United States of America

Public International Law and Climate Change

Introduction

Climate change is widely recognized as a crisis, with more and more individuals, particularly in younger generations, taking action and engaging publicly with climate issues.^[1] The Intergovernmental Panel on Climate Change (IPCC) releases regular assessment reports summarizing the state of knowledge on climate change, and its most recent report, released in 2023, discusses whether existing policies and benchmarks can work to prevent the Earth’s climate from warming more than 2°C.^[2] While the Paris Agreement was a key step towards sufficiently limiting global warming, the IPCC report demonstrates that further action is needed. In addition to progress specifically within the international climate change regime, public international law also incorporates climate considerations across a wide array of areas given the intersectionality of the climate crisis’s impacts and the diversity of potential mitigation efforts.

The international climate regime works in conjunction with public international law to address the direct and indirect impacts of climate change. Furthermore, the legal and regulatory responses that the international community has adopted in response to climate change have influenced the development of other substantive regimes of public international law.

How Public International Law Addresses Climate Change

The International Climate Change Regime

The international climate change regime consists primarily of the United Nations Framework Convention on Climate Change (UNFCCC or Framework Convention), and the protocols and agreements that have flowed from this Framework Convention. The UNFCCC was adopted in 1992, four years after the IPCC was created and just two years after the IPCC released its first assessment report (now one of six).^[3] The United States (US) ratified the UNFCCC in 1992, and the Framework Convention now has 198 state parties.^[4] The UNFCCC marked a number of successes: setting the specific goal to stabilize greenhouse gas concentrations in the atmosphere, binding parties to act in the interest of humanity despite scientific uncertainty, and establishing the expectation that developed, high-volume emitter states would take the lead in cutting emissions.^[5] While the UNFCC is not legally binding on state parties,^[6] it has inspired several legally binding protocols and agreements since its enactment that make up the backbone of the international climate change regime.

Shortly after the Framework Convention was adopted, states began negotiations to adopt more specific, legally binding emissions reduction targets. These targets materialized in the Kyoto Protocol, which now boasts 192 state parties.^[7] Though the US. signed the Protocol in 1998, it never ratified the treaty.^[8] As the second-biggest emitter of greenhouse gas emissions on a mass basis in the world—polluting almost double the tons of CO2 emitted by India, the third-largest polluter^[9]—the US refusal to ratify the Protocol is indicative of a broader challenge in the international climate change regime: climate change is a collective action problem. Historically, however, emissions have been linked disproportionately to countries with higher levels of wealth. In that respect, the richest countries represent 16% of the world’s population but contribute to 40% of the world’s global emissions.^[10] This cross-country inequality creates a mismatch of incentives in which lower-income countries, with comparably negligible emissions to those countries who are the greatest contributors to the climate crisis, are the most vulnerable to and heavily impacted by climate change.^[11]

Despite the limits of the Kyoto Protocol, especially given the failure of the US to ratify the Protocol, state parties to the UNFCCC reconvened in 2015 with the view to reevaluate international commitments to reduce emissions and negotiate a landmark agreement to combat climate change and to accelerate and intensify the actions and investments needed for a sustainable low carbon future.^[12] These negotiations produced the Paris Agreement which entered into force on 4 November 2016.^[13] The Paris Agreement builds on the Framework Convention’s objective to minimize atmospheric damage and develop benchmarks intended to prevent global temperatures from rising above 2°C.^[14] US support for the Paris Agreement has thus far been inconsistent; an original party to the Agreement, the US formally withdrew from the treaty shortly after ratification, but ultimately rejoined in 2021.^[15]

Article 4 is the key feature of the Paris Agreement.  It requires countries to develop and submit nationally determined contributions (NDCs) every five years to the UNFCCC secretariat. The Paris Agreement states that parties’ NDCs must “reflect [their] highest possible ambition[s], reflecting [their] common but differentiated responsibilities and respective capabilities, in light of different national circumstances.”^[16] It is expected that, with each successive submission of NDCs, countries demonstrate increasingly ambitious national emissions reduction goals.^[17]  There are several barriers to accountability under the Paris Agreement, not least of which is that, while the procedural requirements are legally binding, actual state obligations are not binding or enforceable.^[18] Despite the lack of formal enforceability, one success of the Paris Agreement compared to the Kyoto Protocol is its open-ended timeframe, which subjects parties to the Paris Agreement to progressive commitments over the long-term.^[19]

In accordance with the Paris Agreement’s focus on tailoring commitments based on varying national situations, it instructs wealthier parties to contribute financially and technologically to other parties that need such assistance to meet their targets.^[20] Though these commitments are similarly open-ended, the US. has recently taken significant steps towards recognizing and addressing its responsibility for climate change. Notably, the US recently pledged a $one billion contribution toward the United Nations (UN) Green Climate Fund, one of a variety of existing avenues for Paris Agreement parties to meet their contribution commitments.^[21] 

Along with its financial pledges to the Green Climate Fund, the US. also pledged $17.5 million to the “Loss and Damage” fund, which was established at the 2022 Conference of the Parties of the UNFCCC and operationalized at the following Conference of the Parties of the UNFCCC in December 2023.^[22] The Loss and Damage fund, which was envisioned in Article 8 of the Paris Agreement, aims to provide financial assistance to those nations most vulnerable and impacted by the effects of climate change.

