State Responsibility, Substantive Reparations, and the Survival of Caribbean SIDS in the wake of the ICJ Advisory Opinion on Climate Change
By Deborah Bryan*
1. Introduction
“The Court also recognizes that the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn. The existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment."(Para. 29. Legality of the Threat or Use of Nuclear Weapons Advisory Opinion of 8.7.1996 I.C.J. Reports 1996, p. 226).
The quote taken from the advisory opinion above demonstrates in its purest form the existence of customary international law on general state obligations to protect the environment. In March 2023, the United Nations General Assembly adopted Resolution 77/276 requesting the International Court of Justice (ICJ) to issue an advisory opinion clarifying States’ obligations under international law regarding climate change. The Court was also asked to consider the legal consequences stemming from these obligations when they have caused significant harm particularly to Small Island Developing States (SIDS) and present and future generations. SIDS share commonalities including remote geography, small size, low economic diversification, and often face the brunt end of the climate crises. Hence, these proceedings are symbolic of what can be seen as a call by SIDS for defining the boundaries of state responsibility under international law and human rights. To reiterate the ongoing arguments of many Caribbean SIDS, the future is no longer bright but remains in peril. What is at stake here for Caribbean SIDS, is our livelihood and our home. It is imperative to assess the impacts of climate change that continue to unravel into a reality of devastation which not only demands the commentary of the ICJ on existing state obligations but extends to the need for legal consequences. This advisory opinion should seek to clarify the meaning of state responsibility for climate-related harms that larger emitting states have refused to acknowledge. Any legal consequences for this breach should recognize their ongoing failure to meet these obligations endangers futures of Caribbean populations. This paper seeks to explore some of the arguments advanced by Caribbean SIDS such as Antigua & Barbuda and Saint Lucia. It ultimately highlights the need for stronger application of these obligations in order to establish state responsibility and provide reparations under international law.
2. Context/Background
The climate crisis has found a home in the Caribbean and continues to reflect a lived reality for all states within the region. Antigua & Barbuda, a Caribbean SIDS, was a part of a core group led by Vanuatu backing the bid for the Advisory Opinion from the ICJ in 2022. Many participating states cited the Intergovernmental Panel on Climate Change 6th Assessment Report (the ‘IPCC Report’) which evidenced the present and long-term impacts of climate change, especially for SIDS. St. Lucia, for example, highlighted from the report that the continuing results of the crisis included severe droughts, the destruction of marine life and ecosystems, food and water insecurity, and several other natural disasters. This in effect “exacerbates existing vulnerabilities among the population and economies of the Caribbean”. For the future, the IPCC has ‘very high confidence’ that SIDS who remain disproportionately affected by the climate crises will continue to face irreparable harm. Thus, the questions posed to the ICJ remain relevant and are not abstract concepts as evidenced by the ongoing harm to Caribbean SIDS. SIDS have been patient and tolerant of what has been decades of destruction through no fault of their own. The appearances before the ICJ seek to draw connections between the long-standing law of state responsibility and obligations stemming from climate treaties and agreements made between many State parties. The ICJ’s AO should provide clarity on whether these obligations are legally enforceable and whether they can incur state responsibility and legal consequences when breached. SIDS have recognized the continuing lack of accountability under international law for larger emitting States who have flagrantly disregarded their obligations under these agreements. In recognizing that States can be held responsible, the ICJ creates a new pathway of hope and redress for climate vulnerable states, particularly SIDS.
3. Examining the scope of State Responsibility
3.1 Various International Climate Treaties and Agreements – UNFCCC, Paris Agreement, UNCLOS
In Resolution 77/276, the UNGA requested that the ICJ have due regard to numerous international treaties in their deliberation of their advisory opinion on States’ obligation on climate change. Many states focused on obligations arising out of the United Nations Framework Convention on Climate Change (UNFCCC), the Paris Agreement, and the United Nations Convention on the Law of the Sea (UNCLOS). The UNFCCC serves as a ‘framework convention’ for protection of the climate system from human destruction. Article 3 of the UNFCCC provides guiding principles for implementation which extend to “[t]he specific needs and special circumstances of developing country Parties” particularly those countries who are climate vulnerable. Other principles include those of co-operation, prevention, sustainable development, and protection of present and future generations.
St. Lucia took an integrated approach to applying the obligations under the UNFCCC and the Paris Agreement. Indeed, the UNFCCC serves as a foundation for the adoption of the Paris Agreement which outlines both climate mitigation and adaptation efforts of States. The latter’s goal centered around stabilizing the global temperature to well below 2°C above pre-industrial levels, limiting increases to 1.5°C, and climate adaptation. In order to reduce emissions, each party is obligated to prepare and continuously submit Nationally Determined Contributions (NDC’s). More importantly, the Agreement also emphasizes in Article 9 developed States should financially assist developing States in efforts of both climate mitigation and adaptation.
