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

INTERNATIONAL COURT OF JUSTICE
OBLIGATIONS OF STATES IN RESPECT OF CLIMATE CHANGE
(REQUEST BY THE UNITED NATIONS GENERAL ASSEMBLY FOR AN ADVISORY OPINION)
WRITTEN REPLIES OF THE COOK ISLANDS
20 DECEMBER 2024
2
TABLE OF CONTENTS
I. INTRODUCTION .............................................................................................................. 3
II. REPLY TO JUDGE CLEVELAND’S QUESTION ............................................................................ 5
III. REPLY TO JUDGE TLADI’S QUESTION .................................................................................10
IV. REPLY TO JUDGE AURESCU’S QUESTION .............................................................................13
V. REPLY TO JUDGE CHARLESWORTH’S QUESTION .....................................................................18
3
I. INTRODUCTION
1.
Pursuant to the Letter of the Registrar of the International Court of Justice (‘the Court’) of 13 December 2024, the Cook Islands hereby submits its written replies (‘Written Replies’) to the questions put by Judges to participants in the proceedings for the request for an advisory opinion contained in UN General Assembly Resolution 77/276 adopted by consensus on 29 March 2023.
2.
The four questions put by four Judges of the Court at the end of the public hearings are as follows:
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?”
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 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?”
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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?”
« Certains participants ont fait valoir, dans leurs écritures et/ou lors de la phase orale de la procédure, que le droit à un environnement propre, sain et durable existe en droit international. Pourriez-vous expliciter, de votre point de vue, quel est le contenu juridique de ce droit et quelle est sa relation avec les autres droits de l'homme que vous considérez pertinents aux fins du présent avis consultatif ? »
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?”
3.
To provide the Cook Islands’ replies to these questions, these Written Replies contain four further parts as follows:
a.
Part II provides the Cook Islands’ reply to Judge Cleveland’s question;
b.
Part III provides the Cook Islands’ reply to Judge Tladi’s question;
c.
Part IV provides the Cook Islands’ reply to Judge Aurescu’s question; and
d.
Part V provides the Cook Islands’ reply to Judge Charlesworth’s question.
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II. REPLY TO JUDGE CLEVELAND’S QUESTION
4.
The Cook Islands respectfully submits that the specific obligations 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 include, but are not limited to, the obligations to: 1
a.
Cease subsidizing fossil fuels;
b.
Cease policies supporting the expansion of fossil fuel production; and
c.
Cease continuing under-regulating greenhouse gas emissions (‘GHG emissions’) from both public and private sources under their jurisdiction or control.
5.
These obligations naturally flow from States’ obligations under Articles 2.1.a, 2.1.c, 4.1 and 4.3 of the Paris Agreement, which together require States to phase out fossil fuel production and cease direct and indirect subsidies in order to achieve the global temperature target and to align finance flows with a low-GHG emissions pathway and climate-resilient development, consistent with the object and purpose of the climate regime.
6.
These obligations also arise as necessary legal consequences for States that are in breach of their obligations at international law because they are displaying and engaging in what multiple participants have identified as the Relevant Conduct of States responsible for climate change and its adverse effects (‘Relevant Conduct’ or ‘Conduct’).2
1 CR 2024/42, p. 19, para. 7 (Cook Islands); Written Comments of the Cook Islands, para. 66 (a); Written Comments of Vanuatu, para. 177; Written Comments of the Melanesian Spearhead Group, paras. 178, 193, 203, 237; Written Statement of Vanuatu, paras. 7, 143-146, 494-499, 567; Written Statement of the Melanesian Spearhead Group, paras. 294-296, 333.
2 See CR 2024/42, pp. 10-11, para. 6 (Cook Islands); Written Comments of the Cook Islands, paras. 17-19; Written Comments of Vanuatu, paras. 29-59; Written Comments of the Melanesian Spearhead Group, paras. 21-38; Written Statement of Vanuatu, paras. 134, 137-157, 162-170; Written Statement of the Melanesian Spearhead Group, paras. 221-230.
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7.
To further explain and expand on this submission, the Cook Islands breaks it down into the following four points:
a.
First, acts (such as subsidizing fossil fuels and adopting policies supporting the expansion of fossil fuel production) and omissions (such as under-regulating GHG emissions of public and private actors under a State’s jurisdiction or control) are among the acts and omissions attributable to States that contribute to climate change and its adverse effects.3 In other words, these acts and omissions are included in the Relevant Conduct of concern in these proceedings.
b.
Second, certain high emitting States that have demonstrated these acts and omissions over a long period of time in full knowledge of the catastrophic effects of their Conduct for humans and the environment, at least since the 1960s.4
c.
Third, because they have engaged in this Conduct, these States have long been in breach of their obligations at international law.5 These breached obligations include their obligations under the UNFCCC and the Paris Agreement, where States’ continued expansion of fossil fuel production and subsidies is clearly contrary to meeting the objective of these instruments.6 States are also falling short of their duties of prevention and due diligence, including the standard of stringent due diligence required by obligations under the law of the sea, specifically Pt XII of the UNCLOS.7 Importantly, these States have also long been in breach of their human rights obligations, including those regarding the prohibition of racial and gender discrimination.8 This means these acts and omissions, included in the Relevant Conduct, are unlawful on several grounds; and
3 Written Comments of the Melanesian Spearhead Group, para. 25; Written Comments of Vanuatu, para. 177 (a)-(c).
4 Written Statement of Vanuatu, paras. 177-192; Expert Report of Professor Naomi Oreskes on Historical Knowledge and Awareness, in Government Circles, of the Effects of Fossil Fuel Combustion as the Cause of Climate Change (dated 29 January 2024) (Written Statement of Vanuatu, Exhibit D).
