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Memorial on behalf of The ASEAN

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IN THE INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE

THE HAGUE, THE NETHERLANDS

THE QUESTION ON THE RESPONSIBILITY OF STATES UNDER INTERNATIONAL

LAW TO ADDRESS THE GLOBAL CLIMATE CRISIS FOR THE BENEFIT OF THE

PRESENT AND FUTURE GENERATIONS

_____________________________________________________________________

REQUEST FOR ADVISORY OPINION SUBMITTED BY THE ASSOCIATION OF

SOUTHEAST ASIAN NATIONS (ASEAN)

MEMORIAL FILED ON BEHALF OF THE ASEAN

Inter-generational Climate Justice for the International Court of Justice (ICJ4ICJ) Moot

Court Workshop

IUCN World Conservation Congress 2016


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TABLE OF CONTENTS

TABLE OF CONTENTS .............................................................................................................................. 2

INDEX OF AUTHORITIES ......................................................................................................................... 4

I. INTRODUCTION ................................................................................................................................ 8

II. SECURING SUSTANABILITY FOR THE PRESENT AND FUTURE GENERATIONS OF

HUMANKIND ........................................................................................................................................... 10

III. IN CONTEXT: THE ASSOCIATION OF SOUTHEAST ASIAN NATIONS (ASEAN) ............ 14

A. The ASEAN Highlights .................................................................................................................. 14

B. The region under threat ................................................................................................................... 16

C. Regional Response to Climate Change Threats .............................................................................. 17

IV. STATES MUST COMPLY WITH THEIR TREATY LAW OBLIGATIONS UNDER THE

UNITED NATIONS FRAMEWORK CONVENTION ON CLIMATE CHANGE (UNFCCC) AND THE

UNITED NATIONS CONVENTION ON THE LAWS OF THE SEAS (UNCLOS) ............................... 19

A. Obligation to Cooperate under the UNFCCC ................................................................................. 19

a. Obligation to cooperate through mitigation of GHG emission of states ..................................... 21

b. Obligation to adapt to the adverse effects of climate change ...................................................... 22

B. Obligation to Protect and Preserve the Marine Environment under UNCLOS .............................. 24

a. Obligation to prevent, reduce and control pollution of the marine environment ........................ 24

b. Obligation to ensure sustainability of marine living resources ................................................... 26

V. STATES ARE ALSO BOUND BY THEIR CUSTOMARY INTERNATIONAL LAW

OBLIGATIONS .......................................................................................................................................... 28

A. Compliance with the Precautionary Principle (PP) ......................................................................... 28

B. States have the obligation to observe due diligence in its actions .................................................. 29

C. States must act in accordance with the no harm rule and the good neighborliness principles ........ 30

D. Compliance with these obligations in accordance with the Common but Differentiated

Responsibility and Respective Capabilities (CBDR-RC) ....................................................................... 31

VI. NATIONALLY DETERMINED CONTRIBUTIONS (NDCS) AS A MANIFESTATION OF

STATES’ INTERNATIONAL LAW OBLIGATIONS ............................................................................. 32

A. NDCs mirror national environmental goals of individual states ..................................................... 33

B. NDCs bridge cultural and economic nuances of states in compliance of obligations .................... 35

VII. FAILURE TO COMPLY WITH OBLIGATIONS UNDER INTERNATIONAL LAW

DEMANDS STATE RESPONSIBILITY .................................................................................................. 37


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A. Acts and omissions of states resulting in global climate crisis constitute a breach of international

law obligations ........................................................................................................................................ 37

B. The attributability of acts and omissions of states resulting in global climate crisis ...................... 38

C. Non-compliant states may be held liable under the Polluter Pays Principle ................................... 39

VIII. FUTURE ACTIONS ....................................................................................................................... 40

A. Settlement of disputes under the UNFCCC .................................................................................... 40

B. Loss and Damage ............................................................................................................................ 42

C. Greener Actions .............................................................................................................................. 43

IX. CONCLUSION AND PRAYER .................................................................................................... 44


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INDEX OF AUTHORITIES

TREATIES AND CONVENTIONS

Adoption of the Paris Agreement of the 21st Conference of Parties, December 12, 2015,

FCCC/CP/2015/L.9, [hereinafter Paris Agreement]. .............................................................................. 17

Rio Declaration on Environment and Development, principle 2, UN Doc.A/CONF. 151/26 (1992). ... 9, 37

United Nations Convention on the Law of the Sea, art 61, ¶4, 10 Dec.1982, 21 I.L.M.1261 [hereinafter

“UNCLOS”]. ........................................................................................................................................... 22

United Nations Framework Convention on Climate Change, preamble, 1771 UNTS 107 (1994)

[hereinafter “UNFCCC”]. ................................................................................................................... 8, 18

UNITED NATIONS AND OTHER INTERNATIONAL DOCUMENTS

1972 Stockholm Declaration, U.N. Doc. A/Conf.48/14/Rev. 1(1973). ...................................................... 11

Bangkok Resolution on ASEAN Environmental Cooperation (26 September 2012). ............................... 16

Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on

Human Rights at 87 ¶ 6. .......................................................................................................................... 38

European Parliament resolution on the Commission communication on the precautionary principle

(COM(2000) 1 - C5-0143/2000 - 2000/2086(COS)). ............................................................................. 27

Intergovernmental Panel on Climate Change (IPCC) Fifth Assessment Report (2014). Technical

Summary, ................................................................................................................................................ 22

Intergovernmental Panel on Climate Change 5th Assessment Report. 2013, available at

http://www.ipcc.ch/report/ar5/wg1/ (last accessed on June 9, 2016) [hereinafter IPCC]. ........................ 7

Oslo Principles on Global Climate Change Obligations – Commentary, at 43 (2015). ............................. 28

Paris Agreement Annex to UNFCCC Decision 1/CP.21, FCCC/CP.2015/L.9/Rev.1. ............................... 41

Prevention of Transboundary Harm from Hazardous Activities, Official Records of the General

Assembly, Fifty - sixth Session, Supplement No. 10 (A/56/10), at art. 3; United Nations General

Assembly, Report of the International Law Commission: Fifty - third Session, Fifty - Sixth Session,

2001, at ¶ 7. ............................................................................................................................................. 29

Report of the Secretary General, Protection of Coral Reefs for Sustainable livelihoods and development,

UN GA Res. 65/150, A/66/298 (August 12, 2011). ................................................................................ 26

The 1987 PHIL CONST. art 2, sec. 16. ...................................................................................................... 39

The ASEAN Charter, art. 1. ........................................................................................................................ 13

The ASEAN Socio-Cultural Blueprint (2009-2015)................................................................................... 13

The Bruntland Commission, Report of the World Commission on Environment and Development: Our

Common Future, G.A. Res. A/42/427. (August 4, 1987). ...................................................................... 10

The Earth Charter Initiative (2000), principle 2 ¶ 6. ................................................................................... 11

Transforming Our World: UN 2030 Agenda for Sustainable Development, UN A/Res/70/1. [hereinafter

UNSDG] ................................................................................................................................................. 12

UN General Assembly, Implementation of Agenda 21, the Programme for the Further Implementation of

Agenda 21 and the Outcomes of the World Summit on Sustainable Development, UN Doc.

