Bridging the Climate Justice Gap: Sri Lanka’s Approach to State Responsibility in light of the ICJ Advisory Proceedings on Climate Change Obligations
By Farhath Rhysa*
1. Introduction
The year 2024 marked a milestone for climate justice and the development of international law. Notably, advisory proceedings on climate change were initiated before the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS), and the Inter-American Court of Human Rights (IACtHR). These parallel perspectives are expected to contribute significantly to the evolution of international law, particularly in the areas of customary law, environmental law, and human rights law.
The ICJ was specifically asked to clarify the obligations of states under international law to address greenhouse gas (GHG) emissions and the legal consequences of breaches, with particular attention to the rights of vulnerable states and future generations. As a climate-vulnerable developing country with minimal historical emissions, Sri Lanka submitted a compelling argument grounded in principles of equity, international cooperation, and legal accountability. This article critically examines Sri Lanka’s submission, highlighting its emphasis on due diligence, intergenerational equity, and the fair distribution of climate burdens under international law.
2. Contextualising Sri Lanka within the ICJ Advisory Proceedings
Sri Lanka is acutely vulnerable to the impacts of climate change due to its geography, economy, and socio-political context. As an island nation in the Indian Ocean, it faces significant risks from rising sea levels, transboundary air and ocean pollution, increasingly severe monsoon variability, and more frequent and intense extreme weather conditions such as floods, droughts, and cyclones. These climate impacts threaten not only ecosystems but also critical sectors like agriculture, fisheries, water resources, and tourism—which are both economic lifelines and sources of livelihood for the majority of Sri Lankans.
Compounding these environmental vulnerabilities are the developmental challenges Sri Lanka faces as a nation with limited resources. Sri Lanka continues to grapple with the aftermath of a severe economic crisis, political mismanagement and the exploitation of its natural resources—factors that have eroded international credibility. In this context, addressing climate change is not a luxury but a necessity, and doing so requires international cooperation, particularly in the form of climate finance, technology transfer, and capacity building.
Sri Lanka’s submission to the ICJ must be understood against this backdrop: a carefully crafted national strategy to assert its interests on the international stage while highlighting the structural inequities embedded in the global response to climate change.
3. Applicable International Law
One of the key questions before the Court is the legal framework governing state obligations related to climate change. While major polluter states constituting the minority (such as Saudi Arabia, the United States, the United Arab Emirates, China, Canada) contended that the UN climate regime (UNFCCC, Kyoto Protocol, and Paris Agreement) is the primary source of such obligations, the majority of states including small island nations advocated for a broader legal basis.
Sri Lanka aligns with the latter view, urging the Court:
“to identify the relevant State obligations from amongst the entire corpus of international law and which go beyond the discourse of purely environmental rights/duties, but other obligations which are indirectly, but significantly breached due to climate change, and assess the legal consequences which follow under international law.” (para. 91 of its written statement).
The assertion that the UN climate regime is lex specialis, and therefore informs and gives content to the general international law, is challenged by the majority of states on the basis that there is no incompatibility between the UN climate regime and the general international law, and that the UN climate agreements do not expressly pre-empt the application of the general law. As Namibia submitted, the General Assembly’s request for an advisory opinion explicitly refers to “international law”, which includes not just conventional law, but also customary law, and general principles of both environmental and human rights law (para. 40 of its written statement).
As Sri Lanka correctly argues, climate change affects not only environmental rights but also many other dimensions of human life (para. 94 of its written statement). Therefore, incorporating legal frameworks, such as the law of State responsibility, customary and conventional international human rights law, and the law of the sea, would effectively achieve the intended objectives of climate action and environmental protection.
4. State Responsibility
State responsibility arises under international law when a state commits a breach of an international obligation attributable to it. According to the Draft Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), a state is internationally responsible when its conduct constitutes a breach of an international obligation, whether towards a specific state or the international community as a whole (Art. 1 and 2, UN ILC, 2001). Importantly, the scope of such obligations may extend beyond bilateral state-to-state relationships. Certain obligations are owed erga omnes—to the international community as a whole—as recognised in the Barcelona Traction case (1970). Others are owed erga omnes partes, where obligations protect the collective interests of a specific group of states.