5 For a comprehensive summary of the obligations of States that are breached by the Relevant Conduct, see Written Comments of the Vanuatu, table 2.
6 Written Statement of Vanuatu, paras. 319-320.
7 CR 2024/42, pp. 106-110, paras. 1-12 (Vanuatu and the Melanesian Spearhead Group);
8 See CR 2024/42, pp. 14-18, para. 19-35 (Cook Islands); Written Comments of the Cook Islands, paras. 63-72; Written Statement of the OACPS, paras. 81-90.
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d.
Fourth, under the general law of State responsibility, these States are obliged to take immediate measures to cease and guarantee non-repetition of any unlawful conduct.9 This means these certain States have obligations to take measures to cease subsidizing fossil fuels, cease policies supporting the expansion of fossil fuel production and cease continuing under-regulating GHG emissions from both public and private sources under their jurisdiction or control.
8.
The Cook Islands respectfully emphasizes that because these acts and omissions regarding fossil fuel production and subsidies result in violations of States’ human rights violations, in order to cease and guarantee non-repetition of this rights-violating conduct, States must pursue structural remedies to address the “systems problem[s]” and structural issues that underpin and drive the conduct.10 These remedies must include legislative and constitutional reforms to enact the cessation measures above, including explicit and unequivocal legislative and constitutional prohibitions of fossil fuel subsidies, fossil fuel expansion and the under-regulation of GHG emissions from both public and private sources under States’ jurisdiction or control.11
9.
These law reforms will help to not only gradually dismantle the structures and systems that drive climate change but will also help to empower States to build new systems capable of enabling a just transition away from fossil fuels and thus capable of protecting peoples’ and individuals’ human rights.12
10.
Importantly, a number of international systems are implicated in these acts and omissions. For example, in regard to the global trade regime and the World Trade Organization (‘WTO’), Ron Steenblik, Jehan Sauvage and Christina Timiliotis have provided a persuasive account of how international ideational dynamics have meant that existing rules and norms on subsidies in the trade regime have not been used to
9 Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, Yearbook of
the International Law Commission, 2001, vol. II, Part Two, as corrected, art. 30; Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, I.C.J. Reports 2012, p. 99, para. 137; Written Statement of Vanuatu, paras. 556-575.
10 CR 2024/42, p. 18, para. 7 (Cook Islands); Written Comments of the Cook Islands, para. 128 (d).
11 CR 2024/42, p. 19, para. 7 (Cook Islands); Written Comments of the Cook Islands, para. 106.
12 CR 2024/42, pp. 19-20, paras. 11-14 (Cook Islands); Written Comments of the Cook Islands, para. 129 (d)(i).
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deal with fossil fuel subsidies
, which has resulted in not a single challenge to fossil fuel subsidies taking place in the WTO context.13
11.
Similarly, in regard to the global climate regime, Harro van Asselt, Laura Merrill and Kati Kulovesi have provided a compelling account of how consideration of policies to address fossil fuel production or consumption has been mostly absent in the rule development under the UNFCCC, despite growing evidence of the climate impacts of fossil fuel subsidies.14
12.
The Cook Islands submits that these important accounts of some of our key current regimes and the systems they are a part of make clear that reforming these systems so that they no longer enable unlawful Conduct is impossible. The current realities of the climate crisis and the wider triple planetary crisis is evidence of what these systems were designed to do and all that they will ever do.
13.
While it may be argued that these systems can be reformed over time, the climate science and factual information provided to the Court in these proceedings make clear that the Cook Islands and other small island developing States do not have time for these systems to somehow operate differently from how they have ever since they were established.
14.
Notably, these regimes and systems were constructed when small island developing States like the Cook Islands were not recognized as free and sovereign States15 and have been in place for many decades to effectively enable the unlawful Conduct to emerge, intensify and go largely unchecked as the adverse effects of the Conduct continue to cause devastation around the world and threaten the existence of peoples and their homelands and waters.
13 Ron Steenblik, Jehan Sauvage and Christina Timiliotis “Fossil Fuel Subsidies and the Global Trade Regime” in Jakob Skovgaard and Harro van Asselt (eds) The Politics of Fossil Fuel Subsidies and their Reform (Cambridge University Press 2018), available at: https://www.cambridge.org/core/books/politics-of-fossil-fuel-subsidies-and-their-reform/fossil-fuel-subsidies-and-the-global-trade-regime/3F4A438DB8C8241C89F200B122C41A83
14 Harro van Asselt, Laura Merrill and Kati Kulovesi “Fossil Fuel Subsidies and the Global Trade Regime” in Jakob Skovgaard and Harro van Asselt (eds) The Politics of Fossil Fuel Subsidies and their Reform (Cambridge University Press 2018), available at: https://www.cambridge.org/core/books/politics-of-fossil-fuel-subsidies-and-their-reform/fossil-fuel-subsidies-and-the-global-climate-regime/3BB9B99AA053F38411B8700FC1633B51
15 CR 2024/45, pp. 29, para. 42 (Federated States of Micronesia).
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.
