Climate Change Litigation for Specially Affected States
‘Can the Pacific Island States claim reparation for the damage they have suffered as a result of Climate Change?’
Student: Maren Støldal Risa 24th of July 2020
Student ID: 12734462
LLM International and European Law: Public International Law
Abstract
Climate change is an inherently unjust issue, with the Small Island States at the frontline of the climate change impacts. These States are already experiencing the hazardous effects produced by climate change, without adequate means to tackle it. Paradoxically, these States have contributed the least to the actual warming. Despite continuous efforts to establish an international framework dealing with climate change, the focus on mitigation efforts have led to little real change. Although the Paris Agreement was celebrated for its ground-breaking consensus on limiting the global temperature rise to 2 degrees pre-industrial levels, this was the final nail in the coffin for the most vulnerable States. Knowing any increase past 1,5 degrees of pre-industrial levels will effectively mean the end for these States, it appears they are accepted as collateral damage. Against this backdrop, this thesis investigates whether international law is useful in lending itself to this issue. Focusing on the Global North and the Pacific Island State of Kiribati, it will be argued that the Global North has a special responsibility on the basis of having emitted the overwhelming majority of greenhouse gasses (GHG) historically. Moreover, applying the environmental law principle of Common but Differentiated Responsibilities and Capabilities, their standard of due diligence is significantly higher, and brings a moral responsibility.
The thesis first establish that the customary obligation of no-harm applies to climate change, and that the Global North can be held liable for any excessive greenhouse gas emissions from the early 1990s, at which point it can be said there was sufficient scientific knowledge about the issue. Analysing the due diligence standard of care, it argues that the obligation has been breached, and Kiribati has the right to reparations. However, the hurdles of establishing a causal link, and how responsibility is to be shared between the multiple responsible actors, makes any climate change litigation extremely difficult. It is then argued that a test of ‘material contribution’ of the Global North as a group could satisfy the ‘proximity’ requirement of Article 31 ARSIWA. Applying Article 47(1), Kiribati can claim full reparations from any one of the Global North States; subject to the right of resource. Despite international law being exceptionally vague in relation to these issues, it has the opportunity to bring something resembling climate justice to disproportionately affected States.
List of Abbreviations
ARSIWA – Articles on Responsibility of States for Internationally Wrongful Acts BAT – Best Available Technology
CBDRRC – Common but differentiated responsibilities and capabilities EIA - Environmental Impact Assessment
GHG – Greenhouse Gasses
ICJ – International Court of Justice
IPCC – Intergovernmental Panel on Climate Change ITLOS – International Tribunal on the Law of the Sea PCIJ – Permanent Court of International Justice
T
ABLE OFC
ONTENTSAbstract ... 2
List of Abbreviations ... 3
Chapter 1: Introduction ... 5
1.1. The Problem of Climate Change ... 6
1.2. The Specially Affected State of Kiribati ... 7
Chapter 2: Is there an international obligation, and has such an obligation been breached? .... 9
2.1. Establishing the obligation of the no-harm rule ... 9
2.1.1. The Applicable Standard of Care ... 10
2.1.3. The causal link ... 19
Chapter 3: Can Kiribati claim reparations from the Global North for the damages it suffers as a result of climate change? ... 21
3.1. The required causal link ... 21
3.2. What can Pacific Island States claim from the Global North? ... 24
3.2.1 Cessation ... 25
3.2.2. Restitution ... 26
3.2.3. Compensation ... 27
3.2.4. Satisfaction ... 28
3.3. Multiplicity of Actors and Shared Responsibility ... 29
3.3.1. Shared Responsibility ... 30
3.3.2. The Right to Recourse ... 32
Conclusion ... 33
Chapter 1: Introduction
The effects of climate change have started to materialise, and is already causing great harm to States and the global commons. 1 Despite the continued recognition of the challenge it poses,
major gaps in both scope and compliance have left the United Nations Framework Convention on Climate Change (UNFCCC) and international frameworks inadequate in dealing with the challenges the most vulnerable States face.2 This thesis will therefore explore whether
international law can be helpful in lending itself to States disproportionately affected by climate change damage. In doing so, it will investigate whether a Pacific Island State can claim reparation against the Global North3 for the damage it has suffered as a result of climate change
on the basis of being Specially Affected State within the meaning of Article 42(b)(i) ARSIWA.4 Due to the great variety of challenges and risks this group of States face, the focus
will be the Pacific Island State of Kiribati. By relying on the customary obligation of no-harm it will be argued that all States have an obligation not to cause such harm outside of its sovereign territory, and that such obligation has been breached by the States contributing to climate change on the basis of cumulative shared responsibility.
