Affixing State Responsibility for Harm to Earth’s Climate System

Abstract

“Earth” is an integrated whole, a relationship of ecosystems, providing the habitat for life. However, the “world” is composed of disparate nations, each with distinct cultures and economies. The peoples of these nations celebrate nature in their poetry and song, in their parks and protected areas, and share aim to “protect, restore and promote sustainable use of terrestrial ecosystems, forests, combat desertification, and halt biodiversity loss.” ¹ Paradoxically, these same nation States also actively degrade Earth's habitat, imperiling human civilization. The paper seeks to examine the scope and broad contours for affixing state responsibility for causing harm to the Earth's climate system that impinges upon our planetary future.

Introduction: The Global Ecological Crisis

The rules to prevent environmental degradation have been made clear. In 1948, when the International Union for the Conservation of Nature (IUCN) was founded, one of its aims was to foster laws to safeguard nature. ² IUCN persuaded the UN General Assembly (UNGA) to adopt the over-arching normative framework of the World Charter for Nature (1982). These norms are reflected in treaties that IUCN helped to draft and foster, such as the 1973 Convention on the International Trade in Endangered Species (CITES), and Part XII of the 1982 UN Convention on the Law of the Sea (UNCLOS), obliging States in Article 92 “to protect and preserve the marine environment,” and the 1992 Convention on Biological Diversity (CBD). Collectively, these treaties confirm a human instinct: love of nature. When in 2022, UNGA recognized the Human Right to a “clean, healthy and sustainable environment,” in Res. A/76/251, it reaffirmed these evolved norms. The biosphere, which humanity shares with all other species, is “our” common habitat. International law obliges all States to ensure that they do not allow activity to harm the environment beyond their territory or jurisdiction. In the 1992 UN Framework Convention on Climate Change (UNFCC), and 2015 Paris Agreement, States agreed on how to protect the Earth's “climate system,” the totality of the biosphere and its interactions with the atmosphere, hydrosphere, and geosphere.

Despite agreeing safeguard nature, States have put nature and their human civilization at risk. Anthropogenic climate change is harming habitats for all. Since endorsing sustainable development at the 1992 Rio Earth Summit, every region has experienced wildfires, sea level rise, increased ambient heat, melting ice, disruption weather, floods and droughts, and extinction of species. Pollution of the atmosphere has caused acidification and heat waves in the oceans. These events nullify and prevent sustainable development. Unless States become more active, as of 2024 only about 12% of the 169 targets for the UN Sustainable Development Goals (SDGs) are likely to be met by 2030. ³ States are not committing resources to these tasks.

Given the escalating patterns of injury, time is running out. Does enough time remain to implement its rulings to avert depleting renewable resources or causing inadvertent damage? ⁴ As UN Secretary-General Antonio Guterres puts it: “The truth is, we have been poor custodians of our fragile home. Today, the Earth is facing a triple planetary crisis: climate disruption; Nature and biodiversity loss; pollution and waste. This triple crisis is threatening the well-being and survival of millions of people around the world.” ⁵ Policies and technologies exist to cope with climate change and curb heating the Earth's lands and waters, oceans and atmosphere. ⁶ Similarly, the means to implement the SDGs are available. ⁷

Will the human instincts to love nature steer humanity to protect enough of Earth's habitats to sustain civilization? Some scholars doubt that States can change course. ⁸ The human capacity to adapt with resilience suggests that the instinct to cooperate together can move a majority of States to cope in time. ⁹ If States are to preserve a healthy habitat for humanity, they must do so for all of life. IUCN was right in 1948: law is the essential means to guide States in sustaining life. ¹⁰ This appreciation for the roles of law is evident in the ruling of the International Tribunal for the Law of the Sea (ITLOS) given in May of 2024 that States are “required to take measures as far reaching and efficacious as possible to prevent or reduce the deleterious effects of climate change” and that in doing so their duty of due diligence in doing so is “stringent given the high risks and irreversible harm to the marine environment by climate change.” ¹¹