15.
Therefore, the Cook Islands submits in its final response to Judge Cleveland’s question that in addition to the cessation obligations above, States are obliged to co-operate in adopting a “non-reformist reform approach”16 that involves immediately pursuing domestic, regional and international law reforms17 that aim to gradually dismantle these problematic systems and build equitable ones capable of guaranteeing cessation and non-repetition of the unlawful Conduct and protecting the human rights of all peoples and individuals.
16 CR 2024/42, p. 20, para. 14, fn. 39 (Cook Islands), citing Amna A. Akbar, “Non-reformist reforms and struggles over life, death, and democracy”, Yale Law Journal, Vol. 2497 (2022), p. 2507 (remarking that: “Non-reformist reforms aim to undermine the prevailing political, economic, social order, construct an essentially different one, and build democratic power toward emancipatory horizons.”).
17 For example, in regard to the global trade regime, Steenblik, Sauvage and Timiliotis note a number of reforms that the Cook Islands submits are important for States to consider and pursue, including the potential of regional and plurilateral trade agreements and various soft-law approaches, Ron Steenblik, Jehan Sauvage and Christina Timiliotis, “Fossil Fuel Subsidies and the Global Trade Regime”, pp. 130-135. In regard to the global climate regime, van Asselt, Merrill and Kulovesi propose several important reforms for States to urgently consider and pursue, including impositions of reputational costs if States reneg voluntary commitments and amplifications of the emerging norm of fossil fuel subsidy reform, Harro van Asselt, Laura Merrill and Kati Kulovesi “Fossil Fuel Subsidies and the Global Trade Regime”, pp. 146-151.
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III. REPLY TO JUDGE TLADI’S QUESTION
16.
The Cook Islands respectfully submits that “the object and purpose” of the Paris Agreement, and the object and purpose of the climate change treaty framework in general, has significant effects on how Article 4 is to be interpreted, including in relation to the procedural obligations in respect of Nationally Determined Contributions (‘NDCs’).
17.
More specifically, the Cook Islands submits that Article 4 must be interpreted in light of the fact that the object and purpose of both the UNFCCC and the Paris Agreement continue to be disregarded by certain high emitting States, which is connected to and reflective of the fact that they are in breach of their substantive obligations under these agreements and general international law.
18.
In undertaking this approach to interpretation, it is clear that Article 4 demands that States Parties’ NDCs include immediate, ambitious, science-based actions to restore compliance with their relevant substantive obligations, ensure cessation of their unlawful Conduct and communicate the reparative measures they are undertaking to repair, compensate for and remedy the harms their Conduct have already caused.
19.
To further explain and expand on this submission, the Cook Islands breaks it down into the following six points:
a.
First, the object and purpose of the UNFCCC is to prevent dangerous anthropogenic interference with the climate system, in accordance with States’ common but differentiated responsibilities and respective capabilities (‘CBDR-RC’).
b.
Second, certain high-emitting States have long shown blatant disregard for the UNFCCC’s object and purpose. Their disregard is connected to and reflective of their breaches of their correlative obligations under the UNFCCC and its subsidiary treaties, including the Paris Agreement. In fact, the object and purpose of the Paris Agreement is integrally linked to the fact that the object and purpose of the UNFCCC had long been disregarded by States Parties at the time the Paris Agreement was negotiated
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and signed
, where the phrase “enhancing the implementation” in the chapeau of Article 2 of the Paris Agreement, coupled with the reference to loss and damage in its Article 8 and the de facto escalation of emissions since the 1990s, make clear that certain States had already breached their substantive obligations under the UNFCCC.18
c.
Third, these breaches and ongoing disregard for the object and purpose of the UNFCCC and Paris Agreement are integral to how Article 4 of the Paris Agreement must be interpreted. To not interpret Article 4 in light of this disregard and set of breaches would be to undermine, if not nullify, the objects and purposes of these instruments by unduly freezing them in the time and context of 2015-2016, even in the face of ongoing and escalating breaches, which ultimately renders the objects and purposes of these ambitious instruments meaningless.
d.
Fourth, in undertaking this approach to interpreting Article 4, it is clear that its procedural obligations, such as those relating to preparing and communicating NDCs, are interconnected with States’ substantive obligations arising from the climate regime and other sources of international law. The result is that NDCs must reflect, record, and advance States’ fulfilment of their substantive obligations under the Paris Agreement, UNFCCC and other interconnected and interdependent obligations, including their human rights obligations. In other words, the descriptor “procedural” should not be taken to imply or indicate that these obligations are mere box-ticking exercises. Rather, these procedural obligations require States Parties to prepare and communicate robust and ambitious NDCs that enable them to pursue immediate and ambitious action in fulfilment of all of their substantive obligations in respect of climate change at international law.
e.
Fifth, because the ultimate objects of the UNFCCC and Paris Agreement are still yet to be achieved and loss and damage have already occurred and are still occurring, high emitting States are already in breach of their obligations under the UNFCCC and other regimes of international law. This naturally follows that Article 4 obliges States to see and treat their NDCs as tools and plans to bring about cessation and reparations for
18 See Written Statement of Vanuatu, paras. 408-417, 437-441, 520.
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their breaches
— where NDCs should include a range of measures States will undertake to reduce their emissions immediately and substantially and address the harms their unlawful Conduct have caused.
f.