There are, however, multiple challenges for establishing responsibility of the Global North for the damage resulting from climate change; namely establishing causation, as well as the issues of liability and attribution of breach in situations of a plurality of wrongdoing States. Shared responsibility has long been a controversial issue in international law, but it will be
1 Oppenheimer, M., et al. 2019: Sea Level Rise ad Implications for Low-Lying Islands, Coasts and Communities.
In: IPCC Special Report on the Ocean and Cryposphere in a Changing Climate (H-O, Pörtner, et al.(eds)). (in press). p.72.
2 Burkett, M. ‘Climate Reparations’ (2009) 10 Melb J Int’l L 509-542. p.516.
3 The Global North here refers to the Annex I States from the UNFCCC, including both developed States and
States currently undergoing a transition to a market economy. UNFCCC, ‘Type of Party to the Convention’, ‘Annex I’, Accessed: 25.06.20. Available at: https://unfccc.int/process/parties-non-party-stakeholders/parties-
convention-and-observer-states?field_national_communications_target_id%5B515%5D=515&field_partys_partyto_target_id%5B512%5D =512&field_partys_partyto_target_id%5B511%5D=511
4 Specially Affected States here refers to States that are particularly vulnerable to climate change, and will be
disproportionately affected by climate change. The group, consisting of Small Island Developing States in the Pacific, Africa, Asia, the Indian Ocean and the Caribbean, was recognized as a special case for both environment and development at the 1992 UN Conference on Environment and Development; Subsequently recognized in IPCC, 2014: Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and II to the Fifth
Assessment Report of the Intergovernmental Panel on Climate Change. (Core Writing Team, R. K. Pachauri and L.
A. Meyer (eds). IPCC, Geneva, Switzerland, Summary for Policymakers. Available at:
https://www.ipcc.ch/report/ar5/syr/ p.20. (IPCC: 2014), p. 1619; and International Law Commission, Draft
Articles on State Responsibility for Internationally Wrongful Acts (ARSIWA) (2001), Supplement No. 10 (A/56/10),
argued that shared responsibility can be established on the basis of Article 47; subject to the right of recourse. Moreover, it argues that it is possible to establish the two levels of causation, the general causation (covered in Section 2.1.2), the subjective causation (covered in section 3.1) by lowering the required thresholds. This will be justified on basis of the gravity of the risk Kiribati faces. Concludingly, it is argued that on a moral ground, the Global North should be held responsible for their failure to prevent the hazardous effects of climate change, particularly as it has built its wealth and welfare on the very problem that threatens the existence of Specially Affected States.