Other Relevant International Instruments

A few other international instruments also contain objectives relating to mitigating climate change, especially atmospheric impacts of emissions and pollutants. These agreements will assist the US. in reaching its domestic net zero targets and contributing to global emissions reduction. The Convention on Long-Range Transboundary Air Pollution (LRTAP) and its Gothenburg Protocol create a regional framework for North American, Russian, European, and former East Bloc countries to study and reduce transboundary air pollution.^[23] The US. and Canada entered a similar agreement in 1991 with the aim of reducing acid rain, but ultimately expanded the agreement’s efforts to include reducing transboundary smog emissions as well.^[24] Finally, the Montreal Protocol is another multilateral environmental agreement regulating a variety of chemicals that, when released, damage the ozone layer of the atmosphere.^[25] The US. not only ratified the Montreal Protocol, but also spearheaded efforts to adopt and ratify the Kigali Amendment, which was designed to reduce production and consumption of hydrofluorocarbons (which are powerful greenhouse gasses).^[26]

2030 Sustainable Development Goals

The 2030 Sustainable Development Goals (SDGs) arose from the 2030 Agenda for Sustainable Development adopted by all UN member states in 2015.^[27] The SDGs recognize a global commitment to working towards a world with healthier communities and practices, including specific goals related to improving environmental health, promoting sustainable systems and climate action. In particular, SDG No. 13 calls on member states to “take urgent action to combat climate change and its impacts.”^[28] While the SDGs are non-binding, they could develop into binding international law if, through state practice and opinion, they become customary international law, as discussed in the next section.^[29]

The SDGs also have a trickledown effect on industry, with 23,824 participants across 167 countries signing on to the Global Compact (which is intended to allow companies across industries to contribute to and/or show support for achieving the SDGs). While the Global Compact, like the SDGs themselves, is non-binding, the extent of sign-on demonstrates the potential significance of international “soft law”^[30] developments like the SDGs.^[31]

Principles of Customary International Law and their Applicability to Climate Change

Customary international law reflects certain practices that states follow in a repeated and consistent manner and that they accept as law (opinio juris). Customary international law is defined by the International Court of Justice (ICJ) as “evidence of a general practice accepted as law.”^[32] Several existing principles of customary international law have applicability to climate change mitigation and net zero efforts. The “no-harm principle,” for example, which imposes a duty on states to prevent, reduce, and control the risk of environmental harm to other states, likely has application in this space.^[33]

Further, it has been suggested that the international law principle of “due diligence” could be used to enforce climate targets, specifically those created in countries’ NDCs under the Paris Agreement.^[34] The due diligence principle, also referred to as the “precautionary principle,” could also be employed to encourage states to take preventive measures to protect the environment and conserve natural resources.^[35] However used, due diligence and the no-harm principle are existing tools easily applicable to climate change and net zero work.

Since customary international law norms are established based on state practice and opinion, practitioners may be able to root aspects of the climate regime, currently based on voluntary participation, in these well-established international legal principles to more effectively hold large-scale emitter states accountable.^[36]

Another emerging principle of customary international law is that of “mutual supportiveness.” While lacking the long-standing history of the no-harm and due diligence principles, the principle of mutual supportiveness provides that international law rules, all being part of one and the same legal system, are to be understood and applied as reinforcing each other with a view to fostering harmonization and complementarity.^[37] The principle of mutual supportiveness has gained increasing traction in recent years.  For example, in 2022, the UN Human Rights Committee upheld a complaint by the Torres Straight Islanders against the Australian government, finding that Australia must: provide the Indigenous population with adequate compensation, secure Indigenous communities’ continued safe existence on their islands, and take “steps to prevent similar violations in future.”^[38]

This decision marked the first time that an international legal body has found a state responsible for climate change impacts under human rights law. Continuing to develop and utilize these principles in the context of international climate law will advance net zero goals by establishing greater accountability for emissions reductions targets and other climate mitigation strategies.

The ICJ and its Advisory Opinion on Climate Change-Related Obligations

The ICJ plays an important role in advising the UN on the status of international law, through its jurisdiction to issue non-binding advisory opinions.^[39] On March 29, 2023, spearheaded by the Republic of Vanuatu, the UN General Assembly adopted a resolution^[40] requesting an advisory opinion from the ICJ addressing several questions relating to state obligations to address climate change. These questions addressed international legal obligations to protect the environment from greenhouse gas emissions as well as consequences for causing harm to the environment and climate system, specifically regarding existing injured populations and future generations.^[41] The advisory opinion is expected to draw upon existing international legal principles, as applied by the ICJ in the environmental context in past case law^[42] and push states to meet their climate commitments.^[43] Practitioners should monitor this advisory opinion, as it could showcase principles likely to succeed in the enforcement of international climate commitments.

