1
INTERNATIONAL COURT OF JUSTICE
OBLIGATIONS OF STATES IN RESPECT OF CLIMATE CHANGE
(REQUEST FOR ADVISORY OPINION)
Saint Vincent and the Grenadines’ Replies to Questions
December 20, 2024
2
Introduction
The proceedings focus on a composite act: the large-scale, long-term anthropogenic emissions
of greenhouse gases by certain States, conducted with knowledge of their harmful effects since
at least the 1960s. This conduct has caused substantial harm, disproportionately affecting
vulnerable States and peoples least responsible for climate change. The wrongful conduct
violates several international obligations, including self-determination, as massive emissions
undermine the territorial integrity and survival of States, particularly Small Island Developing
States (SIDS), contravening the right of peoples to self-determination; the principle of
prevention and due diligence,as States are obligated to prevent harm beyond their jurisdiction
or control, as affirmed in the Trail Smelter Arbitration and Pulp Mills on the River Uruguay
case; and human rights obligations, as the adverse impacts of climate change violate the right
to life, health, and an adequate standard of living under instruments such as the ICCPR and
ICESCR.
The “ultimate objective” of the UNFCCC—stabilising greenhouse gas concentrations to
prevent dangerous interference with the climate system—has not been met. The Paris
Agreement’s call to “enhance implementation” highlights the ongoing failure of responsible
States to fulfil their obligations. This failure exacerbates harm, necessitating urgent action and
accountability. They are constituents of the broader international regime and work in tandem
with all aspects of international law to create a holistic framework to tackle climate change.
Given the breach of international obligations, the law of State responsibility is engaged.
Responsible States must cease wrongful conduct, with immediate and substantial reductions in
greenhouse gas emissions required to halt further harm; provide guarantees of non-repetition,
with mechanisms implemented to prevent recurrence of harmful emissions; and make full
reparation, including restitution to restore the climate system to the extent possible,
compensation for monetary remedies for losses and damages incurred, and satisfaction through
acknowledgment of responsibility and assurances of compliance.
The escalating loss and damage caused by dangerous climate interference must be addressed.
This is not merely a prospective issue; the wrongful conduct has already caused severe injuries.
3
The law of State responsibility requires rectifying historical breaches to restore compliance and
ensure justice for injured States and individuals.
It is emphasised that the climate crisis involves the failure of certain States to fulfil their
obligations under international law, resulting in severe harm to vulnerable populations. The
principles of equity and common but differentiated responsibilities (CBDR) must guide
corrective measures, ensuring that those responsible for historic emissions take immediate,
science-based action to mitigate harm and provide reparations. The remedies sought are
essential to uphold the integrity of the international legal order and protect the rights of affected
peoples.
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 provision in
these agreements may be interpreted as derogating from principles of general international law
or any claims or rights concerning compensation or liability due to the adverse effects of
climate change?”
Response to the Honourable Judge's Question
The declarations made by some States upon becoming parties to the United Nations Framework
Convention on Climate Change (UNFCCC), the Kyoto Protocol, and the Paris Agreement—
asserting that no provision in these treaties may be interpreted as derogating from principles of
general international law or claims concerning compensation or liability—serve as a significant
reaffirmation of the complementary nature of these treaties within the broader corpus of
international law. This response elaborates on the legal and practical implications of these
declarations, with particular reference to the principles of treaty law, customary international
law, the law of State responsibility, and the interplay between lex specialis and lex posterior
derogat legi priori doctrines.
4
1. Core Message: A Reaffirmation of Legal Remedies
These declarations underscore that the climate treaties do not displace or replace existing
obligations or remedies under general international law. Rather, they clarify that:
Participation in these treaties does not constitute a waiver of States' rights to pursue
reparations for harm caused by climate change.
All harm attributable to conduct contributing to climate change remains subject to
remedial measures, including cessation, non-repetition, and compensation, as articulated in
international law.
2. Treaty Law Considerations
Under Article 31(1) of the Vienna Convention on the Law of Treaties (VCLT), treaties are to
be interpreted in good faith in accordance with the ordinary meaning of their terms, their
context, and their object and purpose. The UNFCCC and Paris Agreement aim to combat
climate change collectively, with an emphasis on cooperation, equity, and differentiated
responsibilities. However, declarations serve as unilateral expressions of intent under Article
19 of the VCLT, provided they do not undermine the purpose of the treaty.