A/RES/64/236 (2010) (31 March 2010) at 20 (a). .................................................................................. 12

United Nations Framework Convention on Climate Change, art. 3, (21 March 1994), U.N.T.C. ............. 30


5

United Nations Framework Convention on Climate Change, Report of the Global Environment Facility to

the Conference of Parties and the Guidance of the Global Environment Facility, Decision 8/CP.20,

FCCC/CP/2014/10/Add.2 (February 2, 2015). ....................................................................................... 22

Working Group, Intergovernmental Panel on Climate Change [IPCC] Fifth Assessment Report, Climate

Change 2014: Synthesis Report, R.K. Pachauri and L.A. Meyer (eds.). ................................................ 19

JUDICIAL DECISIONS

Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 4, 18 ......................................................................................... 30

Gabčĭkovo-Nagymaros Project (Hungary v. Slovakia) 1997 I.C.J. 7 (Apr.9). par. 5. ............................ 9, 37

Legality of the Threat or Use of Nuclear Weapons (Request for an Advisory Opinion from the

International Court of Justice) [1994] UN GA Res 49/75K of 15 December 1994 at 29. ...................... 29

Minors Oposa et.al. v. Hon. Fulgencio Factoran, G.R. No. 101083, July 30, 1993, 224 SCRA 792 ..... 9, 39

Nuclear Tests (New Zealand. v. France), 1995 I.C.J. 228. ......................................................................... 30

Oneryildiz v. Turkey, 41 EHRR (2005) 20, at para. 89. ............................................................................. 11

PCA Case No. 2013-19, in the Matter of the South China Sea Arbitration before An Arbitral Tribunal

Constituted Under Annex VII to the 1982 United Nations Convention on the Law of the Sea between

The Republic of the Philippines and The People’s Republic of China, paragraphs 145-164 (2016)...... 40

Rainbow Warrior affair, UNRIAA, vol. XX (Sales No. E/F.93.V.3), p. 215 (1990). ................................ 37

Trail Smelter Arbitration (United States/Canada), 3 RIAA 1911 (1949..................................................... 30

Whaling in the Antarctic (Australia v. Japan), Written Observations of New Zealand, 2013. 41 ILM 405

(April 4, 2013). ....................................................................................................................................... 18

BOOKS, ARTICLES AND JOURNALS

Alan Boyle, Human Rights and the Environment: Where Next? Eur J Int Law (2012) 23 (3): 613-642. .. 11

Antonio Cassese, International law, (Oxford University Press, 2003). ..................................................... 28

Carpenter KE et al. 2008 One-Third of Reef-Building Corals Face Elevated Extinction Risk from Climate

Change and Local Impacts. Science 321, 560 – 563............................................................................... 26

Christina Voigt & Felipe Ferriera, Differentiation in the Paris Agreement, Climate Law 6 (2016) at 67. . 33

Cyrille de Klem in collaboration with Clare Shine, Biological Diversity Convention and the Law: Legal

Mechanisms for Conserving Species and Ecosystems (1992), IUCN Environmental Policy and Law

Paper No. 29, at 216. ............................................................................................................................... 40

Global Climate Change and U.S. Law, Second Edition, p. 5 (2014). ......................................................... 29

Oslo Principles on Global Obligations to Reduce Climate Change, Mar. 1, 2015 ..................................... 28

Sands, Principles of International Environmental Law. 233. (2012); Gabçikovo-Nagymaros Case, (1997)

at 41. ........................................................................................................................................................ 30

The World Commission on the Ethics of Scientific Knowledge and Technology (COMEST), The

Precautionary Principle, p. 15 (2005). ................................................................................................... 29

UNEP Emerging Issues: Environmental Consequences of Ocean Acidification: A Threat to Food

Security, UNEP (2010). .......................................................................................................................... 26


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MISCELLANEOUS

ASEAN Cooperation on Nature Conservation and Biodiversity, available at

http://environment.asean.org/asean-working-group-on-nature-conservation-and-biodiversity/ (last

accessed July 23, 2016). .......................................................................................................................... 16

Biodiversity Conservation and Forest Management, available at http://www.aseangreenhub.in.th/envinat-

ac/index.php/en/savetheworldsection/12-savetheworld (last accessed July 28, 2016). .......................... 14

Boden, Marland, and Andres, Global, Regional, and National Fossil-Fuel CO2 Emissions, Carbon

Dioxide Information Analysis Center, available at http://cdiac.ornl.gov/trends/emis/tre_fra.html (last

accessed June 9, 2016). ........................................................................................................................... 34

Decree of the President of the Russian Federation and Act of the Government of the Russian Federation

on September 30, 2013 (April 2, 2014). ................................................................................................. 35

Energy: Secure and Affordable energy for Europeans, available at http://europa.eu/pol/index_en.html

(last accessed June 10, 2016). ............................................................................................................... 34

General Report of the Activities of the European Union available at http://europa.eu/general-report/en

(last accessed June 27, 2016). ................................................................................................................. 22

Global Warming’s Evil Twin: Ocean Acidification, The Climate Reality Project available at

https://www.climaterealityproject.org/blog/global-warming-ocean-

acidification?utm_source=Facebook&utm_medium=Social&utm_campaign=RFP (last accessed June

15, 2016). ................................................................................................................................................ 25

Indigenous Peoples in the Asian Region, UN Permanent forum on Indigenous Issues, 13th session, May

15, 2014, available at http://www.un.org/esa/socdev/unpfii/documents/2014/press/asia.pdf (last

accessed July 27, 2016). .......................................................................................................................... 15

Indonesia’s Forests Under Fire, Greenpeace, available at

http://www.greenpeace.org/international/Global/international/publications/forests/2015/Under-Fire-

Eng.pdf (last accessed June 23, 2016). .................................................................................................... 16

Key Trends in CO2 Emissions: CO2 Emissions from Fuel Combustions, International Energy Agency

available at

https://www.iea.org/publications/freepublications/publication/CO2EmissionsFromFuelCombustionHig

hlights2015.pdf (last accessed June 20, 2016). ....................................................................................... 20

Paris 2015: Tracking Country Climate Pledges, Carbon Brief, available at

http://www.carbonbrief.org/paris-2015-tracking-country-climate-pledges (last accessed June 8, 2016).

................................................................................................................................................................ 32

Petition of Greenpeace SEA and Philippine Rural Reconstruction Movement before the Commission on

Human Rights available at http://www.greenpeace.org/seasia/ph/PageFiles/105904/Climate-Change-

and-Human-Rights-Complaint.pdf (last accessed July 29, 2016). .......................................................... 12

Petition of Greenpeace SEA and Philippine Rural Reconstruction Movement before the Commission on

Human Rights, accessed on July 27, 2016 at

http://www.greenpeace.org/seasia/ph/PageFiles/105904/Climate-Change-and-Human-Rights-

Complaint.pdf. ........................................................................................................................................ 12

Rising Sea Level, A Student’s Guide to Global Climate Change, available at

https://www3.epa.gov/climatechange/kids/impacts/signs/sea-level.html (last accessed June 9, 2016). . 25

The Principle of Common but Differentiated Responsibilities: Origins and Scope, CISDL ...................... 31

Trends in Global CO2 Emissions: 2015 Report, available at http://edgar.jrc.ec.europa.eu/news_docs/jrc-

2015-trends-in-global-co2-emissions-2015-report-98184.pdf (last accessed on June 30, 2016) ........... 34


7

United Nations Framework Convention on Climate Change, Aggregate effect of the intended nationally

determined contributions: an update, FCCC/CP/2016/2 (May 2, 2016). ............................................... 18

United Nations Sustainable Development Goals Number 14: Life Below Water, available at

http://www.un.org/sustainabledevelopment/wp-content/uploads/2016/05/16-00055n_Why-it-

Matters_Goal-14_2p.pdf (last accessed June 24, 2016). ........................................................................ 27

Urbanization and Climate Change in Small Island, p.7, chap. 3, United Nations Human Settlement

Programme available at http://unhabitat.org/cities-and-climate-change-initiative/ (last accessed June

21, 2016). ................................................................................................................................................ 16

World’s largest carbon producers face landmark human rights case, The Guardian UK, available at

https://www.theguardian.com/environment/2016/jul/27/worlds-largest-carbon-producers-face-

landmark-human-rights-case (last accessed August 5, 2016). ............................................................... 13


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I. INTRODUCTION

Maintaining the status quo of the current climate system has been a problem faced by the

community of nations since the turn of the century. During this time, massive development has

overtaken the plight of preserving the environment in its natural state. The human species is no

longer a mere spectator in the changing world; it has become the main player in the rapid

alteration of the Earth’s climate system.

In the most recent assessment of climate science by the Intergovernmental Panel on

Climate Change (“IPCC”)1, around 2,000 climate scientists from around the world confirms the

negative impact of anthropogenic influence in the climate system. This current situation of the

world climate greatly affects the present and future generations of humankind with respect to the

availability of resources and the sustainability of the environment around us.

We now come before this Honorable Court with a request for an advisory opinion as our

channel to voice out the concerns of our generation to international legal bodies in order for

states to act in accordance their obligations under international law for the sake of ours and that

of the future generations of humankind.

In an attempt to ensure a more sustainable environment, we beg the question of

responsibility of the 193 countries under international law, by laying down these questions:

1. What is the role of the Association of Southeast Asian Nations (“ASEAN”) in this

fight to address the global climate crisis?