Clarifying State Obligations to Protect the Climate and Biosphere

Even as this year (2024) is set to witness the UN's mega event on the Summit of the Future (September 22–23, 2024), ¹² the year 2025 promises a legal watershed in clarifying the peremptory obligations of States regarding climate and the biosphere. In 2025, the International Court of Justice (ICJ) will clarify State Responsibility for their unlawful acts irreversibly harming Earth's life support systems. ¹³ This UNGA requested ICJ Advisory Opinion proceeding is currently underway and likely to fructify in second half of 2025. The process took shape after a decade of efforts calling for an ICJ Opinion, in the face of mounting evidence of harm to Earth's environment, in breach of legal duties. Youth, civil society and States began to call for an Advisory Opinion of the ICJ. ¹⁴ The precedent for doing so is the ICJ's landmark 1996 Nuclear Legality of Threat or Use of Nuclear Weapons Advisory Opinion, that stemmed the arms race based on the principle of preventing harm. ¹⁵

This forthcoming ICJ Advisory Opinion will be a principal guide for the UNGA's deliberations regarding further international cooperation to cope with the world's gathering climate crisis. Also, in 2025, the Inter-American Court of Human Rights will also issue an Advisory Opinion on States’ obligations to protect each person's human rights amidst the climate crisis. ¹⁶ These rulings will complement the Advisory Opinion rendered in 2024 by the ITLOS, which delineates States’ legal duties to protect the marine environment. ¹⁷ Future State conduct, and State Responsibility, will be measured by how each State adheres to the determinations set forth in these Advisory Opinions.

The fundamental legal obligation to protect the environment was evident already in 1972 at the United Nations Stockholm Conference on the Human Environment. ¹⁸ In 2022, States and civil society gathered at the “Stockholm + 50” meetings and 50th anniversary commemoration of the UN Environment Program (UNEP) on Nairobi, to acknowledge the progress made to protect the environment. ¹⁹ Throughout the past five decades, urged by UNEP and IUCN, and expert bodies such as the International Council of Environmental Law (ICEL) ²⁰ and the Center for International Environmental Law (CIEL), ²¹ States progressively elaborated their duties. ²² Yet, scientific evidence makes it equally clear that States have failed to implement their duties and breached their obligations. ²³

What is to be done when States fail to honor the obligations that they solemnly adopt? States can muster incentives, agree on remedies and apply sanctions, launch focused consultations and mediation or arbitration. Such actions would be proportionate their violations of international law. The ICJ will advise on the legal obligations State hold as it responds to the questions that the UNGA has posed. ²⁴

The Erga Omnes Duty to Protect

In 1992 at the UN “Earth Summit” in Rio de Janeiro, States committed to cooperate both to conserve biological diversity ²⁵ and to mitigate anthropogenic emissions of greenhouse gases and adapt to the impacts of climate change. ²⁶ These two historic agreements, plus the 1994 UN Convention to Combat Desertification, ²⁷ acknowledge the duty of all States not to harm the environment of other States or of areas beyond national jurisdiction. ²⁸ The aim was to prevent dangerous anthropogenic interference with the climate system, ²⁹ which States recognized meant “the totality of the atmosphere, hydrosphere, biosphere and geosphere and their interactions.” ³⁰ This totality embraces all biodiversity, the “ecological complexes” within which all living systems exist. ³¹ Consistent with their duties to protect the oceans, ³² in the Convention on Biological Diversity (CBD) States agreed to “promote the protection of ecosystems,” and safeguard species from extinction, ³³ and recognize the interdependent relationships of Earth's natural systems in treaties and the World Charter for Nature. As ITLOS observed, the oceans and atmosphere are integrated, and the duty under Article 92 of the UNCLOS to protect the oceans necessarily means that States must protect the atmosphere. ³⁴

The fundamental obligation to protect the environment, and to cooperate to do so, has a temporal focus. States agreed to save a species before extinction. States agreed to stabilize their emissions of greenhouse gas emissions into the atmosphere at “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.” ³⁵ In fulfilling this duty, each State committed to many tasks of due diligence, such as to “develop and elaborate appropriate and integrated plans for coastal zone management, water resources and agriculture, and for the protection and rehabilitation of areas, particularly in Africa, affected by drought and desertification, as well as floods.” ³⁶

By their actions, or their omissions to act, virtually all States have failed to honor their 1992 environmental treaty obligations. ³⁷ Despite annual consultations together in the respective Conferences of the Partiers, the Earth's biodiversity is imperiled and the climate system has been irreparably disrupted.” ³⁸ States already know and recognize that they are harming the environment. They requested and received scientific reports documenting the degradation of the Earth's climate systems. They have been put on notice of the accumulating harms resulting from their actions or omissions to act, as evidenced in the reports of the Intergovernmental Panel on Climate Change (IPCC), ³⁹ the Intergovernmental Science-Policy Platform for Biodiversity and Ecosystem Services (IPBES), ⁴⁰ and the UN Environmental Program's Global Environmental Outlook (GEO-6). ⁴¹ The scientific evidence reveals significant and irreversible, long-term impacts on the natural and human environment. States have chosen to neglect the findings of these reports, and largely ignore the mounting evidence of irreversible change to the oceans and living systems that sustain life on Earth.

