STATEMENT OF JURISDICTION

Applicants and the Respondents have agreed to submit this dispute “Concerning
liability for the impacts of climate change” to the International Court of Justice pursuant to
Article 40, paragraph 1 of the Statute of this Court and by virtue of a Special Agreement
(Compromis) signed in The Hague, The Netherlands, on September 14, 2011 and jointly
notified to the Court on the same date. Both parties have agreed that the Compromis is
without prejudice to any question of the burden of proof. In accordance with Article 36,
paragraph 1 of the Statute, the Court has jurisdiction to decide all matters referred to it for
decision. Both parties shall accept the Court’s decision as final and binding and execute it in
good faith.
 QUESTIONS PRESENTED
The Parties agree to subject the following issues for oral arguments and resolution by the
Court:

I. Whether United States, European Union, and China are liable for environmental
damage in the Philippines, Maldives and Bolivia where the activities in the former
states are directly responsible for the damages in the latter or whether can it be
concluded that activities in the respondent-countries resulted in the damage in the
applicant-countries.

II. Whether the science of climate change is adequate enough to justify that
respondents’ activities are the proximate cause of the climate change impacts
being experienced by the applicants.

III. Whether the UNFCCC, Kyoto Protocol, Paris Agreement and other international
instruments such as the Stockholm and Rio Declarations create liability for
contributions by countries to GHG emissions in the atmosphere.

IV. Whether the responsibility of the Respondents specific and particular to them (in
contrast to a general obligation to affected countries) give the Applicants the right
to ask the remedies they are requesting.

V. Whether the remedies requested by the Applicants appropriate and are enforceable
against the Respondents.

VI. Whether China is subject to future exemption of liability on the grounds of

historical responsibility and equity (as evidenced by its low per capita emissions).
 STATEMENT OF FACTS
BACKGORUND
Climate change refers to the long-term fluctuations in temperature, precipitation, wind
and other aspects related to climate and weather. The United Nations Convention on Climate
Change describes it as the change of climate that is attributed directly or indirectly to human
activity that alters the composition of the global atmosphere, and this is in addition to natural
climate variability observed over comparable time periods 1. It is a change in the statistical
properties of the climate system that persists for several decades or longer—usually at least
30 years. These statistical properties include averages, variability and extremes. Climate
change may be due to natural processes, such as changes in the Sun’s radiation, volcanoes or
internal variability in the climate system, or due to human influences such as changes in the
composition of the atmosphere or land use.2 It should be emphasized that it is universal and a
natural phenomenon.
The United States of America is in North America is known to be one of the super
power countries of the world from 19th century until today not because it is the world's largest
emitter of greenhouse gas (GHG) emissions because that is China as recently reported in
EDGAR database created by European Commission and Netherlands Environmental
Assessment Agency released in 2015 to which it ranked first in fossil fuel CO2 emissions,
still larger than the USA and EU’s emissions combined and still rising. What happens in
China has a crucial effect on global emissions. China produces more than a quarter of
humanity’s emissions of global warming gases.3
Historically speaking it was USA which is the largest emitter of greenhouse gases but
what we care more about is the present situation and the future negative impacts to the next
generations if no measures should be taken up by China as it claimed to be the fastest
industrialized country, also the country with the highest population and still growing.
Consequently, United States of America is willing to come up with diplomatic
agreements and to take measures to prevent the fast-paced climate change brought by fast
paced industrialization in the modern era.

1https://wwf.panda.org/knowledge_hub/teacher_resources/webfieldtrips/climate_change/
2 https://www.science.org.au/learning/general-audience/science-booklets-0/science-climate-change/1-what-
climate-change
3 https://www.nytimes.com/2018/01/25/business/china-davos-climate-change.html
 SUMMARY OF PLEADINGS
I. The respondent submits that it cannot be held liable for the activities it had
being a remote cause on the negative climate change impacts the applicants
are suffering

A. Lack of particularity on ascertaining activities done by USA significantly

affecting climate change in general and the applicants.