1Intergovernmental Panel on Climate Change 5

th Assessment Report. 2013, available at

http://www.ipcc.ch/report/ar5/wg1/ (last accessed on June 9, 2016) [hereinafter IPCC].


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2. What are the obligations of states in relation to the protection and preservation of the

environment under treaty and customary laws?

3. What is the relevance of Nationally Determined Contributions in the global climate

crisis?

4. In failing to comply with their obligations, how do we hold states responsible under

international law?

5. What legal remedies and other policy solutions can be availed of by states against

non-compliant states?

In exacting the responsibility of states to address the current climate crisis, we look into

the rights and obligations aspect under international law, specifically treaties and conventions

such as the United Nations Framework Convention on Climate Change (“UNFCCC”), the United

Nations Convention on the Law of the Seas (“UNCLOS”), in their commitments in the 2015

Paris Agreement during the UNFCCC’s 21st Conference of Parties (“Paris Agreement”) in

achieving global emissions reduction and other Sustainable Development Goals (“SDGs”). In

correlating these international obligations with the state’s responsibility, we seek the aid of the

Articles of State Responsibility for Internationally Wrongful Acts (“ARSIWA”).

Along with the national policies of each individual state, these treaties will help us

conceptualize inter-generational responsibility at the height of the current global climate crisis

and at the same time, bringing inter-generational justice to the present and future generations.


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II. SECURING SUSTANABILITY FOR THE PRESENT AND FUTURE

GENERATIONS OF HUMANKIND

States acknowledge that the adverse effects of climate change are a common concern of

mankind.2 This concept has been regarded as a foundation for action erga omnes as well as on

the standing of states in environmental affairs. The International Court of Justice (“ICJ”)

pronounced in the Gabcikovo-Nagymaros Case in 1997 that the safeguarding of the earth’s

ecological balance is considered an essential interest of all states.3 In doing so, protection is

afforded to the international community as a whole.

The protection and the preservation of our environment is a responsibility not only

bestowed upon the present generation, but also to generations yet to be born. As such,

maintaining the rhythm and harmony of nature indispensably includes the utilization,

management, renewal and conservation of the country's forest, mineral, land, waters, fisheries,

wildlife, off-shore areas and other natural resources to the end that their exploration,

development and utilization be equitably accessible to the present as well as future generations.4

In that sense, every generation has a responsibility to the next to preserve and ensure

sustainability of the environment and maintain that very rhythm and harmony [of nature] for the

full enjoyment of a balanced and healthful ecology.

2 United Nations Framework Convention on Climate Change, preamble, 1771 UNTS 107 (1994)

[hereinafter “UNFCCC”].

3 Gabčĭkovo-Nagymaros Project (Hungary v. Slovakia) 1997 I.C.J. 7 (Apr.9). par. 5.

4 Minors Oposa et.al. v. Hon. Fulgencio Factoran, G.R. No. 101083, July 30, 1993, 224 SCRA

792.


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The international community recognized sustainable development as the overarching

paradigm for improving quality of life in 1992 at the United Nations Convention on Environment

and Development5, where world leaders agreed to act in a manner where developmental concerns

meets the needs of the present without compromising the ability of future generations to meet

their own needs.6 The same was recognized in the Pulp Mills Case where the Court noted the

‘interconnectedness between equitable and reasonable utilization of a shared resource and the

balance between economic development and environmental protection that is the essence of

sustainable development’.7

The treatment of environmental protection must also be within the realm of human rights

law and must be addressed in global terms.8 In the human rights aspect, the 1972 Stockholm

Declaration on the Human Environment has also recognized the fact that the health of the

environment is essential in ensuring the protection of human rights of humankind. Thus, it states

that:

‘adequate protection of the environment is essential to human well-being

and the enjoyment of basic human rights, including the right to life itself’, but it

also asserts that ‘every person has the right to live in an environment adequate to

his or her health and well-being, and the duty, both individually and in association

with others, to protect and improve the environment for the benefit of present and

future generations’.9

5 Rio Declaration on Environment and Development, principle 2, UN Doc.A/CONF. 151/26

(1992).

6 The Bruntland Commission, Report of the World Commission on Environment and

Development: Our Common Future, G.A. Res. A/42/427. (August 4, 1987).

7 Pulp Mills on the River Uruguay Case, [2010] ICJ Rep, at para. 177.

8 Alan Boyle, Human Rights and the Environment: Where Next? Eur J Int Law (2012) 23 (3):

613-642.


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The threat of more serious impacts of climate change now interferes with our exercise

and enjoyment of our basic human rights. Thus, in the Öneryildiz Case, the European Court of

Human Rights emphasized that,

“the positive obligation to take all appropriate steps to safeguard life entails a

primary duty on the State to put in place a legislative and administrative

framework designed to provide effective deterrence against threats to the right to

life”.10

The enjoyment of our human rights necessarily carries with it the correlative duty to

refrain from impairing the environment.11

Currently, a petition spearheaded by Greenpeace

Southeast Asia and the Philippine Rural Reconstruction Movement is filed before the

Commission of Human Rights of the Republic of the Philippines urging the said body to

investigate the responsibility of major carbon emitters in contributing to the increase of the

greenhouse gas (“GHG”) emissions of the country.12

While the petition has not yet been acted upon, the petitioners are hopeful for a positive

recommendation from the Commission as they see it as a first step toward positive actions of the

Philippine government.13

9 1972 Stockholm Declaration, U.N. Doc. A/Conf.48/14/Rev. 1(1973).

10

Oneryildiz v. Turkey, 41 EHRR (2005) 20, at para. 89.

11

The Earth Charter Initiative (2000), principle 2 ¶ 6.

12

Petition of Greenpeace SEA and Philippine Rural Reconstruction Movement before the

Commission on Human Rights available at

http://www.greenpeace.org/seasia/ph/PageFiles/105904/Climate-Change-and-Human-Rights-

Complaint.pdf (last accessed July 29, 2016).


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Despite the sustainable development goals developed in the 2012 United Nations

Conference on Sustainable Development14

to strengthen commitments towards protecting our

terrestrial15

and marine16

ecosystems, as well as in addressing issues like poverty17

and the

overall climate action18

of states, among others, there still exists unsustainable practices and

exploitative consumption which are pushing our environment to and even beyond its limits. Such

acts deprive the future generations the opportunity to enjoy the wonders of nature.

With these issues in mind, we must take special consideration to certain regions, peoples

and communities which are particularly vulnerable to the effects of climate change. Included in

that category is the Association of Southeast Asian Nations.

13

World’s largest carbon producers face landmark human rights case, The Guardian UK,

available at https://www.theguardian.com/environment/2016/jul/27/worlds-largest-carbon-

producers-face-landmark-human-rights-case (last accessed August 5, 2016).

14

UN General Assembly, Implementation of Agenda 21, the Programme for the Further

Implementation of Agenda 21 and the Outcomes of the World Summit on Sustainable

Development, UN Doc. A/RES/64/236 (2010) (31 March 2010) at 20 (a).

15

Transforming Our World: UN 2030 Agenda for Sustainable Development, UN A/Res/70/1.

[hereinafter UNSDG], SDG15: Protect, restore and promote sustainable use of terrestrial

ecosystems, sustainably manage forests, combat desertification, and halt and reverse land

degradation and halt biodiversity loss.

16

Id, SDG 14: Conserve and sustainably use the oceans, seas and marine resources for

sustainable development.

17

Id, SDG1: Ending Poverty in All Forms.

18

Id, SDG13: Take Urgent Actions to Combat Climate Change and Its Impacts.


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III. IN CONTEXT: THE ASSOCIATION OF SOUTHEAST ASIAN NATIONS

(ASEAN)

Since its formation in 1967, the ASEAN has been based on a firmly rooted sense of

collective identity as well as on common norms of non-interference, state sovereignty, non-

alignment and collective, consensual decision-making.19

The impending ASEAN Integration paves the way in highlighting three important pillars

of the region: The Economic Framework, The Security Framework and the Socio-Cultural

Framework. In the ASEAN Socio-Cultural Framework, a stronger platform is opened for more

opportunities to strengthen environmental cooperation across numerous fields, such as

sustainable development, unemployment, environmental degradation, transboundary pollution,

and disaster management.20

A. The ASEAN Highlights

The ASEAN has the highest and the most diverse biodiversity on Earth because it is

located in the tropical zone with various types of ecosystems.21

Ten (10) ASEAN countries

account for 3% of global land area, yet it contains 20% of the world’s living species plus

284,000 square kilometers of coral reef.

