ICJ Advisory Opinion on Climate Change - AOSIS Oral Submission - Part 1 - Introduction & Specially Affected States

I. Introduction

1. Mr. President, Madam Vice President, distinguished members of the Court, it is an honor to present this oral submission on behalf of the Alliance of Small Island States (AOSIS), a group of 39 small island and low-lying coastal developing States, who are specially affected by the climate crisis.
2. As states defined by the ocean, limited resources and geographic vulnerabilities, the effects of climate change and sea level rise on our states cannot be understated. They threaten the wellbeing of our peoples, communities, cultures, ecosystems, food security, livelihoods and traditional knowledge.
3. Small island developing States (SIDS) rely heavily on coastal and marine resources as key drivers of our economies. However, climate change harms beaches and reefs that are vital to the tourism industry and disrupts the fisheries sector because of warming waters and altered marine environments.
4. In low-lying atolls, saltwater intrusion into water lenses exacerbates the scarcity of potable water, requiring costly adaptation measures such as desalination facilities.
5. Moreover, the coastal and marine environments of SIDS are integral to our social and cultural identities and heritage, throughtraditional practices, community life, and historical sites. Rising sea levels and increased coastal erosion threaten these cultural ties, as in Grenada’s video submission last week.
6. In this era of unprecedented and relentless sea-level rise, international law must evolve to meet the climate crisis and the disproportionate effect that it has on SIDS. We already have many of the tools to do this, but we must interpret and apply them for the realities of this new era.
7. Over the past 2 weeks, you have heard from 28 SIDS who have made submissions to this court, the vast majority for the first time. This is more than one-quarter of all the submissions. This is clear evidence of our engagement in the critical issues the Court is considering in this Advisory Opinion.
8. As not to duplicate the submissions of our member states, we will be targeted in our submissions on four issues.
9. First, AOSIS submits that the Court, in answering the question as a whole, must consider the status of SIDS as specially affected by climate change.
10. Second, AOSIS urges the Court to acknowledge the duty of cooperation as a general principle of international environmental law, potentially in response to paragraph (a) of the question.
11. Third, AOSIS urges the Court, potentially in response to paragraph (b) of the question, to acknowledge the duty of States to recognize the stability of maritime zones; and
12. Fourth, acknowledge the principle of continuity of statehood and sovereignty despite the impacts of climate change-related sea-level rise.

II. SIDS as Specially Affected by Climate Change

1. SIDS are specially affected by climate change. This is both because of the outsized impact of climate change on SIDS and because SIDS have been central to the last 30 years of law-making on these issues. We submit that this Court should give greater weight to the practice of SIDS, as specially affected states, in two ways. First, in the consideration of developments in customary international law, and second, in the interpretation of treaties through subsequent practice.
2. In the North Sea Continental Shelf cases, this Court noted there may be a particular role for the practice of States whose interests are specially affected, in the determination of customary international law. It noted that a general rule of international law may develop rapidly, where there is a “very widespread and representative participation…provided it included that of states whose interests were specially affected.”[1]
3. This issue has been subsequently raised by both developed and developing countries in submissions to this Court and by separate opinions. This is in addition to the broad evidence of state practice through statements in the UN General Assembly’s Sixth Committee in relation to the work of the International Law Commission (ILC) on the identification of customary international law.
4. While members of the ILC expressed concern that the concept of specially affected States“was irreconcilable with the sovereign equality of States”, it was included in the ILC’s commentary as an “indispensable factor”[2] in assessing the generality of state practice.
5. AOSIS submits that recognizing the status of specially affected states does not enhance the power of already powerful states. Rather it equitably ensures that the practice of states specially affected by circumstances, that we did not create, be given the appropriate weight in the interpretation and application of relevant legal rules.
6. Indeed, numerous treaty provisions in the UN climate change regime provide for special consideration of the needs and concerns of SIDS. The UNFCCC’s preamble recognizes the particular vulnerabilities of SIDS, and its Article 4 paragraph 8 provides that “Parties shall give full consideration to what actions are necessary under the Convention, including actions related to funding, insurance and the transfer of technology, to meet the specific needs and concerns of developing country Parties arising from the adverse effects of climate change…, especially on: (a) small island countries”[3].
7. The subsequent Paris Agreement expressly recognizes that the special circumstances of SIDS are to be given particular consideration in relation to mitigation and adaptation, financing, capacity-building and transparency requirements[4].

Conclusion

1. In conclusion, AOSIS submits that, in the climate change context, not only should the situation of SIDS be taken into account as a matter of equity, but also thatthe practice of SIDS as specially affected states should be particularly considered in the development of customary international law, and in the interpretation of relevant treaty obligations in the light of subsequent practice.
2. Mr President, I would like to ask the Court to invite Professor Bryce Rudyk, the AOSIS Legal Advisor to deliver the remainder of our submissions.

[1] North Sea Continental Shelf Cases (Ger./Den.; Ger./Neth.), Judgment, 1969 ICJ Rep. 3, para. 73 (Feb. 20)

[2] Report of the ILC - 66th Session (2014), ¶ 168, available at https://legal.un.org/ilc/reports/2014/english/chp10.pdf

[3]Art 4(8), United Nations Framework Convention on Climate Change (adopted 9 May 1992, enered into force 21 March 1994) 1771 UNTS 107

[4] Paris Agreement (adopted 12 December 2015, entered into force 4 November 2016) UNTS 54113, arts 4(6), 9(4), 9(9), 11(1), 13(3).