Sixth, responsible high emitting States also have heightened obligations to provide developing States with the finance, technology transfer and capacity-building, including the support needed to fully implement conditional NDCs in order to contribute maximally to global climate action.
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IV. REPLY TO JUDGE AURESCU’S QUESTION
20.
The Cook Islands respectfully submits that the right to a clean, healthy, and sustainable environment (‘the right’) contains both substantive and procedural content.
21.
The substantive content of the right includes ensuring clean air, a safe climate, healthy and sustainably produced food, safe water, adequate sanitation, non-toxic environments to live, work and play, and healthy ecosystems and biodiversity.19 Importantly, the safe climate aspect of the right dovetails with the object and purpose of the UNFCCC to prevent dangerous anthropogenic interference with the climate system.20
22.
The procedural content of the right includes the right to access environmental information, public participation in environmental decision-making and access to environmental justice.21
23.
Another crucial aspect of the right is that it is “autonomous” and “protects the components of the environment, such as forests, rivers and seas, as legal interests in themselves, even in the absence of the certainty or evidence of a risk to individuals.”22
19 Inhabitants of La Oroya v. Peru, Inter-American Court of Human Rights, 2024, para. 118; David Boyd (Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment), Right to a healthy environment: good practices, UN Doc A/HRC/43/53, 30 December 2019, paras. 8-18. Notably, the Committee on the Rights of the Child affirmed these substantive elements, General Comment No. 26 on children’s rights and the environment, with a special focus on climate change, CRC/C/GC/26, 22 August 2023, para. 64.
20 David Boyd (Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment), Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, 15 July 2019, UN Doc A/74/161, para. 43.
21 As aptly stated in the Written Statement of Vanuatu, para. 382 fn. 763, these types of procedural obligations have a source at the intersection of both international environmental law and human rights law, see, in the Inter-American context: Advisory Opinion OC-23/17 (‘The Environment and Human Rights’), Inter-American Court of Human Rights Series A No. 23, 15 November 2017, paras. 211-241. Such obligations also have a source in treaty law: see Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (adopted in Aarhus Denmark on 25 June 1998 entered into force 30 October 2001), 2161 UNTS 447, art. 1 (“the right of every person of present and future generations to live in an environment adequate to his or her health and well-being”); see also Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean, Escazú, Costa Rica, 4 March 2018, art 1, which is not yet in force, but speaks of “the right of every person of present and future generations to live in a healthy environment and to sustainable development.”
22 Advisory Opinion OC-23/17 (‘The Environment and Human Rights’), Inter-American Court of Human Rights Series A No. 23, 15 November 2017, para. 62; Case of the Indigenous Communities of the Lhaka Honhat (Our
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24.
The right also has a collective dimension23 in protecting an essential quality of the natural environment that “constitutes a universal value that is owed to both present and future generations.”24 As such, this collective dimension means that the right expansively operates temporally for both present and future generations, spatially as a universal value and a common concern of humankind,25 and also extraterritorially given the transboundary nature of environmental harms.26
25.
The Cook Islands also submits that the right is integrally linked to all other human rights, especially given the indivisible, interdependent and interrelated nature of all human rights.27 Therefore, the right is linked not only to the rights to self-determination, life, health, housing, and culture but also to the rights regarding the prohibition of racial, gender, and intersectional discrimination.28 The right can be understood as a necessary derivation from these and other existing rights.29 These inherent links follow that
Land) Association v. Argentina, Judgement, Inter-American Court of Human Rights (ser. C), 6 February 2020, para. 203.
23 This collective dimension to the right to a healthy environment has been recognised by Judge Cançado Trindade also recognised the in his extrajudicial writings: AA Cançado Trindade, “The Parallel Evolutions of International Human Rights Protection and Environmental Protection and the Absence of Restrictions upon the Exercise of Recognized Human Rights” (1991) 13 Revista IIIDH 36, pp. 65-66.
24 Advisory Opinion OC-23/17 (‘The Environment and Human Rights’), Inter-American Court of Human Rights
Series A No. 23, 15 November 2017, para. 59.
25 Writing extrajudicially, Judge Trindade observed that “within the ambit of the droit de l’humanité, the common concern of the human kind finds expression in the exercise of the recognized right to a healthy environment, in all its dimensions (individual, groupal, social or collective, and inter-generational)”, AAC Trindade, “The Parallel Evolutions of International Human Rights Protection and Environmental Protection and the Absence of Restrictions upon the Exercise of Recognized Human Rights” (1991) 13 Revista IIIDH 36, p. 54.
26 See Committee on the Rights of the Child, Decision adopted by the Committee on the Rights of the Child under the Optional Protocol to the Convention on the Rights of the Child, concerning Communication Nos. 104 107/2019: Chiara Sacchi et al. v. Argentina, Brazil, France, and Germany (CRC/C/88/D/104/2019, CRC/C/88/D/105/2019, CRC/C/88/D/106/2019, CRC/C/88/D/107/2019), 11 November 2021, paras. 10.5, 10.7; Advisory Opinion OC-23/17 (‘The Environment and Human Rights’), Inter-American Court of Human Rights Series A No. 23, 15 November 2017, paras. 101, 103, 104.