It is beyond cavil that States have failed to meet their treaty obligations to protect Earth's biosphere. States agreed to a suite of activities in both agreements that they “should” implement, and they have failed to do so. States cannot take defensive refuge in the texts of their agreed texts, which provide that States “should,” rather than “shall,” so act. This is because their most fundamental legal duties arise not from the texts of treaties, but rather exist within the core concept of “State sovereignty.” Sovereign obligations supersede any limiting language of the treaties. In the preamble to the UNFCC, States reaffirmed “the principle of sovereignty of States in international cooperation to address climate change.” Deciding which voluntarily measures “should” be utilized does not supplant each State's fundamental duty to do no harm.

Each State's duty as a sovereign is to protect the environment within other states, and of the Earth's commons beyond the jurisdiction of States. This is an obligation erga omnes. ⁴²

Under the Montevideo Convention of 1933, ⁴³ Sovereignty expresses the State's supreme power to govern, to command and to decide its own affairs. States since 1945 have committed to cooperate together under the United Nations Charter. Sovereignty entails the right of peoples to self-determination. ⁴⁴ International Law protects a State's territorial integrity by the prohibition on the use of force. ⁴⁵ It is a peremptory norm that each State to do no harm to the people or territory or nature of another State, or to the areas beyond the jurisdictions of States. States are responsible for harm that they cause. “Every internationally wrongful act of a State entails the international responsibility of that State.” ⁴⁶

Expressly since the 1972 UN Stockholm Conference on the Human Environment, States have acknowledged their duty to do no harm to each other's environment or to the international commons. Beyond the multiple treaty obligations to protect the environment as described above, States are bound by general principles of law, customary international law, and human rights law. In god faith, they support the UN Sustainable Development Goal. Particularly, States agree to use all means at their disposal to prevent significant transboundary environmental harm, ⁴⁷ and to take measures to minimize any risk, including to the ocean and its ecosystems. ⁴⁸

States acknowledged the scope of their duties for sustaining the environment when adopting the UN World Charter for Nature, ⁴⁹ which proclaims the “principles of conservation by which all human conduct affecting nature is to be guided and judged.” ⁵⁰ When States adopted the World Charter for Nature, they expressly acknowledged that their conduct would be measured and held to account by its terms. The Charter specifies the functions that a State must enact to adhere to the principles, and the due diligence duties required to implement the functions. Moreover, States are to apply the precautionary approach. ⁵¹ These duties of due diligence are obligations of conduct.” ⁵²

Each State's fundamental duty to protect the environment links its separate environmental treaty obligations, which are interdependent. Akin to the norms providing protecting against slavery and racial discrimination, rights for environmental protection are today peremptory norms within the body of general international law, conferred by international instruments of a universal or quasi-universal character, and through customary law, and the acceptance of general principles of law. ⁵³ The duty to protect the environment is quintessentially an erga omnes duty, owed by all States to each other. The International Law Commission has determined that breaches of erga omnes duties give rise to State Responsibility. ⁵⁴

Applying General Principles of International Law

When States observe the duty to protect erga omnes, the following general principles of international law apply. Their relevance underscores that environmental protection from irreversible harm, is an erga omnes obligation, owed to all

The principle of cooperation is the premise for the UN Charter. ⁵⁵

The principle of good faith (Bona fide) requires States to honor their duties, rather than evade them under the pretense of respecting sovereignty. ⁵⁶

The principle of equity addresses historic versus current responsibility. In the 1969 case ruling on The North Sea Continental Shelf, the ICJ affirmed: “The legal notion of equity is a general principle directly applicable as a law […]. [The Court] must apply equitable principles as an integral part of international law and carefully weigh the various considerations it deems relevant, so as to achieve an equitable result”. ⁵⁷ Moreover, article 2 paragraph 2 of the Paris Agreement includes equity as a principle to be reflected in the implementation of the agreement.