This will not be the first time that the ICJ has issued advisory opinions on the impacts of state activities on the environment. For example, in its advisory opinion on The Legality of the Threat or Use of Nuclear Weapons (1996), the ICJ recognized 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.”^[44] The ICJ also recognized that “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.”^[45]

Further, in the Gabčíkovo-Nagymaros case (1997), the ICJ noted that “mankind has, for economic and other reasons, constantly interfered with nature.”^[46] According to the Court, this intervention “was often done without consideration of the effects upon the environment.”^[47] Nonetheless, “[o]wing to new scientific insights and to a growing awareness of the risks for mankind – for present and future generations – of pursuit of such interventions at an unconsidered and unabated pace, new norms and standards have been developed.”^[48] This is certainly the case with climate change.

In the Pulp Mills case (2010) the ICJ considered the principle of prevention and pointed out that, “as a customary rule, [it] has its origins in the due diligence that is required of a State in its territory.”^[49] The ICJ clarified that states must use all the means at their disposal to avoid transboundary harm from activities in their territory or under their jurisdiction. And in Costa Rica v Nicaragua/Nicaragua v Costa Rica cases (2015), the ICJ stated that, to exercise due diligence, a state has to “ascertain whether there is a risk of significant transboundary harm prior to undertaking an activity having the potential adversely to affect the environment of another State. If that is the case, the State concerned must conduct an environmental impact assessment.”^[50]

Climate Change and Other Public International Law Regimes

The vast array of climate change impacts necessarily means climate change will have implications across a variety of international law regimes. Though other areas of intersection also exist, this section discusses several notable regimes exhibiting the diversity of overlap with climate change and net zero work.

Climate Change and International Human Rights Law

A recent consensus has emerged around the interrelatedness of climate change and human rights. Established human rights, in particular the rights to life, health, an adequate standard of living, food, water, and self-determination are all implicated in the impacts of climate change, and in some cases, climate mitigation efforts. Further, there have been recent efforts to formally establish a right to a healthy environment. The UN General Assembly adopted a resolution granting such a right in July 2022,^[51] and several US. states have included a similar right in their constitutions and even successfully used these constitutional provisions to defend the environment in climate litigation.^[52] The preamble of the Paris Agreement also specifically references human rights,^[53] and while not an enforceable provision, the reference expresses a willingness to implicate human rights in climate legal issues. Despite some challenges to using human rights to reach net zero goals and expand climate mitigation efforts, there is promise and growth at the intersection of these international legal regimes. See the Human Rights Law and Climate Change section for more information.

Climate Change, Migration, and Displacement

Migration and displacement due to climate is one direct result of climate change already felt around the world. According to data from the Internal Displacement Monitoring Centre, since 2008, 25.3 million people have been displaced each year, on average, by sudden-onset disasters.^[54] While the UN Guiding Principles on Internal Displacement are non-binding, they are widely used and provide an outline for addressing displacement while respecting human rights.^[55]

Despite the interrelatedness of climate change and displacement, existing refugee and migration frameworks do not include climate-specific definitions. For example, persons displaced for climate-related reasons must describe their displacement as intersecting with other definitions warranting legal refugee status, such as flight from political persecution. While the US. has not established more specific paths for climate migrants, other nations have addressed this need through humanitarian visas and other avenues.^[56] Practitioners have recommended a variety of options for integrating climate migrants into existing immigration pathways in the US. specifically, such as through the expansion and adaptation of temporary protected status programs.^[57]

An impact beyond the scope of even “typical” climate-induced migration is the extreme—but realistic—possibility of that islands housing entire populations will sink entirely, forcing inhabitants to relocate for survival. As native lands physically disappear, ideas surrounding statehood and territorial boundaries will need to develop and adjust to accommodate this new reality. See the Immigration Law and Climate Change section for more information.

Climate Change and International Trade and Investment Law

Climate change and trade law are intrinsically intertwined. As international actors get more serious about addressing the climate crisis, proposals such as international carbon pricing and carbon border adjustments have been introduced and gaining traction.^[58] Reaching net zero emissions will require implementing new international trade measures such as these, as the World Trade Organization (WTO) estimates that international trade accounts for about 20-30% of global greenhouse gas emissions.^[59]

Additionally, for state-specific climate mitigation efforts to succeed, they will need international support and global cooperation. Carbon taxes, for example, are most effective when levied against the entire carbon market; otherwise, companies will relocate to states with lower carbon taxes to continue profiting from the consumption of fossil fuels. But a benefit of global interconnectedness is that it allows international trade to assist with the rapid disbursement of clean energy and other climate mitigation technologies.^[60]

In recent years, the WTO has been actively analyzing and reporting on the intersection between climate change and international trade, and particularly the ways trade can support movement towards net zero.^[61] One method is through investment in economic development, specifically in clean energy and renewables. The Inflation Reduction Act, passed in the US. in 2022, has already sparked massive development in renewable technologies and is expected to continue generating such results.^[62] And there is an analogous international instrument under negotiations at present: the Environmental Goods Agreement will attempt to eliminate tariffs on several environmental protection productions, including goods that generate clean energy, improve energy efficiency, and manage the fallout from pollution and emissions.^[63]

The foundational statute of the WTO, the General Agreement on Tariffs And Trade (GATT), imposes limits on the policies that state parties may enact related to trade.  However, Article XX of GATT permits states to adopt policies inconsistent with GATT’s rules in certain circumstances, including when “necessary to protect human, animal or plant life or health . . . or relating to the conservation of exhaustible natural resources.”^[64] Exceptions such as this build foundations upon which practitioners can argue for the adoption of climate-favorable policies in the international trade and investment space. See the Trade Law and Climate Change section for more information.

