INTERNATIONAL COURT OF JUSTICE
OBLIGATIONS OF STATES IN RESPECT OF CLIMATE CHANGE
(REQUEST FOR ADVISORY OPINION)
Written Replies of the
Republic of the Philippines
20 December 2024
WRITIEN REPLIES TO TIUBUNAL'S QUESTIONS
20 DECEMBER 2024
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TABLE OF CONTENTS
Question of Judge Sarah H. Cleveland ........................................... 3
Reply of the Republic of the Philippines . . . . . . . . . . . . . . . . . . . . . . . .......... 3 - 9
Question of Judge Dire Tiacli .................................................. 10
Reply of the Republic of the Philippines ............................... 10 - 13
Question of Judge Bogdan-Lucian Aurescu ....................................... 14
Reply of the Republic of the Philippines ............................... 14-16
Question of Judge Hilary Charlesworth .......................................... 17
Reply of the Republic of the Philippines ................................ 17-18
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Question of Judge Cleveland:
"D11ring these proceedings, a n11mber ef participants have refemd to the prod11ction ef fassil faels in the context ef climate
change, inc/11ding with respect to subsidies. In yottr view, what are the specific obligations ttnder international law ef
S tales within whose jttrisdiction fassil fitels are prodttced to ensttre protection ef the climate !)'Stem and other parts ef the
environment fivm anthropogenic emissions efgreenho11se gases, if ai!J?"
Reply of the Republic of the Philippines:
,1. States within whose jurisdiction fossil fuels are produced have obligations under international
law to ensure the protection of the climate system and other parts of the environment from
anthropogenic emissions of greenhouse gases.
2. For those States that are Parties to the UN Framework Convention on Climate Change
(UNFCCC)1 and its Paris Agreement; their obligations under international law stem primarily
(but not exclusively) from these international law instruments.
3. Under Article 4, paragraph 1 of the UNFCCC, "[a]ll Parties, taking into account their common
but differentiated responsibilities and their specific national and regional development
priorities, objectives and circumstances, shall", inter alia:
"(a) Develop, periodically update, publish and make available to the Conference
of the Parties, in accordance with Article 12 [of the UNFCCC], national
inventories of anthropogenic emissions by sources and removals by sinks of all
greenhouse gases not controlled by the Montreal Protocol, using comparable
methodologies to be agreed upon by the Conference of the Parties;
"(b) Formulate, implement, publish and regularly update national and, where
appropriate, regional programmes containing measures to mitigate climate
change by addressing anthropogenic emissions by sources and removals by sinks
of all greenhouse gases not controlled by the Montreal Protocol, and measures
to facilitate adequate adaptation to climate change;
"(c) Promote and cooperate in the development, application and diffusion,
including transfer, of technologies, practices and processes that control, reduce
or prevent anthropogenic emissions of greenhouse gases not controlled by the •
Montreal Protocol in all relevant sectors, including the energy, transport,
industry, agriculture, forestry and waste management sectors."
4. Taken together, the commitments above oblige State Parties to the UNFCCC to protect the
climate system from anthropogenic greenhouse gas emissions through, inter alia: (1) having
national inventories of anthropogenic greenhouse gas emissions; (2) having national
programmes containing measures to mitigate climate change by addressing anthropogenic
1 UNFCCC, at hnps://nnfccc.int/filcs/cysential b:i.ckp:rnnnd/b:i.ckrm1mcl publications htmlpclf6Jpp)ication/pdf /com·enp:.pdf
2 Paris Agreement, at bttps·//nnfccc.iotbites/dcfm1lt/files/enrli<:h pari" :i.grecment.pdf
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emissions by sources and removals by sinks of all greenhouse gases not controlled by the
Montreal Protocol; and (3) working together with other States in the development, application
and diffusion, including transfer, of technologies, practices and processes that control, reduce
or prevent anthropogenic emissions of greenhouse gases not controlled by the Montreal
Protocol in all relevant sectors, including the energy, transport, industry, agriculture, forestry
and waste management sectors." As clearly indicated in the chapeau of this provision, these
obligations apply to "all" States that are Parties of the UNFCCC, including those within whose
jurisdiction fossil fuel production occurs; that is, Article 4, paragraph 1, of the UNFCCC does
not make any distinction between UNFCCC Parties within whose jurisdiction fossil fuels are
produced and those that do not have such production with respect to the applicability of the
provisions that create obligations to reduce domestic anthropogenic greenhouse gas
etn1ss1ons.
5. Additionally, under Article 4, paragraph 2(a) of the UNFCCC, specifically for States that are
Parties of the UNFCCC which are "developed country Parties and other Parties included in
Annex I [of the UNFCCC]," they have specific treaty commitments to "adopt national policies
and take corresponding measures on the mitigation of climate change, by limiting its
anthropogenic emissions of greenhouse gases and protecting and enhancing its greenhouse
gas sinks and reservoirs." This specific obligation applies only to all such States that are Parties
to the UNFCCC which are included in Annex I of the UNFCCC, including those within
whose jurisdiction fossil fuel production occurs.