The principle of common but differentiated responsibility and respective capabilities (CBDR-RC) ⁵⁸ ensures that States act to protect those most vulnerable to climate change. ⁵⁹ Under the CBDR-RC, as the ITLOS Advisory Opinion determined, nationally determined contributions to mitigating climate change must progressively reduce emissions with highest possible ambition, considering national circumstances. ⁶⁰ States with greater means and capabilities are do more to address the negative impacts of climate change. ⁶¹

The principle of precaution makes clear that States are to protect the environment, even if they have doubts about climate impacts and claims scientific uncertainty. ⁶²

The principle of solidarity underscores the necessity for States to support each other in addressing global challenges. ⁶³

The principle of proportionality ensures States take measures that are balanced and appropriate relative to their objectives, ⁶⁴ which the CBD, UNFCCC, and other environmental agreements explicitly set forth provide and a means to apply through national action plans (NAPs). ⁶⁵

The principle of non-regression prevents backsliding on previously secured environmental protection achievements. ⁶⁶

The polluter pays principle provides that the polluter should bear the costs of its pollution. ⁶⁷

These substantive principles in turn are reflected in each State's procedural due diligence obligations, by which States act to fulfill their duties to protect the environment. By observing due diligence, States undertake all possible measures to comply with their international legal obligations. This obligation of conduct reflects the principle of good faith. In its Advisory Opinion, ITLOS found that States are to make best efforts to achieve environmental protection. ⁶⁸ Hence, the Tribunal described States’ obligations of conduct as “an obligation to deploy adequate means, to exercise best possible efforts, to do the utmost to obtain the intended result.” ⁶⁹ States are to act with due diligence in good faith. ⁷⁰

States have many specific duties to observe in meeting their fundamental obligation to protect the environment, whether in national action plans for or national legislation. They are often sectoral (as concerning oceans), but must be implemented in ways that are integrated with each other (as when carbon dioxide pollution of the atmosphere causes ocean acidification). ⁷¹ The ITLOS Advisory Opinion reviews many of these specific duties. However, there is one duty which is by definition inter-sectoral and integrated. It offers immediate pathways to curb and end incremental degradation and identify and advance means to protect the environment with specific actions. This is the technique of environmental impact assessment (EIA).

Duty to Provide Environmental Impact Assessment

States have recognized EIA is a required means to identify and avert transboundary adverse impacts, such as under the Espoo Convention. ⁷² EIA is required under Article 206 of the UN Convention on the Law of the Sea. EIA is acknowledged as once of the legal tools available to combat climate change under the UNFCCC. ⁷³ EIA is required under Paragraph 11(c) of the 1982 World Charter for Nature, ⁷⁴ and under Principle 17 of the Rio Declaration of 1992, ⁷⁵ for all national decision-making that can adversely affect the environment.

Virtually every State has adopted national legislation providing for EIA. ⁷⁶ The ICJ has ruled that EIA is an obligation of customary international law. ⁷⁷ The ICJ ruled in 2010, that unless EIA is undertaken when there is a reasonable basis for anticipating possible transboundary impacts, including cumulative impacts, a State cannot be deemed in compliance with its due diligence duties of vigilance and prevention to ensure no harm to another state or to a shared resource.

ITLOS recognized that the duty of States to undertake EIA “requires States to assess the potentially harmful effects of a planned activity prior to its execution and to disseminate the obtained results thereafter.” ⁷⁸ The duty to observe EIA entails giving public notice of a proposed action that may have such impacts and applies to actions by private parties and by the State. ⁷⁹ ITLOS has held that “Any planned activity, either public or private, which may cause substantial pollution to the marine environment or significant and harmful changes thereto through anthropogenic GHG emissions, including cumulative effects, shall be subjected to an environmental impact assessment.” ⁸⁰

In accordance with the ICJ's decision in Pulp Mills on the River Uruguay, ITLOS further explained that the obligation of due diligence requires a State to put in place a national system (legislation, administrative procedures, enforcement mechanisms) that regulates specific activities and to exercise adequate vigilance, ⁸¹ such as with regard to activities that are mostly carried by private persons or entities. ⁸² Due diligence varies depending on the particular circumstances in which the obligation arises. ⁸³ In particular, with respect to transboundary pollution affecting the environment of other States, ITLOS found that the standard of due diligence is stringent. The scope of an EIA and precautionary measures appropriate are determined by the character of the proposed action under analysis. ⁸⁴