These declarations explicitly preserve the applicability of general international law, which
includes principles of State sovereignty, jurisdiction, and responsibility, as well as claims for
harm caused by internationally wrongful acts. Their inclusion signals that parties do not view
the climate change treaties as exhaustive legal frameworks, thereby maintaining the relevance
of broader international law.
3. Relevance of the Lex Specialis and Lex Posterior Principles
The lex specialis principle posits that specialised legal regimes prevail over more general ones
in their specific domain, while lex posterior derogat legi priori suggests that newer laws may
override older ones. These principles, however, are inapplicable in the context of the climate
regime, as the UNFCCC, Kyoto Protocol, and Paris Agreement must work in tandem with
general international law:
5
Complementary Frameworks: The climate treaties do not replace general
international law but exist alongside it, supplementing its principles. For instance, obligations
under the treaties do not negate broader rules such as the no harm rule or the right to a remedy
protected under international human rights law.
Interconnected Obligations: Both treaty-based and general law mechanisms are
essential to addressing the multifaceted challenges posed by climate change, reinforcing the
indivisibility of the international legal order.
4. Customary International Law and State Responsibility
The declarations affirm the continued relevance of customary principles, including:
The No Harm Rule: This foundational principle requires States to prevent
transboundary environmental harm, particularly significant in addressing the global nature of
climate change.
State Responsibility: Under the International Law Commission’s Articles on State
Responsibility, conduct causing harm to the climate system or the environment is unlawful,
and legal consequences—including full reparation—are triggered.
5. Significance for Remedies and Compensation
The declarations emphasise that:
Specialised mechanisms within the climate treaties, such as compliance mechanisms or
climate finance funds, are complementary and do not diminish the obligation of responsible
States to provide full reparation under general international law.
Remedies such as cessation, guarantees of non-repetition, and compensation remain
integral to ensuring accountability for climate-related harm.
6. Implications for Human Rights Law and Broader Obligations
The declarations highlight that remedies for climate harm intersect with international human
rights law, which protects the right to a remedy. Climate change disproportionately impacts
vulnerable communities, particularly in Small Island Developing States (SIDS), making the
6
preservation of legal claims for compensation and liability a critical tool for safeguarding
human rights and achieving climate justice.
6. Practical and Normative Impact
These declarations serve multiple purposes:
Legal Clarity: They provide assurance that participation in climate treaties does not
foreclose access to broader remedial mechanisms under international law.
Reinforcement of Accountability: By confirming the unlawfulness of harmful
conduct under general international law, they strengthen the legal basis for pursuing
reparations.
Equity and Justice: Particularly for vulnerable States, these declarations affirm their
right to demand accountability and seek remedies for climate-related damage, preserving
principles of equity.
Conclusion
The declarations made by States upon joining the UNFCCC, Kyoto Protocol, and Paris
Agreement reaffirm the indivisibility and complementarity of international legal frameworks
in addressing the adverse effects of climate change. These treaties, far from supplanting general
international law, operate within it, ensuring that principles such as State responsibility, the no
harm rule, and the right to a remedy remain fully applicable. The inapplicability of lex specialis
and lex posterior arguments reinforces the integrated nature of the climate regime, affirming
that all harm caused by climate change remains subject to the full range of remedial measures
under international law. This approach ensures coherence, accountability, and justice in the
fight against climate change.
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 the conclusion that, to the extent that Article 4 imposes any
obligations in respect of Nationally Determined Contributions, these are procedural
7
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?”
Introduction
The Honourable Judge’s question invites reflection on whether the “object and purpose” of the
Paris Agreement and the broader climate change treaty framework impact the interpretation of
Article 4 of the Paris Agreement, which governs Nationally Determined Contributions (NDCs).
This response argues that the object and purpose of the Paris Agreement and its predecessor,
the UNFCCC, are foundational to interpreting Article 4. While the obligations related to NDCs
may appear procedural, they are inextricably linked to substantive obligations under the climate
change regime and general international law.