1.1.The Problem of Climate Change
It is clear that past and current greenhouse gas (GHG) emissions, mostly resulting from fossil fuel industry, is the main driver of anthropogenic environmental harm. The accumulation of GHG in the atmosphere fuelled global warming, causing climate change.5 The global mean
temperature has already increased with more than 1 degree of pre-industrial levels, and at the current rate it is likely to reach 1,5oC sometime between 2030 and 2052.6 Despite the fact that
climate change will impact all natural and human systems globally, it will disproportionately affect areas that are more exposed.7 As such, it is an inherently unjust issue.8 The harm taking
place, as well as that predicted to arise, is unprecedented both in range and scope,9 and an
increase exceeding 1,5 degrees will be the end for Pacific Island States.10 Climate change has
been described as the greatest threat to livelihoods, security and well-being of low-lying atoll nations.11 This echoes the repeated unanimous affirmation of the particular vulnerability of
5IPCC, 2018: Summary for Policymakers. In: Global Warming of 1,5oC. An IPCC Special Report on the impacts of global warming of 1,5oC above pre-industrial levels and related global greenhouse gas emission pathways, in the context of strengthening the global response to the threat of climate change, sustainable development and efforts to eradicate poverty (Masson-Delmotte, V.,et.al. (eds)). In press. (IPCC, 2018: Summary for
Policymakers), p.15.
6Ibid, p.4.
7 IPCC: 2014, ibid at 4.p.20.
8 Bodansky, D. Brunée, J. Rajamani, L., International Climate Change Law, (Oxford Scholarly Authorities on
International Law (OSAIL)), (2017).p.1.
9 Mayer, B. ‘The Relevance of the No-Harm Principle to Climate Change Law and Politics’, 19 Asia-Pacific Journal
of Environmental Law (2016) 79,p.82.
10 General Assembly Resolution 69/15, SIDS Accelerated Modalities of Actions (SAMOA) Pathway, 14 November
2014, A/RES/69/15, Para 51.
11 United Nations Press Release, Joint Statement by Leaders of Pacific Islands Forum, UN Secretary-General.
SG/2212, Press release, United Nations, 29 September 2014. Available at:
low-lying island States.12 Their pre-existing vulnerabilities, such as high vulnerability to
external economic and geo-political shocks will only be exacerbated.13 Scientists estimate that
the Global North is responsible for about 62 percent of all past and current emissions.14 Thus,
the question of who should be held responsible for these harms arise.
1.2.The Specially Affected State of Kiribati
Small island States does not have uniform climate change risk profiles, and will experience different consequences, adaptions and vulnerabilities.15 Thus, in order to give a more detailed
and specific analysis the discussion zooms in on the Pacific Island State of Kiribati. Kiribati is one of the States that is acutely vulnerable,16 and is incapable of dealing with the consequences
on its own. The atoll State is composed of 32 islands scattered across 3,6 million square kilometres of ocean, all of which are on average 2-4 metres above sea level.17 The ocean
already floods the entire land during storms, destroying the fresh water supplies, crops and property.1819 Climate change is predicted to further slow down the economic growth, erode
fragile food security, further hamper poverty reduction and create new poverty traps.20 The
construction of sea walls, reconstruction and relocation of buildings, loss of crops and land
12 General Assembly Resolution 69/15, ibid at 10, Para 51.; and General Assembly Resolution 71/225, Follow-up
to and implementation of the SIDS Accelerated Modalities of Action (SAMOA) Pathway and the Mauritius Strategy for the Further Implementation of the Programme of Action for the Sustainable Development of Small Island Developing States, 21 December 2016, A/RES/71/225. 2/6; and General Assembly Resolution 74/3, Political Declaration of the High-Level meeting to review progress made in addressing the priorities of small island developing States through the implementation of the SIDS Accelerated Modalities of Action (SAMOA) Pathway, 10 October 2019, A/RES/74/3, para.4.
13 Burkett, M. ‘A Justice Paradox: On Climate Change, Small Island Developing States, and the Quest for Effective
Legal Remedy’ (2013) 35 U Haw L Rev 633, p.640.
14 Ritchie, H., Poser, M. ‘CO
2 and Greenhouse Gas Emissions’, (2017), Published online at OurWorldInData.org.
Retrieved from: ' https://ourworldindata.org/co2-and-other-greenhouse-gas-emissions '. Accessed:07.07.20; The 62% includes historical emissions from the US, the EU-28 and Russia and Turkey.
