed through:
https://unfccc.int/documents/637073
18 Gabcikovo-Nagymoros Judgment, para. 140.
19 UN Conference on Environment and Development, ‘Rio Declaration on Environment and Development’ (14 June 1992)
UN Doc A/CONF.151/26 (Vol. I), available at: https://www.un.org/en/development/
20 Responsibilities and Obligations of States in the Area Advisory Opinion, para 131.
21 Ibid.
22 “Global Issues: Climate Change”, can be accessed through: https://www.un.org/en/global-issues/climate-change
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part dedicated to climate driven food and water insecurity that “global warming of
1.1°C above pre-industrial levels has been caused by over a century of burning fossil
fuels and unequal, unsustainable energy and land use. This has led to an increase in the
frequency and intensity of extreme weather events, which have caused dangerous
impacts on nature and people worldwide”23.
15- The intrinsic link between fossil fuels and climate change presupposes a
commensurately higher standard of due diligence for States within whose jurisdiction
fossil fuels are produced. This can be further translated into the obligation to adopt
appropriate rules and regulations with regard to the fossil fuel industry within their
jurisdiction or control to reduce GHG emissions. As indicated by the IPCC “regulatory
and economic instruments could support deep emissions reductions if scaled up and
applied more widely (high confidence). Scaling up and enhancing the use of regulatory
instruments can improve mitigation outcomes in sectoral applications, consistent with
national circumstances”.24
16- ITLOS addressed this point, finding that the due diligence obligation “entails not only
the adoption of appropriate rules and measures, but also a certain level of vigilance in
their enforcement and the exercise of administrative control applicable to public and
private operators, such as the monitoring of activities undertaken by such operators”25.
17- States are therefore under an obligation to regulate the conduct of public and private
entities operating within their jurisdiction or under their control. In this regard, Egypt
deems it important to mention a few recent courts’ judgements that shed light on what
States within whose jurisdiction fossil fuels are produced are required to do:
a- In the Gloucester Resources Limited Case, the Australian Court upheld the decision
of the government not to grant a licence for the development of a coal mine
indicating that “the exploitation of the coal resource (…) would not be a sustainable
use and would cause substantial environmental and social harm”26, and that the
project will cause air pollution. The Court further rejected the argument that
claimed “that the increase in GHG emissions associated with the project would not
necessarily cause the carbon budget to be exceeded, because (…) reductions in GHG
emissions by other sources (…) or increases in removals of GHGs by sinks (…) could
23 Ibid.
24 IPCC 2023, C.6.4.
25 Request for Advisory Opinion submitted by the Sub Regional Fisheries Commission, Advisory Opinion, 2 April 2015,
ITLOS Reports 2015, [hereinafter “SRFC Advisory Opinion”], para. 131; Pulp Mills Case, para. 197.
26 Gloucester Resources Limited v. Minister of Planning, Land and Environment Court, New South Wales, Australia, 8
February 2019, para. 696, [hereinafter the “Gloucester Resources Limited Case”], can be accessed through:
https://climatecasechart.com/wp-content/uploads/non-us-case-documents/2019/20190208_2019-NSWLEC-7-234-LEGRA-
257_decision.pdf
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balance the increase in GHG emissions associated with the project”27. The Court
considered this argument as “speculative and hypothetical”28.
b- Held v. the State of Montana: Montana Supreme Court upheld on 18 December
202429 the decision of a US District Court ruling in favour of the young plaintiffs
challenging the constitutionality of the provisions of the Montana Environment
Policy Act (MEPA) which does not allow the State and State agencies which are
responsible for authorizing fossil fuel activities from “considering the impacts of
greenhouse gas emissions or climate change [beyond state borders] in their
environmental reviews”, as well as the fossil-fuel provisions of this Act30. The US
District Court considered that “by prohibiting analysis of GHG emissions and
corresponding impacts to the climate, as well as how additional GHG emissions will
contribute to climate change or be consistent with the Montana Constitution, the
[Act] violates Youth Plaintiffs’ right to a clean and healthful environment and is
unconstitutional on its face”31. The Supreme Court found that: “Montanans’ right to
a clean and healthful environment was violated by the MEPA Limitation, which
precluded an analysis of GHG emissions in environmental assessments and
environmental impact statements during MEPA review”32. The Court decided that
these provisions are unconstitutional.
18- It is however crucial to stress that when determining the measures to be taken in
fulfilment of States’ obligation to comply with the no-harm principle and the due
diligence obligation due consideration should be given to the principles of equity and
of common but differentiated responsibilities and respective capabilities (hereinafter
“CBDR-RC”).