6. It should be noted that under Article 4, paragraph 7, of the UNFCCC, "the extent to which
developing country Parties will effectively implement their commitments under the
Convention will depend on the effective implementation by developed country Parties of their
commitments under the Convention related to financial resources and transfer of technology
and will take fully into account that economic and social development and poverty eradication
are the first and overriding priorities of the developing country Parties."3
7. Furthermore, with respect to the implementation of the commitments under Article 4 of the
UNFCCC, the Parties, under Article 4, paragraph 8(h) of the UNFCCC, "shall give full
consideration to what actions are necessary under the Convention, including actions related
to funding, insurance and the transfer of technology, to meet the specific needs and concerns
of developing country Parties arising from the adverse effects of climate change and/ or the
impact of the implementation of response measures, especially on: ... (h) Countries whose
economies are highly dependent on income generated from the production, processing and
export, and/or on consumption of fossil fuels and associated energy-intensive products ... ",
with such consideration to be taken through appropriate actions that the Conference of the
Parties of the UNFCCC may decide upon. Furthermore, under Article 4, paragraph 10, of the
UNFCCC, the Parties "shall, in accordance with Article 10 [of the UNFCCC], take into
consideration in the implementation of the commitments of the Convention the situation of
Parties, particularly developing State Parties, with economies that are vulnerable to the adverse
effects of the implementation of measures to respond to climate change. This applies notably
l The commitments of developed country Parties under the Convention related to financial resources and transfer of technology are set out in Article 4,
paragraphs 3, 4 and 5 of the UNFCCC. The developed country Parties that have such commitments to provide finance and technology under these
provisions are those Parties included in Annex II of the UNFCCC.
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to Parties with economies that are highly dependent on income generated from the
production, processing and export, and/ or consumption of fossil fuels and associated energyintensive
products and/ or the use of fossil fuels for which such Parties have serious difficulties
in switching to alternatives." Article 4, paragraphs S(h) and 10 of the UNFCCC therefore
mandate the Parties to take into consideration the situation of, inter alia, fossil fuel productiondependent
States, particularly developing States, in the implementation of commitments under
the UNFCCC. Doing so, however, is not unilateral; rather, such consideration is to be made
through the deliberations and decisions of the Conference of the Parties, as clearly indicated
in these cited provisions.
8. Read together, Article 4, paragraphs 1(a) to (c), 2(a), 7, S(h), and 10 of the UNFCCC lay out
the treaty law obligations of States that are Parties to the UNFCCC in whose jurisdictions
fossil fuels are produced to ensure protection of the climate system and other parts of the
environment from anthropogenic emissions of greenhouse gases in a manner that is consistent
with Article 3, paragraph 1 thereof, which states that:
"In their actions to achieve the objective of the Convention and to implement
its provisions, the Parties shall be guided, inter alia, by the following:
"1. The Parties should protect the climate system for the benefit of present
and future generations of humankind, on the basis of equity and in accordance
with their common but differentiated responsibilities and respective
capabilities. Accordingly, the developed country Parties should take the lead in
combating climate change and the adverse effects thereof."
9. Article 4, paragraph 1 (a) to (c) of the UNFCCC provide key common obligations of "all
Parties" relating to mitigation actions. Article 4, paragraph 2(a) of the UNFCCC states a
specific obligation of "developed country Parties and other Parties included in Annex I" of
the UNFCCC to limit their anthropogenic emissions of greenhouse gases. Article 4,
paragraphs S(h) and 10 of the UNFCCC provide a mandate for the Parties through the
Conference of the Parties of the UNFCCC to consider how the specific needs, concerns and
situation of those States, in particular developing States, that are fossil 'fuel productiondependent,
among others, could be addressed through the provision of finance and
technology transfer. In this context, Article 4, paragraph 7 of the UNFCCC is extremely
important because it makes clear that the extent to which developing State Parties implement
their commitments under the UNFCCC depends on the effective implementation by
developed State Parties of their commitments under the Convention related to financial
resources and transfer of technology and will take fully into account that economic and social
development and poverty eradication are the first and overriding priorities of the developing
State Parties.
10. In this regard, reading Article 4, paragraphs 1 (a) to (c), 2(a), 7, S(h), and 10 of the UNFCCC
together in responding to Judge Cleveland's question, developed State Parties and other Parties
included in Annex I of the UNFCCC, including those that may be producing fossil fuels within
their jurisdictions (such as, but not limited to, the United States, the United Kingdom, Norway,
France, Canada, Australia) have to take the lead in limiting their anthropogenic emissions of
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greenhouse gases, including having national greenhouse gas inventories and undertaking
domestic mitigation measures and programmes. The developing State Parties, on the other
hand, including those that may be producing fossil fuels within their jurisdictions, have to put
in place domestic mitigation measures and programmes to the extent that they have the
resources to do so, including such financial and technological resources as may be provided
by developed State Parties included in Annex II of the UNFCCC.