1. Object and Purpose of the Climate Change Framework
The object and purpose of the UNFCCC, as set out in its Article 2, is to achieve stabilisation
of greenhouse gas concentrations to prevent dangerous anthropogenic interference with the
climate system. This goal is underpinned by the principles of equity and common but
differentiated responsibilities and respective capabilities (CBDR-RC).
The Paris Agreement builds upon this objective. Its chapeau to Article 2 explicitly states that
its purpose is to enhance the implementation of the UNFCCC, including by limiting global
temperature increases to well below 2°C and pursuing efforts to limit the increase to 1.5°C.
Furthermore:
The inclusion of loss and damage in Article 8 acknowledges that the effects of climate
change are already being felt, necessitating mitigation, adaptation, and reparation measures.
The reference to sustainable development and poverty eradication emphasises the need
for equitable and effective action, particularly for vulnerable countries such as Small Island
Developing States (SIDS).
8
2. Interpreting Article 4 in Light of Object and Purpose
While Article 4 of the Paris Agreement establishes procedural obligations, such as the
preparation, communication, and maintenance of NDCs, these obligations cannot be
understood in isolation. They must be interpreted in light of the overarching object and purpose
of the Agreement and the UNFCCC:
Procedural Obligations with Substantive Goals: The procedural steps outlined in
Article 4 are intended to operationalise the substantive objectives of the Paris Agreement.
NDCs are tools for achieving the Agreement's temperature goals, meaning that States’
procedural obligations are inseparable from their substantive obligation to reduce emissions.
Imperative for Ambition: The requirement for each successive NDC to represent a
progression beyond the previous one (Article 4.3) reflects the need for increasingly ambitious
climate action, consistent with the Agreement’s object and purpose.
3. Impact of the Object and Purpose
The object and purpose of the Paris Agreement exert a significant influence on the
interpretation of Article 4 in several ways:
Substantive Breaches and Corrective Action: The persistent failure to meet the
overarching objective of stabilising the climate system, as evidenced by rising global emissions
and the resulting loss and damage, must inform the interpretation of NDC-related obligations.
Procedural obligations under Article 4 must be seen as mechanisms to rectify this ongoing
breach and ensure compliance with the substantive obligations under the UNFCCC and Paris
Agreement.
Responsibility of Developed States: The principle of CBDR-RC implies that
developed States, as historical contributors to climate change, bear a heightened obligation to
ensure their NDCs reflect ambitious and immediate emission reductions, as well as to provide
finance, technology transfer, and capacity-building to developing States.
4. Legal Principles and Interpretative Approaches
9
The Vienna Convention on the Law of Treaties (VCLT) provides a framework for treaty
interpretation, requiring that treaties be interpreted in good faith, in accordance with the
ordinary meaning of their terms, in context, and in light of their object and purpose (Article
31). Applying this approach to Article 4:
Ordinary Meaning: While the text of Article 4 outlines procedural obligations, its
context and purpose confirm that these obligations are designed to achieve substantive
outcomes.
Systemic Integration: Article 31(3)(c) of the VCLT requires that treaties be interpreted
in harmony with relevant rules of international law. Thus, Article 4 must be read alongside
principles of State responsibility and international environmental law, including the “no harm”
rule, which prohibits transboundary harm and necessitates cessation and reparation.
5. Conclusion
The object and purpose of the Paris Agreement and the broader climate change treaty
framework are central to the interpretation of Article 4. While procedural in nature, the
obligations related to NDCs are tools for achieving the substantive goals of stabilising the
climate system and preventing dangerous climate change. These obligations must be
interpreted as requiring ambitious, science-based, and equity-driven action to correct ongoing
breaches of the climate regime and ensure compliance with its overarching objectives. The
principles of equity, CBDR-RC, and systemic integration reinforce this interpretation, ensuring
coherence between procedural mechanisms and substantive outcomes in the fight against
climate change.
Prepared by: Ms Shernell S.S. Hadaway -Authorised Signatory for Saint Vincent and the Grenadines,
Shernell S.S Hadaway – Parliamentary Counsel III, Attorney General’s Chambers, Ministry of Legal
Affairs, Saint Vincent and the Grenadines
Written reply of Saint Vincent and the Grenadines to the questions put by Judges Tladi and Charlesworth at the end of the hearing held on 13 December 2024