EIAs provides tools that can prevent significant transboundary harm or harm to the shared oceans and atmosphere, in sum to the biosphere. Customary international law requires public notification and consultation about actions that may cause environmental harms. EIAs components include: (i) identification of an action that could potentially have a significant impact on the environment, including on people's human rights to the environment; (ii) notification to all stakeholders, within a State or internationally; (iii) study and consultation in good faith about potential impacts; (iv) publication of findings of studies; (v) consultation on means and measures to prevent the adverse impacts possible; and (vi) modification of the proposed activities in accordance with the findings of an EIA. ⁸⁵ Failing to conduct an EIA is, per se, a violation of a State's erga omnes obligations under international law. Even in the absence of an environmental harm, a State's failure to undertake EIA entails State Responsibility. When harm is demonstrable, failure to observe EIA aggravates the violation.

National courts in many nations have experience in enforcing EIA procedures. In disputes, sub-national or national or regional or international courts may be called upon to apply the Advisory Opinion on State Responsibility to order remedies within the scope of their jurisdiction. It is conceivable also that some national courts will assume universal jurisdiction to enforced erga omnes duties that protect the climate systems and prevent harm. Just as the biosphere and climate system are universal, so are equity and justice, and courts may frame remedies appropriate to the situation.

Since the climate crisis pervades all jurisdictions, and implicates or diminishes the sovereignty of each State, it will ultimately be the States, through the UNGA or other inter-state organizations, that will fashion the suite of collective remedies to address climate change. The UNGA has begun these multilateral negotiations, in effect, when recognizing in 2022 the Human Right to a clean, healthy and sustainable environment, ⁸⁶ and then by the consensus request in 2023 the ICJ Advisory Opinion. The debates to come will address the range of remedies to address the issues of State Responsibility that the ICJ identifies.

State Responsibility: The Consequences

“Every internationally wrongful act of a State entails the international responsibility of that State.” ⁸⁷ The UN International Law Commission's Articles of State Responsibility oblige States to provide full reparation for the harms caused by their internationally wrongful acts. ⁸⁸ Forms of reparation include restitution, ⁸⁹ compensation, ⁹⁰ and satisfaction. ⁹¹ Restitution is the preferred form of reparation. It entails reestablishing the situation as it was before the wrongful act was committed. However, this is not always possible, especially when it comes to responsibility for climate-related harms, such as those experienced by small island States or States with river deltas and shallow coasts, where a State's territory is inundated by sea level rise.

The challenges of establishing a system for managing loss and damage in climate change negotiations, raised by States the “South,” illustrates the difficulty States face in providing remedies for breach of a State's duties under international law to protect the biosphere. These States contend that climate justice requires compensation for the damage caused as a result of historical emissions mostly from the States in the “North.” Finding agreement has been halting. In 2007, the Bali Action Plan called for “disaster reduction strategies disaster reduction strategies and means to address the losses and damages associated related to the impacts of climate change in developing countries that are particularly-to the adverse effects of climate change.” ⁹² In 2012, the Doha Conference decided to defer the issue to the Warsaw Conference in 2013, deciding that an “institutional arrangement, such as an international mechanism” would be put in place. ⁹³ By 2014, the Paris Agreement in Article 8 emphasized minimizing and addressing loss and damage. When the Association of Small Island States (AOSIS) advocated the creation of an international insurance mechanism to compensate for the damage suffered by victims of sea-level rise, ⁹⁴ States in the developed North opposed. Paragraph 52 of the Paris Decision specifies that “Article 8 of the Agreement does not involve or provide a basis for any liability or compensation.” ⁹⁵ The Paris Agreement promotes the achievement of sustainable objectives through financial flows ⁹⁶ however, States have not robustly honored their undertakings.

Allocating causation from diffuse acts to establish causation for concrete injuries, remains contentious. Any remedy must consider, and allocate, the respective contributions that each State makes to the damage caused by their internationally unlawful acts. ⁹⁷ Comparative responsibility will need to be addressed. The duty of States equitably to make reparations to fund specific compensations, or any “collective remedy,” logically would be proportionate to their previous and on-going emissions of greenhouse gases (the largest volumes are from Brazil, China, the European Union, Indonesia, India, Japan, Russia and the USA). ⁹⁸

Toward a Collective Remedy

A State is under an obligation to make full reparation for the injury caused by its internationally unlawful acts. ⁹⁹ A precedent for environmental damage is found in the Gulf War Reparations and Compensation Commission. ¹⁰⁰ The diffuse contributions of GHG emissions causing injury to the biosphere, whether within a State or across a region or globally, is likely to require a new type of remedy. Framing a new remedy would meld together a combination of restitution, compensation and satisfaction. ¹⁰¹ Since all States have violated their erga omnes duties to protect the biosphere, all States shall need to contribute to an innovative collective remedy. Conceiving a collective remedy can draw on international collaboration for mutual aid in response to disasters, and for capacity building preparedness or and coping with future climate-related impacts. It is the responsibility of each State to contribute expertise and funds, and even territory for displaced persons, as components of such a collective remedy.