11. The Paris Agreement has added another dimension to these UNFCCC obligations, given that
the Paris Agreement's purpose under the chapeau of Article 2, paragraph 1, of the Paris
Agreement is "enhancing the implementation of the Convention." Going directly to how the
Paris Agreement seeks to enhance the implementation of, inter alia, the UNFCCC's provisions
relating to mitigation to be undertaken by States, including especially those within whose
jurisdictions fossil fuels are produced, i.e., Article 4, paragraphs 1(a) to (c) and 2(a) in the
context of Article 4, paragraphs 7, 8(h) and 10 of the UNFCCC, the relevant provisions that
lay out mitigation obligations for Parties to the Paris Agreement to enhance their
implementation of their mitigation obligations under the UNFCCC would be Article 4,
paragraphs 2 and 4 of the Paris Agreement.
12. Under Article 4, paragraph 2 of the Paris Agreement, "each Party" to the Paris Agreement is
obliged to "prepare, communicate and maintain successive nationally determined
contributions that it intends to achieve" and "shall pursue domestic mitigation measures, with
the aim of achieving the objectives of such contributions." 1bis obligation requires such State
Parties to incorporate domestic measures to reduce anthropogenic emissions of greenhouse
gases as part of the nationally determined contributions (NDCs) that they are required to
prepare, communicate and maintain as Parties to the Paris Agreement. 1bis obligation applies_
to all States that are Parties to the Paris Agreement, including those within whose jurisdiction
fossil fuel production occurs.
13. The manner whereby such obligation under Article 4, paragraph 2 of the Paris Agreement is
to be implemented is guided by Article 4, paragraph 4 of the Paris Agreement, which states
that "[d]eveloped country Parties should continue taking the lead by undertaking economywide
absolute emission reduction targets. Developing country Parties should continue
enhancing their mitigation efforts, and are encouraged to move over time towards economywide
emission reduction or limitation targets in the light of different national circumstances."
14. The NDCs that all Parties to the Paris Agreement are required to prepare, communicate and
maintain under Article 4, paragraph 2, of the Paris Agreement are, according to Article 3 of
the Paris Agreement, "with the view to achieving the purpose of this Agreement as set out in
Article 2."
15. Article 2 of the Paris Agreement in its entirety states as follows:
"1. 1bis Agreement, in enhancing the implementation of the Convention,
including its objective, aims to strengthen the global response to the threat of
climate change, in the context of sustainable development and efforts to
eradicate poverty, including by:
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"(a) Holding 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 1.5°C above pre-industrial levels, recognizing
that this would significantly reduce the risks and impacts of climate
change;
"(b) Increasing the ability to adapt to the adverse impacts of climate
change and foster climate resilience and low greenhouse gas emissions
development, in a manner that does not threaten food production; and
"(c) Making finance flows consistent with a pathway towards low
greenhouse gas emissions and climate-resilient development.
"2. This Agreement will be implemented to reflect equity and the principle of
common but differentiated responsibilities and respective capabilities, in the
light of different national circumstances."
16. Read together, Article 4, paragraphs 2 and 4, in relation to Articles 2 and 3, of the Paris
Agreement set out the obligation for Paris Agreement Parties to pursue domestic mitigation
measures that will contribute to achieving the goals set out in Article 2 of the Paris Agreement,
with such measures to be differentiated between developed States and developing States on
the basis of Article 4, paragraph 4 of the Paris Agreement This obligation would apply to all
Parties to the Paris Agreement, including those States within whose jurisdiction fossil fuel
production occurs.
17. However, according to the United Nations Environment Programme (UNEP), in its 2023
Production Gap Report, planned fossil fuel production by States exceeded levels consistent
with meeting the Paris Agreement temperature goals, given that "governments plan to
produce around 110% more fossil fuels in 2030 than would be consistent with limiting
warming to 1.5°C, and 69% more than would be consistent with 2°C."4 This is an important
data point because, according to the Intergovernmental Panel on Climate Change's (IPCC)
Sixth Assessment Report, "[g]lobal net anthropogenic GHG emissions have been estimated
to be 59 ± 6.6 GtCO2-eq9 in 2019, about 12% (6.5 GtCO2-eq) higher than in 2010 and 54%
(21 GtCO2-eq) higher than in 1990, with the largest share and growth in gross GHG emissions
occurring in CO2 from fossil fuels combustion and industrial processes (CO2-FFI)."5
18. Hence, in the context of implementing the mitigation-related obligations under the UNFCCC
and its Paris Agreement as discussed above, it is important to note that the best available
scientific assessments regarding the role of fossil fuel production in the anthropogeuic
emission of greenhouse gases highlight the need to reduce and eventually eliminate such
production. Doing so would entail having States reduce fossil fuel production and use within
their jurisdiction as part of the domestic mitigation measures that need to be incorporated in
4 UNEP, Production Gap Report 2023, at hnps:/ (\v,\'\v.1mq,.orr:ln.-'-ources/pmd11ctioo-rrop-rcport-2023
s IPCC, AR6 Synthesis Report: Surnmaty for Policymakers,
htt:i:w//www.ipcr.chb:c_port/nyfi/syr/dowoloads/rcport/IPCC: AR6 S)Jl SPM pdf
A.1.4, at
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their NDCs in compliance with their mitigation obligations under the Paris Agreement and
the UNFCCC to meet Paris Agreement goals and the objective of the UNFCCC.