At para 54. of St. Lucia’s written statements, they put forward that both the UNFCCC and Paris Agreement together open a gateway to incorporate various sources of international law that could “clarify the full extent of States’ obligations in relation to climate change”. At the same time, SIDS acknowledge the aspirational character of these articles but note that they provide an essential blueprint for States to pattern their climate action and in turn will serve as a determinator for any breaches of their legal obligations. To further understand how Antigua & Barbuda framed the relationship between both climate agreements, I spoke to Zachary Phillips, Crown Counsel for Antigua & Barbuda who contributed to their ICJ submissions. He similarly agreed that both agreements must be read together as the UNFCCC provides an interpretive context by which the Paris Agreement must be read.
Opposing states, such as the US, Germany, and Saudi Arabia, sought to restrict the application of the UNFCCC and Paris Agreement in order to escape the existence of legal obligations. For example, the US at paras. 3.16-3.17 of their written statement, argued the commitment to the creation of reports for their NDC’s does not equate to a commitment to complete/achieve said NDC’s. Many large emitting states only view these regimes as procedural and lacking a substantive element required to substantiate any state responsibility. However, Phillips challenged this argument noting that this “undermines the object and purpose of the Treaty if States were allowed to sign onto treaties with no intention of fulfilling its goals”. He added that there are also substantive elements to the Paris Agreement that indicate performance, for example, the goal to stabilize global temperatures.
3.2 UNCLOS
States also submitted arguments highlighting obligations under various provisions of UNCLOS, deeming the treaty relevant for consideration by the ICJ. Simply put, UNCLOS represents the legal order governing the use of all oceans and their resources. In 2024, an Advisory Opinion on Climate Change was delivered by the International Tribunal for the Law of the Sea (ITLOS). More relevant to the pending ICJ AO was the issue of applicable law in defining the scope of State responsibility relating to climate change. The Tribunal agreed with the recent approach of reading various climate treaties and agreements as a whole “integrated international legal order” (para. 135 of the ITLOS AO). While acknowledging that obligations imposed under UNCLOS can require more than those outlined in the UNFCCC and the Paris Agreement, the Tribunal implied that the Paris Agreement was not lex specialis and instead could be applied in conjunction with the provisions of UNCLOS (para. 223 of the ITLOS AO). Ultimately, in this context, the ITLOS AO establishes state responsibility in the event of a State’s failure to take “all necessary measures to prevent, reduce and control marine pollution from anthropogenic GHG emissions”. This AO brings immense persuasive value for the application of other climate treaties like the UNFCCC and the Paris Agreements to engage state responsibility for broader climate harms. It also strengthened the duty not to cause transboundary harm by recognizing that States must ensure that anthropogenic GHG emissions in their jurisdiction do not spread and pollute the environment of other States. When asked about the relevance of the ITLOS AO on the pending ICJ opinion, Phillips also highlighted Tribunal’s use of science to assess compliance: “I think the [ITLOS] opinion will be very helpful for the upcoming ICJ advisory opinion because of its reference to the importance of the best available science to determine whether states have in fact complied with their obligations.”
3.3 The Principle Of Common But Differentiated Responsibilities And Respective Capabilities
Many SIDS also highlighted the principle of common but differentiated responsibilities and respective capabilities (CBDR-RC) embedded in many climate agreements. Antigua & Barbuda expounded on the two-fold nature of this principle citing that it first identifies a “common responsibility of all States” in combating the challenges of the climate crisis. Second, it acknowledges that all States can have differing responsibilities due to varying levels of historical contribution, capacity, and economic development (para. 146 of its written statement).
Saint Lucia noted CBDR-RC can be extracted as an applicable principle imposing obligations on all States’ to varying extents. The principle also protects and supports SIDS by “including obligations on developed nations in areas of finance, loss and damage, mitigation, and technological assistance” (para. 59 of its written statement). However, its full implementation remains unrealized. SIDS have consistently proven that they have fulfilled their fraction of responsibility shared with the rest of the world to address climate change tacitly acknowledging existing legal obligations. Importantly, the ITLOS AO also found States having “greater means and capabilities must do more to reduce such emissions than States with less means and capabilities” further substantiated the application of this principle (paras. 225-227 of the ITLOS AO). It further held that state obligations do exist for developed States to aid developing States in combating marine pollution from anthropogenic GHG emissions (paras. 332-339 of the ITLOS AO). Linking this principle in one climate-related treaty like UNCLOS strengthens the argument of it being a legally enforceable obligation on all States.