This broader dimension of state responsibility in the context of environmental protection was acknowledged in Gabcíkovo–Nagymaros (1997), where the Court emphasized the significance of the general obligation to respect the environment—not only for states, but also for the whole of mankind. Sri Lanka's submission centres on this principle: that states have clear obligations under international law to prevent, reduce, and mitigate environmental harm caused by climate change. Therefore, a failure to take adequate action to fulfil such obligations engages international responsibility, regardless of whether the claim is made in a contentious or advisory context.
4.1 Obligations of States in Respect of Climate Change
Preventive principle and the duty of due diligence
To understand the obligations of states in addressing climate change, one must first recall the sources of international law, as outlined in Article 38 of the ICJ Statute. Sri Lanka contends that the obligation to protect the environment—and specifically the climate system—is embedded within all these sources. These obligations, while often framed as rights, implicitly impose corresponding duties. Although they may not always explicitly mention the “environment,” they inherently rely on its integrity. Such obligations intersect with a range of human rights, including the rights to life, health, a clean environment, self-determination, culture, development, and the rights of children, women, indigenous peoples, and future generations. When climate obligations are breached, these rights are often simultaneously violated.
Among these, Sri Lanka highlights that the principle of prevention of transboundary harm is foundational to international environmental law. As early as 1949 in the Corfu Channel case, the ICJ stated that every State has an obligation not to allow knowingly its territory to be used for acts harmful to other States. This was reaffirmed in Pulp Mills (2010), where the Court recognised prevention as a customary rule grounded in due diligence.
Supported by two key rights: the right to territorial integrity, and the right of peoples not to be deprived of their means of subsistence, the principle serves as the backdrop against which the various climate treaties were drafted. The text of the UNFCCC and the Paris Agreement reflects that they were created in response to this principle and to set out ways in which states may incorporate it in practice.
Some states have questioned the applicability of this principle to climate change, arguing that its causes are diffuse, and its impacts are widespread. However, it would be illogical to conclude that the number of sources of planet-warming emissions and the widespread nature of their adverse effects render the principle of prevention of transboundary harm inapplicable. It would be unreasonable to consider an isolated act of cross-border pollution unlawful, but a proliferation of such acts permissible.
Greenhouse gas (GHG) emissions are inherently transboundary. To exempt them from the scope of the principle of prevention would render the principle devoid of meaning and undermine decades of legal development. For Sri Lanka, this principle becomes particularly relevant in light of recent instances of transboundary air pollution, exacerbated by monsoonal winds, which have led to a marked decline in air quality in several major cities over the past months.
Moreover, the sources of GHG emissions are neither unknowable nor uncontrollable. It is well established that fossil fuel production and consumption are the primary contributors to anthropogenic GHG emissions. States possess the authority and tools to regulate such activities. As the Melanesian Spearhead Group noted, “continuing to allow high GHG emissions after their risks became scientifically evident, especially from the 1960s onwards, constitutes a clear breach of due diligence by major emitting states.” (para. 298 of its written statement).
Environmental trusteeship and Intergenerational equity
Sri Lanka further argues that the environment should not be treated as private property but as a communal trust. Drawing from its own cultural and legal heritage, Sri Lanka invokes a foundational Buddhist principle, which Judge Weeramantry, in his separate opinion in Gabcíkovo–Nagymaros (1997, p. 101), had cited:
“O great King, the birds of the air and the beasts have as equal a right to live and move about in any part of the land as thou. The land belongs to the people and all living beings; thou art only the guardian of it.”
This early concept of environmental trusteeship, while reflecting the Buddhist ethos of equity, also echoes modern principles of international environmental law. The idea that the State holds the environment in trust—for both present and future generations, aligns with principles of intergenerational equity and sustainability. Intergenerational equity asserts that the natural and cultural environment is a shared inheritance among past, present, and future generations (Weiss, 1990). Intergenerational equity also encompasses intragenerational equity as an integral element. Under this view, as future generations become living generations, they assume the rights and obligations inherent in intergenerational equity. Intragenerational equity, therefore, postulates that comparable access, options, and quality owed to future generations apply among people living today (Weiss, 2021). Since climate change disproportionately affects those who least contribute to its causes—such as future generations and small island and developing states—climate inaction violates principles of intergenerational and intragenerational equity.