19

The ASEAN Charter, art. 1.

20

The ASEAN Socio-Cultural Blueprint (2009-2015), section D.

21

Biodiversity Conservation and Forest Management, available at

http://www.aseangreenhub.in.th/envinat-ac/index.php/en/savetheworldsection/12-savetheworld

(last accessed July 28, 2016).


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Equally importantly is the fact that the ASEAN has highly diverse ethnicities and cultural

identities which are significantly interdependent with the biological resources. About two thirds

(2/3) of the world’s indigenous peoples live in Asia.22

As they depend highly on the environment

for their sustenance, effective use and preservation of our lands, forests and natural resources, it

is important that governments of member states act ensure the protection and preservation of the

environment in the face of climate change and disaster risk reduction.

However, given the different economic, political and cultural nuances of each member

states, increased population, rapid economic growth, combined with the existing and region-wide

social inequities among the ASEAN countries have essentially exerted increasing pressures on

the natural resources of the region and brought along various common or transboundary

environmental issues, such as air, water and land pollution, urban environmental degradation,

transboundary haze pollution, and depletion of natural resources, particularly biological

diversity.

It has also led to increased consumption of resources and generation of waste, resulting in

unsustainable development. Therefore, despite an abundance of natural resources, ASEAN, as

elsewhere, is facing an enormous challenge in keeping a delicate balance of environmental

sustainability and economic development.23

22

Indigenous Peoples in the Asian Region, UN Permanent forum on Indigenous Issues, 13th

session, May 15, 2014, available at

http://www.un.org/esa/socdev/unpfii/documents/2014/press/asia.pdf (last accessed July 27,

2016).

23

Supra note 20, section D.1.


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B. The region under threat

The ASEAN is one of the highly vulnerable regions gravely affected by the effects of the

current climate crisis. Its biodiversity faces a number of threats including deforestation and the

burning of the tropical forests in Indonesia24

, a decline in the species, including marine and fresh

water animals and an increase in number of endangered ones.25

In the past decade, developing countries, in particular, the Small Island Developing States

(“SIDS”) experience the hazardous effects of climate change. It has claimed thousands of lives,

displaced millions of people, damaged livelihood and caused a severe economic toll in relief,

rehabilitation and reconstruction efforts among developing states.26

Many countries in the

Association of Southeast Asian Nations (“ASEAN”) are also vulnerable to the negative effects of

climate change.

For example, the climate crisis brought about a high degree of uncertainty about any

detectable change with regard to tropical cyclones.27

Super Typhoon Haiyan in the Philippines

and the 2011 Thai Flood are recent examples where both disasters are the most worst to be

24

Indonesia’s Forests Under Fire, Greenpeace, available at

http://www.greenpeace.org/international/Global/international/publications/forests/2015/Under-

Fire-Eng.pdf (last accessed June 23, 2016).

25

ASEAN Cooperation on Nature Conservation and Biodiversity, available at

http://environment.asean.org/asean-working-group-on-nature-conservation-and-biodiversity/

(last accessed July 23, 2016).

26

Urbanization and Climate Change in Small Island, p.7, chap. 3, United Nations Human

Settlement Programme available at http://unhabitat.org/cities-and-climate-change-initiative/

(last accessed June 21, 2016).

27

IPCC, supra note 1.


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experienced for a long time. Aside from the drastic effects on human life, the erratic change in

the climate system will pose a great threat in these biodiversity hotspots as well as in sources of

food, medicine, and energy in the region.28

C. Regional Response to Climate Change Threats

The ASEAN has always been cooperating closely in promoting environmental

cooperation among its member states. The Bangkok Resolution on ASEAN Environmental

Cooperation (2012)29

in the ASEAN Region is one of the few documents agreed upon by states

leaders focusing on addressing issues such as transboundary haze and pursuing environmental

commitments of the region.

Currently, ASEAN environmental cooperation focuses on ten priority areas of regional

importance as reflected in the Blueprint for the ASCC Framework 2009-2015. These include

measures towards achieving sustainable development as well as promoting clean and green

environment by protecting the natural resource base for economic and social development

including the sustainable management and conservation of soil, water, mineral, energy,

biodiversity, forest, coastal and marine resources as well as the improvement in water and air

quality for the ASEAN region.30

The close cooperation among the ASEAN member states in promoting capacity building,

sharing experiences and best practices, and acting collectively to implement the multilateral

28

ASCC Blueprint, supra note 20, section D.8.

29

Bangkok Resolution on ASEAN Environmental Cooperation (26 September 2012).

30

ASCC Blueprint, supra note 28.


18

environmental agreements have facilitated member states in addressing the current problems

faced by the regions.

Countries in ASEAN pledge on mitigation objectives through the differentiated levels of

reduction in emissions by 2025 or 2030 in their NDCs.31

The implementation periods for most

parties are within the range of five to ten-year implementation period. The Republic of the

Philippines has pledged to reduce its emissions in as much as 70%. Thailand also submits an

unconditional 20% reduction of its emissions and as for Indonesia, its pledges 29% emissions

cut. 32

However, the rest of the countries in the region have pledges which are largely conditional

on international support, mainly form developed states.33

Due to its institutional structures and its fragile legal framework, ASEAN is not yet

equipped with enough authority to enforce existing agreements. There is a strong need to

establish ASEAN community law to govern the member states with principles that can be

applied at the national level. Major obstacles derive from its organizational structure as well as

the massive gap in the member state’s economic development and their national interests.

In so far as the agreements and declarations of the ASEAN as a region do not have a

binding force on members just yet, the environmental obligations of each individual member

state is much more elaborated in treaties and conventions of which they are parties and

signatories.

31

United Nations Framework Convention on Climate Change, Aggregate effect of the intended

nationally determined contributions: an update, FCCC/CP/2016/2 (May 2, 2016).

32

Id.

33

UNFCCC, supra note 2, art 4 (3).


19

IV. STATES MUST COMPLY WITH THEIR TREATY LAW OBLIGATIONS

UNDER THE UNITED NATIONS FRAMEWORK CONVENTION ON

CLIMATE CHANGE (UNFCCC) AND THE UNITED NATIONS

CONVENTION ON THE LAWS OF THE SEAS (UNCLOS)

International law recognizes a general duty of cooperation, particularly in relation to the

environment. Indeed, cooperation has been described as "the overriding principle of international

environmental law" ensuring that "community interests are taken into account vis-a-vis

individualistic State interests."34

A. Obligation to Cooperate under the UNFCCC

The UNFCCC, the leading climate instrument, is one of the forums to promote

international cooperation among states. Just recently, in 2015, states have come together to craft

a new global climate change agreement that would govern all countries in achieving greater cuts

in global emissions over the rest of this decade and beyond. The aim is to keep global average

temperature at 1.5°C and prevent the dangerous anthropogenic interference with the climate

system35

with the continued goal of significantly reducing the risks and impacts of climate

change.36

34

Whaling in the Antarctic (Australia v. Japan), Written Observations of New Zealand, 2013. 41

ILM 405 (April 4, 2013).

35

UNFCCC, art. 2.

36

Adoption of the Paris Agreement of the 21st Conference of Parties, December 12, 2015,

FCCC/CP/2015/L.9, [hereinafter Paris Agreement].


20

According to IPCC, the escalation of 78% of the CO2 emissions from 1970-2010 is

primarily triggered with fossil fuel combustion and industrial processes with the continuous

economic and population growth.37

Fossil fuel, especially coal, is one of the major sources of

energy and also of CO2 emissions. With its heavy released carbon content per unit of energy, it

is the major contributor for the 46% of the global CO2 emissions.38

The UNFCCC imposes upon the states parties the obligation to cooperate with each other

in order to ensure the stabilization of greenhouse gases (“GHGs”) in the atmosphere at a level

that would prevent dangerous anthropogenic interference in the climate system.39

The principal

purpose of this goal is to achieve the reduction of risks and impacts of climate change 40

and to

foster climate resilience.41

The UNFCCC suggests various methods of cooperation, including the formulation of,

where appropriate, regional programs containing measures to mitigate climate change by

addressing anthropogenic emissions by sources, as well as putting up measures to facilitate

adequate adaptation to climate change.42

37

Working Group, Intergovernmental Panel on Climate Change [IPCC] Fifth Assessment

Report, Climate Change 2014: Synthesis Report, R.K. Pachauri and L.A. Meyer (eds.).