19- Both the UNFCCC and the Paris Agreement recognize that States have differing
responsibilities and capabilities when addressing climate change. This is in recognition
of the varying historical contributions to GHG emissions by States, as well as their
current economic development level, capabilities and capacities. Another principle
which should be taken into consideration when determining the responsibilities of
27 Gloucester Resources Limited Case, para. 529.
28 Id., para. 530
29 Held V. State of Montana, Supreme Court of the State of Montana ruling issued on 18 December 2024 [hereinafter
“Montana Supreme Court in Held v. Montana”], can be accessed through: https://climatecasechart.com/wpcontent/
uploads/case-documents/2024/20241218_docket-DA-23-0575_opinion.pdf
30 Held v. State of Montana, order by Montana First Judicial District Court Lewis and Clark County, August 14, 2023,
[hereinafter “Held v. Montana”], can be accessed through: https://climatecasechart.com/wp-content/uploads/casedocuments/
2023/20230814_docket-CDV-2020-307_order.pdf
31 Held v. Montana.
32 Montana Supreme Court in Held v. Montana
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fossil fuel producing States should be the principle of equity, also explicitly referenced
in both the UNFCCC and the Paris Agreement.
20- The European Court of Human Rights explicitly acknowledged these differentiated
responsibilities in a recent judgement, where it stated that: “while climate change is
undoubtedly a global phenomenon which should be addressed at the global level by the
community of States, the global climate regime established under the UNFCCC rests on
the principle of common but differentiated responsibilities and respective capabilities
of States (Article 3 §1). This principle has been reaffirmed in the Paris Agreement
(Article 2 §2) and endorsed in the Glasgow Climate Pact (…) as well as in the Sharm el-
Sheikh Implementation Plan (…). It follows, therefore, that each State has its own share
of responsibilities to take measures to tackle climate change and that the taking of those
measures is determined by the State’s own capabilities rather than by any specific
action (or omission) of any other State (…)”33.
21- As for the principle of equity, and in order to uphold it, a central consideration should
be the extent of economic dependence of a State on the production of fossil fuels. Many
developing countries rely heavily on fossil fuel revenue to support their economic
development and their efforts to eradicate poverty and ensure social welfare for their
citizens. For these countries, transitioning away from fossil fuels represents a
significant challenge as it would result in loss of revenue, and reduced resources for
development. The case is quite different for developed countries which have
industrialized over decades using fossil fuels, have succeeded in diversifying their
economies and are hence less reliant on fossil fuel production and exports for national
income. They furthermore have greater financial and technological capacity to
transition away from fossil fuels.
22- And while the fundamental obligations under international law to protect the
environment apply to all States, the extent and manner of these obligations must differ
in light of the principles of equity and CBDR-RC requiring a higher standard of due
diligence being applied to developed countries within whose jurisdiction fossil fuels are
produced. Developed countries who are less dependent on fossil fuel revenue for
economic development are thus required to “take the lead by undertaking economywide
absolute emission reduction targets”34, while developing countries are
33 Case of Verein Klimaseniorinnen Schweiz and others v. Switzerland, ECtHR Application no. 53600/20, Judgment of the
Grand Chamber (9 April 2024), para. 442.
34 Article 4.4. of the Paris Agreement.
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“encouraged to move over time towards economy-wide emission reduction or
limitation targets in the light of different national circumstances”35.
B- Question put by Judge Tladi
“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 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?”
Egypt’s written reply to the question put by Judge Tladi
1- In replying to this question, Egypt will address each of its elements separately (the
procedural nature of Article 4, Article 31 (3) of the Vienna Convention on the Law of
Treaties, and whether the object and purpose of the climate change treaty framework
has any effect on considering Article 4 a procedural obligation) followed by an
elaboration on how these elements are interconnected.
2- We first submit that article 4 of the Paris Agreement36 stands as an article of
procedural nature, independently of the “object and purpose of the Paris Agreement”
or a reference to article 31 (3) of the Vienna Convention on the Law of Treaties
(hereinafter the “VCLT”)37. This is because the single legal obligation (indicated by the
use of “shall” under paragraphs 2, 8, 9) of States’ Parties under article 4.2 of the Paris
Agreement is to “prepare, communicate and maintain successive nationally
determined contributions that it [a State Party] intends to achieve”.
35 Article 4.4. of the Paris Agreement.
36 The Paris Agreement, adopted 12 December 2015, entered into force 4 November 2015, ratified by 195 States, can be
accessed through: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-7-
d&chapter=27&clang=_en
37 Vienna Convention on the Law of Treaties, adopted on 23 May 1969, entered into force on 27 January 1980, [hereinafter
the “VCLT”]
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3- Meanwhile, absent from article 4 are any clear non-procedural legal obligations.
Indeed, in support of this interpretation, the subsequent para 3 of article 4 requires no
more than that NDCs should “reflect the highest possible ambition” which cannot be
seen as imposing a precise, specific, quantifiable quantum of reduction per NDC, but
rather leaves this to the discretion of each party, which is consistent with and a
reflection of the “nationally determined” nature of the Paris Agreement and its bottomup
approach. The obligation imposed on States Parties is therefore to submit NDCs and
to report on the progress of their delivery. This is further indicated in paragraph 2 of
Article 4 which reads: “Parties shall pursue domestic mitigation measures, with the
aim of achieving the objectives of such contributions”38, meaning the objectives of the
contributions that the Parties determine at their discretion, and without a clear legal
obligation as to their content.