3.4 Clarifying State Responsibility for Climate Harms
From a Caribbean youth perspective, it remains difficult to ignore the lived realities of many SIDS already experiencing the burden of the climate crisis while these treaties have failed to push larger emitting States to take on larger responsibility. Antigua & Barbuda emphasized this failure by highlighting that it has already experienced dangerous extreme weather events, such as heavy rainfall, floods, Hurricane Irma & Maria in 2017, Hurricane Tammy and Tropical Storm Phillipe in 2023. These events represent a small fraction of what SIDS endure during this ongoing climate crisis. The result of the 2017 Hurricanes were horrific and recovery needs amounted to US$222.2 million. The true application of treaty obligations and full realization of principles like CBDR-RC should have addressed these damages and supported recovery. This further substantiates the question of what current existing obligations can currently address these needs without state responsibility? The answer is, if they do exist, they are inadequate. Real change points to the ICJ in its advisory opinion recognizing and responding to the arguments made by Caribbean SIDS. CBDR-RC has real force as a principle, but it needs to be applied in practice, along with the substantive elements of both the UNFCCC and Paris Agreement by larger emitting States. As suggested by the ITLOS Advisory Opinion, the use of the ‘best available science’ can serve as evidence of a breach under UNCLOS and other treaties. Clarifying state responsibility seems to be the only pathway to correct this imbalance between those causing the harm and those suffering. That is what climate justice demands.
4. Legal Consequences
The second question posed to the ICJ centered around the legal consequences of any breaches stemming from existing climate obligations with focus on SIDS and present and future generations affected by climate change. Many SIDS like Antigua and Saint Lucia sought to establish a chain of causation between the significant harm to the climate and the acts and omissions of larger emitting States. In attributing this harm as well as the adverse effects of climate change, the question of legal consequences could be properly addressed. What the UNFCCC, the Paris Agreement, UNCLOS and principles like CBDR-RC represent are the existing legally enforceable obligations that States have with respect to climate change. SIDS have established clear breaches of these obligations through the acts or omissions by larger emitting States demonstrating their significant contribution of cumulative GHG emissions. Therefore, actions or inactions should be deemed as unlawful or internationally wrongful conduct and as a result, demands full reparation for any injuries caused, cessation of the breach and non-repetition (ILC, Articles on State Responsibility, Article 31).
4.1 Reparations
Common arguments for reparations made by SIDS centered around the established forms of reparations including restitution, compensation, and satisfaction. Saint Lucia and Antigua’s argument diverged on the possibility of restitution which refers to the restoration of a situation before the wrongful act was done. Antigua maintains that “[i]n the vast majority of cases involving significant environmental harm, restitution in any meaningful sense is likely to be materially impossible owing to the very nature of often irreversible environmental damage” (para. 554 of its written statement). Whereas Saint Lucia hints at a hope that restitution has not become “materially impossible” as actions can be taken to reverse the effects of climate change through the ICJ reiterating that States should make good on their obligations especially those that affect SIDS (para. 92 of its written statement). Both views are sound and reflect the varying unique perspectives of Caribbean SIDS if the ICJ was to consider one over the over. However, Antigua’s point inadvertently acknowledges the radical effects of climate change where the damage has gone so far that restitution is no longer possible. This in turn strengthens the urgent need for greater accountability and makes the granting of other forms of reparation essential.
Compensation is an alternate form of reparation that many SIDS called on the ICJ to consider as well. Per Armed Activities (Reparations), the scope of compensation for environmental damage under international law includes damage caused to the environment and funds lost as a result of such damage. Antigua correctly identified some of these funds as “adaptation costs” incurred to address the damage caused by climate change can be repaid by the responsible States (para. 559 of its written statement). It further reiterated that the difficulty in quantifying environmental harm is not an insurmountable barrier to affording reparations to SIDS. Lastly, SIDS looked at satisfaction as a last resort which could take the form of declarations recognizing breaches of international obligations to reduce GHG emissions. Alternatively, Saint Lucia put forward that if the ICJ is to find restitution and compensation is not an appropriate remedy then satisfaction should at least be awarded (para. 95 of its written statement).
4.2 Loss And Damage
The concept of Loss and Damage as a form of climate reparation is new and unique to the climate justice space. It stemmed from the Warsaw International Mechanism for Loss and Damage with Climate Change Impacts established under the UNFCCC to address issues surrounding loss and damage for the adverse effects of climate change. The concept gained further recognition in Article 8 of the Paris Agreement but was criticized in the past for lacking legal force. Although the question of compensation and liability remained, State Parties at the Conference of Parties (COP) 28 operationalized a new Loss & Damage Fund and pledged around $600 billion to address loss and damage. This Fund is instrumental in supporting SIDS who are already bearing the brunt of climate change. Saint Lucia argued that any compensation awarded by the ICJ should include the financing of the Loss and Damage Fund (para. 94 of its written statement). Phillips agrees that this may be a more equitable solution: “If compensation is paid into the Loss and Damage Fund, it would ensure equitable distribution of resources for a group of climate vulnerable States who will have access to funds to assist with repair or reconciliation that needs to be done as a result of harm.” The ICJ has the opportunity to provide further depth to this suggestion when addressing the issue of reparations as a legal consequence.