Since all States are suffering loss and damage, and scientific estimates are that this pattern of injury will worsen, the effectiveness of any available, traditional loss and damage mechanism is likely to ephemeral. A collective remedy should prioritize measures to build capacity to cope with climate disruptions. Past debates on loss and damage illustrate that this approach cannot be a scale to adequately address the harms now experienced and foreseen. Notwithstanding the Paris Agreement's article 52, the obligations that international law applies to sovereign States are peremptory norms, duties erga omnes, and thus provide sufficient legal basis for imposing State Responsibility, independently and irrespectively of the Paris agreement.

The ITLOS Advisory Opinion addresses a State's duties, which can also become components of a collective remedy. For example, for mutual aid and assistance developed States are better positioned to meet their environmental responsibilities and can assist developing States. ¹⁰² Assistance can be in the form of scientific, technical, educational or other, and is intended as a way to address an inequitable situation, where States who have contributed the least to GHG emissions are suffering the worst consequences. ¹⁰³ Capacity-building, technical development and transfer, and financial assistance are key. ¹⁰⁴ ITLOS identified three categories of duties in the context of UNCLOS, that also could be drawn upon to frame a collective remedy: (i) the promotion of programs of scientific, educational, technical and other assistance to developing States; ¹⁰⁵ (ii) the provision of appropriate assistance, especially to developing States, to minimize the effects of major incidents that may cause marine pollution; ¹⁰⁶ and (iii) the provision of appropriate assistance concerning the preparation of environmental assessments. ¹⁰⁷ Further, ITLOS considers that the expression “other assistance” may include financial assistance. ¹⁰⁸

The ICJ Advisory Opinion proceedings on Obligations of States in respect of Climate Change ¹⁰⁹ will usher in an entirely new kinds of remedies. The ICJ will need to acknowledge the harm caused to date, and the on-going nature of the injuries to States and to the commons. Traditional remedies of compensation will not, and cannot fully make amends for such losses. The only way that States can effectively compensate for the damage caused by their individual and combined breach of their international legal duties in relation to climate change, will be to cooperatively undertake to make substantial commitments to a collective remedy, guided by norms of solidarity, equity, CBDR-RC, and other international law principles.

Ensuring compliance with a collective remedy must be considered. Contributions to a collective remedy will be compulsory and involuntary. Sanctions for failure to adhere to the remedy might include exclusion from the international support systems for capacity building and disaster relief, and other climate impacts, although that sanction could impede the relief sought collectively. The mechanisms agreed in MEAs can be required to shape appropriate remedies. One State's claims to climate-related harm may need clarification. The dispute settlement mechanisms under MEAs can be invoked, for example, under the UNCCD with the Committee for the Review of the Implementation of the Convention (CRIC). ¹¹⁰ Policy decisions by a Conference of the Parties (COP) ¹¹¹ can also help resolve disputes and ensure compliance with the obligations and commitments under these agreements. Counter measures and claims can be expected. ¹¹²

To be effective, every State must see it to be in their self-interest to adhere to the terms of the collective remedy. States have recognized a congruence of interests in their obligations through the Montreal Protocol to the Vienna Convention to Protect the Stratospheric Ozone Layer. ¹¹³ Any collective remedy for State Responsibility with respect to climate change mandated by courts would ultimately need to be fashioned by States, or at their direction, acting collectively and individually as they are able.

