On March 20, 2024, the International Center for Comparative Environmental Law (CIDCE) produced a brief from theamicus curiae before the International Court of Justice (ICJ), which was called upon by the General Assembly of the United Nations (UN) to issue an advisory opinion on the obligations of States with regard to climate change. This advisory opinion should be issued later this year or next year. The author of these lines is part of an international committee of 14 jurists from six different countries who prepared the 67-page CIDCE brief.
In this brief, the CIDCE maintains that general international law immediately provides for the obligations of States to combat climate change by relying first on one of the oldest fundamental principles of international law, namely the sovereignty of the state. Indeed, the sovereignty of the State, which implies the full exercise of public power over a territory, over its inhabitants and over its resources, including the offshore areas which come under its authority, is threatened by climate change caused by climate change. anthropogenic emissions from other states.
However, it is a basic rule of international law that a State has the duty to ensure that activities carried out within the limits of its authority respect the environment in other States and in areas which do not fall under any national jurisdiction. States have in particular an obligation to prevent the release of greenhouse gases in view of the effects of these releases in the Antarctic, which plays a fundamental role in the global climate system, and in the ocean system, which plays a major role. in climate protection and in the very existence of many island states that the states of the international community have committed to protecting within the framework of the agreement on the international treaty for the protection of the high seas of 2023.
The CIDCE reminds the ICJ that the effect of climate change can undermine the constituent elements of State sovereignty, such as the territory of the State which can be affected by the erosion of coastal areas, by desertification, by extreme weather events or even its submersion in the case of certain island states, which could be likely to lead to the creation of a possible status of climatic statelessness or to the fictitious survival of certain national territories which could disappear.
The population, this other element of State sovereignty, suffers the effects of global warming, in terms of health risks, new pathologies likely to arise, and deprivation of access to essential resources for life in society, which will undermine the capacity to adapt to climate change of certain populations who are likely to be forced to carry out migratory movements.
In addition to the obligations arising from the rule of State sovereignty in public international law, there are those arising from international environmental law, more specifically international climate change law, which revolves around the United Nations Framework Convention on Climate Change of 1992 and the Paris Agreement of 2015.
It is important to note that the obligations of States with regard to climate change under international environmental law are based on a certain number of principles, some of which date back to the very beginnings of this new law, namely the Declaration of the Stockholm Conference in 1972, several of which were codified into Quebec domestic law in 2006.
These include the polluter pays principle, the principle of prevention of transboundary environmental damage, the precautionary principle, the principle of environmental impact assessment, the principle of public participation and the principle of responsibility. and repair of environmental damage, all against a backdrop of intergenerational equity which challenges the current generation which must act to ensure the quality of life and even the survival of future generations.
The obligations of States with regard to climate change also stem from international human rights law and the rights of the child. What the CIDCE underlines, like the United Nations High Commissioner for Human Rights, is that climate change undermines the normal and effective exercise of these rights, which have continued to have grown since the adoption of the Universal Declaration of Human Rights in 1948.
Fundamental human rights
Thus, it is the following fundamental human rights, protected and guaranteed by several international treaties, which are threatened by climate change: the right to life, the right to food, the right to health, the right to water, the right to adequate housing and even the right to self-determination.
Thus, States have a duty to defend and ensure respect for the human rights to which they have adhered within the framework of international conventions, keeping in mind that the populations who are most likely to be affected by climate change are the vulnerable populations of the planet, the poor, women, children, indigenous peoples. States also have, individually and collectively, the duty and responsibility to ensure the quality of an environment that allows the full exercise of the economic, social and cultural rights of their population.
Finally, the CIDCE recalls that the duties of States with regard to the environment, and more specifically the climate, have been recognized and affirmed by the ICJ’s own jurisprudence and by the jurisprudence of regional international courts in Europe, Africa and in the Americas and also by the jurisprudence of the national courts of many countries, including the United States of America, France, Pakistan, the Netherlands and Colombia. These duties relate in particular to the adoption of laws and regulations to control greenhouse gas emissions, to mitigate the effects of climate change and also to require the preparation of impact studies before carrying out works that could have an effect on the climate.
As for the legal consequences of these obligations for States, in particular the 152 developing States and, among them, the 38 small island developing States, the CIDCE brief is of the opinion that these must be evaluated according to the right to recognized development in public international law and the concept of special and differential treatment with regard to the international responsibility of States and the remedial measures which should be considered in their regard.