38

Key Trends in CO2 Emissions: CO2 Emissions from Fuel Combustions, International Energy

Agency available at

https://www.iea.org/publications/freepublications/publication/CO2EmissionsFromFuelCombusti

onHighlights2015.pdf (last accessed June 20, 2016).

39

UNFCCC, supra note 35.

40

Paris Agreement, supra note 36, art. 2 (a).

41

Id. art. 2 (b).


21

a. Obligation to cooperate through mitigation of GHG emission of

states

The UNFCCC came into force in the year 1994 with a near universal membership of the

197 states parties ratifying it. Its ultimate goal is to prevent the dangerous human interference

with the climate system.43

The accumulated influence of humans towards the natural level of greenhouse gases is

evident. The IPCC report reveals that human influence on the climate system, through emissions

of carbon dioxide (CO2) contributed to about 95-100% of the greenhouse gases (“GHGs”)

concentration in the atmosphere since the mid-20th century.44

This obligation to mitigate the GHG emission of states coincides with the legal mandate

of the Paris Agreement to set internationally binding emission reductions targets. In both the

UNFCCC and in the Paris Agreement, developed states are given the greater task of providing

climate finance to developing countries. In keeping this obligation on track, developed states

must always take the lead and initiate proactive measures and aid alongside the efforts of

developing states.

42

UNFCCC, supra note 2, art. 4, ¶1 (b).

43

Supra note 35.

44

IPCC Working Group, supra note 37, at 40.


22

The extent to which developing country parties will effectively implement their

commitments under the UNFCCC will depend on the effective implementation by the developed

country parties of their commitments related to financial resources and transfer of technology.45

In support of this obligation, we emphasize that existing regions in the world, the

ASEAN and the European Union (“EU”), are working towards the same goal of mitigation of

GHG emissions and the adaptation of the effects of climate change. The EU strongly encourages

Parties that have not yet done so, to make emission pledges for the period up to 2020. It is calling

on all members to implement their commitments fully and without delay and to consider next

year how they could step up efforts so that the emissions gap can be closed as soon as possible.46

On the other side of the world, in the ASEAN region, members pledge on differentiated levels of

reduction in emissions by 2025 – 2030.47

b. Obligation to adapt to the adverse effects of climate change

Another obligation enshrined in the UNFCCC is for states to develop programs and

actions to adapt to the adverse effects of climate change. Significantly, the fulfillment of this

obligation is done by considering the special needs and circumstances of developing country

parties.48

45

UNFCCC, art 4 ¶7.

46

General Report of the Activities of the European Union available at http://europa.eu/general-

report/en (last accessed June 27, 2016).

47

See Part III.C.

48

UNFCCC, art. 3 ¶2.


23

The UNFCCC imposes upon developed states to support climate change activities in

developing countries by providing financial support49

for action on climate change above and

beyond any financial assistance, including the system of grants and loans set up and managed by

the Global Environment Facility (“GEF”).50

The UNFCCC offers priority to the notions of mitigation51

as well as adaptation52

in

dealing with the adverse effects of climate change. Ideally, developed states must be taking

actions to minimize the causes of climate change, and further mitigate its adverse effects.

Managing the risks of climate change involves adaptation and mitigation decisions with

implications for future generations, economies, and environments.53

The IPCC suggests that the

methods of mitigation and adaptation can be applied in a climate-resilient pathway for

development.54

It is defined as:

“…a continuing process for managing changes in the climate and other

driving forces affecting development, combining flexibility, innovativeness, and

participative problem solving with effectiveness in mitigating and adapting to

climate change. If effects of climate change are relatively severe, this process is

likely to require considerations of transformational changes in threatened

systems if development is to be sustained without major disruptions.”55

49

UNFCCC, art 4 ¶2.

50

United Nations Framework Convention on Climate Change, Report of the Global Environment

Facility to the Conference of Parties and the Guidance of the Global Environment Facility,

Decision 8/CP.20, FCCC/CP/2014/10/Add.2 (February 2, 2015).

51

UNFCCC, supra note 49.

52

UNFCCC, art. 3¶ 3; art 4¶1(b); art. 4¶4.

53

Intergovernmental Panel on Climate Change (IPCC) Fifth Assessment Report (2014).

Technical Summary, at 85.

54

Id, chap 20, at 1106.


24

B. Obligation to Protect and Preserve the Marine Environment under UNCLOS

While the provisions of the UNCLOS were not drafted with the purpose of reducing

GHGs in mind, it is a living instrument which must be applied and interpreted in light of the

pressing issues and conditions affecting the world’s oceans.

The UNCLOS repeatedly emphasized the obligations of state parties towards

conservation and adoption of measures56

for the protection of the marine environment. These

obligations range from within57

and beyond58

the respective territories of states. Of paramount

importance is their obligation to protect and preserve the marine environment.59

a. Obligation to prevent, reduce and control pollution of the marine

environment

Alongside the obligation to protect and preserve the marine environment, states also have

the obligation to protect it from harm caused by pollutants. The marine environment is currently

being threatened by anthropogenic harm, particularly in the pollution of our oceans. UNCLOS

defines pollution as

“…xxx….the introduction by man, directly or indirectly, of substances or

energy into the marine environment, which results or is likely to result in such

deleterious effects as harm to living resources and marine life…xxxx….”60

55

IPCC, supra note 54.

56

United Nations Convention on the Law of the Sea, art 61, ¶4, 10 Dec.1982, 21 I.L.M.1261

[hereinafter “UNCLOS”].

57

Id. art. 61, ¶2; art. 56, ¶1 (b) (iii).

58

Id. art. 117.

59

Id, art. 192.

60

Id, art. 1 ¶1 (4).


25

Included in this obligation to prevent, reduce and control pollution is to take measure to

minimize, to the fullest extent possible, the release of toxic, harmful or noxious substances, from

or through the atmosphere.61

Consequently, the huge bulk of pollution affecting our oceans originates from CO2

emissions and the concentration of all other GHGs in the atmosphere. The oceans has been

absorbing half of the CO2 produced by fossil fuel burning and cement production in the past 200

years causing oceans to be more acidic, decreasing their pH level from pre-industrial value of 8.2

to the present 8.1.62

With the current rate the glaciers and ice sheets are melting due to the

warming of the world, sea levels may rise between 75 cm and 190 cm by 2100.63

This

phenomenon could wipe out low lying island nations such as Tuvalu and the Maldives, and

affect territorial and coast lines and exclusive economic zones.64

The introduction and increase of CO2 create harmful effects detrimental to humans and

the marine species and its environment. An estimated 25 - 30% of the carbon dioxide emitted by

these activities was absorbed by the oceans, causing ocean acidification.65

Ocean acidification is

defined as the decrease in pH of the Earth's oceans and changes in ocean chemistry caused by

61

UNCLOS, art. 194 ¶3 (a).

62

IPCC, supra note 1.

63

Id.

64

Rising Sea Level, A Student’s Guide to Global Climate Change, available at

https://www3.epa.gov/climatechange/kids/impacts/signs/sea-level.html (last accessed June 9,

2016).

65

Global Warming’s Evil Twin: Ocean Acidification, The Climate Reality Project available at

https://www.climaterealityproject.org/blog/global-warming-ocean-acidification (last accessed

June 15, 2016).


26

chemical inputs from the atmosphere, including carbon dioxide.66

Among other effects, its

increase would result to the significant loss of the coral reefs67

, threatening the survival of coastal

communities and the continuity of fish stocks. The loss of coral reefs would tantamount to the

reduction of the coastline capacity to buffer storm surges and the rise of sea level.68

b. Obligation to ensure sustainability of marine living resources

As an overarching objective of the 170 states, the 14th

SDG aims to create a framework to

sustainably manage and protect marine and coastal ecosystems from land-based pollution, as

well as address the impacts of ocean acidification.69

Enhancing conservation and the sustainable

use of ocean-based resources through international law will also help mitigate some of the

challenges facing our oceans.