19. To reach net zero CO2 and GHG emissions levels that would be consistent with the Paris
Agreement goals and the objective of the UNFCCC, global modelled mitigation pathways
assessed by the IPCC "include transitioning from fossil fuels without carbon capture and
storage (CCS) to very low- or zero-carbon energy sources, such as renewables or fossil fuels
with CCS, demand-side measures and improving efficiency, reducing non-CO2 GHG
emissions, and CDR."6 And the IPCC has noted that "[n]et zero CO2 energy systems entail:
a substantial reduction in overall fossil fuel use, minimal use of unabated fossil fuels, and use
of carbon capture and storage in the remaining fossil fuel systems; electricity systems that emit
no net CO2; widespread electrification; alternative energy carriers in applications less amenable
to electrification; energy conservation and efficiency; and greater integration across the energy
system."7
20. In a decision relevant to this discussion, the Parties to the Paris Agreement, acting through
the Conference of the Parties Meeting as the Parties to the Paris Agreement (CMA) at its fifth
session held in Dubai, UAE, in December 2023, recognized in its Decision 1/CMA.5,
paragraph 28, "the need for deep, rapid and sustained reductions in greenhouse gas emissions
in line with 1.5 °C pathways" and called on Parties "to contribute to the following global
efforts, in a nationally determined manner, taking into account the Paris Agreement and their
different national circumstances, pathways and approaches:
"(a) Tripling renewable energy capacity globally and doubling the global
average annual rate of energy efficiency improvements by 2030;
"(b) Accelerating efforts towards the phase-down of unabated coal power;
"(c) Accelerating efforts globally towards net zero emission energy systems,
utilizing zero- and low-carbon fuels, well before or by around mid-century;
"( d) Transitioning 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 the science;
"(e) Accelerating zero- and low-emission technologies, including, inter alia,
renewables, nuclear, abatement and removal technologies such as carbon
capture and utilization and storage, particularly in hard-to-abate sectors, and
low-carbon hydrogen production;
"(f) Accelerating the substantial reduction of non-carbon-dioxide emissions
globally, in particular methane emissions by 2030;
6 IPCC, AR6 Synthesis Report Summary for
https: //w .. \.-.,:.ipcc-ch /rc_port/ar6 /i::yr/dnwnlnads/rcport/ll1CC A R6 SYR SPi\f.pdf
1 IPCC, AR6 Synthesis Report Summary for
htt:ps://ww .. v.jpcc.ch/rqmrt/:i.r6/'-yr/dowoJoads/rc_port/JPCI. AB6 S)'R SPM.pdf
Policymalms,
Policymakers,
par.,. B.6.3,
para. C.3.2,
at
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"(g) Accelerating the reduction of emissions from road transport on a range of
pathways, including through development of infrastructure and rapid
deployment of zero- and low-emission vehicles;
"(h) Phasing out inefficient fossil fuel subsidies that do not address energy
poverty or just transitions, as soon as possible."'
21. Hence, as discussed above, States that are Parties to the UNFCCC and its Paris Agreement
have the obligation to undertake domestic mitigation measures to reduce anthropogenic
greenhouse gas emissions, consistently with the principle of common but differentiated
responsibilities and respective capabilities, in light of national circumstances, with developed
States taking the lead in undertaking economy-wide absolute emission reduction targets,
including by undertaking nationally determined efforts to contribute to global greenhouse gas
emission reduction efforts such as those indicated in Decision 1/CMA.5, paragraph 28, of the
CMA.
s UNFCCC, Decision 1/CMA.5, paragraph 28, at https://unfcrc-int/siws/default/files/rcsrn1rcc/cmn2023 J6i1fl1E.pdf
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Question of Judge Tladi
"In their writtm and oral pleadings, participants have gmeralfy mgaged in an inte,pretation of the various paragraphs
of Article 4 of the Paris Agreemmt. Ma'!)I participants have, 011 the basis of this inte,pretation, come to the co11c/11sion
that, to the extent that Article 4 imposes a'!)I obligations in respect ofNationalfy Determined Co11trib11tions, these are
procedural obligations. Participants coming to this conc/11sion have, in gmeral, 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
wo11ld like to know from the participants whether, according to them, ''the oiject and p11,pose" of the Paris Agreement,
and the oqect and p11,pose of the climate change trea!J framework in gmeral, has a'!Y ifftct on this inte,pretation and if
so, wha'. ifftct does it have?"
Reply of the Republic of the Philippines:
1. The object and purpose of the UNFCCC and its related legal instruments, including the Paris
Agreement, is to prevent dangerous anthropogenic interference with the climate system, based
on States' common but differentiated responsibilities and respective capabilities.
2. Article 2 of the UNFCCC states its objective as follows:
"The ultimate objective of this Convention and any related legal instruments
that the Conference of the Parties may adopt is to achieve, in accordance with
the relevant provisions of the Convention, stabilization of greenhouse gas
concentrations in the atmosphere at a level that would prevent dangerous
anthropogenic interference with the climate system. Such a level should be
achieved within a time-frame sufficient to allow ecosystems to adapt naturally
to climate change, to ensure that food production is not threatened and to
enable economic development to proceed in a sustainable manner."
