Potential takeaways for future climate migration litigation
Similarly to the findings of the Trail Smelter arbitration decision:
- State responsibility and interstate claims. Though the case did not concern migration, the principle(s) could potentially be transposed as an argument for state responsibility and possibly used as an interstate claim under international law, specifically the Responsibility of States for Internationally Wrongful Acts for compensation (Art. 31) or even prevention (Art. 3).
- See here for the relevance of reviving Climate Passports under this notion.
- Environmental Impact Assessments. Pulp Mills establish a transboundary environmental impact assessment (EIA) as a necessary element under the obligation of due diligence in international environmental law as well as under the Trail Smelter principle
- Although note that the court held that there is no “no legal obligation to consult the affected populations arises for the parties from the instruments invoked by Argentina.” (para. 216)
- Causing damage to the environment of another state. Citing Corfu Channel and Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, the decision reaffirms that –
“A State is thus obliged to use all of the means at its disposal in order to avoid activities which take place in its territory, or in any area under its jurisdiction, causing significant damage to the environment of another state.” (para. 101)
- Obligation of due diligence. Court elaborates and states that it is an obligation of due diligence as opposed to one of conduct (para 187). From the perspective of the ICJ, this obligation, in line with Trail Smelter decision and the International Law Commission’s draft, requires:
- “adoption of appropriate rules and measures” (para. 197)
- “a certain level of vigilance in their enforcement” (para. 197)
- “the exercise of administrative control applicable to public and private operators” (para. 197)
- “careful consideration of the technology to be used” (para 223)
- Environmental impact assessment, and appropriate notification.
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