Climate Change and Biodiversity

The biodiversity crisis exists alongside the climate crisis, each exacerbating the impacts of the other. For a sense of the scope of the biodiversity crisis: according to the UN Environment Programme, “75 percent of the Earth’s land surface has been significantly altered by human actions.”^[65] Further, a UN report indicated climate change is accelerating biodiversity loss, necessitating an interrelated global response.^[66] Though international legal frameworks for biodiversity and climate change currently exist separately– through the Convention on Biological Diversity (CBD) and the UNFCCC respectively–the UN believes it is necessary to tackle these inextricably linked problems together.^[67] A body of scholarship has also emerged discussing the compatibility of these frameworks and the extent to which incorporation would effectively fight the climate crisis.^[68]

One of the key practical steps taken thus far at the international level to address these crises together is the formation of two Ad Hoc Technical Expert Groups on Biodiversity and Climate Change.^[69] The second of these two Ad Hoc Groups found that measures such as ecosystem-based adaptation can help meet objectives of both the CBD and the UNFCCC.^[70] Additionally, several provisions in the CBD pertain to climate mitigation and net zero efforts. For example, Article 7 of the CBD concerns the identification and monitoring of components of biological diversity; such activities can generate data useful in climate mitigation efforts as well.^[71] Similarly, Article 14 of the CBD mandates impact assessment reports and the minimization of adverse impacts, which can be used to evaluate project impacts on climate change in addition to biodiversity.^[72] Unfortunately, despite advocacy efforts, the US. has not ratified the CBD, and is therefore not at present subject to its obligations.^[73] Despite this barrier, the US. can still use domestic laws, such as the Endangered Species Act, to promote biodiversity nationally.

Climate Change and the Law of the Sea

The Earth’s oceans generate 50% of the oxygen that humans need, while also absorbing and capturing CO2 emissions.^[74] The oceans are thus a vital resource both in fighting the climate crisis and in sustaining humanity. Protecting our oceans and marine ecosystems is essential to achieving warming below 2°C. The primary treaty governing international marine law is the United Nations Convention on the Law of the Sea (UNCLOS), which imposes upon state parties “the obligation to protect and preserve the marine environment” in Article 192.^[75] UNCLOS Article 194 further directs parties to take “measures to prevent, reduce and control pollution of the marine environment.”.^[76] Unfortunately, the US. has not ratified UNCLOS, and so is not bound by the treaty.^[77] However, recent domestic efforts in the US. have encouraged ratification, including efforts by members of the US. Navy.^[78]

Additionally, the US. did ratify the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter of 1972 (London Convention), though it did not ratify the 1996 London Protocol that served as an update to the London Convention.^[79] Even so, the London Convention remains in effect and outlines useful goals for protecting the sea in the interest of preserving the planet. For instance, the London Convention establishes procedures to control dumping and disposal of human waste at sea.^[80]

International Humanitarian Law and the Law on the Use of Force

The impacts of climate change are often felt most heavily by populations already in vulnerable situations, such as communities living in conflict zones. Restricted mobility and safety cause increased reliance on specific natural resources, so contamination of drinking water sources and lack of arable land can be detrimental to those living in conflict zones.^[81] Rules governing civilian protection and humanitarian assistance, as well as targeting rules^[82] are likely to be called into question. Some changes to the law will be needed to ensure the adequate protection of civilians caught up in conflicts. In relation to the law on the use of force, the existing powers of the UN Security Council to deal with threats to international peace and security are theoretically sufficient to enable it to deal with climate-related conflicts, though it has never exercised its powers explicitly for this purpose.^[83]

Climate Change and International Criminal Law

As our scientific understanding of climate change develops and evidence of fossil fuel companies’ efforts to deny climate change come to light, some scholars argue that international criminal law should be used to address crimes that impact climate change.^[84] Specifically, scholars analyze the potential prosecution of  corporations whose activities exacerbate climate change before the International Criminal Court.^[85] Calls for the potential recognition of the international crime of ‘ecocide’ are being considered and have gained support in recent years,^[86] a potential change that should be of particular interest to practitioners.