3. The purpose of the Paris Agreement is set out in its Article 2 as follows:
"1. This Agreement, in enhancing the implementation of the Convention,
including its objective, aims to strengthen the global response to the threat of
climate change, in the context of sustainable development and efforts to
eradicate poverty, including by:
"(a) Holding 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 1.5°C above pre-industrial levels, recognizing
that this would significantly reduce the risks and impacts of climate
change;
"(b) Increasing the ability to adapt to the adverse impacts of climate
change and foster climate resili~nce and low greenhouse gas emissions
development, in a manner that does not threaten food production; and
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"(c) Making finance flows consistent with a pathway towards low
greenhouse gas emissions and climate-resilient development.
"2. Tbis Agreement will be implemented to reflect equity and the principle of
common but differentiated responsibilities and respective capabilities, in the
light of different national circumstances."
4. As can be clearly seen, as a related legal instrument to the UNFCCC adopted by the
Conference of the Parties of the UNFCCC pursuant to Article 9, paragraph 2 thereof, the
Paris Agreement is an instrument that is intended to enhance the implementation of the
UNFCCC. Therefore, the Paris Agreement's purpose and provisions have to be read,
understood, and implemented in a manner that is consistent with the objective, provisions and
principles of the UNFCCC. Tbis context frames how the provisions of Article 4 of the Paris
Agreement should be read, interpreted and implemented.
5. As this Honorable August Chamber has long recognized, the object and purpose of a treaty
serve to guide the interpretation and application of treaty obligations. In its 1951 Advisory
Opinion on Reservations to the Genocide Convention, 9 the Court stated that "[i]t is also a
generally recognized principle that a multilateral convention is the result of an agreement freely
concluded upon its clauses and that consequently none of the contracting parties is entitled to
frustrate or impair, by means of unilateral decisions or particular agreements, the purpose and
raison d'etre of the convention." 10 Applying this long-held principle to the instant case with
respect to the Paris Agreement, it follows then that interpretation and implementation of the
provisions of the Paris Agreement, including Article 4 thereof, must be consistent with the
Agreement's purpose and object as set out in Articles 2 and 3 thereof, respectively.
6. Tbis approach is fully consistent with Article 31(1) of the 1969 Vienna Convention on the
Law of Treaties11 (VCL1) which requires that "a treaty shall be interpreted in good faith in
accordance with the ordinary meaning to be given to the terms of the treaty in their context
and in the light of its object and purpose." Thus, while the language of Article 4 emphasizes
procedure, its context within the Paris Agreement and the object and purpose of the Paris
Agreement as indicated in Articles 2 and 3 thereof implies that the Parties to the Paris
Agreement have substantive commitments to undertake mitigation efforts. Tbis approach
requires viewing procedural obligations (e.g., preparing and submitting NDCs) as inherently
linked to the Agreement's goals, object, and purpose. Furthermore, Article 31(3)(c) of the
VCLT requires that when interpreting a treaty, "relevant rules of intemational law applicable
to the relations between the parties" shall be taken into account, together with the context.
Tbis means that substantive provisions of the Paris Agreement and the UNFCCC can be
considered as such "relevant rules of intemational law applicable to the relations between the
parties," and, hence, must be taken into account when interpreting Article 4 of the Paris
Agreement.
9 IC), Advisory Opinion on Reservations to the Genocide Convention (1951), at https://www.jcj-cij.ocrb•itc:s/dcf;mlt/filcs/casc-rcbtetl/12/012-
12510528-AD V-IIJ-011-EN .pdf
10 ICJ, Advisory Opinion on Rese11rations to the Genocide Convention (1951), p. 10, at https://www.itj-tjj.qrphitcs/dcfoult/filcs/rnse-rcbtcd/J '> /01 "J
2510528-1\ DV-IIJ-00-EN.pdf
tt UN, 1969 Vienna Convention on the Law of Treaties, at https://kr:nl 110.orr/ilc/tcxrs/jnstmmcnts/enrlish/cnnvcntions/] 1 1%9.pdf
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7. Article 4 of the Paris Agreement contains certain "procedural" obligations for Parties, as
follows:
"2. Each Party shall prepare, communicate and maintain successive nationally
determined contributions that it intends to achieve. Parties shall pursue
domestic mitigation measures, with the aim of achieving the objectives of such
contributions.
"8. In communicating their nationally determined contributions, all Parties
shall provide the information necessary for clarity, transparency and
understanding in accordance with decision 1 / CP .21 and any relevant decisions
of the Conference of the Parties serving as the meeting of the Parties to this
Agreement.
"9. Each Party shall communicate a nationally determined contribution every
five years in accordance with decision 1/CP21 and any relevant decisions of
the Conference of the Parties serving as the meeting of the Parties to this
Agreement and be informed by the outcomes of the global stocktake referred
to in Article 14.
"13. Parties shall account for their nationally determined contributions. In
accounting for anthropogenic emissions and removals corresponding to their
nationally determined contributions, Parties shall promote environmental
integrity, transparency, accuracy, completeness, comparability and consistency,
and ensure the avoidance of double counting, in accordance with gnidance
adopted by the Conference of the Parties serving as the meeting of the Parties
to this Agreement.
8. However, these "proceduraP' obligations are not stand-alone provisions. Their interpretation
and implementation are linked to the substantive provisions contained in the Paris Agreement,
including within Article 4 itself and the other provisions of the Paris Agreement to which
Article 4 is linked.