B. Lack of credibility on scientific evidence or insufficiency of circumstantial

evidence on the cause and effect phenomenon (proximate cause)

II. The respondent stands that there is compliance with International

Agreements in Climate Change Protocols in which it is a signatory.

A. The United Nations Framework Convention on Climate Change (UNFCCC),

Kyoto Protocol, Paris Agreement and international instruments such as the
Stockholm and Rio Declarations did not impose penalty or provide liability clause
for GHG emissions but rather created standardization protocols.

B. United States of America has no obligation to pay for compensatory damages

and provide special privileges to applicant states.

C. The remedies prayed for by the applicants are not enforceable against USA.

D. China is not subject to future exemption of liability on the grounds of historical

responsibility and equity.
 PLEADINGS

I. The respondent submits that it cannot be held liable for the activities it had
being a remote cause on the negative climate change impacts the applicants
are suffering

A. Lack of particularity on ascertaining activities done by USA significantly

affecting climate change in general and the applicants.

It is well-known fact that USA is one of the countries categorized as first world
countries which are highly industrialized and well-developed as well as China and
European Union.

Climate change cannot be attributed to a well-established country like USA for

being an industrialized one without pointing with particularity the circumstances or
acts done by it that have cause great and significant effect to the universal and natural
phenomenon of climate change.

Countries in the third world like Philippines for an instance is by themselves

cannot live without carbon-based fuels and has no means to afford new sources of
energy except on what is common to them. Even having such new source of energy,
they would choose of what has been tried and tested which is the carbon-based fuels.

China in its fast pace industrialization has overtaken the spot of USA as the
number one emitter of CO2 Fossil Fuels in 2015. Worthy to note is the larger
summation of CO2 Fossil Fuels emitted by China compared to USA and EU
combined. It is noticeable that in just a short span of time computed from the age of
industrialization till 2015, it has been emitting humungous amounts of GHG,
forwarding in the following decades, China might rank 1st in its per capita emissions.

B. Lack of credibility on scientific evidence or insufficiency of circumstantial

evidence on the cause and effect phenomenon (proximate cause)

The largest contributor of climate change are human activities which cannot be
ascertained with particularity by scientists or science itself. For climate change is a
universal and natural phenomenon that cannot be confined in limited measuring
devices and be trusted upon based on the statistics resulting therefrom.

There are specific weather events like typhoons, sea-level rise, shortening of
winter, lengthening of summer, hurricanes, abrupt snow falling and some other natural
phenomena that are being reported through the media as an “effect of climate change”
but there is a missing link which would prove the cause and effect phenomenon, the
scientific and circumstantial evidence.
Science can forecast the negative impact or catastrophic events that might occur in
the future but it has not yet achieve a means to scientifically prove which country has
contributed more compared to the other or contributed least compared to the other.

Historically and per capita, USA is the largest emitter of GHG in the
atmosphere, however, there is impossibility to measure greenhouse gas emissions on
the early 1900s. So it is not a valid justification to use historical evidence to justify a
scientific fact which was yet inexistent during that time. The emergence of climate
change became popular in 1992 when the UNFCC came into being which gives rise to
the issue of man-made climate change. Following such convention, ways and means
arose targeting the mitigation of the GHG emissions in the atmosphere such as Kyoto
Protocol and Paris Agreement. From then on, reduction of the toxic gasses’ emission
has become the main concern of climate advocates.

We do not deny climate change whether as a natural phenomenon or man-

made one. In this era passed industrialization moving towards technological
modernization, baseless blames from falsified truths or scientific evidence cannot
anymore be tolerated. The present and future time makes us to redirect our lenses to
prevention rather than accusation or conviction of countries seemingly liable of such
world-wide phenomenon.

Hence, the respondent USA believes that all humanity not just certain
countries should be held responsible making all a recipient of its unwanted impacts.
The negative impacts to Philippines, Bolivia and Maldives are not attributable to USA
alone. The respondent also admits its fair share of responsibility and is committed in
adhering and promoting international prevention measures for the sake of future
generations.