In the wake of the ICJ Advisory Opinion on State Responsibility, identifying appropriate remedies will doubtless also be addressed by other courts. ¹¹⁴ As national, regional and international courts and tribunals increasingly hear climate-related adjudications, ¹¹⁵ they will be called upon to implement international State Responsibility principles and remedies. This will lead to a set of precedents on the structure and scope collective climate-related legal remedies to enforce obligations under international law. National courts will serve the interests of the community of nations in the biosphere, dédoublement fonctionnel, as they serve their people and State. The UN ICJ Advisory Opinion offers a foundation for concerted action to set aside “business as usual.” Through providing a clear statement setting forth the legal obligations of States has the capacity to guide measures to honor and observe those duties, which in turn will constitute a precedent for national courts to rely upon in ruling on the growing volume of climate related law suits. The ICJ Advisory Opinion will provide the legal premise for new remedies, including forms of a “collective remedy.”

Conclusions: States Confront Their Erga Omnes Obligations

In requesting an Advisory Opinion form the ICJ, the UNGA had “particular regard” to international law expressed in the UN Charter, Human Rights law, and the UNFCCC and Paris Agreement, UNCLOS, the duty of due diligence, and the principles of preventing significant harm to and protecting the environment. The General Assembly's questions expand the legal reference to State obligations under all of international law: (a) the legal obligations for breaching the duty protect the climate system from “anthropogenic emissions of greenhouse gases” and (b) the legal consequences for States because of acts that cause significant harm to the climate system and other parts of the environment” to States “including small island developing states,” and to “peoples and individuals of the present and future generations affected by the adverse effects of climate change.” ¹¹⁶

The questions leave it to the Court to examine and set forth the scientific findings about contemporary harms to the “climate system,” which encompasses the totality of all Earth's natural systems. Previously, States requested such scientific studies and the IPCC, IPBES, and UNEP Geo-6 provide the evidence. These reports reveal that harm is so pervasively evident, with the injuries compounding, that it is likely to be deemed to be “significant” by any reasonable measure. Such measuring metrics for defining “significance” exist in the obligations already set forth in the World Charter for Nature and the express duties agreed in the Multilateral Environmental Agreements and UNCLOS. Significance is defined with reference to the peremptory obligation, erga omnes, to safeguard Earth's natural systems. This most basic norm is not affected by narrow definitions of significance found in specific treaties. ¹¹⁷

While the plight of injured small island States (SIDs), in light of sea level rise, provided impetus for the General Assembly's request to the ICJ, climate-related damage exists in every region of the world. When harm to the Earth's climate system causes harm in to the oceans, and within all States, the threshold of significant harm has been crossed. All States are implicated in the acts that cause environmental harm in violation of international law. The acts, and omissions to act, gives rise to comparative State Responsibility for injury, with consequences being the comparative claims for a remedy. The evidence of over-all harm to the atmosphere is documented in broad patterns, but the per centage of harm by each sovereign State is less clear. Like liability for comparative and contributory negligence, comparative State Responsibility will be difficult, but not impossible, to assess.

But do States, and the people and individuals today, have enough time to debates or litigate these issues. The cryosphere melts and sea levels rise as ambient temperatures increase rise. Time to halt this change has been depleted. It took 50 years to shape International Law's peremptory norm to protect the environment. Agreeing on the UNFCCC and CBD in 1992 did not stem the unlawful acts that have caused irreversible damage to the climate system and biodiversity. Pleas for an Advisory Opinion began 2012, and a decade later the General Assembly sought an ICJ ruling. The ICJ deliberations will have taken two years.

In the climate crisis, justice delayed is justice denied. Mandating a collective remedy at once opens the pathway to providing restorative justice, ¹¹⁸ and ecological restoration. ¹¹⁹ Delay diminished the obligation to protect, giving rise to demands for stronger sanctions. Environmental Justice for present and future generations requires more than adherence to environmental norms. ¹²⁰

Because continued irreversible harm to the Biosphere imperils all people and nature, a breach of the obligation erga omnes to protect, is criminal. Proposals to enact Ecocide as a crime are advancing. ¹²¹ It has been acknowledged as a crime, but one yet to be prosecuted, in several States. Ecocide may yet be deemed a crime under the Statute of Rome for the International Criminal Court. ¹²² Criminal sanctions may deter actions that harm the biosphere, but it does not necessarily provide the relief urgently sought by victims.

Given the increasing harms to their territory and nature, a remedy providing relief for SIDs is urgently needed. The peremptory obligation, erga omnes, to protect the biosphere requires remedies at once. The ICJ can lay down the terms and timetables for States to implement a collective remedy. Rather than litigate for years issues of comparative Responsibility as “legal consequences,” the ICJ should outline the elements for a collective remedy, and set forth each State's fundamental obligation to cooperate to make as collective remedy as effective as possible.