27 The indivisibility of human rights is an official doctrine of the UN as affirmed by the UNGA in 1977, see General Assembly Resolution 32/130, 16 December 1977, para .1(a).
28 To recall, the Cook Islands in these proceedings has outlined these particular rights obligations, and the ways in which States have breached these obligations by engaging in the Relevant Conduct, see Written Comments of the Cook Islands, paras. 63-72; CR 2024/42, pp. 14-18, paras. 19-35 (Cook Islands), drawing on the Written Statement of the Organisation of African, Caribbean and Pacific States, para. 81-90, Appendix B: Racial Equality and Racial Non-Discrimination Obligations of States in Respect of Climate Change, Expert Report of Professor E. Tendayi Achiume, March 2024.
29 The human right to a clean, healthy and sustainable environment, Human Rights Council Resolution 48/13, adopted 8 October 2021, A/HRC/RES/48/13, para. 2; UNGA, The human right to a clean, healthy and sustainable environment, GA res 76/300, adopted 28 July 2022, A/RES/76/300, para. 2; Advisory Opinion OC-23/17 (‘The
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obligations arising under the right can be understood as running since the time the
other human rights from which it is derived were recognized at international law, which is at least since 26 June 1945 when the UN Charter was adopted.30
26.
It is also critical to note that the right also provides heightened obligations for States engaging in the Conduct in respect of Indigenous and traditional communities that depend on their ancestral territories for their material and cultural existence31 and are thus especially vulnerable to impairments of environmental quality.32
27.
In outlining the content of the right and its relationships to other human rights, the Cook Islands respectfully requests that the Court also recognise in its advisory opinion that the Relevant Conduct constitutes a serious and gross violation of the right and the other human rights it is interconnected and interlinked with. These violations are evidenced by the abundance of factual and scientific information developing States have provided to the Court in these proceedings33 as well as the impact statements and testimonials illustrating how the Relevant Conduct has long resulted in breaches of States’ human rights obligations.34
Environment and Human Rights’), Inter-American Court of Human Rights Series A No. 23, 15 November 2017, para. 59.
30 Written Comments of Vanuatu, p. 91 (Table 2).
31 John H Knox, Framework principles on human rights and the environment (“Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean healthy and sustainable environment”) (24 January 2018) A/HRC/37/59 annex, para. 41(d).
32 As noted in the Written Statement of Vanuatu, fn. 780, the Human Rights Committee and the Inter-American Court of Human Rights have adopted this type of reasoning: see, UN Human Rights Committee, Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 3624/2019: Daniel Billy et al. v. Australia, CCPR/C/135/D/3624/2019, 22 September 2022, para. 7.10; Case of the Indigenous Communities of the Lhaka Honhat (Our Land) Association v. Argentina, Judgement, Inter-American Court of Human Rights (ser. C), 6 February 2020, para. 109 (environmental damage “can occur with greater intensity in certain groups in vulnerable situations” among which Indigenous peoples and “the communities that depend economically or for their survival, fundamentally on environmental resources, [like] the marine environment, forest areas or river basins”.
33 See CR 2024/42, p. 13-14, paras. 1-9 (Cook Islands); CR 2024/35, p. 101, para. 4 (Vanuatu and Melanesian Spearhead Group); CR 2024/35, p. 137, para. 13 (Albania); CR 2024/37, p. 9, paras. 4-5 (Belize); CR 2024/40, pp. 65-66, paras. 6-10 (Fiji); CR 2024/41, p. 42, paras. 1-6 (Grenada); CR 2024/42, pp. 24-27, paras. 1-18 (Marshall Islands); CR 2024/43, p. 42-43, paras. 1-3, p. 43, paras. 8-10 (Kiribati); CR 2024/47, pp. 11-13, paras. 5-21 (Palau); CR 2049/49, p. 10, para. 4 (Saint Vincent and the Grenadines); CR 2024/50, pp. 43-46, paras. 6-9 (Sri Lanka); CR 2024/51, pp. 38-39, para. 12; CR 2024/51, pp. 47-48, paras. 3-7; pp. 49-51, paras. 11-15 (Tuvalu).
34 See Written Statement Cook Islands, Annex Nos. 4-17; Written Statement of the Melanesian Spearhead Group, Exhibits 5-36; Written Statement of Vanuatu, Exhibits F-U; Written Statement of Solomon Islands, paras. 29.1-29.9; Written Statement of Kiribati, Annex 2; Written Statement of Tonga, Annex 2; Written Statement of Grenada, Annex 3.
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28.
Further, in responding to the question of legal consequences for these breaches, the Cook Islands requests that the Court advise that high emitting States are especially obliged to take immediate measures to cease and guarantee non-repetition of their unlawful Conduct and provide reparations for the resulting harms. Importantly, the right informs the content of responsible States’ remedial obligations, where States must not only reduce future emissions to prevent further harm but also address the historical and ongoing contemporary harms to ecosystems and communities that have already suffered from environmental and climate damage due to the unlawful Conduct.
29.
Finally, while certain participants in these proceedings seek to downplay or disregard the content and critical importance of the right and the obligations that flow from it, the Cook Islands respectfully requests that the Court advise of the right’s critical importance and undeniable status at international law in treaties and at customary international law.35
30.