4.3 Debt Relief
A discussion paper examining the intersection between climate justice and debt justice notes “Countries which have done the least to create the climate crisis are stuck paying the most”. Closely related to the idea of satisfaction under reparations is debt relief in the form of cancellation or exchange. Although this argument was spearheaded by the African Union, it remains relevant to SIDS who carry large debt burdens. This is not unfamiliar in the Caribbean climate justice space, as Barbados will be the first Caribbean country to participate in the “debt-for-resilience” facility led by the Caribbean Development Bank. Sierra Leone in their written statement at para. 4.27 highlighted that full satisfaction can be afforded through debt forgiveness as many climates vulnerable States often incur debt to combat the effects of climate change. The idea of linking debt relief to sustainable outcomes that center climate adaptation and recovery.
5. Reflection and Conclusion:
The pending ICJ Advisory Opinion could represent a pivotal turn in a direction where there is a newfound hope for the future of SIDS. An acknowledgement of the inescapable legal obligations existing within both the UNFCCC and Paris Agreement serves not only as validation but as a means by which these larger states can finally be held accountable. SIDS have meticulously outlined substantive obligations in climate treaties that require compliance. Further, the ITLOS Advisory Opinion indicates that obligations surrounding the marine environment can incur State Responsibility and the use of ‘best available science’ as a yardstick to measure compliance with said obligations. Thus, it engages with the possibility that State responsibility can extend to obligations existing in other climate treaties. It is also hoped that the equitable principle of CBDR-RC will receive full realization by the ICJ in what purpose its supposed to serve for SIDS as a possible added obligation. On the other end of this pending Advisory Opinion, lies the second question regarding legal consequences. What should they look like? Although I am sure there are endless possibilities of the consequences that should follow as a result of breaching long established obligations, the only substantive answer points to reparations. As demonstrated, reparations can appear in its traditional forms such as compensation, restitution, and satisfaction but can take alternative strands like debt relief and the loss and damage fund.
Above all, what remains apparent is the ongoing plea from SIDS to the international community for meaningful assistance to address the current climate crisis. In other words, we need the tools to survive the threat that is no longer coming but is already here. It is important to remember whom these questions concern and whom they are meant to safeguard. Larger emitting states continue to make arguments that push the crisis as an abstract problem, but it must be realized that these are lived realities. Lives will continue to be lost, homes, and livelihoods destroyed, cultures and entire regions erased – not just as a result of climate change but failed promises and neglect. These promises represent binding legal obligations created to effect true change and support for SIDS. Acknowledging and establishing these existing legal obligations is not just proving state responsibility but providing adequate reparations to SIDS that serve as an adequate means to build resilience.
St. Lucia in describing these future predictions as ‘Armageddon’ was no exaggeration. As an Antigua & Barbudan youth, I've had to witness the beginning of what may have been the end when Hurricane Irma torched our sister island in 2017 who up to today has not been able to fully recover. Our island could have utilized the Loss and Damage Fund to rebuild and adapt as climate justice would demand. It is truly heartbreaking that these arguments have to be made, when States have already signed these climate treaties and should have acted in good faith to fulfill the legal obligations enshrined in them, starting with the UNFCCC. Yet hearing the collective arguments of SIDS as a Caribbean youth has not discouraged me. Although these arguments have been made time and time again, the hearings represented a collective push towards greater acknowledgement and accountability.
It is long past time for newer forms of reparation like the loss and damage fund and debt relief be operationalized so that they no longer remain pledges or commitments but actions that can truly assist in the war being waged against climate change. It is unfortunate we stand divided when this is happening to all of us, some faster than others. Climate justice demands an equitable opinion from the ICJ one that recognizes these obligations and supports the very survival of SIDS.
*Deborah Bryan is a 22-year-old Antiguan and Barbudan who recently earned her Bachelor of Laws (LL.B.) with First Class Honours from the University of the West Indies, Cave Hill. Her academic interests include international law and Caribbean integration law focusing on advancing regional cooperation, climate justice, trade relations, and human rights across small island developing states.
Acknowledgements: I would like to express my sincere gratitude to Dr. Alois Aldridge Mugadza, Zachary Phillips, Dr. Jan Yves Remy, and Theresa Amor-Juergenssen for their invaluable guidance, thoughtful edits, and generous contributions to this blog post.
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.