Climate Change and International Dispute Settlement

Increasingly, investor-state dispute settlement is being recognized as an avenue for climate change litigation.^[87] The breadth of bilateral and multilateral international investment agreements makes the area ripe for litigation, which can involve claims from compensation for climate harms to environmental permitting claims.^[88] Therefore, while dispute claims have not yet been used in the context of inter-state dispute resolution, they have been utilized by private parties to litigate climate harms perpetrated by states. Notably, the Inuit brought a petition against the US. for its role in causing global warming to the Inter-American Commission on Human Rights (IACHR) in 2005.^[89] Although the IACHR initially declined to process the petition—stating that the petitioners had provided insufficient information for the IACHR to, “at present,” determine whether the alleged facts would characterize a violation of rights protected by the American Declaration^[90]— the IACHR subsequently allowed a special hearing in regard to the petition. As the climate crisis looms and state and non-state actors alike seek avenues to reach net zero targets and mitigate impacts, such litigation may become popular and effective.

[1] See e.g. Fridays for Future <https://fridaysforfuture.org/> accessed 13 May 2024; Alec Tyson et al, ‘Gen Z, Millennials Stand Out for Climate Change Activism, Social Media Engagement With Issue‘ (Pew Research Center, 26 May 2021) <https://www.pewresearch.org/science/2021/05/26/gen-z-millennials-stand-out-for-climate-change-activism-social-media-engagement-with-issue/> accessed 13 May 2024.

[2] IPCC, ‘Headline Statements‘ (AR6 Synthesis Report) <https://www.ipcc.ch/report/ar6/syr/resources/spm-headline-statements/> accessed 13 May 2024.

[3] ‘History of the Convention‘ (UNFCCC) <https://unfccc.int/process/the-convention/history-of-the-convention> accessed 13 May 2024; see also IPCC ‘Reports‘ <https://www.ipcc.ch/reports/> accessed 13 May 2024.

[4] United Nations, ‘7. United Nations Framework Convention on Climate Change‘ (United Nations Treaty Collection, Chapter XXVII, 09 May 1992); see also ‘History of the Convention‘ above.

[5] ‘What is the United Nations Framework Convention on Climate Change?‘ (UNFCCC)  <https://unfccc.int/process-and-meetings/what-is-the-united-nations-framework-convention-on-climate-change> accessed 13 May 2024.

[6] Non-binding international law is also referred to as “soft law” while legally binding international instruments are called “hard law.”  Both types of law are important at the international level, given that most developments—both hard and soft—come about as a result of consensus, which often starts informally and then progresses to formal agreement. See e.g. the definition by the European Center for Constitutional and Human Rights, available at <https://www.ecchr.eu/en/glossary/hard-law-soft-law/> accessed 13 May 2024.

[7] United Nations (1992).

[8] Ibid.

[9] Johannes Friedrich et al, ‘This Interactive Chart Shows Changes in the World’s Top 10 Emitters‘ (World Resources Institute, 02 March 2023) <https://www.wri.org/insights/interactive-chart-shows-changes-worlds-top-10-emitters> accessed 13 May 2024.

[10] Céline Guivarch et al, ‘Linking Climate and Inequality‘ (International Monetary Fund, September 2021)  <https://www.imf.org/en/Publications/fandd/issues/2021/09/climate-change-and-inequality-guivarch-mejean-taconet> accessed 13 May 2024.

[11] See e.g. Ruma Bhargava & Megha Bhargava, ‘The climate crisis disproportionately hits the poor. How can we protect them?‘ (World Economic Forum, 13 January 2023) <https://www.weforum.org/agenda/2023/01/climate-crisis-poor-davos2023/> accessed 13 May 2024.

[12] ‘Key aspects of the Paris Agreement‘ (UNFCCC) <https://unfccc.int/most-requested/key-aspects-of-the-paris-agreement> accessed 13 May 2024.

[13] The Paris Agreement was adopted by 196 Parties at the UN Climate Change Conference (COP21) in Paris, France, on 12 December 2015 and entered into force on 4 November 2016.

[14] ‘Key aspects of the Paris Agreement‘(UNFCCC) <https://unfccc.int/most-requested/key-aspects-of-the-paris-agreement> accessed 13 May 2024.

[15] Antony J. Blinken, ‘The United States Officially Rejoins the Paris Agreement‘ (Office of the Spokesperson, 19 February 2021) <https://www.state.gov/the-united-states-officially-rejoins-the-paris-agreement/> accessed 13 May 2024.

[16] ‘Paris Agreement to the United Nations Framework Convention on Climate Change‘, (T.I.A.S. No. 16-1104, 12 December 2015) <https://unfccc.int/sites/default/files/english_paris_agreement.pdf> accessed 13 May 2024.

[17] ‘Nationally Determined Contributions (NDCs)‘ (UNFCCC) <https://unfccc.int/process-and-meetings/the-paris-agreement/nationally-determined-contributions-ndcs> accessed 13 May 2024.

[18] Anna Huggins & Md Saiful Karim, ‘Shifting Traction: Differential Treatment and Substantive and Procedural Regard in the International Climate Change Regime‘ (Transnational Environmental Law, Volume 5, Special Issue 2: Fifth Anniversary Issue, October 2016).

