Ambassador Ximena Fuentes: State Responsibility and Climate Change

Please join the Centre for Law and Social Justice in hearing from Ambassador Ximena Fuentes, the Chilean Ambassador to the UK, about State Responsibility and Climate Change. 

The Centre for Law and Social Justice is pleased to host Ambassador Ximena Fuentes, the Chilean Ambassador to the UK on 17 February 2025. 

Abstract: 

Since 2016 we have seen an increase in climate change litigation before domestic and international tribunals. This trend might be signalling a generalized view that States are failing to take adequate measures to tackle the climate emergency.  Recent studies have identified the existence of more than 1,400 climate-related litigation cases around the world, including liability cases against private companies and States, administrative processes challenging governmental decisions, and human rights cases before constitutional and international courts. This lecture will examine climate change litigation before international tribunals and human rights bodies and its contribution to clarify State’s obligations and promote State compliance in the context of the detrimental effects of climate change.

Lecture Summary: 

The relevant case law includes:

  1. The request by the Commission of Small Island States on Climate Change and International Law for an Advisory Opinion from the International Tribunal for the Law of the Sea (ITLOS) on the specific obligations of States Parties to UNCLOS on Climate Change and International Law. ITLOS delivered its Advisory Opinion on 21 May 2024.
     
  2. The request by Chile and Colombia (9 January 2023) for an Advisory Opinion from the Inter-American Court of Human Rights (IACtHR), aiming to clarify the scope of State’s obligations under human rights treaties for responding to the climate emergency. Pending.
     
  3. The request by the General Assembly of the United Nations for an Advisory Opinion from the International Court of Justice on the obligations of States with respect to climate change. Pending.
     
  4. The case brought by Daniel Billy and others v Australia (Torres Strait Islanders Petition) before the Human Rights Committee of the United Nations. The Human Rights Committee delivered its decision on 23 September 2022. The Committee found that Australia violated the human rights of the Torres Strait Islanders by not taken timely and adequate measures to protect the human rights of the petitioners in the context of the detrimental effects of climate change.
     
  5. The case brought by an association of senior women (Senior Women for Climate Protection Switzerland, also known as the KlimaSeniorinnen case ) against Switzerland before the European Court of Human Rights claiming that the Swiss government’s inadequate climate policies violated their right to life and health. The ECHR delivered its decision on 9 April 2024, establishing that Switzerland violated the right to respect for private and family life (Article 8) and access to court (Article 6 § 1). In particular, the Court found that Article 8 of the Convention encompasses a right to effective protection by the State authorities from the serious adverse effects of climate change on lives, health, well-being and quality of life. When assessing whether the measures enacted by the State to protect the rights of its population were adequate, it concluded that those measures fell short of what was necessary to protect the rights of the applicants. In particular, it was established that it was not enough to establish a National Determined Contribution; on top of that, it was necessary to take adequate legislative and administrative measures, including a carbon budget or national GHG emissions limitations.

What have we learned from this case law?

  1. That Climate Change Treaties (UNFCCC, the Kyoto and the Paris agreements have not provided an adequate response to the climate change crisis. Indeed, GHGs emissions continue to grow. According to UNEP’s 2024 Emissions Gap Report, GHG emissions increased by 1.3 per cent compared to 2022 levels, and their growth in 2023 exceeds the average rate of the previous decade. In addition, COP29 failed to agree on a new collective quantified goal on climate finance that properly addresses developing countries’ needs.
     
  2. The question posed to international tribunals focuses on the identification of international obligations regarding the protection of the climate system that operate separately from the so-called Climate Change Regime. In connection to this question many countries that have appeared before international laws have stated that the rule that every State has the obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States is a binding rule of general international law that came into existence long before the negotiation of the UNFCCC.  In this vein, the 2024 Advisory Opinion of the International Tribunal for the Law of the Sea stated in paragraph 223 that: The Tribunal does not consider that the obligation under article 194, paragraph 1, of the Convention [UNCLOS] would be satisfied simply by complying with the obligations and commitments under the Paris Agreement. The Convention and the Paris Agreement are separate agreements, with separate sets of obligations. While the Paris Agreement complements the Convention in relation to the obligation to regulate marine pollution from anthropogenic GHG emissions, the former does not supersede the latter. Article 194, paragraph 1, imposes upon States a legal obligation to take all necessary measures to prevent, reduce and control marine pollution from anthropogenic GHG emissions, including measures to reduce such emissions. If a State fails to comply with this obligation, international responsibility would be engaged for that State.
     
  3. Human Rights tribunals and bodies also share the view that the obligation to respect and promote human rights, is a separate obligation that co-exists with the obligations contained in other treaties regarding the protection of the environment. As explained supra the KlimaSeniorinnen case was clear in stating that compliance with the Paris Agreeement does not imply compliance with human rights obligations. In addition to this, it is also interesting that human rights bodies have begun to recognize the existence of environmental extraterritorial obligations with regard to the obligation to protect the human rights of individuals and peoples living outside the State territorial boundaries.
     
  4. With regard to the question of State responsibility, the recent case law shows that there is an interesting debate about the standard of liability applicable in case of harm to the environment and human rights. There is consensus that in order to establish responsibility, both the obligation to protect the environment and the obligation to respect human rights are due diligence obligations. This means that State responsibility will only be incurred if the State has acted without the required care, taking into account the risks involved in the particular activity under scrutiny. Compliance with the Climate Change Treaty Regime is not necessarily proof of due diligence. Due diligence has to be assessed on a case by case basis, taking into account the present knowledge about the cause-effect relationship between GHG emissions and climate change. Today´s knowledge about the risks posed by GHG emissions plays a central role in the application of due diligence.
     
  5. Finally, some words about the relevance that the case law might have on answering the question about the legal consequences that arise from a breach of the obligations of States to ensure the protection of the climate system and other parts of the environment. In this connection, some States have put forward the view that the Climate Change Treaty Framework is a self-contained régime that excludes the application of the general rules on State  responsibility and that attribution of harm to individual States would not be possible. There are good reasons to disagree with this view. The general legal framework of State responsibility under international law and recent developments in attribution science allow to establish the specific share of responsibility attributable to individual States.

 

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