More specifically, the right’s crystallising status as customary international law is evidenced by the following:
a.
The adoption of the UN General Assembly and UN Human Rights Council resolutions recognizing the right with no States voting against either resolution;36
b.
Explicit references to the right by several States in their statements during the Universal Periodic Review process;37
c.
The inclusion of the right in several major human rights treaties;38
35 William Schabas, The Customary International Law of Human Rights (Oxford University Press, 2021), p. 335 (stating: “there is compelling evidence for a human right to a safe, clean, healthy, and sustainable environment under customary international law”).
36 The human right to a clean, healthy and sustainable environment, Human Rights Council Resolution 48/13,
adopted 8 October 2021, A/HRC/RES/48/13 (adopted with 43 votes in favour, 4 abstentions, 0 votes against); The human right to a clean, healthy and sustainable environment, UN General Assembly Resolution 76/300, adopted 28 July 2022, A/RES/76/300 (adopted with 161 votes in favour, 8 abstentions, 0 votes against).
37 William Schabas, The Customary International Law of Human Rights (Oxford University Press, 2021), p. 333-334, fn. 35.
38 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights : Protocol of San Salvador (adopted 17 Nov. 1988; entered into force on 16 Nov. 1999), art. 11, which has been held by the Inter-American Court of Human Rights to form part of the economic, social and cultural rights protected by art. 26 of the American Convention of Human Rights and creates obligations for States parties to respect, ensure and prevent violations of the right: Advisory Opinion OC-23/17 (‘The Environment and Human Rights’), Inter-American Court of Human Rights Series A No. 23, 15 November 2017, para. 57; African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) CAB/LEG/67/3 rev. 5,
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d.
The fact that over 110 States have recognized the right in their constitutions;39
e.
The fact that the right is supported by over 80 per cent of UN member States through constitutions, legislation, regional treaties;40 and
f.
The increasing number of national courts enforcing the right.41
ILM 58 (Banjul Charter), art. 24; Arab Charter on Human Rights (2004), art. 38; see also ASEAN Human Rights Declaration, Association of Southeast Asian Nations (ASEAN), 18 November 2012, art. 28(f) (“right to a safe, clean and sustainable environment”); and American Declaration on the Rights of Indigenous Peoples, 15 June 2016, AG/RES.2888 (XLVI-O/16), art. 19(1), see further arts. 19(2)-(4). See also Committee on the Rights of the Child, General Comment No. 26 on children’s rights and the environment, with a special focus on climate change, UN Doc CRC/C/GC/26 (22 August 2023), paras. 23, 31, 37, 61, 71.
39 John H Knox, “Human Rights” in Lavanya Rajamani and Jacqueline Peel (eds), The Oxford Handbook of International Environmental Law (Oxford University Press, 2nd ed, 2021) at p. 784, 786-787; David Boyd (Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment), Right to a healthy environment: good practices, UN Doc A/HRC/43/53, 30 December 2019, para. 10. As Vanuatu notes, some constitutions, laws and policies speak of the right as an individual guarantee, whereas others provide it as a collective right or general principle; and some use different nomenclature to describe a substantively similar right, see Written Statement of Vanuatu, fn 754. Concurring with Vanuatu, the Cook Islands also submits that state practice need not be identical: Case Concerning Military and Paramilitary Activities In And Against Nicaragua (Nicaragua v. United States of America) (Merits), Judgment of 27 June 1986, p. 14, para. 186.
40 David R. Boyd Special Rapporteur on the Human Right to a Clean, Healthy and Sustainable Environment, The Right to a Healthy Environment: A User’s Guide (2024), p. 8 available at: https://www.ohchr.org/sites/default/files/documents/issues/environment/srenvironment/activities/2024-04-22-stm-earth-day-sr-env.pdf
41 See, e.g., Demanda Generaciones Futuras v. Minambiente, Supreme Court of Colombia, STC4360-2018, Decision of 5 April 2018 (Colombia); Leghari v. Federation of Pakistan, High Court at Lahore, W.P. No. 25501/201, Decision of Apr. 4, 2015 (Pakistan); PSB et al. v. Brazil, Supreme Court of Brazil, ADPF 708, Decision of 1 July 2022 (Brazil); National Inquiry on Climate Change Report, Commission on Human Rights of the Philippines, Case No. CHR-NI-2016-0001, May 2022 (Philippines); Held v. Montana CDV-2020-307, Montana First Judicial District Court, WL 1997864, decision of 14 August 2023; In the matter of Hawai’i Electric Light Company, Supreme Court of the State of Hawai’i, SCOT—22—000041, Decision of 13 Mar. 2023 (US). Cases involving the constitutional right to a healthy environment have been adjudicated in at least 76 countries, United Nations Environment Programme, Environmental Rule of Law: Tracking Progress and Charting Future Directions (12 March 2023), available at: https://www.genevaenvironmentnetwork.org/events/global-launch-of-the-environmental-rule-of-law-tracking-progress-and-charting-future-directions-report/
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V. REPLY TO JUDGE CHARLESWORTH’S QUESTION
31.
The Cook Islands respectfully submits that the declarations made by some States upon becoming party to the UNFCCC,42 the Kyoto Protocol43 and the Paris Agreement44—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 – are of profound significance to the questions put to the Court.
32.
