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Different elements arising from climate change international law may bring to light an international custom obliging states to mitigate global warming and to adapt to it. Such obligations would moreover be erga omnes because of the essentiality of the international “good” to be protected: the climatic system in which the international community has developed to this day. By analyzing the notions of international customs and erga omnes obligations, this chapter explains why the international community is starting to be bound by general international law to act against climate change. The preservation of sustainable climatic balances and the need to adapt to the inevitable ongoing climate alterations represent general and mandatory international obligations. Focusing on the particular issue of climate-induced migration, this theorization is used to argue that under climate change adaptation policies and in fulfillment of existing human rights obligations, states should grant international protection to forced climate migrants.
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For a detailed analysis of the nature and characteristics of erga omnes obligations, please refer to Picone (2013). Comunità Internazionale ed Obblighi Erga Omnes. Naples: Jovene Editore, Chapter 1.
The first hint regarding erga omnes obligations is to be found in a famous obiter dictum by the International Court of Justice. See Barcelona Traction (ICJ, Barcelona Traction, Light and Power Company, Limited, I.C.J. Reports, 5 February 1970, p. 3), para. 33: “In particular, an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of al1 States. In view of the importance of the rights involved, al1 States can be held to have a legal interest in their protection; they are obligations erga omnes”.
It should be remembered that erga omnes obligations do not arise only where there is a need to face ongoing phenomena, since in reality they can also consist in negative obligations, for example with regard to the prohibition of genocide.
See the Draft Articles on State Responsibility, adopted by the International Law Commission on first Reading, January 1997. https://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_1996.pdf. Accessed 13 May 2019.
International Court of Justice (1997). Gabcikovo-Nagymaros case (Hungary v. Slovakia), 25 September 1997, I.C.J. Reports 1997.
See Poon on the precautionary principle applying to prevent irreparable environmental harms. Poon (2018). Drawing Upon International Refugee Law. The Precautionary Approach to Protecting Climate Change-Displaced Persons. In Behrman & Kent (Eds.) (2018). ‘Climate Refugees’ Beyond the Legal Impasse? New York: Routledge, p. 157.
UN Declaration on Environment and Development (Rio Declaration), adopted 12 August 1992, Principle 15.
UNFCCC, Article 3.
Poon (2018) (op. cit.), pp. 158 and 159.
The Paris Agreement establishes that every State Party shall communicate the UNFCCC’s Secretariat its greenhouse gas emission reduction five-years plans (the so-called Nationally Determined Contributions, NDC). It furthermore requests that every subsequent NDC must be more ambitious than the preceding one, generating thereby a ratchet-Up mechanism). See in particular Articles 4.2 e 4.3: “Each Party shall prepare, communicate and maintain successive nationally determined contributions that it intends to achieve. Parties shall pursue domestic mitigation measures, with the aim of achieving the objectives of such contributions”; “Each Party’s successive nationally determined contribution will represent a progression beyond the Party’s then current nationally determined contribution and reflect its highest possible ambition, reflecting its common but differentiated responsibilities and respective capabilities, in the light of different national circumstances”.
Mayer (2017). Climate Change, Migration and the Law of State Responsibility. In Mayer & Crépeau (Eds.), Research Handbook on Climate Change, Migration and the Law. Cheltenham: Elgar, p. 246.
For more information on the activity of the Platform on Disaster Displacement, see the website https://disasterdisplacement.org/.
For further information on the evolutions occurred under the UNFCCC’s auspices on the topic of climate-migration, please refer to Chapter 10.
Atapattu (2018). A New Category of Refugees? “Climate Refugees” and Gaping Hole in International Law. In Behrman & Kent (Eds.), “Climate Refugees” Beyond the Legal Impasse? New York: Routledge, p. 48.
- The erga omnes Obligation to Mitigate and Manage Climate Change
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