9. Article 4 of the Paris Agreement is intended to operationalize Article 3 of the Paris Agreement
which sets out what Paris Agreement Parties are committed to undertake and communicate
as their nationally determined contributions (NDCs) to the global response to climate change
referred to in Article 2 of the Paris Agreement. Under Article 3 of the Paris Agreement, these
NDCs are "ambitious efforts as defined in Articles 4, 7, 9, 10, 11 and 13 with the view to
achieving the purpose of this Agreement as set out in Article 2. The efforts of all Parties will
represent a progression over time, while recognizing the need to support developing country
Parties for the effective implementation of this Agreement." Various provisions of Article 4
of the Paris Agreement, i.e., paragraphs 2, 3, 8, 9, and 13 thereof, then set out certain
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procedural obligations for Parties with respect to the preparation, communication,
maintenance and content of these NDCs; while other paragraphs, such as paragraphs 1, 4, 14,
and 15 of Article 4, outline some key considerations that Parties may take into account when
preparing, communicating and maintaining their NDCs.
10. In short, the procedural obligations under Article 4 (e.g., submission ofNDCs) are the means
through which Parties contribute to the achievement of the substantive goals set out in Article
2 of the Paris Agreement and the objective set out in Article 2 of the UNFCCC, including
through, for example, the substantive obligation in Article 4, paragraph 2's second sentence
that ''Parties shall pursue domestic mitigation measures, with the aim of achieving the
objectives of such contributions" and the substantive obligation in Article 4, paragraph 3, of
the Paris Agreement that "[e]ach Party's successive nationally determined contribution will
represent a progression beyond the Party's then current nationally determined contribution
and reflect its highest possible ambition, reflecting its common but differentiated
responsibilities and respective capabilities, in the light of different national circumstances."
11. Together, the provisions of Article 4 of the Paris Agreement, both those ofa procedural nature
and those of a substantive character, aim to progressively align national actions with the
substantive purpose, object and goals of the Paris Agreement under Articles 2 and 3 thereof,
i.e., together, they ensure that the Parties' NDCs progressively increase in ambition through
the use of procedural obligations (such as periodic preparation, communication and
maintenance of successive NDCs) to achieve substantive outcomes that align with the Paris
Agreement's overarching purpose, object and goals and the objective of the UNFCCC.
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Question of Judge Aurescu:
"Some participants have azy,ued, during the written and/ or oral stages ef the proceedings, that there exists the right to a
clean, healt1!J and sustainable environment in international law. Could you please develop what is, in your view, the legal
content ef this right and its relation with the other human rights which you consider relevant far this advisory opinion?"
Reply of the Republic of the Philippines:
1. The right to a dean, healthy, and sustainable environment is now fully a part of international
law. Its existence is well established and well recognized by States. Numerous international
instruments, such as UN General Assembly Resolution 76/30012 and Human Rights Council
Resolution 48/13,13 recognize this right as universal and foundational to other human rights.
The Human Rights Council resolution noted that "more than 155 States have recognized some
form of a right to a healthy environment in, inter alia, international agreements or their national
constitutions, legislation or policies" while the UN General Assembly resolution noted that "a
vast majority of States have recognized some form of the right to a dean, healthy and
sustainable environment through international agreements, their national constitutions,
legislation, laws or policies."
2. The Human Rights Council's Resolution 48/13 states, inter alia, that the Council:
"1. Recognizes the right to a clean, healthy and sustainable environment as a
human right that is important for the enjoyment of human rights;
"2. Notes that the right to a clean, healthy and sustainable environment is
related to other rights and existing international law; [and]
"3. Affirms that the promotion of the human right to a clean, healthy and
sustainable environment requires the full implementation of the multilateral
environmental agreements under the principles of international environmental
law."
3. In its Resolution 76/300, the UN General Assembly stated that it, inter alia:
"1. Recognizes the right to a dean, healthy and sustainable environment as a
human right;
"2. Notes that the right to a clean, healthy and sustainable environment is
related to other rights and existing international law;
"3. Affirms that the promotion of the human right to a clean, healthy and
sustainable environment requires the full implementation of the multilateral
12 UNGA, The human right to a clean, healthy and sustainable environment (A/RES/76/300, 28 July 2022), at
http'-: //dnmmrn N-t1n.nrr{dnc/undnc frm /n22/442 /77 /pd f / n 2244277. pdf
n Human Rights Council, The human right to a clean, healthy and sustainable environment (A/l-ffiC/RES/48/13, 8 October 2021), at
hrrps: //dnqnncnt,;;.1m.orr /doc/nmloc /ren /c:21 /289 /sn /pd f /p'.H ?R9SO.ptl f
WlllITEN REPLlES TO TIUBUNAL'S QUESTIONS
20 DECEMBER 2624
15 I Page
environmental agreements under the principles of international environmental
la
,,
w.