Specifically, these declarations, predominantly from small island developing States like the Cook Islands,45 are critically important because they reaffirm that these agreements do not constitute a lex specialis that exclude the application of general international law or other relevant rules providing obligations of States in respect of climate change and legal consequences for breaching these obligations, such as the right to a remedy protected under international human rights law.46
33.
As such, these declarations make clear that the climate regime does not displace existing obligations and remedies and that any harm already caused by the Relevant Conduct of high emitting States has breached these obligations and triggered legal consequences under the general law of State responsibility - thus meaning that these responsible States must provide a wide range of remedial measures under international law, including immediate cessation and guarantees of non-repetition, and reparations including compensation, restitution and satisfaction.
42 United Nations Treaty Collection, “7. United Nations Framework Convention on Climate Change”, available at: https://treaties.un.org/pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXVII-7&chapter=27&Temp=mtdsg3&clang=_en. Declarations to this effect were made by Fiji, Kiribati, Nauru, Papua New Guinea and Tuvalu.
43 United Nations Treaty Collection, “7. a Kyoto Protocol to the United Nations Framework Convention on Climate Change”, available at: https://treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg_no=xxvii-7-a&chapter=27&clang=_en. Declarations to this effect were made by the Cook Islands, Kiribati, Nauru and Niue.
44 United Nations Treaty Collection, “7. d Paris Agreement”, available at: https://treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg_no=xxvii-7-d&chapter=27&clang=_en
Declarations to this effect were made by the Cook Islands, Federated States of Micronesia, Nauru, Niue, Solomon Islands, Tuvalu and the Philippines. In addition, Vanuatu and the Marshall Islands declared that ratification of the Paris Agreement “shall in no way constitute a renunciation of any rights under any other laws, including international law.”
45 The Cook Islands made declarations in signing the the Kyoto Protocol and the Paris Agreement.
46 See Written Statement of Vanuatu, para. 433.
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34.
The declarations also confirm that there are no specialized funds and compliance mechanisms under the UNFCCC, Kyoto Protocol and Paris Agreement, like the Warsaw Mechanism for Loss and Damage, that can allow responsible high emitting States to evade legal consequences for breaches of their obligations under general international law.
35.
Therefore, in regard to the question of legal consequences, the Cook Islands submits that these declarations affirm that reparations and remedies are available to all States “injured or specially affected by or are particularly vulnerable to the adverse effects of climate change” and all “peoples and individuals of the present and future generations affected by the adverse effects of climate change.”
36.
Furthermore, the Cook Islands respectfully submits that high emitting States owe heightened obligations under the UNFCCC, Kyoto Protocol, Paris Agreement and general international law, including human rights law, to small island developing States and other developing States, including heightened obligations to provide reparations and remedies for breaches of their obligations. For breaches of obligations under the climate regime, these heightened obligations derive from the principles of equity and CBDR-RC. For human rights treaty obligations, these heightened extraterritorial obligations not only flow or derive from the object and purpose of these treaties47 but also in part from the principle of effectiveness48 , which in this context follows that in order for high emitting States to effectively and practically apply and uphold their human rights obligations, these obligations must be heightened for peoples and individuals of small island developing States and other developing States who are particularly injured or specially affected by the rights-violating Conduct.
47 Austriav. Italy, ECtHR, para. 116 et seq.
48 Loizidou v. Turkey (Preliminary Objections) (App. No. 15318/89), Judgment (23 March 1995), para. 72; Airey v. Republic of Ireland Series A no 32 (1979) 2 EHRR, 305, para. 24; Soering v. UK (1989) Series A No 161, App No 14038/88 11 EHRR 439, para. 87. See Manfred Nowak, Introduction to the International Human Rights Regime (Brill, 2003) 66 (referring to the same rule, but referring to it as “effet utile”). This principle of interpretation has also been applied by this Court in other contexts: see e.g., Corfu Channel Case (United Kingdom v. Albania) (Merits) I.C.J. Reports 1949, p. 24; Interpretation of the Peace Treaties with Bulgaria, Hungary, and Romania, Advisory Opinion (Second Phase) I.C.J. Reports 1950, p. 229 (referring to “the maxim: Ut res magis valeat quam pereat, often referred to as the rule of effectiveness”), as noted in the Written Statement of Vanuatu, para. 332, fn. 591.
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37.
These declarations from small island developing States from the 1990s onwards also affirm that when the UNFCCC came into force, these States had already suffered harm caused by the Conduct of certain high emitting States. This follows that the legal consequences under the general law of State responsibility were triggered before the UNFCCC was signed, where certain high emitting States knew about the severe harms of their Conduct beyond their borders since at least the 1960s.49
38.
The Cook Islands respectfully submits that ignoring or downplaying these significant implications of the declarations would not only further reinforce climate injustices long perpetuated by the unlawful Conduct but would effectively undermine the voices of these States Parties to the UNFCCC, Kyoto Protocol and Paris Agreement as sovereign States, and by extension the principle of sovereign equality under the UN Charter as well. Notably, the voices of small island developing States are already significantly marginalised and face significant power and resource imbalances within the climate regime.50
39.
The Cook Islands also emphasizes that these declarations make clear that all States are obliged to take a human rights-centred approach to upholding their obligations under
49 Written Statement of Vanuatu, paras. 177-192; Expert Report of Professor Naomi Oreskes on Historical Knowledge and Awareness, in Government Circles, of the Effects of Fossil Fuel Combustion as the Cause of Climate Change (dated 29 January 2024) (Written Statement of Vanuatu, Exhibit D).