15 Nurse, L. A. et al. ‘Small Islands’ in Climate Change 2014: Impacts, Adaption, and Vulnerability. Part B:
Regional Aspects. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Barros, V.R. et.al.(eds.)]. Cambridge University Press, pp. 1613-1654, p.1616.
16 UFCCC, ‘Climate Change: Impacts, Vulnerabilities and Adaptation in Developing Countries’ (Bonn: UNFCCC,
2007). p.34.
17World Bank Group, ‘Kiribati: Country Context’, Climate Change Knowledge Portal. Accessed:09.07.20. Available
at: https://climateknowledgeportal.worldbank.org/country/kiribati
18 TedTalk‘ My Country will be Underwater Soon – Unless we Work Together’, Anote Tong, Mission Blue II.
Published October 2015. Accessed: 15.06.2020. Available at:
https://www.ted.com/talks/anote_tong_my_country_will_be_underwater_soon_unless_we_work_together 19 Bodansky, D. et al. (2017), ibid at 8. p.5.
erosion is severely hampering the further development of Kiribati as the immediate danger and harm climate change poses to their societies requires prioritisation.21 Not only is climate change
affecting the enjoyment of fundamental rights, 22 but it poses an existential threat for Kiribati
as the land is predicted to become completely uninhabitable within the foreseeable future.23
This could lead to the State ceasing to exist in the traditional meaning of Statehood,24
effectively meaning the end of an entire people. As a Plan B the government purchased land on Vanua Levu on Fiji, and will resettle there should the situation require it. However, the purchase also sends a clear message to the international community that, regardless of their beliefs, the water will be higher than the highest point of the land sometime during this century.25 This underpins the reality of climate change for Kiribati; it is no longer some distant
abstract scenario, but a lived reality.
The absence of robust support mechanisms leaves the burden where it falls, namely on the State itself.26 Despite the substantial body of international law and instruments in response
to climate change,27 the focus has been on mitigation efforts, rather than establishing potential
litigation mechanisms.28 These disproportionate effects have been described as ‘a grand irony’
that introduces an ethical dilemma our systems of governance and law are ill-equipped to accommodate.29
21TedTalk, ibid at 18..
22 Human Rights Council Resolution 38/4; and Office of the High Commissioner for Human Rights (OHCHR),
‘Understanding Human Rights and Climate Change: Submission of the Office of the High Commissioner for Human Rights to the 21st Conference of the Parties to the United Nations Framework Convention on Climate Change’ (26 November 2015), p.2.
23 Mayer, B. (2016) ibid at 9, p.82.
24 Convention on Rights and Duties of States, adopted by the Seventh Conference of American States
(‘Montevideo Convention’) (1933). Article 1(b).
25 Robinson, M. ‘Climate Justice – A Man-Made Problem with a Feminist Solution’, (Bloomsbury Publishing),
(2018), p.86.
26 Bodansky, D. et al. (2017), ibid at 8. p.12.
27UNFCCC (1997) Kyoto Protocol to the United Nations Framework Convention on Climate Change adopted at
COP13 in Kyoto, Japan, on 11 December 1997; and United Nations Framework Convention on Climate Change (adopted 1992, entered into force 1994) 1771 UNTS 107 (UNFCCC); and Paris Agreement (Dec. 13,
2015), in UNFCCC, COP Report No. 21, Addenum, at 21, U.N. Doc. FCCC/CP/2015/10/Add, 1 (Jan. 29, 2016); and Warsaw International Mechanism on Loss and Damage, at Decision 2/CP.19, Warsaw International Mechanism for Loss and Damage Associated with Climate Change Impacts, Report of the Conference on of the Parties on its 19th Session’, held in Warsaw, 11-23 November 2013, Par 2, FCCC/CP/2013/10/Add.1.
28 Voigt, C. ‘State responsibility for Climate Change Damages’ (2008) 77 Nordic JIL 1. p.3. 29 Burkett, M. (2009), ibid at 13. p.510.
Chapter 2: Is there an international obligation, and has such an
obligation been breached?