Healthy oceans play an essential interest in fulfilling our intergenerational responsibility.

To ensure that future generations get their fair share of the resources we are enjoying, it is

important for states to utilize such resources in a manner that is not intended to harm the

environment and the life that depends upon it.

States remain to have the obligation to ensure that the marine resources are protected

properly since the marine biodiversity and its ecosystem essentially includes the large coral reef

66

Supra note 65.

67

UNEP Emerging Issues: Environmental Consequences of Ocean Acidification: A Threat to

Food Security, UNEP (2010).

68

Carpenter KE et al. 2008 One-Third of Reef-Building Corals Face Elevated Extinction Risk

from Climate Change and Local Impacts. Science 321, 560 – 563

69

Transforming Our World: UN 2030 Agenda for Sustainable Development, UN A/Res/70/1.

SDG 14.


27

area that serves as the habitat and breeding ground for marine life.70

In fact, the world’s oceans,

seas and islands contribute substantially to human development and form an integrated and

essential component of the Earth’s ecosystem, critical for food security and for sustainable

economic well being of developing states.71

Considering the interconnectedness of the activities of human and its effects to the

atmosphere as well as to the oceans and seas, states must take due regard of their actions to

prevent environmental degradation.

70

Report of the Secretary General, Protection of Coral Reefs for Sustainable livelihoods and

development, UN GA Res. 65/150, A/66/298 (August 12, 2011).

71

United Nations Sustainable Development Goals Number 14: Life Below Water, available at

http://www.un.org/sustainabledevelopment/wp-content/uploads/2016/05/16-00055n_Why-it-

Matters_Goal-14_2p.pdf (last accessed June 24, 2016).


28

V. STATES ARE ALSO BOUND BY THEIR CUSTOMARY INTERNATIONAL

LAW OBLIGATIONS

Custom, as is specified by Article 38.1 (b) of the Statute of the ICJ, means “evidence of a

general practice accepted as law”.72

A. Compliance with the Precautionary Principle (PP)

We submit that the precautionary principle is also an important obligation which must be

complied by the states in order to ensure the preservation and the protection of the marine

environment.

The principle has been defined in several sources, such as the London Declaration of

198773

, the 1992 Rio Declaration74

, the EU Communication on the Precautionary Principle75

, and

the Oslo Principles.76

Despite the variety of its definitions, a working definition is hereby

adopted for the purpose of harmonizing the divergence in wording:

“the precautionary principle applies when human activities may lead to

morally unacceptable harm that is scientifically plausible but uncertain, actions

shall be taken to avoid or diminish that harm.77

Wherefore, it is both a legal and

72

Statute of the International Court of Justice, Art. 38.1, (b) T.S. No. 993 (1945).

73

Second International Conference on the Protection of the North Sea (1987); art XVI.

74

Rio Declaration on Environment and Development, principle 15, U.N. Doc. A/CONF.151/26

(1992).

75

European Parliament resolution on the Commission communication on the precautionary

principle (COM(2000) 1 - C5-0143/2000 - 2000/2086(COS)).

76

Oslo Principles on Global Obligations to Reduce Climate Change, Mar. 1, 2015, available at

http://www.yale.edu/macmillan/globaljustice/Oslo%20Principles.pdf (last accessed June 16,

2015) at 1.


29

moral concept, its most common application being in the context of scientific

uncertainty.”78

It must therefore follow that the PP does not question the fact of climate change when

dispensed with scientific uncertainty. In this context, it simply upholds the prevalent perspective

of 97% of scientists involved with climate change research, whose findings dictate that the earth

is warming and greenhouse gas emissions are the principal cause of the same.79

B. States have the obligation to observe due diligence in its actions

The duty of states to observe due diligence has long been established as a custom of

international law as it has been pronounced in many international judicial decisions as one. It

carries with it not only the adoption of appropriate rules and measures, but also a certain level of

vigilance in [their] enforcement and the exercise of administrative control applicable to public

and private operators, such as the monitoring of activities undertaken by such operators, to

safeguard the rights of the other party.80

The duty of due diligence involved, however, is not intended to guarantee that significant

harm be totally prevented, if it is not possible to do so. What is required is a certain standard of

care in that the State of origin is required to exert its best possible efforts to minimize the risk.81

77

The World Commission on the Ethics of Scientific Knowledge and Technology (COMEST),

The Precautionary Principle, p. 15 (2005).

78

Oslo Principles on Global Climate Change Obligations – Commentary, at 43 (2015).

79

Global Climate Change and U.S. Law, Second Edition, p. 5 (2014).

80

Pulp Mills Case, at ¶ 197.


30

C. States must act in accordance with the no harm rule and the good

neighborliness principles

The good neighborliness principle is an obligation that has been widely accepted, in the

sense that it is applicable to all states with respect to the protection of the environment, as a

binding custom in international law.82

In a previous advisory opinion rendered by the Court, the obligation of states to prevent

transboundary environmental harm was established, stating that all states must ‘ensure that

activities within their jurisdiction and control respect the environment of other states or of areas

beyond national control’.83

The Articles on the Prevention of Transboundary Harm from

Hazardous Activities of the International Law Commission also states that: “The State of origin

shall take all appropriate measures to prevent significant transboundary harm or at any event to

minimize the risk thereof.”84

81

Prevention of Transboundary Harm from Hazardous Activities, Official Records of the

General Assembly, Fifty - sixth Session, Supplement No. 10 (A/56/10), at art. 3; United Nations

General Assembly, Report of the International Law Commission: Fifty - third Session, Fifty -

Sixth Session, 2001, at ¶ 7.

82

Sands, Principles of International Environmental Law. 233. (2012); Gabçikovo-Nagymaros

Case, (1997) at 41.

83

Legality of the Threat or Use of Nuclear Weapons (Request for an Advisory Opinion from the

International Court of Justice) [1994] UN GA Res 49/75K of 15 December 1994 at 29.

84

Supra note 81 at 394 .


31

Pursuant to the Trail Smelter Case85

, states may be liable for transboundary damage

caused by wrongful acts or omissions of other neighboring states. Under this obligation, States

should not knowingly allow its territory to be used for acts contrary to the rights of other States.86

D. Compliance with these obligations in accordance with the Common but

Differentiated Responsibility and Respective Capabilities (CBDR-RC)

The CBDR holds that all states have a common responsibility regarding environmental

protection but such responsibilities are differentiated among States due to their respective

circumstances.87

Within the provisions of the UNFCCC, an emphasis is given on the larger duty of

developed states to take the lead in combating climate change and its adverse effects.88

As a

widely accepted principle, developed countries are expected to offer commitments which involve

strong actions to reduce their emission back to the desirable levels. As developed countries are

the main source of most past and current greenhouse gas emissions, they are expected to exert

greater efforts to cut emissions on home ground in consonance with the principle of common but

differentiated responsibilities and respective capabilities of states.89

85

Trail Smelter Arbitration (United States/Canada), 3 RIAA 1911 (1949).

86

Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 4, 18.; Trail Smelter, 1949 RIAA; Nuclear Tests

(New Zealand. v. France), 1995 I.C.J. 228.

87

The Principle of Common but Differentiated Responsibilities: Origins and Scope, CISDL

Legal Briefs (Aug. 26, 2002).

88

UNFCCC, art. 4 ¶2 (a).

89

Id, art. 3.


32

VI. NATIONALLY DETERMINED CONTRIBUTIONS (NDCS) AS A

MANIFESTATION OF STATES’ INTERNATIONAL LAW OBLIGATIONS

A more effective way of enforcing international environmental and human rights law is

to establish a framework for action where several actors are called upon to contribute based on

their own circumstances, capabilities and national policies.90

We submit that this is doable in the

form of implementation of Nationally Determined Contributions (NDCs).

In the Paris Agreement, states set out national pledges known as Nationally Determined

Contributions91

, setting out how far they intend to reduce their greenhouse gas emissions based

on the country’s own targets. NDCs are voluntary commitments of states supported by a

foundation of legally binding elements. It is our submission that the obligations set out by states

in their NDCs constitute the bulk of their international law obligations, both in treaty and

customary law.

While the determination of commitments and pledges are given to individual states in

consideration of their national circumstances, the Paris Agreement carries with it a binding

obligation on states to submit biennial reports of progress in their compliance of pledges.92

The

obligation, however, does not stop right there, as states are mandated to keep track of their

progress and constantly and gradually increase their commitments and make good of their

pledges.