4.2 Consequences for breach of climate obligations
Justice requires that every right has a remedy. Therefore, breaches of international obligations relating to climate change must entail consequences. In advocating for legal consequences for states when in breach of their climate obligations, Sri Lanka endorses the application of the International Law Commission’s Draft Articles on State Responsibility, particularly Articles 1, 30, and 31. These establish that a breach of an international obligation entails the duty to cease the wrongful act, assure non-repetition, and to make full reparation. This framework reinforces that climate-related breaches give rise to legal consequences.
Sri Lanka also points to the "polluter pays" principle, which has been recognised in several decisions of the Supreme Court of Sri Lanka. However, the effectiveness of domestic judicial enforcement is undermined when other states contribute to pollution and other anthropogenic acts resulting in climate change across borders. Thus, Sri Lanka calls for a clarification not only of state obligations to protect the climate system, but the legal consequences which follow when other states are adversely affected by the breach of those obligations.
In addressing the inequity of having to bear climate change impacts caused by foreign states, the principle of Common but Differentiated Responsibilities (CBDR) becomes relevant. Originating from the concept of the “common heritage of mankind” and general principles of equity, CBDR acknowledges historical differences in emissions and capacity between developed and developing states. In its written submission, Sri Lanka supports the interpretation of international obligations in light of national capacities—particularly for developing countries—which reinforces the argument for differentiated legal consequences. Accordingly, reparation should reflect the greater degree of responsibility borne by high-emitting states, as envisioned by CBDR.
Certain states however, argue that the 1992 categorisation of “developed” and “developing” countries is no longer justified, due to some major developing countries having become some of the largest CO2 emitters. While this argument needs to be acknowledged, the continued application of the principle of CBDR, potentially based on an updated classification, would yield net benefits for the global community. As noted by the African Union in its submission, the historical contributions to global greenhouse gas emissions and the varying degrees of economic development across nations necessitate a tailored approach to environmental protection (para. 18 of its written statement).
5. Strategic Legal and Political Positioning
As a developing nation that relies on international support, while also seeking to protect its environment, Sri Lanka adopts a balanced legal and political approach in its submissions. By grounding its arguments in both treaty law and customary principles, it constructs a persuasive case for heightened accountability without veering into politicised blame.
By highlighting its own mitigation and adaptation commitments, Sri Lanka presents itself as a responsible state advocating for stronger international obligations. It also calls for enhanced international support through climate finance and technology transfer, framing state responsibility within a broader framework of climate justice and solidarity. This strategic posture allows Sri Lanka to support accountability without alienating powerful states whose cooperation remains vital for meaningful progress.
However, the submission is less specific in proposing remedies. While it outlines the existence of obligations and the consequences of breach, it stops short of advocating precise forms of reparation or enforcement mechanisms—an area where it could have further contributed to the development of climate jurisprudence.
Nevertheless, the submission offers a principled vision for an international legal regime which resonates deeply with the youth in Sri Lanka, as it reflects both the vulnerability and the agency of the country in the face of a global crisis. For a nation already experiencing the tangible effects of climate change, advocating for international accountability is not just a legal necessity, but a matter of survival and dignity for communities. Sri Lanka’s submission provides a platform for its present and future generations to voice their struggles while asserting their right to demand fairness and support from the international system in a principled, constructive, and morally grounded manner.
6. Conclusion
Sri Lanka’s submission to the ICJ offers a principled articulation of the evolving relationship between state responsibility and climate justice. Grounded in treaty law, customary international law, human rights norms, and ethical traditions, it emphasises the preventive principle and due diligence, underscoring states’ legal duties in mitigating climate harm. By invoking environmental trusteeship and intergenerational equity, Sri Lanka highlights the moral and legal obligations to protect both current and future generations. The submission bridges the gap between ethical imperatives and binding legal norms, reinforcing accountability through the Draft Articles on State Responsibility. It also demonstrates how smaller, climate-vulnerable states can influence international law and calls for the continued relevance of Common but Differentiated Responsibilities, while urging revisions to reflect contemporary realities. Though it lacks detailed enforcement proposals, Sri Lanka’s submission lays a compelling foundation for a more just and inclusive international legal order that aligns state responsibility with climate justice and global equity.
*Farhath Rhysa is a student at the University of Colombo in Sri Lanka and a Sri Lankan national.
DISCLAIMER: The views expressed in the symposium’s blog posts are those of the author and do not represent the views of WYCJ. Furthermore, university chapters were prepared, edited, and approved by the respective universities; WYCJ cannot guarantee the level of scientific and legal inquiry, nor the content of blog posts.