State Responsibility at the ICJ

As a general rule of law, the consequence for not upholding international law obligations is state responsibility. State responsibility is based in three primary principles. First, every internationally wrongful act of a State entails its international responsibility. Second, an internationally wrongful act exists when conduct consisting of an act or omission is attributable to a State and constitutes a breach of an international obligation owed by that State. Third, the characterization of an internationally wrongful act is governed by international law and is not affected by its characterization as lawful by internal law. As such, when state responsibility is determined, infringing States are required to immediately cease any violation of international law (ensuring that such actions will not be repeated), and have a legal duty to provide reparations to address the harm caused, which may include compensation or other forms of reparation.

ii. Failures by States to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gasses, and for present and future generations, is an ongoing violation of international law that continues to cause harm. This situation must be rectified, and full compliance with international law must be reinstated. Such compliance can only be achieved by taking decisive action to address climate change as required by international law.

iii. As regards the timeline for addressing climate change, consistently with IPCC findings, we emphasize that climate change requires immediate and urgent action.

iv. The legal consequences for States that breach these obligations are those of State responsibility. That is, the obligation to cease harmful conduct and the obligation to provide reparation for the harm caused including, but not limited to, restoring affected ecosystems to their original state if possible. If restoration is not feasible, the infringing State must provide sufficient reparation to affected parties, which may include compensation or other forms of redress.

v. Pursuant to international law, injured States have the right to invoke state responsibility for the breach of international law obligations and are entitled to impose countermeasures against the breaching State.

vi. Peoples and individuals who are affected by the adverse effects of climate change may take legal action against their governments for failing to uphold their international law obligations. They are also entitled to petition their governments to act against polluter States that infringe their rights, and to file lawsuits seeking compensation from their governments for damages caused by climate change. When compensation is paid, the State of which they are nationals has the obligation to disburse that compensation to those specific peoples and individuals affected by climate change. Disbursement does not necessarily need to be through direct payments, but can be achieved through programs that seek restoration or compensation of the damage.

vii. Peoples and individuals affected by climate change can also enforce their rights before human rights bodies, such as the Inter-American Court of Human Rights, the African Court on Human and Peoples’ Rights, and the European Court of Human Rights.