90

Supra note 77, at 38.

91

Paris 2015: Tracking Country Climate Pledges, Carbon Brief, available at

http://www.carbonbrief.org/paris-2015-tracking-country-climate-pledges (last accessed June 8,

2016).

92

Paris Agreement, art. 13¶4.


33

States, in crafting their NDCs, have taken into consideration all the factors that would

come into play in performing their emission pledges as the years go by. NDCs encapsulate the

mitigation and prevention principles of due diligence93

, good neighborliness94

, as well as the

precautionary principle.95

Along with all these customs, there is an emphasis provided in the

differentiation of responsibilities of individual states. The common but differentiated

responsibilities and respective capabilities of states now becomes the qualifier clause.96

A. NDCs mirror national environmental goals of individual states

Despite the gradual increase in the number of state ratification [of the Paris Agreement],

member states are gradually echoing their own domestic efforts in line with their COP21

pledges. National laws of countries have been shifted towards keeping up with their international

law obligations. Since the countries themselves have decided what to submit, governments are

less likely to turn their backs on these commitments in the future.

To illustrate, a forum of the world’s highly industrialized democracies, Group of Seven

(“G7”): Canada, France, Germany, Italy, Japan, United Kingdom, the United States, and the

European Union (“EU”) produced over 31% of international greenhouse gas (GHG) emissions in

93

See Part V. B.

94

See Part V.C.

95

Part V A

96

Christina Voigt & Felipe Ferriera, Differentiation in the Paris Agreement, Climate Law 6

(2016) at 67.


34

2010.97

With their large GHG emissions contribution, it has an even greater responsibility to

provide for financial funding and lead the transition to a zero carbon global economy.

To further demonstrate, the United States is aligning its domestic laws and policies, as

well as existing and proposed regulations, in order to be relevant to the implementation of the

U.S. target. At this time, its regulations include cutting carbon pollution from new and existing

power plants and are continuing to reduce buildings sector emissions including by promulgating

energy conservation standards.98

In addition, since 2008 the United States has reduced

greenhouse gas emissions by 17 percent (17%) and has set a new target to reduce these emissions

40 percent below 2005 levels by 2025.99

The EU's contribution to the new agreement will be a binding, economy-wide, domestic

greenhouse gas emissions reduction target of at least 40% by 2030. The EU is well on track to

meet the 2020 targets, including the reduction of Greenhouse gases by 18% between 1990–2012;

the share in renewable reaching to14.1% in 2012, up from 8.5% in 2005 and the improvement of

energy efficiency by 18–19% by 2020.100

97

Trends in Global CO2 Emissions: 2015 Report, available at

http://edgar.jrc.ec.europa.eu/news_docs/jrc-2015-trends-in-global-co2-emissions-2015-report-

98184.pdf (last accessed on June 30, 2016).

98

Boden, Marland, and Andres, Global, Regional, and National Fossil-Fuel CO2 Emissions,

Carbon Dioxide Information Analysis Center, available at

http://cdiac.ornl.gov/trends/emis/tre_fra.html (last accessed June 9, 2016).

99

Id.

100

Energy: Secure and Affordable energy for Europeans, available at

http://europa.eu/pol/index_en.html (last accessed June 10, 2016).

http://cdiac.ornl.gov/trends/emis/tre_fra.html


35

The BRICS on the other hand, a group of fast growing and developing economies, are

also considered as top emitters of CO2 globally. Composed of countries such as Brazil, Russia,

India, China and South Africa, these countries often evade the greater international responsibility

as they are still classified as developing countries.

In particular, the Russian Federation currently has in force legally-binding instruments

aimed at providing for limitation of the GHG emissions to at most 75% of 1990 levels by the

year 2020.101

These acts provide, inter alia, for organization of GHG emissions forecasting at the

economy-wide scale and for each individual sector. As for China, their policies remain to be

general commitments, with an emphasis on the carbon trading mechanism put in place by the

Kyoto Protocol – a mechanism that is highly problematic.

While these countries have not yet ratified the Paris Agreement, their individual national

actions towards achieving their COP 21 commitments are an indication of their compliance to

their international obligations.

B. NDCs bridge cultural and economic nuances of states in compliance of

obligations

The increase in CO2 emissions is attributable to both developed and developing

countries, however, its reduction and mitigation entails a differentiated responsibility for every

state.

101

Decree of the President of the Russian Federation and Act of the Government of the Russian

Federation on September 30, 2013 (April 2, 2014).


36

In applying the principle of common but differentiated responsibilities and respective

capabilities, all States have a common responsibility regarding environmental protection.

However, said responsibilities are differentiated among States due to their respective

circumstances.102

This principle is a substantial commitment which is mirrored in the

UNFCCC.103

Where countries are required to determine their own contributions in the circumstances of

their own cultures, NDCs will serve as the vehicle for an effective and efficient compliance of

states without impairing their national policies and goals. The Paris Agreement emphasizes that

capacity-building efforts should be country-driven and based on and responsive to national

needs.104

It is therefore essential to recognize the basic cultural differences reflected in different

political cultures and economic circumstances of states.

Through NDCs, countries may choose their own level of acceptable risk, and

consequently find their own balance in ensuring compliance of international law principles

without compromising their own individual state interests.

102

Supra note 87.

103

UNFCCC, art. 4 ¶1.

104

Paris Agreement, supra note 36, art. 11 ¶2.


37

VII. FAILURE TO COMPLY WITH OBLIGATIONS UNDER INTERNATIONAL

LAW DEMANDS STATE RESPONSIBILITY

States injured due to act done by another state may invoke responsibility for the said acts

if the obligation breached is owed to a group of States including that State, or the international

community as a whole.105

When an internationally wrongful act (“IWA”) is committed by a

State, two (2) requisites must occur: first, there must be an act or omission attributable to the

State under international law and second, the said act or omission constitutes a breach of an

international law obligation of the State.106

A. Acts and omissions of states resulting in global climate crisis constitute a

breach of international law obligations

Developed and developing states, in failing to comply with their obligations under the

UNFCCC and UNCLOS107

and customary international law108

should be held responsible for

global climate crisis. Although the extent of compliance for their obligations are conditional,109

whether there has been a breach of any international obligation depends on the knowledge and

intention of relevant State organs and agents.110

In alleging state responsibility, no distinction is

105

Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), art. 42 ¶ b,

(2001), International Law Commission.

106

Id, art 2.

107

See supra Part IV.

108 See supra Part V.

109

UNFCCC, art. 4¶7.

110

Articles on Responsibility of States for Internationally Wrongful Acts with commentaries

(2001), International Law Commission at 34 ¶ 3.


38

made on the extent of the breach, it merely requires that there be a breach in a manner that it is

not in conformity with what is required of it by its obligations, regardless of its origin.111

In the Rainbow Warrior case, it has been emphasized that “any violation by a State of

any obligation, of whatever origin, gives rise to State responsibility”.112

In fact, the ICJ also

stresses in the Gabcikovo-Nagymaros Case that it is “well established that, when a State has

committed an internationally wrongful act, its international responsibility is likely to be involved

whatever the nature of the obligation it has failed to respect”.113

Hence, state responsibility is

demandable from all international obligations of States, no matter their origin.

B. The attributability of acts and omissions of states resulting in global

climate crisis

A state’s failure to comply with its international law obligations must be in such a

manner that each of these instances of acts and omissions of the state and its organs must be

attributed to it.114

For the purpose of exhibiting state responsibility, the State is treated as a

unity.115

111

ARSIWA, supra note 104, art. 12.

112

Case concerning the difference between New Zealand and France concerning the

interpretation or application of two agreements concluded on 9 July 1986 between the two States

and which related to the problems arising from the Rainbow Warrior affair, UNRIAA, vol. XX

(Sales No. E/F.93.V.3), p. 215 (1990).

113

Gabçikovo-Nagymaros Case, (1997) at 38 ¶ 47.

114

ARSIWA, art. 4.

115

Commentaries, supra note 109 at 35 ¶ 6.