II. The respondent stands that there is compliance with International

Agreements in Climate Change Protocols in which it is a signatory.

A. The United Nations Framework Convention on Climate Change

(UNFCCC), Kyoto Protocol, Paris Agreement and international instruments
such as the Stockholm and Rio Declarations did not impose penalty or
liability clause for GHG emissions but rather created standardization
protocols.

United Nations Framework Convention on Climate Change (UNFCC)

In Article 3 (2), it is provided that, “The specific needs and special

circumstances of developing country Parties, especially those that are particularly
vulnerable to the adverse effects of climate change, and of those Parties,
especially developing country Parties, that would have to bear a disproportionate
or abnormal burden under the Convention, should be given full consideration.”
Also, in Article 4 (No. 4), it is stated that, “The developed country Parties and
other developed Parties included in Annex II shall also assist the developing
country Parties that are particularly vulnerable to the adverse effects of climate
change in meeting costs of adaptation to those adverse effects.”

Kyoto Protocol

Article 18 states that, “The Conference of the Parties serving as the meeting of
the Parties to this Protocol shall, at its first session, approve appropriate and
effective procedures and mechanisms to determine and to address cases of non-
compliance with the provisions of this Protocol, including through the
development of an indicative list of consequences, taking into account the cause,
type, degree and frequency of non-compliance. Any procedures and mechanisms
under this Article entailing binding consequences shall be adopted by means of an
amendment to this Protocol.”

The protocol defines a mechanism of "compliance" as a "monitoring

compliance with the commitments and penalties for non-compliance." However,
the explicit consequences of non-compliance of the treaty are weak compared to
domestic law. (Grubb, M. (July–September 2003), "The Economics of the Kyoto
Protocol", World Economics, 4 (3), CiteSeerX 10.1.1.163.1719)

Paris Agreement

Article 15, in its entirety, provides that:

1. A mechanism to facilitate implementation of and promote compliance with the

provisions of this Agreement is hereby established.

2. The mechanism referred to in paragraph 1 of this Article shall consist of a

committee that shall be expert-based and facilitative in nature and function in a
manner that is transparent, non-adversarial and non-punitive. The committee shall
pay particular attention to the respective national capabilities and circumstances of
Parties.

2. The committee shall operate under the modalities and procedures adopted by
the Conference of the Parties serving as the meeting of the Parties to this
Agreement at its first session and report annually to the Conference of the
Parties serving as the meeting of the Parties to this Agreement.

Stockholm

Article 17 states that, “The Conference of the Parties shall, as soon as

practicable, develop and approve procedures and institutional mechanisms for
determining non-compliance with the provisions of this Convention and for the
treatment of Parties found to be in non-compliance.”
 Rio Declaration

The following provisions are pertinent to corresponding liabilities for non-

compliance:

Principle 7. States shall cooperate in a spirit of global partnership to conserve,

protect and restore the health and integrity of the Earth's ecosystem. In view of the
different contributions to global environmental degradation, States have common
but differentiated responsibilities. The developed countries acknowledge the
responsibility that they bear in the international pursuit of sustainable
development in view of the pressures their societies place on the global
environment and of the technologies and financial resources they command.

Principle 13. States shall develop national law regarding liability and
compensation for the victims of pollution and other environmental damage. States
shall also cooperate in an expeditious and more determined manner to develop
further international law regarding liability and compensation for adverse effects
of environmental damage caused by activities within their jurisdiction or control
to areas beyond their jurisdiction.

The treaties and international instruments in the aforementioned provisions

provide for the commitments and liability for non-compliance of the contracting
states. These highlight the corresponding duty of the developed states, among
others, to limit their greenhouse gas emissions and to extend aid to those
developing states drastically affected by the effects of climate change.