[19] Kathryn Tso, ‘How are countries held accountable under the Paris Agreement?‘ (MIT Climate Portal, 08 March 2021) <https://climate.mit.edu/ask-mit/how-are-countries-held-accountable-under-paris-agreement> accessed 13 May 2024.

[20] Ibid.

[21] ‘FACT SHEET: President Biden to Catalyze Global Climate Action through the Major Economies Forum on Energy and Climate‘ (The White House, 20 April 2023) <https://www.whitehouse.gov/briefing-room/statements-releases/2023/04/20/fact-sheet-president-biden-to-catalyze-global-climate-action-through-the-major-economies-forum-on-energy-and-climate/> accessed 13 May 2024.

[22] ‘Fund for Responding to loss and damage‘ (UNFCCC) <https://unfccc.int/loss-and-damage-fund-joint-interim-secretariat> accessed 13 May 2024.

[23] ‘Convention on Long-Range Transboundary Air Pollution‘ (Office of Environmental Quality) <https://www.state.gov/key-topics-office-of-environmental-quality-and-transboundary-issues/convention-on-long-range-transboundary-air-pollution/> accessed 13 May 2024.

[24] ‘U.S.-Canada Air Quality Agreement‘ (United States Environmental Protection Agency) <https://www.epa.gov/power-sector/us-canada-air-quality-agreement> accessed 13 May 2024.

[25] ‘About Montreal Protocol‘ (UN Environment Programme) <https://www.unep.org/ozonaction/who-we-are/about-montreal-protocol> accessed 13 May 2024.

[26] ‘The Montreal Protocol on Substances That Deplete the Ozone Layer‘ (Office of Environmental Quality)  <https://www.state.gov/key-topics-office-of-environmental-quality-and-transboundary-issues/the-montreal-protocol-on-substances-that-deplete-the-ozone-layer/> accessed 13 May 2024.

[27] ‘The 17 Goals‘ (United Nations Department of Economic and Social Affairs) <https://sdgs.un.org/goals> accessed 13 May 2024.

[28] ‘13: Take urgent action to combat climate change and its impacts‘ (United Nations Department of Economic and Social Affairs) <https://sdgs.un.org/goals/goal13> accessed 13 May 2024.

[29] ‘OHCHR and the 2030 Agenda for Sustainable Development‘ (Office of the High Commissioner)  <https://www.ohchr.org/en/sdgs> accessed 13 May 2024.

[30] In International Law, the term “soft law” generally refers to agreements, quasi-legal instruments, principles, guidelines or goals which are not legally binding. See e.g. the definition by the European Center for Constitutional and Human Rights, available at <https://www.ecchr.eu/en/glossary/hard-law-soft-law/> accessed 13 May 2024.

[31] ‘The SDGs explained for Business‘ (United Nations Global Compact) <https://unglobalcompact.org/sdgs/about> accessed 13 May 2024; see also ibid.

[32] See: ‘Statute of the International Court of Justice‘ (ICJ), Art 38.1; and, more generally, James Crawford, ‘Brownlie’s Principles of Public International Law (9th Ed.)‘ (Oxford University Press, September 2019), Chapter 2.

[33] ‘‘No-harm rule’ and climate change‘ (Lawyers Responding to Climate Change, 24 July 2012)<https://legalresponse.org/legaladvice/no-harm-rule-and-climate-change/> accessed 13 May 2024.

[34] Maria Antonia Tigre & Jorge Alejandro Carrillo Bañuelos, ‘The ICJ’s Advisory Opinion on Climate Change: What Happens Now?‘ (Sabin Center for Climate Change Law, 29 March 2023) <https://blogs.law.columbia.edu/climatechange/2023/03/29/the-icjs-advisory-opinion-on-climate-change-what-happens-now/> accessed 13 May 2024.

[35] Medes Malaihollo, ‘Due Diligence in International Environmental Law and International Human Rights Law: A Comparative Legal Study of the Nationally Determined Contributions under the Paris Agreement and Positive Obligations under the European Convention on Human Rights‘ (Netherlands International Law Review, Vol. 68, 28 April 2021).

[36] Benoît Mayer, ‘The relevance of the no-harm principle to climate change law and politics‘ (Asia Pacific Journal of Environmental Law, Vol. 19: 1, September 2016).

[37] Daniel Billy and others v Australia (Torres Strait Islanders Petition), CCPR/C/135/D/3624/2019.

[38] Ibid.

[39] ‘Advisory Jurisdiction‘ (International Court of Justice) <https://www.icj-cij.org/advisory-jurisdiction> accessed 13 May 2024.

[40] ‘Request for an advisory opinion of the International Court of Justice on the obligations of States in respect of climate change‘ (United Nations Resolutions, A/77/L.58).

[41] Tigre & Bañuelos (2023).

[42] Ibid.

[43] ‘International Court of Justice starts building historic opinion on climate change‘ (United Nations Regional Information Centre for Western Europe, 20 April 2023) <https://unric.org/en/international-court-of-justice-starts-building-historic-opinion-on-climate-change/> accessed 13 May 2024.