4- In light of this reading of the provisions of article 4, it cannot reasonably be assumed
that the “objective and purpose” of the Paris Agreement identified under article 2
“holding the increase in the global average temperature to well below 2°C above preindustrial
levels and pursuing efforts to limit the temperature increase to 1.5°C above
pre-industrial levels, recognizing that this would significantly reduce the risks and
impacts of climate change”39 can be achieved merely through preparing,
communicating and maintaining successive NDCs as per article 4 of the Paris
Agreement, and hence our submission that other rules of international law need to
inform the obligations of States in relation to the protection of the environment, such
as the no-harm principle and the due diligence obligation, which explains why a
reference to article 31 (3) of the VCLT was made.
5- In accordance with article 31 (3) paragraph (c) of the VCLT, the rule of systemic
integration permits the concurrent application of international rules from different
instruments and sources40 when they are compatible and address the same issue41.
They ought therefore to “be interpreted as to give rise to a single set of compatible
obligations”42. This Court has further confirmed the same when it observed in its
advisory opinion on the presence of South Africa in Namibia that: “an international
38 Article 4 of the Paris Agreement
39 Article 2 of the Paris Agreement
40Written Statement of Vanuatu, para. 227; M. Koskenniemi et al., Fragmentation of international law: difficulties arising from
the diversification and expansion of international law, Report of the Study Group of the International Law Commission, UN
Doc. A/CN.4/L.682, 13 April 2006, para 414, [hereinafter “M. Koskenniemi, Fragmentation of International Law”]
41 M. Koskenniemi, Fragmentation of International Law, p.8.
42 Ibid.
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instrument has to be interpreted and applied within the framework of the entire legal
system prevailing at the time of the interpretation”43.
6- As previously indicated under Egypt’s written submissions, the climate change treaty
framework which includes the Paris Agreement cannot solely address climate change,
in particular due to the “Nationally Determined” nature of the “Contributions” of
parties and the consequent blurring of the mandatory and non-mandatory provisions
within the Agreement on mitigation, adaptation and provision of climate finance.
Indeed, a close examination of the Paris Agreement demonstrates that the main legal
obligation of Parties is to report. Mainly, to submit NDCs and to report on progress of
their delivery. Hence, while there is wide agreement that the Paris Agreement is
deemed an international legal treaty according to the definition of the VCLT, there
continues to be serious debate and divergent views and interpretations, including
within the ongoing UNFCCC negotiating process, as to whether the provisions of the
Paris Agreement impose specific legal obligations on Parties to mitigate, adapt, and
provide climate finance and support, beyond the obligation “to report”.
7- The assertion that the legal obligations under the Paris Agreement cannot alone suffice
to achieve its temperature goal in article 2 is further supported by the recent finding
of the European Court of Human Rights (hereinafter the “ECtHR”) in its judgement
rendered on 9 April 2024, in the Verein Klimaseniorinnen Schweiz and others v.
Switzerland case, where the ECtHR recognized the adverse effects of climate change on
the enjoyment of human rights, 44 and found that policies for net-zero emissions and
carbon budgets “can hardly be compensated for by reliance on the State’s NDC under
the Paris Agreement”,45 as suggested by the Swiss government. This, in our view,
represents further affirmation that the obligations of States in respect of climate
change go beyond the central obligation under the climate change treaty framework
(submitting a Party’s NDC).
8- It is equally important here to recall the recent advisory opinion rendered by the
International Tribunal for the Law of the Sea (“ITLOS”), unanimously, where it
emphasized that the obligations under UNCLOS for the protection of the marine
environment from pollution caused by anthropogenic GHG emissions would not be
satisfied if States simply complied with the Paris Agreement,46 and that article 194 (1)
43 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding
Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 16., para. 53.
44 Case of Verein Klimaseniorinnen Schweiz and others v. Switzerland, ECtHR Application no. 53600/20, Judgment of the
Grand Chamber (9 April 2024), paras. 410,411, 413, 542.
45 Id., para. 571.
46Request for an Advisory Opinion submitted by the Commission of Small Island States on Climate Change and
International Law, ITLOS, 21 May 2024, Case No. 31, para.223.
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UNCLOS imposed an obligation on them to take measures to reduce their emissions.
ITLOS further indicated that the relationship between UNCLOS and the Paris
Agreement is a relationship of complementarity47.
C- Question put by Judge Aurescu
“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?”
Egypt’s reply to the question put by Judge Aurescu
1- As Egypt has previously indicated under its written statement, climate change has
adverse impact effects on all aspects of human life. In response to the question, we will
briefly outline impacts of climate change on human rights.
