Hl I Federal Foreign Office
Federal Foreign Office, Kurstrasse 36,11013 Berlin
To the Registrar of the International Court of Justice
Mr. Philippe Gautier
Peace Palace, Carnegieplein 2
2517 KJ The Hague
Netherlands
Dr. Wiebke Rückert
Director
Public International Law
OFFICE ADDRESS
Werderscher Markt 1
10117 Berlin
Germany
POSTALADDRESS
Kurstraße 36,11013 Berlin
subject. Qbijgations of States in respect of Climate Change (Request for advisory b 1 ö \ 'i J PHONE+49 (0)3018-17-2706
opinion of the International Court of Justice) fax + 49 (0)3018-17-5-2706
[email protected]
www.auswaertiges-amt.de
Berlin, December 20th, 2024
Excellency,
Foliowing up on the questions put to the participants in the above-mentioned proceedings at
the end of the oral proceedings by various judges1, and conveyed to the participants of the
oral hearing under cover of your letter dated 13 December 2024, Germany would like to
provide written replies to the questions of Judge Tladi, Judge Aurescu and Judge
Charlesworth:
Question by Judge Tladi:
‘Tn 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 obligatipns 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?”
1 See CR 2024/54, p. 39-40.
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Reply by Germany:
“Germany does not take the position that Art. 4 Paris Agreement and the Obligation to
provide for NDCs are of a merely procedural character.
As a matter of fact, Art. 4, para. 3 Paris Agreement obliges State parties not only to establish
successive nationally determined contributions but that such successive NDCs must
represent a progression beyond the Party’s current nationally determined contribution, and
must also reflect such party’s highest possible ambition. Those constitute substantive
obligations in the sense that States must then also endeavor to act in line with their respective
NDCs.
Besides, Art. 2, para. 1 (a) Paris Agreement sets a binding goal that all Member States are
obliged to achieve jointly, and Art. 4, para. 1 contains the goal to reach global peaking of
greenhouse gas emissions as soon as possible2. These goals are to be reached by the
combination of the individual NDCs. The Obligation to reach these goals are, once again,
substantive obligations to be fulfilled by the community of State parties.
Moreover, Art. 4 Paris Agreement must be read in conjunction with Arts. 2 and 3 Paris
Agreement as per Art. 31, para. 1 Vienna Convention on the Law of Treaties.
Art. 3 Paris Agreement in tum provides that “(•••) Parties are to undertake and
communicate ambitious efforts as defmed in Articles 4 (...) with the view to achieving the
purpose of this Agreement (.. .)”3. This again confirms that the Obligation tö set up NDCs is
not only of a procedural character but that State parties of the Paris Agreement have to set
up NDCs that not only must represent a progression, but that must also be ambitious.
Question 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?”
Reply by Germany:
2 Ibid., para. 13 (Rückert).
3 Emphasis added.
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As was already set out in Germany’s written and oral submissions4 in more detail, the 2022
General Assembly resölution on the right to a clean, healthy, and sustainable environment
recognized that “(...) the right to a clean, healthy and sustainable environment is related to
other rights and existing international law”. Germany was an active supporter ,of this
resolution.
The right to a clean, healthy, and sustainable environment, was perceived in this legally nonbinding
instrument as constituting a specific manifestation of other previously established
human rights. The right was understood as deriving from, and inherent in, already existing
international human rights obligations, in particular under the ICCPR and the ICESCR. It
must, just like other environment-related human rights, be interpreted in line with the
obligations States have undertaken under international environmental law. A growing
number of States recognize a right to a healthy environment in national legislation and it
forms part of an ongoing legal debate in different human rights contexts. However, in
Germany’s view, it does not form part of current customary international law.
Question by Judge Charlesworth:
‘Tn 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 conceming compensation or liability due to the adverse effects
of climate change?”
Reply by Germany:
Germany notes that when becoming parties of the UNFCCC flve States (out of 198 State
parties thereof) and when becoming parties of the Paris Agreement nine States (out of 195
State parties thereof) have made declarations to which the question of Judge Charlesworth
refers.
Those unilateral declarations do neither represent instruments which were made by one or
more parties in connection with the conclusion of the treaty and accepted by the otherparties
as an instrument related to the treaty (Art. 31, para. 1 lit. b Vienna Convention on the Law
of Treaties). Nor does their content constitute any subsequent agreement or any subsequent
practice in the application of the treaty which establishes the agreement of the parties
regarding its interpretation (Art. 31, para. 3 Vienna Convention on the Law of Treaties).
Their content cannot, thus, ,as such be binding upon other State parties.
4 See Written Statement Germany, p. 39-40; CR 2024/35, p. 152, paras. 29-32 (Zimmermann).
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Accordingly, they may only have legal effect to the extent their content reflects, and is
consistent with, the Interpretation of the treaty to which they were submitted. In particular,
they may neither establish nor extend obligations vis-ä-vis other State parties beyond those
otherwise already existing ander international law.
Finally, it also goes without saying that to the extent that the respective treaty has any legal
effect on pre-existing obligations ander international law, and notably by reqairing the
Interpretation of general international law in line with the respective specific treaty
obligations andertaken, sach effect cannöt be excladed by way of sach anilateral
declarations.
Germany takes this opportanity to, once again, thank the Coart and its Registry for the
Organization of the proceedings.
Sincerely,
öf. b!) cdolu.
Dr. Wiebke Rückert
Written reply of Germany to the questions put by Judges Tladi, Aurescu and Charlesworth at the end of the hearing held on 13 December 2024