However, some people deemed that the agreement consists of "promises" or

aims and not firm commitments calling Paris talks a fraud with 'no action, just
promises' and feels that only an across the board tax on CO2 emissions, something
not part of the Paris Agreement, would force CO2 emissions down fast enough to
avoid the worst effects of global warming. (Milman, Oliver (12 December 2015).
"James Hansen, father of climate change awareness, calls Paris talks 'a fraud'".
The Guardian. London, England. Retrieved 14 December 2015.) This adverse
consequence applies not only to the Paris Convention but also to those mentioned
treaties and international instruments. Fearing economic decline, developed states
often do not ratify nor transparently abide. Thus, though express in their terms,
these treaties and instruments lacks the authority in the international scale to
enforce said provisions.

B. United States of America has no obligation to pay for compensatory

damages and provide special privileges to applicant states.

As to the foregoing reasons, USA cannot be held liable for compensatory damages as
it was not expressly mandated by the statute governing it.
 Moreover, Article 38 of the Statute of the International Court of Justice (ICJ) defines
customary international law as “evidence of general practice accepted as law”, and a widely-
recognised rule of customary international law is the no-harm rule, which essentially holds
that no State must harm another. Both avoidable and unavoidable climate change damage fall
within the ambit of legal consequences of a breach of the no-harm rule, so that financing and
implementing adaptation measures – as addressed in the climate regime – are just as much a
legal consequence of a breach of international law as the provision of compensation for loss
and damage.

C. The remedies prayed for by the applicants are not enforceable against USA.
The remedy requested by Maldives to allow its citizens to immigrate to their
respective countries as a matter of right, waiving all legal requirements is against the
principle of equity.

The demand of the Philippines to transfer some technology from USA on a

concessional basis so that the Philippines can adapt to as well as mitigate climate changes is
not practical and without basis.

Lastly, the order to provide funds to Bolivia and Kenya so they can adapt to as well
as mitigate climate change is without valid justificatio

A. China is not subject to future exemption of liability on the grounds of historical

responsibility and equity.
There can be no future exemptions on any countries regardless of its per capita
emissions. China, regardless of per capita emissions, are still higher than the US, almost
doubled since 1960. China can't contend that they have a lower per capita since if the stakes
are equal, China would easily be above the USA.
China’s carbon emissions growth has accelerated since the beginning of the 2018,
leading to warnings that the country could be headed for its largest annual increase in climate
pollution since 2011.
Led by increased demand for coal, oil and gas, China’s CO2 emissions for the first
three months of 2018 were 4% higher than they were for the same period in 2017, according
to an Unearthed analysis of new government figures.
Analysts have suggested the country’s carbon emissions could rise this year by 5% —
the largest annual increase in seven years, back when the airpocalypse was at its peak.
This latest uptick in carbon emissions was unexpected. Many thought the
government’s 2016 stimulus – which kicked off a construction surge fueled by coal-burning
industries – was a temporary state of affairs, following years of falling coal use and carbon
emissions.

But big spending on energy intensive industries persisted through 2017, meaning
China has been backsliding on the climate progress it made earlier this decade and the rest of
the world must redouble efforts simply to ensure global CO2 emissions don’t climb
dramatically.4
Thus, no country should be exempt from future liability on the grounds of historical
responsibility or equity subject to the international agreements.

PRAYER FOR RELIEF

4 https://unearthed.greenpeace.org/2018/05/30/china-co2-carbon-climate-emissions-rise-in-2018/?
fbclid=IwAR3jNZDTXPF2OiGmTb0qNpTcEp28eX0p0BgZOUIOcRaS5wKBtu8PPYZ2YOI
For the foregoing reasons, the respondent respectfully requests this Honourable Court to find,
adjudge and declare:

a. The dismissal of the applications of Philippines, Bolivia, and Maldives.

b. The upholding of USA’s claim of having no liability as to the impacts of climate

change to on the said applicants.

Respectfully Submitted on behalf of the Respondent,

Agents for the Respondent