2- According to the most recent report of the Special Rapporteur on the promotion and
protection of human rights in the context of climate change “around the globe, many
people are being denied the right to life as a consequence of climate change. This is due
to direct impacts such as floods, droughts, storm surges, heat stress, hurricanes,
typhoons and cyclones”48. The Cancun Agreements adopted in 2010 stated that “the
adverse effects of climate change have a range of direct and indirect implications for
the effective enjoyment of human rights”49.
3- The Independent Expert on “the issue of human rights obligations relating to the enjoyment
of a safe clean, healthy and sustainable environment”, in his report submitted to the Human
Rights Council stated that: “environmental degradation can and does adversely affect the
enjoyment of a broad range of human rights, including rights to life, health, food and
water”50.
47 Ibid.
48 Report of the Special Rapporteur on the promotion and protection of human rights in the context of climate change, Ian
Fry, A/78/225, 28 July 2023, available at: https://www.ohchr.org/en/documents/thematic-reports/a78255-report-specialrapporteur-
promotion-and-protection-human-rights
49 Decision 1/CP.16, “The Cancun Agreements: Outcome of the work of the Ad Hoc Working Group on Long-term
Cooperative Action under the Convention”, FCCC/CP/2010/7/Add.1, 15 March 2011.
50 UNHRC, ‘Report of the Independent Expert on the Issue of Human Rights Obligations Relating to the Enjoyment of a
Safe, Clean, Healthy and Sustainable Environment’, Preliminary Report, John H. Knox, 2012, A/hrc/22/43, p. 12.
15
4- Although none of the human rights treaties explicitly includes a right to a healthy
environment, this does not preclude the application of human rights law to the
environment, for the reason that it is now undoubtedly clear that climate change interferes
with the enjoyment of human rights51. There are general obligations under international
human rights law that States are required to abide by, namely the obligation to respect, to
protect and to fulfil human rights52.
5- First, States must adopt effective mitigation and adaptation measures to protect the
right to life and prevent loss of life in accordance with, among others, the Universal
Declaration of Human Rights, the International Covenant on Civil and Political Rights,
the International Covenant of Economic Social and Cultural Rights and the Convention
on the Rights of the Child.
6- The African Commission on Human and Peoples’ Rights has interpreted the right to life as
requiring ‘preventive steps to preserve and protect the natural environment’53, and found
a violation of the right to life resulting from unacceptable levels of environmental
degradation54. A State’s responsibility under international human rights law can also arise
for failing to regulate or control the conduct of private persons to prevent violations of the
right to life resulting from climate change
7- States’ positive obligations to protect, respect and ensure human rights intersect with
obligations arising under international environmental law, including due diligence and the
precautionary principle55. The standard of diligence and care required is one of
‘reasonableness’, namely to “do all that could be reasonably expected of them to avoid a
real and immediate risk to life”56. This language indicates that “the standard of care may
differ from one State to another”, with the result that States’ common but differentiated
responsibilities and respective capabilities may be considered as part of an assessment of
whether or not the State has met the standard of “reasonableness””57.
8- Second, the right to a clean, healthy and sustainable environment can be achieved
through the right to development. In this regard, States must implement effective
51 Part III Climate Change – Principles and Emerging Norms Concepts in International Law, Ch.11 Human Rights Principles
and Climate Change, John H. Knox, from the Oxford Handbook of International Climate Change Law, Cinnamon P.
Carlarne, Kevin R. Gray, Richard Tarasofsky, Oxford Scholarly Authorities on International Law, 24 March 2016,
[hereinafter “Human Rights Principles and Climate Change”]
52 “The Foundation of International Human Rights Law”, Universal Declaration of Human Rights, available at:
https://www.un.org/en/about-us/udhr/foundation-of-international-human-rightslaw#:~:
text=The%20obligation%20to%20respect%20means,groups%20against%20human%20rights%20abuse;Albers, J. H.
(2018). Human Rights and Climate Change: Protecting the Right to Life of Individuals of Present and Future Generations.
Security and Human Rights, 28(1-4), 113-144. https://doi.org/10.1163/18750230-02801009.
53 General Comment No. 3 on the African Charter on Human and Peoples’ Rights: The Right to Life (Article 4), adopted
during the 57th Ordinary Session of the ACHPR (4–18 November 2015, para 3.
54 155/96 : Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) /
Nigeria,, para 46.
55 Tatar C. Roumanie, Application no 67021/01 (ECtHR, 5 July 2007).
56 Osman v. United Kingdom, (87/1997/871/1083), ECtHR, 28 October 1998, paras 115–16.
57 Wewerinke-Singh, Margaretha. State Responsibility, Climate Change and Human Rights Under International Law.
Oxford,: Hart Publishing, 2018, p. 110.
16
mitigation measures, and provide necessary finance to developing countries to
mitigate and adapt to climate change.