Having briefly set out the backdrop of discussion, this chapter will now on investigate whether there is any international obligation capable of assisting Kiribati in its search for reparations. By relying on the customary obligation of States not to cause harm outside of its jurisdiction or area of control, it will be argued that the Global North has breached the no-harm obligation by failing to prevent damage of climate change to Kiribati. In order establish this violation, it must be demonstrated that the activities leading to GHG emissions within the jurisdiction or control of any of the Global North States have in fact caused, or risk causing, significant harm to the territory of Kiribati. Establishing such a breach of obligation is difficult as the standard of care is one of due diligence, meaning the interests of both parties must be a balanced. Kiribati must establish that the defendant State failed to take reasonable and appropriate regulatory and enforcement measures to limit GHG emissions from activities under its jurisdiction.30 However, despite the standard of care being highly dependent on contextual
factors, the illustration of the Global North ignoring the plausible risks of harm significantly strengthens the claim that such due diligence has been breached.31 It is therefore argued that
the economic interests of the Global North cannot outweigh the right to existence of Kiribati, and that the due diligence obligation not to cause harm has been breached.
2.1. Establishing the obligation of the no-harm rule
The customary obligation not to cause harm to other States or to the global commons was first established in the case of Trail Smelter,32 and limits the sovereign rights of States to
exploit their own natural resources.33 The no-harm rule has since become a well-established
30 Bodansky, D. et.al. (2017), ibid at 8, p.46.
31 Verheyen, R. Climate Change Damage and International Law: Prevention Duties and State Responsibility
Developments in International Law V. 54, (Netherlands: Brill, 2008). p.150.
32 Trail Smelter Arbitration (United States v Canada) (1938 and 1941) 3 at 1965; and Legality of the Threat or Use
of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, 242 (para 29); Gabcikovo-Nagymaros Project, ICJ Report 7, 1997, p.41. The two latter confirmed its customary status.
33 1928 Palmas case (Netherlands v USA), II RIAA (1949), 829, 838 ff; customary status of the rule was confirmed
in Legality of Nuclear Weapons para 29; Case concerning Pulp Mills on the River Uruguay (Argentina v
Uruguay) (Judgment) [2010] ICJ Rep 14, 55, para 101; and United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, Article 2(1).
rule of general international law,34 and was subsequently expanded to include areas beyond the
limits of national jurisdiction and control, 35 thereby amounting to an obligation to all States
and the global commons. Seeing that most of the emissions are caused by private entities such as corporations through commercial activities such as energy production, farming, transportation and forestry,36 the State has not directly caused the harm. However, the failure
of a State to ensure that activities within its jurisdiction or areas of control do not cause transboundary environmental changes therefore clearly entails the international responsibility of the State in question.37 In Corfu Channel the Court made it clear that the obligation not to
cause harm extends to not allow its territory to be used for acts ‘contrary to the rights of other States’.38 Thus, a State cannot allow its territory to be used to carry out harmful conduct, and
is responsible for its own sovereign territory and those under its control. As such, it matters not who is directly responsible for a certain harm, as the State bears indirect responsibility for all harmful conduct flowing from its jurisdiction and areas of control. Tol. Et al. argued that the failure to stop, reduce or regulate emitting activities is in itself a breach of the due diligence obligation, and is sufficient to trigger state responsibility.39
2.1.1. The Applicable Standard of Care
However, the no-harm rule is not an absolute obligation as some harm is inevitable. To determine the scope and level of care States are subject to, it is necessary to assess the applicable standard of care. The obligation is exceptionally vague, making it difficult to identify exactly what is required by States.40 Previous President of the International Court of
Justice (ICJ), Dame Rosalyn Higgins, clarified that ‘if what is required for something to fall
34 UN Conference on the Human Environment, ‘Declaration of the United Nations Conference on the Human
Environment’ (16 June 1972) UN Doc A/CONF.48/14/Rev 1, 3, reprinted in 11 ILM 1416 (1972) (Stockholm Declaration); reaffirmed in UN Conference on Environment and Development, ‘Rio Declaration on Environment and Development’ (14 June 1992) UN Doc A/CONF.151/26/Rev 1 vol I, 3, reprinted in 31 ILM 874 (1992) (Rio Declaration).