[44] Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226.

[45] Ibid.

[46] Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgement, I.C.J. Reports 1997, p.7.

[47] Ibid.

[48] Ibid.

[49] Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 14

[50] Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, I.C.J. Reports 2015, p. 665.

[51] Moustapha Kamal Gueye & Tim de Meyer, ‘UN General Assembly recognizes human right to a clean, healthy, and sustainable environment‘ (International Labour Organization, 29 September 2022) <https://www.ilo.org/global/about-the-ilo/newsroom/news/WCMS_857164/lang–en/index.htm> accessed 13 May 2024.

[52] Samuel L.Brown, ‘Green Amendments: A Fundamental Right to a Healthy Environment?‘ (The National Law Review, 30 March 2021) <https://www.natlawreview.com/article/green-amendments-fundamental-right-to-healthy-environment> accessed 13 May 2024; Nydia Gutiérrez & Brian Keegan, ‘Environmental Rights Amendment Passes in New York‘ (Earthjustice, 03 November 2021) <https://earthjustice.org/press/2021/environmental-rights-amendment-passes-in-new-york> accessed 13 May 2024. See the Climate Litigation Chapter for more on this topic.

[53] ‘Paris Agreement to the United Nations Framework Convention on Climate Change‘ (2016).

[54] ‘Disasters and Climate Change’ (Internal Displacement Monitoring Centre) <https://www.internal-displacement.org/disasters-and-climate-change/> accessed 13 May 2024.

[55] ‘Guiding Principles on Internal Displacement‘ (United Nations Office for the Coordination of Humanitarian Affairs, 01 August 1998) <https://www.unhcr.org/sites/default/files/legacy-pdf/43ce1cff2.pdf> accessed 13 May 2024.

[56] Frederick Bernas, ‘Syrian refugees reap benefits of Argentina’s new visa rules‘ (United Nations High Commissioner For Refugees, 10 November 2017) <https://www.unhcr.org/us/news/stories/syrian-refugees-reap-benefits-argentinas-new-visa-rules> accessed 13 May 2024; Nina Raj, ‘Policy Experts Discuss Argentina’s Humanitarian Visa for Displaced Migrants‘ (The Hoya, 10 November 2022) <https://thehoya.com/news/policy-experts-discuss-argentinas-humanitarian-visa-for-displaced-migrants/> accessed 13 May 2024.

[57] Erol Yayboke et al, ‘A New Framework for U.S. Leadership on Climate Migration‘ (Center for Strategic and International Studies, 23 October 2020) <https://www.csis.org/analysis/new-framework-us-leadership-climate-migration> accessed 13 May 2024.

[58] ‘Making trade work for climate change mitigation: The case of technical regulations‘ (United Nations Conference on Trade and Development, UNCTAD/DITC/TAB/2022/7, 14 March 2023).

[59] ‘Trade and Climate Change Information brief n^o4‘ (World Trade Organization, revised 09 November 2021)<https://www.wto.org/english/news_e/news21_e/clim_03nov21-4_e.pdf> accessed 13 May 2024, p. 5

[60] Ibid, p. 5.

[61] ‘The role of trade in adapting to climate change‘ (World Trade Organization, World Trade Report 2022) <https://www.wto.org/english/res_e/booksp_e/wtr22_e/wtr22_ch2_e.pdf> accessed 13 May 2024, p. 9.

[62] Brian Deese, ‘The New Climate Law Is Working. Clean Energy Investments Are Soaring‘ (New York Times, 30 May 2023) <https://www.nytimes.com/2023/05/30/opinion/climate-clean-energy-investment.html> accessed 13 May 2024.

[63] ‘Environmental Goods Agreement (EGA)‘ (World Trade Organization) <https://www.wto.org/english/tratop_e/envir_e/ega_e.htm> accessed 13 May 2024.

[64] ‘WTO rules and environmental policies: GATT exceptions‘ (World Trade Organization) <https://www.wto.org/english/tratop_e/envir_e/envt_rules_exceptions_e.htm> accessed 13 May 2024.

[65] ‘Facts about the nature crisis‘ (United Nations Environment Programme) <https://www.unep.org/facts-about-nature-crisis> accessed 13 May 2024.

[66] Georgina Gustin et al, ‘Humanity Faces a Biodiversity Crisis Climate Change Makes It Worse‘ (Inside Climate News, 06 May 2019) <https://insideclimatenews.org/news/06052019/climate-change-biodiversity-united-nations-species-extinction-agriculture-food-forests/> accessed 13 May 2024.

[67] ‘Biodiversity – our strongest natural defense against climate change‘ (United Nations Climate Action) <https://www.un.org/en/climatechange/science/climate-issues/biodiversity> accessed 13 May 2024.

[68] David R. Hodas, ‘Biodiversity and Climate Change Laws: A Failure to Communicate?‘ (Cambridge University Press, 12 June 2008).