9- This right to development, and in particular economic development, is to be pursued in
light of and in conformity with the concept of sustainable development, as indicated by the
Court in the Gabcikovo-Nagymaros case where it emphasized that the “need to reconcile
economic development with protection of the environment is aptly expressed in the
concept of sustainable development”58. This is also central and has been reiterated in the
UNFCCC59, and the Paris Agreement.60
10- In the report of the Secretary General and the United Nations High Commissioner for
Human Rights, on the right to development, it was indicated that: “the adverse impacts of
climate change pose visible challenges and obstacles for States, particularly developing
countries, to achieving sustainable development”61. It was further indicated that: “the
poorest people in developing countries, who contributed least to climate change, are most
vulnerable to its adverse impacts”62.
11- Developed countries, in particular, have thus an obligation to provide the necessary and
needed finance support to developing countries to be able to mitigate climate change and
adapt to its adverse impacts, to be able to sustainably develop63..
12- In this regard, Egypt would like to highlight that sustainable development should be
understood as comprising the principle of intergenerational equity which entails the
preservation of natural resources for future generations64, as well as the principle of
equitable use or intrageneration equity which entails that the use of natural resources
should be sustainable, meaning that it should take into account the needs of other States,
in view of conserving and developing these resources65.
58Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ. Reports 1997, para. 140.
59 The United Nations Framework Convention adopted in 1992, entered into force in 1994, 198 States are parties to this
Convention, UNFCCC, Article 3 (4), [hereinafter the “UNFCCC”], available at:
https://treaties.un.org/pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXVII7&chapter=27&Temp=mtdsg3&clang=_
en
60 The Paris Agreement, adopted 12 December 2015, entered into force 4 November 2015, ratified by 195 States, Paris
Agreement, Article 2(1). See also Preamble, can be accessed through:
https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-7-d&chapter=27&clang=_en
61 Report of the Secretary-General and the United Nations High Commissioner for Human Rights, Right to development,
A/HRC/36/23, Thirty-sixth session, Annual Report of the United Nations High Commissioner for Human Rights and reports
of the Office of the High Commissioner and the Secretary General, 26 July 2017, available at:
https://documents.un.org/doc/undoc/gen/g17/223/63/pdf/g1722363.pdf?token=Gd8Pwucp8HAX4KiEBa&fe=true
62 Report of the Secretary-General and the United Nations High Commissioner for Human Rights, Right to development,
A/HRC/36/23, Thirty-sixth session, Annual Report of the United Nations High Commissioner for Human Rights and reports
of the Office of the High Commissioner and the Secretary General, 26 July 2017, available at:
https://documents.un.org/doc/undoc/gen/g17/223/63/pdf/g1722363.pdf?token=Gd8Pwucp8HAX4KiEBa&fe=true
63 “Poor and Vulnerable Countries Need Support to Adapt to Climate Change”, IMF Blog, March 23, 2022, available at:
https://www.imf.org/en/Blogs/Articles/2022/03/23/blog032322-poor-and-vulnerable-countris-need-support-to-adapt-toclimate-
change
64Chapter 6, Cambridge: Cambridge University Press, [hereinafter “General Principles and Rules in Principles of
International Environmental Law”].
65 Request for Advisory Opinion submitted by the Sub Regiobal Fisheries Commission, Advisory Opinion, 2 April 2015,
ITLOS Reports 2015, para. 190 [hereinafter “SRFC Advisory Opinion”]
17
13- Third, States also have an obligation to protect human rights from the activities of
private actors within their jurisdiction, or control, causing significant harm to the
climate system in order to protect the right to a healthy, clean and sustainable
environment.
14- Under international law, the due diligence obligation “entails not only the adoption of
appropriate rules and measures, but also a certain level of vigilance in their
enforcement and the exercise of administrative control applicable to public and
private operators, such as the monitoring of activities undertaken by such operators”66
15- According to the Guiding Principles on Business and Human Rights, “States should set out
clearly the expectation that all business enterprises domiciled in their territory and/or
jurisdiction respect human rights throughout their operations”67. In this regard, private
actors should “avoid causing or contributing to adverse human rights impacts through
their own activities”68, and “seek to prevent or mitigate adverse human rights impacts that
are directly linked to their operations”69. This includes the emission of GHGs activities70.
16- In light of this, Egypt submits that a State is under the obligation, through its rules, policies
and regulations, to regulate the conduct of and to penalize private entities operating under
its jurisdiction71 for their polluting activities72, as failure by States to implement adequate
mitigation laws will allow private operators to “remain business as usual in emitting
GHGs”73.
66 SRFC Advisory Opinion, para. 131; Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports
2010, para. 197.