4. The right's legal content includes ensuring clean air, safe and sufficient water, healthy
ecosystems, and a stable climate. It is intrinsically linked to the realization of numerous other
rights, including the rights to life, health, housing, culture, and self-determination. This linkage
to other human rights was highlighted by the UN General Assembly in its Resolution 76/300
in "affirming the importance of a clean, healthy and sustainable environment for the
enjoyment of all human rights" as well as by the Human Rights Council in its own Resolution
48/13 in "acknowledging the importance of a clean, healthy and sustainable environment as
critical to the enjoyment of all human rights." This right, hence, intersects with rights to life, 14
health,15 and an adequate standard ofliving.16 Climate change undermines these rights, making
the realization of environmental rights integral to upholding broader human rights. For
example, the adverse effects of climate change exacerbate threats to the right to life by
increasing vulnerability to disasters and climate impacts. A polluted or degraded environment
undermines physical and mental well-being as environmental conditions directly impact
physical and mental well-being. The Office of the High Commissioner for Human Rights'
Framework Principles on Human Rights and the Environment17 explains the reciprocal
relationship between environmental protection and other human rights and the consequential
indivisibility of environmental rights and other human rights.
5. The right also has procedural elements relating to the right to information, public participation
in environmental decision-making, and access to justice in environmental matters. This was
recognized by the Human Rights Council and the UN General Assembly in their respective
resolutions recognizing the right.
6. The Republic of the Philippines further submits that the right to a clean, healthy, and
sustainable environment is both mutually informing and mutually reinforcing vis-a-vis the
"principle of intergenerational equity."18 While the Court has yet to expressly declare the
principle of intergenerational equity as customary international law, judges of this Court have
already proffered that it "forms part of conventional wisdom in International Environmental
Law."19
7. The Philippines, in its Written Comment for the instant advisory proceedings, already put
forward that intergenerational equity is one of the general principles of law2" that can be
considered as a source of GHG emissions-related obligations ofStates.21
1" UN. International Covenant on dvil and Political Rights, Article 6, at httpid/twtir;;;uo.org/doc/Ireatic-./1976/ffl./1976o:i""%2006-
J7~11?flt\J\[/(]1 TV 114.pdfand http-.://tn:atiCJ5.t1n.oq•/Pr\GES/ViewDrt.1iI'--:tspx;icbapter-4&cJ:im:- en&mtdsr: no-JV-4&srcTREAD'
1s UN, lntemational Covenant on Economic, Social and Cultural Rights, Article 12, at https://trc:1tics.un.org/doc/Iwtics/]976/01/197601Q'.1%7009-
57°1120P~f /Ch TV m.pdf and https: //treacie"-un.nrg/Pagrs/ViewDct:ijls.aspx?srcTND&mtdsr: no-TV-3&chaptec4
16 UN, International Covenant on Economic, Social and Cultural Rights, Article 11, at https://trem]es.110.nrrt<IncCTrcaties/] 976/01 /J 9760]03%2009-
5~~20PM /C:h lV 113.pdf and http~:/ /trratir;s.un.org:/P:u,c:;/VkwDernils.aspx::isrc-JND&mtdsr no-1V-3&chapter-4
11 OHCHR, Framework Principles on Human Rights and the Environment (2018), at
bttpi:://www.ol,chr.orp/i:itcs/defonlt/fiJrs/Docurncnts/Jss11es/Em·ironmcnt/SREnvironment/FrameworkPrinciples{Tserl"riendlyVcrsion.pdf
1s See Lgali!J of the ThruJ/ or Use ofN11tltar Weqpon.r, I.CJ. Reports 1996, p. 226, Dissenting Opinion of J. Weeranuntry.
19 See Pulp Mills (Argentina v. Uruguay), I.CJ. Reports, 2010, p. 14, Separate Opinion of J. Cancado Trindade, para. 122
20 Statute of the International Court of Justice, Article 38(l)(c).
2t See Obligation of Stalls in Rnped of Climate Change, Written Comment of the Republic of the Philippines, at para. 93.
WRllTEN REPLIES TO 11l!BUNAL'S QUESTIONS
20 DECEMBER 2024
16 I Pa g c
8. In its advisory opinion on the Legality of the Threat or Use ofN11clear !!7eapo11s, this Court described
the environment as spanning "the living space, the quality of life and the very health of human
beings, including generations unborn."22 This pronouncement recognizes that the concept of
the environment is inter-temporal, that is, any discussion of State obligation towards or in
relation to the environment should include the past, the present, and the future. Inevitably,
future generations while yet to be born must necessarily be included in the legal discourse that
is happening at present - including in the assessment of the legal content of the right to a
clean, healthy, and sustainable environment.
9. In addition to the substantive and procedural elements, then, the right to a clean, healthy, and
sustainable environment also necessarily includes the inter-temporal dimension. The stable
climate that States owe to individuals because of their right to a clean, healthy, and sustainable
environment should extend to unborn generations.
22 LJgalitJ ef the Tlmal or Use oJNutkar IP'~on.r, I.C.J. Reports 1996, p. 226, para. 29.
WRIITEN REPLIES TO TIUBUNAL'S QUESTIONS
20 DECEMBER 2624
17 I Page
Question of Judge Charlesworth:
''In yo11r rmderstanding, what is the signijicance of the declarations made 1!J some States on becoming parties to the
UNFCCC and the Paris Agreemmt to the effect that no provision in these agreements mqy be inte,preted as derogating
fivm principles of general intemational law or a'!)I claims or rights conceming compensation or /iabili!Y d11e to the adverse
effects of climate change?"