[69] The first Ad Hoc Technical Expert Group on Biodiversity and Climate Change was established in 2001. After the first group completed its work, the second Ad Hoc Technical Expert Groups on Biodiversity and Climate Change was formed in 2008 to address new developments in this area since the completion of the first group’s work. See  ‘Connecting Biodiversity and Climate Change Mitigation and Adaption: Report of the Second Ad Hoc Technical Expert Group on Biodiversity and Climate Change‘ (Secretariat of the Convention on Biological Diversity, Technical Series No. 41, 2009), p. 6.

[70] Ibid, pp. 9-10.

[71] ‘Article 7. Identification and Monitoring‘ (Convention on Biological Diversity) <https://www.cbd.int/convention/articles/?a=cbd-07> accessed 13 May 2024; Yue Hu et al, ‘Synergy between the Convention on Biological Diversity and the UNFCCC in China‘ (Advances in Climate Change Research, Vol. 12:2, April 2021).

[72] ‘Article 14. Impact Assessment and Minimizing Adverse Impacts‘ (Convention on Biological Diversity) <https://www.cbd.int/convention/articles/?a=cbd-14> accessed 13 May 2024.

[73] ‘The United States and the Convention on Biological Diversity‘ (Defenders of Wildlife) <https://defenders.org/sites/default/files/publications/the_u.s._and_the_convention_on_biological_diversity.pdf> accessed 13 May 2024.

[74] ‘The ocean – the world’s greatest ally against climate change‘ (United Nations Climate Action) <https://www.un.org/en/climatechange/science/climate-issues/ocean> accessed 13 May 2024.

[75] ‘Convention on the Law of the Sea‘, (1833 U.N.T.S. 397, 10 December 1982) <https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf> accessed 13 May 2024, p. 94.

[76] Ibid, p. 94.

[77] Lara Malaver, ‘It is Time for the United States to Ratify UNCLOS‘ (U.S. Naval Institute Proceedings, Vol. 147/6/1,420, June 2021) <https://www.usni.org/magazines/proceedings/2021/june/it-time-united-states-ratify-unclos> accessed 13 May 2024.

[78] Ibid.

[79] ‘Ocean Dumping: International Treaties‘ (United States Environmental Protection Agency) <https://www.epa.gov/ocean-dumping/ocean-dumping-international-treaties> accessed 13 May 2024.

[80] Ibid.

[81] ‘We must change trajectory of harm caused by conflict and climate shocks‘ (International Committee of the Red Cross, 25 September 2020) <https://www.icrc.org/en/document/we-must-change-trajectory-harm-climate-conflict> accessed 13 May 2024.

[82] The term “targeting rules” refers to a set of rules regulated by international humanitarian law governing the conduct of hostilities, which define and limit who or what can be targeted, and under what conditions. See the ICRC’s definition at <https://casebook.icrc.org/highlight/targeting-under-international-humanitarian-law> accessed 13 May 2024.

[83] Bruce Gilley & David Kinsella, ‘The Use of Force to Achieve Climate Change Goals‘ (Portland State University, April 2013) <https://web.pdx.edu/~kinsella/papers/isa13.pdf> accessed 13 May 2024.

[84] Adam Branch, Liana Minkova, ‘Ecocide, the Anthropocene, and the International Criminal Court‘ (Ethics & International Affairs, Vol. 37:1, Spring 2023).

[85] Donna Minha, ‘The Possibility of Prosecuting Corporations for Climate Crimes Before the International Criminal Court: All Roads Lead to the Rome Statute?‘ (Michigan Journal of International Law, Vol. 41:3, 2020).

[86] Rachel Killean, ‘The Benefits, Challenges, and Limitations of Criminalizing Ecocide‘ (The Global Observatory, 30 March 2022) <https://theglobalobservatory.org/2022/03/the-benefits-challenges-and-limitations-of-criminalizing-ecocide/> accessed 13 May 2024.

[87] Tiffany Challe-Campiz, ‘‘Investor-State Dispute Settlement’ as a new avenue for climate change litigation‘ (Sabin Center for Climate Change Law, 02 June 2021) <https://blogs.law.columbia.edu/climatechange/2021/06/02/investor-state-dispute-settlement-as-a-new-avenue-for-climate-change-litigation/> accessed 13 May 2024.

[88] Ibid.

[89] ‘Inuit File Petition with Inter-American Commission on Human Rights, Claiming Global Warming Caused by United States Is Destroying Their Culture and Livelihoods‘ (Center for International Environmental Law, 07 December 2005) <https://www.ciel.org/news/inuit-file-petition-with-inter-american-commission-on-human-rights-claiming-global-warming-caused-by-united-states-is-destroying-their-culture-and-livelihoods/> accessed 13 May 2024.

[90] See the 16 November 2006 decision of the Inter-American Commission on Human Rights on Petition To The Inter-American Commission on Human Rights Seeking Relief From Violations Resulting from Global Warming Caused By Acts and Omissions of the United States available at <https://climatecasechart.com/non-us-case/petition-to-the-inter-american-commission-on-human-rights-seeking-relief-from-violations-resulting-from-global-warming-caused-by-acts-and-omissions-of-the-united-states/> accessed 13 May 2024.