67 “Guiding Principles on Business and Human Rights, Implementing the United Nations “Protect, Respect and Remedy”
Framework”, United Nations Human Rights Office of the High Commissioner, endorsed by the Human Rights Council in its
resolution 17/4 of 16 June 2011, available at:
https://www.ohchr.org/sites/default/files/documents/publications/guidingprinciplesbusinesshr_en.pdf
68 Ibid.
69 Ibid.
70 “Frequently asked questions on human rights and climate change”, United Nations Human Rights Office of the High
Commissioner, Fact Sheet No. 38, 8 September 2021.
71 Maljean-Dubois S. The No-Harm Principle as the Foundation of International Climate Law. In: Mayer B, Zahar A, eds.
Debating Climate Law. Cambridge University Press; 2021:15-28; Riccardo Pisillo-Mazzeschi, The Due Diligence Rule and
the Nature of the International Responsibility of States, 35 GERMAN Y.B. INT'l L. 9 (1992).
72 Riccardo, the Due Diligence Rule.
73 Tsang, Vanessa S.W., "Establishing State Responsibility in Mitigating Climate Change under Customary International
Law" (2021). LL.M. Essays & Theses. 1:https://scholarship.law.columbia.edu/llm_essays_theses/1
18
D- Question put by Judge Charlesworth
“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
provisions 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?”
Egypt’s written Reply to the question put by Judge Charlesworth
1- First and foremost, in order to comprehensively answer this question, Egypt
respectfully refers the honorable judge to Egypt’s written comments as well as it is oral
statement with regard to the applicable law in answering the two questions submitted
to the Court in this advisory opinion.
2- As outlined in Egypt’s submissions, we argued for the application of the whole corpus
of international law which includes the application of the relevant Articles on
Responsibility of States for Internationally Wrongful Acts74 (hereinafter “ARSIWA”).
since the climate change treaty framework (the UNFCCC75 and its Paris Agreement76)
is not a self-contained regime.
3- Egypt submits that for a regime to be self-contained vis-à-vis the customary
international law of state responsibility it needs to have a “special set of (secondary)
rules concerning breach and reactions to breach”77. The commentary to article 55
ARSIWA clarifies that the general law of State responsibility is excluded “where and to
74 Draft Articles on Responsibility of States for Internationally Wrongful Acts with commentaries, 2001, “text adopted by
the International Law Commission at its fifty-third session, in 2001, and submitted to the General Assembly as a part of the
Commission’s report covering the work of that session (A/56/10)”, [hereinafter “ARSIWA”]
75 The United Nations Framework Convention adopted in 1992, entered into force in 1994, 198 States are parties to this
Convention [hereinafter the “UNFCCC”], available at:
https://treaties.un.org/pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXVII7&chapter=27&Temp=mtdsg3&clang=_
en
76 The Paris Agreement, adopted 12 December 2015, entered into force 4 November 2015, ratified by 195 States, can be
accessed through: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-7-
d&chapter=27&clang=_en
77International Law Commission (ILC), ‘Conclusions of the work of the Study Group on the Fragmentation of International
Law: Difficulties arising from the Diversification and Expansion of International Law’, (2006) 2(2) Yearbook of the
International Law Commission, at para. 12 [hereinafter “ILC, Conclusions of the work of the Study Group on the
Fragmentation of International Law”]
19
the extent that the conditions for the existence of an internationally wrongful act or its
legal consequences are determined by special rules of international law”.78 For
instance, this Court indicated in United States Diplomatic and Consular Staff in Tehran:
“the rules of diplomatic law, in short, constitute a self-contained regime which, on the
one hand, lays down the receiving State’s obligations regarding the facilities, privileges
and immunities to be accorded to diplomatic missions and, on the other foresees their
possible abuse by members of the mission and specifies the means at the disposal of
the receiving States to counter any such abuse”79.
4- On the contrary, the climate change treaty framework lacks such specific rules
concerning the conditions for determining the existence of a breach, and the legal
consequences of such a breach, which would qualify it as a self-contained regime that
displaces the customary international law of State responsibility. Indeed, the only
article addressing compliance within the Paris Agreement is Article 15 which
establishes a mechanism to facilitate implementation and promote compliance.
Paragraph 2 of article 15 explicitly states that this 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. Therefore, despite the
presence of a compliance mechanism by virtue of this article, the reality as explicitly
stated within the article and later confirmed in the negotiations finalizing the “Paris
Agreement Work Program” demonstrates that the committee was not intended to
enforce implementation and certainly not to penalize non-compliance, which is
consistent with the nationally determined, bottom-up nature of the Paris Agreement
and further disputing the validity of the claim that the Agreement can be deemed the
cornerstone of the legal regime governing state responsibility regarding climate
change.
5- Egypt thus submits that the UNFCCC and its Paris Agreement do not contain any rules
on State responsibility. Article 14 of the UNFCCC (dispute settlement), articles 15 and
24 of the Paris Agreement (compliance mechanism and dispute settlement
respectively) do not constitute a regime on State responsibility. Also, these articles do
not exclude the application of the general principles of State responsibility because
there is no “inconsistency between them, or else a discernible intention that one
provision is to exclude the other”80.