Reply of the Republic of the Philippines:
1. The Republic of the Philippines is among the Slates that made a declaration upon its accession
to the Paris Agreement. In its declaration, the Philippines slated as follows: 23
"THAT it is the understanding of the Government of the Republic of the
Philippines that its accession to and the implemenlation of the Paris
Agreement shall in no way constitute a renunciation of rights under any local
and international laws or treaties, including those concerning Slate
responsibility for loss and damage associated with the adverse effects of climate
change;
"THAT, the accession to and implemenlation of the Paris Agreement by the
Republic of the Philippines is for the purpose of supporting the country's
national development objectives and priorities such as suslainable industrial
development, the eradication of poverty and provision of basic needs, and
securing social and climate justice and energy security for all its citizens."
2. Twenty-one Parties to the Paris Agreement, including the Philippines, made declarations upon
their ratification, acceplance, approval or accession to the Paris Agreement24 Of these, eight
small island development Slates (Cook Islands, Marshall Islands, Federated Slates of
Micronesia, Nauru, Nieu, Solomon Islands, Tuvalu, Vanuatu) plus the Philippines made
declarations that, in essence, slated that their acceplance of the Paris Agreement and its
application does not constitute a renunciation of any rights under international law concerning
Slate responsibility for the adverse effects of climate change and that no provision in the Paris
Agreement can be interpreted as derogating from principles of general international law or any
claims or rights concerning compensation due to the impacts of climate change.
3. Such explicit and clear declarations highlight that the UNFCCC and its Paris Agreement do
not constitute a /ex specia/is treaty regime that excludes the application of general rules of Slate
responsibility. The declarations confirm that Slates have not waived or limited their rights to
seek remedies for wrongful conduct by Slates causing global warming as a result of noncompliance
with their international law obligations to prevent transboundary environmental
harm, whether such obligations arise from customary international law principles (such as the
"no harm" rule coming from the Trail Smelter Arbitration and the ICJ's Advisory Opinion on
the Legality of the Threat or Use of Nuclear Weapons) or from other treaties.
2.1 See UN Treaty Collection, Paris Agreement, at htt1J<:://treaties.pn.org/p;,resb-iewdcmik:1spx:isrc:::m:;uy&mtclsr no-xxyij-7-
d&cbaptcr-27&d:mr- co for the declarntions made by the Republic of the Philippines.
24 See UN Treaty Collection, Paris Agreemen~ at https://treatics.un org/p;mcy/vicwdcmi!s.aspx:isrc-trc:Jty&mtdsr: no-;,;:.."'·jj-7-
d&cbaptcc27&cl;mr- en for the declarations made by these Parties.
.!
WIUTIEN REPLIES TO TIUBUNAL'S QUESTIONS
20 DECEMBER 2624
18 J Page
4. These declarations that were made by States upon their ratification or accession of the Paris
Agreement should be considered as interpretive declarations that clarify how the declaring
States view their obligations as they do not derogate from treaty provisions or the object and
purpose of the treaty. These declarations are hence not reservations within the meaning of the
Vienna Convention on the Law of Treaties (see Articles 19 to 22 thereof), particularly since
Article 27 of the Paris Agreement does not allow any reservations to be made to the Paris
Agreement (Article 24 of the UNFCCC likewise does not allow any reservations to be made
to the UNFCCC). It should be assumed that the declaring States were aware of Article 27 of
the Paris Agreement that no reservations could be made thereto and that they, therefore, did
not intend to have their declarations be construed as being reservations.
5. Hence, these declarations ensure that States' obligations under general international law
remain intact and co-exist with States' obligations under treaties such as the UNFCCC and its
Paris Agreement unless explicitly stated otherwise in the treaties. These declarations
emphasize that the UNFCCC and Paris Agreement operate alongside customary international
law principles, including the no harm rule and State responsibility for transboundary harm,
particularly since liability for transboundary harm remains a cornerstone of customary
international law, even where explicit compensation mechanisms are absent. Customary
international law, as affirmed in the Trail Smelter Arbitration and ICJ jurisprudence,
establishes liability for transboundary harm even in the absence of explicit treaty mechanisms.
20 December 2024
I
COUNSEL FOR THE REPUBLIC OF THE PHILIPPINES:
0 ~SG24i22!'lY0009897
Solicitor General
[email protected]
BERNARD G. HERNANDEZ
Assistant Solicitor General
bgh_osgl @osg.gov.ph
~ t . R. ~
ANNA ESPERANZA R. SOLOMON
Assistant Solicitor General
[email protected]. ph
Assistant Solicitor General
[email protected]. ph
Assis/a, ral
[email protected]
MA. FELINA CONSTANC JE YU-BASANGAN
Seni 'tor
mfcb . ov.ph
'I .
MARKANTHO '{JC. C
I Associate 'filicitor
SAG
Associ olicito1·
[email protected]
JOHN ~~~N ssociate Solicitor
[email protected]
Written reply of the Philippines to the questions put by Judges Cleveland, Tladi, Aurescu and Charlesworth at the end of the hearing held on 13 December 2024