50 See RNZ Pacific, “Pacific climate advocates decry COP29 outcome 'a failure on every front'” Radio New Zealand (25 November 2025), available at https://www.rnz.co.nz/news/pacific/534771/pacific-climate-advocates-decry-cop29-outcome-a-failure-on-every-front (noting: “The United Nations climate change summit COP29 has "once again ignored" the Pacific Islands, a group of regional climate advocacy organisations say. The Pacific Islands Climate Action Network (PICAN) said on Monday that "the richest nations turned their backs on their legal and moral obligations" as the UN meeting in Baku, Azerbaijan, fell short of expectations.”); Miriam Prys-Hansen "Differentiation as affirmative action: transforming or reinforcing structural inequality at the UNFCCC?" (2020) 34 Global Society 353, p. 368, available at: https://www.tandfonline.com/doi/full/10.1080/13600826.2020.1739635#d1e320 (stating that: “Frequently, economic and other geopolitical interests thus at least used to be treated as much more important as any climate goals; and bargaining power games within the UNFCCC obstructed meaningful negotiations of a comprehensive climate agreement, further aggravating the “triple inequality”, as “poverty and powerlessness […] directly deprive[d] developing countries of the technical, financial, and administrative capacity to effectively negotiate.” ... Indeed, the past three decades of climate change negotiation have led to ongoing circles of transforming and reproducing structural inequalities. Institutional attempts to alleviate and balance out structural inequalities by different forms of [affirmative action] were almost without fail followed by informal processes that undermined these attempts.”); Emily Hite, Jamie Haverkamp, and Charu Joshi "Collaborative event ethnography of the UNFCCC Process: power and (in) justice in global climate governance arenas" (2024) Climate and Development 1, p. 1 (stating: “[T]he UNFCCC process and resulting governance mechanisms are hindered by unequal power dynamics, expressed in myriad forms of injustice”), available at: https://www.tandfonline.com/doi/full/10.1080/17565529.2024.2439378?src=#d1e124
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the climate regime
and all their other obligations in respect of climate change. This approach is not only clearly affirmed in the preamble of the Paris Agreement,51 but is also assured by the fact that the texts of the UNFCCC, Kyoto Protocol and Paris Agreement do not explicitly exclude the applicability of human rights obligations in respect of climate change and in regulating the Relevant Conduct.52
40.
There is a great and growing need for the Court to affirm the need for States to adopt a human rights-centred approach to the climate crisis. As emphasized in the Cook Islands oral statement, the Conduct responsible for the climate crisis has had devastating racialised, gendered and intersectional impacts on Cook Islanders, and these impacts amount to unlawful discrimination under international human rights law.53
41.
Therefore, in order to address these unlawful discriminatory impacts of climate change on Cook Islanders, including Indigenous Cook Islands’ women,54 the Cook Islands respectfully requests that the Court honour its declaration and those of other
51 Paris Agreement, preamble (stating that: “Acknowledging that climate change is a common concern of humankind, Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to development, as well as gender equality, empowerment of women and intergenerational equity”); Written Statement of the Cook Islands, paras. 135-142, 302-303.
52 Written Statement of the Cook Islands, para. 338.
53 CR 2024/42, pp. 14-18, paras. 19-35 (Cook Islands).
54 CR 2024/42, pp. 13-14, paras. 2-7 (Cook Islands); Government of the Cook Islands, National Policy on Gender Equality and Women’s Empowerment and Action Plan 2019 – 2024 (March 2019) at pg. 18-19 available here: https://www.intaff.gov.ck/wp-content/uploads/2020/07/NPGEWE-Policy-booklet-4.pdf (stating “For women in the Pa Enua, establishing a formal business has been challenging....The Labour and Consumer Services at the Ministry of Internal Affairs has reported issues regarding discrimination practices and human rights violations in the private sector against ... workers in the informal sector … The statistics support what is already widely known and accepted; that gender inequalities are greater in the Pa Enua where traditional gender roles and gender stereotypes are more ingrained, access to education, health, information, training, finance, and other services are limited, difficult, irregular or more expensive. Improvements in basic infrastructure, more affordable domestic travel, more reliable and affordable internet, may help improve access to other important services and enable women to take advantage of economic and educational opportunities online e.g. e-commerce, online markets, e-learning, internet banking, etc.”); UN Women, Gender Equality Brief for Cook Islands (February 2023), p. 13, available https://asiapacific.unwomen.org/sites/default/files/2023-02/UNWOMEN-COOK-ISLANDS-FINAL-FEB-2023.pdf; Government of the Cook Islands, Government of the Cook Islands Country Report 2024: Thirtieth anniversary of the Fourth World Conference on Women and adoption of the Beijing Declaration and Platform for Action (1995) (October 2024), pp. 47-49 available here: https://www.asiapacificgender.org/sites/default/files/2024-10/Cook%20Islands%20BNational%20Review%20for%20Implementation%20of%20the%20Beijing%20Platform%20for%20Action%20%282024%29.pdf
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vulnerable small island developing States
to finally allow responsible high emitting States to be held responsible and liable for their long-standing violations of their human rights obligations.