78 Commentary, Article 55 of ARSIWA, p. 140.
79 United States Diplomatic and Consular Staff in Tehran, Judgment, 1. C. J. Reports 1980, para. 86.
80 Commentary 4, Article 55 of ARSIWA.
20
6- Egypt submits that the declarations made by some States upon ratifying or acceding to
the UNFCCC81 and its Paris Agreement82 to the effect that no provisions 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, are a further indication of the applicability of the law of State
responsibility to breaches of obligations as a consequence of climate change, under
international law and the climate change treaty framework, and reflects the
anticipation of those States making the declarations and indeed their apprehension,
that a future claim could be made that the responsibility of States is limited to the
obligations contained in the Paris Agreement, to the exclusion of obligations
emanating from international law. This apprehension is now evidently justified by
claims alleging exactly what those countries making declarations had anticipated.
7- It is also worth noting that despite the time gap between the adoption of the UNFCCC
in 1992 and its Paris Agreement in 2015 (23 years), and despite the fact that the abovementioned
declarations made upon the ratification of the UNFCCC were reiterated
again upon ratification of the Paris Agreement (with a slight change of language), no
State has objected to these declarations, nor has deposited any declaration to the
contrary. In Egypt’s view, this can be construed as an acceptance by States Parties of
this interpretation and that it reflects the correct legal understanding of the limits of
the UNFCCC and its Paris Agreement.
8- Egypt further submits that as indicated by the International Tribunal for the Law of
the Sea: “if a State fails to comply with [its] obligations, international responsibility
would be engaged for that State”83. The European Court of Human Rights, found:
“that each State has its own share of responsibilities to take measures to tackle climate
change and that the taking of those measures is determined by the State’s own
capabilities rather than by any specific action (or omission) of any other State (…) The
Court considers that a respondent State should not evade its responsibility by pointing
to the responsibility of other States, whether Contracting Parties to the Convention or
not (…). This position is consistent with the Court’s approach in cases involving a
81 Declaration made by Fiji, Kiribati, Nauru, Papa New Guinea, Tuvalu, upon signature, separately, can be accessed here:
https://treaties.un.org/pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXVII-
7&chapter=27&Temp=mtdsg3&clang=_en
82 Declaration made by Cook Islands, similar declaration with slight difference were made by the Federated States of
Micronesia, Nauru, Niue, the Philippines, Solomon Islands, and Tuvalu, can be accessed through:
https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-7-d&chapter=27&clang=_en
83 Request for an Advisory Opinion submitted by the Commission of Small Island States on Climate Change and
International Law, ITLOS, 21 May 2024, Case No. 31, para.223, 286, can be accessed through:
https://www.itlos.org/fileadmin/itlos/documents/cases/31/Advisory_Opinion/C31_Adv_Op_21.05.2024_orig.pdf
21
concurrent responsibility of States for alleged breaches of Convention rights, where
each State can be held accountable for its share of the responsibility for the breach in
question. It is also consistent with the principles of international law relating to the
plurality of responsible States, according to which the responsibility of each State is
determined individually, on the basis of its own conduct and by reference to its own
international obligations. (…)”84.
9- Egypt submits that the above-mentioned recent courts’ decisions is a further
indication that the UNFCCC and its Paris Agreement are not a self – contained regimes.
10- Lastly, and in the same vein, Egypt would like to highlight that the few States claiming
that article 8 of the Paris Agreement, as well as paragraph 51 of COP decision 1/CP.2185
regarding loss and damage exclude the applicability of the general law on State
responsibility does not stand. First, there is no express exclusion of the law of State
responsibility in either article 8 or in the above-mentioned COP decision86. Second,
“compensation” mentioned in paragraph 51 of the COP decision is not the only form of
reparation provided for in ARSIWA87. Third, Article 8 read together with paragraph 51
of the COP decision 1/CP.21 demonstrates that States Parties did not intend to exclude
the application of the principles of State responsibility.
11- Egypt further submits that the issue of loss and damage provided for under the
UNFCCC, its Paris Agreement and COP decisions is not a substitute for reparation in
the form of compensation arising from a breach of international obligations that has
caused harm to the environment and the climate system and that caused injury to
States. Indeed, in 2015 at the adoption of the Paris Agreement at CoP21 the Parties
explicitly agreed, through COP Decision 1/CP.21 that “article 8 [in relation to loss and
damage] of the [Paris] Agreement does not involve or provide a basis for any liability
or compensation”88.
12- Despite this explicit exclusion of any basis for liability or compensation within the
Paris Agreement, developed country parties have been consistently cautious when
addressing the issue of loss and damage within the UNFCCC negotiations process. Most
recently, at COP27 under the Egyptian presidency, several developed country parties
84 Case of Verein Klimaseniorinnen Schweiz and others v. Switzerland, ECtHR Application no. 53600/20, Judgment of the
Grand Chamber (9 April 2024), paras. 442 to 444.