39

The ICJ acknowledges this rule in Difference Relating to Immunity from Legal Process of

a Special Rapporteur of the Commission on Human Rights, which said:

“According to a well-established rule of international law, the conduct of

any organ of a State must be regarded as an act of that State. This rule is of a

customary character.”116

C. Non-compliant states may be held liable under the Polluter Pays Principle

The Polluter Pays Principle dictates that the polluter must be made liable for the harm

caused.117

According to the Emissions Database for Global Atmospheric Research (“EDGAR”),

through its summary of the main conclusions on trends118

, mitigation achievements and

prospects regarding global greenhouse gas emissions, United States, China and the European

Union are the top three major emitters of CO2.119

Member states of the ASEAN, specifically

Indonesia and Thailand who are also part of the ‘Asian Tigers’ are also major contributors of

CO2 emissions.

Both developed and developing states that have engaged in activities that have resulted in

the aggravation of global climate crisis may be held liable for these acts.

116

Difference Relating to Immunity from Legal Process of a Special Rapporteur of the

Commission on Human Rights at 87 ¶ 6.

117

Rio Declaration, supra note 74, principle 16.

118

CO2 Time Series 1990-2014 Per Region/Country, Emissions Database for Global

Atmospheric Research, available at http://edgar.jrc.ec.europa.eu/overview.php?v=CO2ts1990-

2014&sort=des (last accessed June 9, 2016)

119

Supra note 37.


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VIII. FUTURE ACTIONS

In the 1993 landmark case of Minors Oposa et. al. v. Hon. Fulgencio Factoran Jr.

et.al.120

, the Supreme Court of the Philippines rendered a decision in favor of the petitioners who

were suing on behalf of their [present] generation and generations yet unborn. This, the Court

recognized, that such suit is valid by virtue of the principle of intergenerational responsibility in

so far as the right to a healthful and balanced ecology121

and the rhythm and harmony of nature.

Taking the cue from this judicial action, we apply this to the situation of states injured from all

the consequences of the global climate crisis.

A breach, international in character, entails responsibility upon the origin states. In the

context of state responsibility, any breach of a treaty gives rise to responsibility.122

In that case, it

has been established that states may be held responsible for pollution within its jurisdiction if

such pollution results in demonstrable injury to another state.123

The UNFCCC however, does

not provide provisions for imposing strict liability in cases of non-conformity with obligations.

A. Settlement of disputes under the UNFCCC

The current dispute resolution provisions under the UNFCCC prescribe negotiation or

any other peaceful means as a solution.124

Furthermore, it also recognizes that these disputes may

120

Oposa, supra note 4.

121

The 1987 PHIL CONST. art 2, sec. 16.

122

Commentaries, at 117 ¶ 4.

123

Cyrille de Klem in collaboration with Clare Shine, Biological Diversity Convention and the

Law: Legal Mechanisms for Conserving Species and Ecosystems (1992), IUCN Environmental

Policy and Law Paper No. 29, at 216.


41

be submitted to the International Court of Justice (ICJ)125

or put up for arbitration in accordance

with procedures to be adopted by the Conference of Parties.126

These remedies are for those

concerning the interpretation or application of the UNFCCC.

The challenge accompanied by these last two provisions may bring in jurisdictional

issues common to both arbitration courts and the ICJ alike. The text of the UNFCC reads “in

respect of any dispute concerning the interpretation or application of the Convention, it

recognizes as compulsory ipso facto and without special agreement” for the submission of the

dispute to the ICJ or its arbitration.

In the recent arbitral proceedings between the Republic of the Philippines and the Peoples

Republic of China127

, the Arbitral Tribunal ruled that it must satisfy itself not only that it has

jurisdiction over the dispute but also that the claim is well founded in fact and law. As both states

are parties, it may not except itself, generally, from the Convention’s mechanism for the

resolution of disputes.128

In effect, the parties to the UNFCCC face the challenge of how to settle

disputes peacefully in the instance a Party to the Convention refuses to participate in the said

proceedings.

124

UNFCCC, art. 14 ¶ 1.

125

Id, art. 14¶ 2(a).

126

Id, art. 14¶ 2(b).

127

PCA Case No. 2013-19, in the Matter of the South China Sea Arbitration before An Arbitral

Tribunal Constituted Under Annex VII to the 1982 United Nations Convention on the Law of the

Sea between The Republic of the Philippines and The People’s Republic of China, paragraphs

145-164 (2016).

128

Id.


42

B. Loss and Damage

Article 8 of the Paris Agreement129

addresses a relatively new aspect of dealing with

climate change called “loss and damage”.130

The minimization of loss and damage is considered

the alternative solution to granting injured states legal relief, in contrast to the concepts of

liability and compensation.

However, the concept of state responsibility is not limited to that of compensation alone.

In fact, states that are responsible for an IWA are under the obligation to cease the acts, if

continuing, and to offer appropriate assurances and guarantees of non-repetition.131

The Articles

of State Responsibility holds that there is a need to cease the wrongful conduct amounting to the

wrongful act, in this case, Global Climate Change. In conformity with Article 2, cessation and

non-repetition extends to both acts and omissions. Cessation and non-repetition are thus relevant

to every wrongful act as well as omission.132

Hence, state responsibility may be called for in

terms distinct from that of monetary compensation.

129

“xxx…xxx

3. Parties should enhance understanding, action and support, including

through the Warsaw International Mechanism, as appropriate, on a cooperative

and facilitative basis with respect to loss and damage associated with the adverse effects

of climate change.

xxx…xxx”

130

Paris Agreement Annex to UNFCCC Decision 1/CP.21, FCCC/CP.2015/L.9/Rev.1.

131

ARSIWA, art. 30.

132

Commentaries at 88 ¶ 2.


43

C. Greener Actions

A switch from using coal and the burning of fossil fuels to renewable energy must be

adopted by states to put to a stop the exploitation and depletion of our natural resources, a more

responsive disaster management program must be put in place and strengthened within the

confines of a state’s internal policies, a just a equitable resource-sharing scheme and an inclusive

growth among all sectors of the society, fishing and other commercial practices that do not

deprive the people of the marine resources, and an effective and efficient human rights and

environmental policy that coincides with intergenerational justice and our responsibility to the

present and future generations of mankind. These are just some of the actions in line with our

sustainable development goals which will guide us a greener roadmap for a just and sustainable

environment.

The fight for the protection and conservation of our environment has long been present

for many decades and a lot of actions have been adapted by governments, organizations and

people from all over the world in order to combat this huge threat to mankind.


44

IX. CONCLUSION AND PRAYER

Today, the kind of problems faced by humankind largely involves political decisiveness

of states and world leaders. For years, several treaties and protocols have been put in place to

address the global climate crisis. However, despite these, some states are still engaged in

activities that actively contribute to the increasing levels of GHG concentration in the

atmosphere.

Anthropogenic activities are a major catalyst of the current climate crisis. The effects of

the climate crisis have already been felt through the manifestation of erratic weather conditions

where the ASEAN Region has been at the receiving end of disasters. The disasters felt are

coupled with the loss of life and means of living.

It is imperative that in order to prevent and mitigation these disasters, positive actions

must be taken. States have the obligation to address the climate crisis. Consequently, actions

have been taken evinced with the presence of treaties, conventions and protocols to address the

change in climate and its effect. Relevant to this discussion is the United Nations Convention on

the Law of the Seas (UNCLOS), United Nations Framework Convention for Climate Change

(UNFCCC), Sustainable Development Goals (SDGs), and the encapsulation of it all thru

Nationally Determined Contributions (NDC). It is a manifestation of concern and cooperation.

Presently, climate crisis lacks sufficient and sound international jurisprudential reference

since it is an emerging problem in the anthropogenic period. Hence, the determination of

responsibilities, obligations and liabilities Further, determination is vital for the existing

jurisprudence since it would serve as a reference on how the implementation of international law

and also a pattern in the national level of every state as the anthropogenic period ushers.


45

Addressing this problem will not only resolve decades of climate change negotiations,

but it would give the rights of humanity as a whole a voice that at present is scarcely heard. The

resolution of this global crisis no longer rests in the hands of lawyers and environmentalists; it

now rests in the hands of our policy makers and world leaders.

It is then our prayer that this Honorable Court lay down and determine the responsibility

of states so as to ensure compliance of the states’ obligation and the extent of their liability for its

failure to act with regard to the climate crisis for the benefit of ours and that of the future

generations.

Respectfully submitted,

Representatives of the ASEAN Region

Documents

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