85 COP Decision 1/CP. 21, paragraph 51 of this decision states that the Conference of the Parties: “agrees that Article 8 of
the [Paris] Agreement does not involve or provide a basis for any liability or compensation”, can be accessed through:
https://unfccc.int/resource/docs/2015/cop21/eng/10a01.pdf
86 See also: ‘Loss and Damage in Paris and State Responsibility”, can be found here:
https://legalresponse.org/legaladvice/loss-and-damage-in-the-paris-agreement-and-cop-decision-and-state-responsibility/
87 Ibid.
88 COP Decision 1/CP. 21, paragraph 51 of this decision states that the Conference of the Parties: “agrees that Article 8 of
the [Paris] Agreement does not involve or provide a basis for any liability or compensation”, can be accessed through:
https://unfccc.int/resource/docs/2015/cop21/eng/10a01.pdf
22
conditioned their acceptance of the decision to include the issue of loss and damage on
the COP agenda on an explicit exclusion of liability and compensation, arguing that
they do not want “a legal structure that is tied to compensation or liability”89. The issue
was only resolved through an agreement whereby the COP27 President explicitly
announced, for the record, that “the outcome of this agenda item [loss and damage
fund] … do not involve liability or compensation”90, after which the decisions on a loss
and damage fund were adopted (The Sharm El Sheik Implementation Plan, and
Funding arrangements for responding to loss and damage associated with the adverse
effects of climate change, including a focus on addressing loss and damage)91. It is
therefore self-contradictory, to say the least, for states to insist on the one hand, on an
explicit exclusion of liability and compensation from any discussion of loss and damage
within the regime, only to argue that the same regime represents adequate remedy
which replaces reparation in the form of compensation, on the other.
13- As rightly put by Vanuatu, “while this contemporaneous consensus-based agreement
[in reference to the Conference of the Parties in COP Decision 1/CP.21] is relevant for
the interpretation of Article 8, it does not and cannot limit the rights of States under
general international law. Several small island States, while ratifying the Paris
Agreement entered declarations to this effect”92. As Tuvalu has indicated in its written
comments, which Egypt concurs with, that the UNFCCC and its Paris Agreement:
“would not displace bedrock principles of customary international law applicable to
reparation for breaches of international obligations. Customary international law –
including the law of State responsibility – is a separate source of law from that of the
UNFCCC and the Paris Agreement, and these sources are complementary, not
conflicting”93. and this is in line with the declarations made upon the ratification of the
UNFCCC and its Paris Agreement “to the effect that no provisions 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”94.
14- In addition to the above, Egypt wishes to stress that the relevance of these
declarations is not limited to establishing the applicability of ARSIWA, but extends to
89 “Contemporary Practice of the United States Relating to International Law”, Cambridge University Press for the
American Society of International Law, can be accessed through: https://www.cambridge.org/core/services/aop-cambridgecore/
content/view/0F9F5E4C5F30C5FE00B89B4A4EF4403C/S0002930023000131a.pdf/the-united-states-agrees-to-lossand-
damage-fund-at-cop27.pdf
90 Ibid.
91 Both decisions, 1/CP.27 and 2/CP.27 respectively can be accessed through: https://unfccc.int/documents/626561
92 Vanuatu Written Statement, p. 210, para. 433.
93 Tuvalu Written Comments, p. 15, para. 39.
94 Part of the question put by Judge Charlesworth.
23
further substantiating the view that the UNFCCC and its Paris Agreement do not
preclude the application of principles of general international law. As rightly put by
Nauru in its written comments, the declarations made by some States (such as Cook
Islands, Fiji, Kiribati, Marshall Islands, the Federated States of Micronesia, Niue, Papa
New Guinea, the Philippines, Solomon Islands, Tuvalu, and Vanuatu) upon the
ratification of the UNFCCC, and its Paris Agreement “reinforce” the argument
sustaining that the climate change treaty framework “does not exclude the application
of principles of general international law such as the principle of prevention of
transboundary harm”95, which is, as indicated in the wording of the United Nations
General Assembly Resolution 77/276, and in multiple written and oral statements of
States and international organizations, further proof that the whole corpus of
international law should be considered when answering the questions submitted to
the Court in this advisory opinion.
15- Lastly, Egypt submits that all of this leads to the same conclusion. Namely; that States
making these declarations at the time of signing or ratification of the UNFCCC and its
Paris Agreement were apprehensive of the possibility of other States claiming in the
future that the existence of the climate change treaty framework excludes the
application of the general rules of international law. Their caution at the time has now
been proven well-founded, as what they anticipated is precisely what is now being
claimed by other state parties.
95 Written Comments of Nauru, paras. 30 – 31.