35 Ibid, Stockholm Declaration, Principle 21
36 Peel, J. ‘Unpacking the elements of a State Responsibility Claim for Transboundary Pollution’, in Jayakumar, S.,
Koh, T., Beckman, R., Duy Phan, H., (eds), Transboundary Pollution, Evolving Issues of International Law and
Policy, NUS Centre for International Law (Edward Elgar Publishing, Cheltenham, UK. Northampton, MA, USA,
2015), Ch. 3, pp.51-78.p.53.
37 Mayer, B.(2016), ibid at 9.p.82.
38 Corfu Channel (United Kingdom v. Albania), Merits, Reports 1949 I.C.J. (‘Corfu Channel’). at. p.22.
39 Tol, R.S.J. and Verheyen,R. ‘State Responsibility and Compensation for Climate Change Damages - A Legal and
Economic Assessment’ (2004) 32 Energy Policy 1109, p.1112.
within the law of State responsibility is an internationally wrongful act, then what is international wrongful is allowing… the harm to occur’.41 In the context of no-harm, the
internationally wrongful act is not the emission of GHG per se. GHG are naturally present in the atmosphere, and are not harmful or toxic on their own.42 However, when emissions
accumulate over time in the atmosphere, they fuel the global warming that leads to the unlawful conduct.43 The rule will therefore be interpreted as an obligation not to allow excessive
emission of GHG, and to prevent any foreseeable risk of damage, as well as to minimise the risk thereof.44
Moreover, as the obligation restricts the absolute sovereignty of one State and the preservation of the territorial integrity of another,45 there is a need to balance the rights and
interests of both sides.46 This balance of interests is reflected in the requirement of States to
undertake proportionate, and alternatively precautionary, measures to prevent harm or minimise the risk of on the basis of their technical and economic abilities.47 Thus, it is clear
that not all transboundary harm must be prevented. 48 The Tribunal in Trail Smelter required
damage to be ‘significant’.49 The International Law Commission (ILC) stipulated that
‘significant’ was ‘something more than detectable, but not at the level of serious or substantial’.50 On this basis, it can be argued that almost all injury that is expected to, and
already is, resulting from climate change is more than de minimis or insignificant.51
41 Higgins, R. ‘Problems and Process: International Law and How We Use It’, (Oxford Scholarly Authorities on
International Law ((OSAIL), 1995), p.165.
42Peel, J. ‘Climate Change’, in Nollkaemper, A. and Plakokefalos, I. (eds), The Practice of Shared Responsibility in
International Law, (Shared Responsibility in International Law; Vol.3), Cambridge, Cambridge University Press,
(2017) 1009.p.1031.
43 Verheyen, R. ibid at 31. p.155.
44 Scouvazzi, T. ‘State Responsibility for Environmental Harm’, 12 Yearbook of International Environmental Law
(2001) p. 49.
45 UN Charter, ibid at 33, Article 2(1).
46 Lac Lanoux (France v Spain), 4 ILR (1957), p.101, at p.140, para 23.
47 Pisillo-Mazzechi, R. ‘The Due Diligence Rule and the Nature of the International Responsibility of States’,
(1992) in Provost, R. State Responsibility in International Law (2016) Ch.3. pp.97-139. p.136.
48 Verheyen, R. ibid at 31, p.151.
49 Report of the ILC, Official Records of the General Assembly. 51st session, Supp. 10 (UN Doc. A/51/10), 259 f. 50 ILC Report 1998, Chapter 4, Commentary to Article 2, para 4.
The required standard of care in environmental obligations can be seen as one of ‘due diligence’,52 and is concerned with the obligation of conduct, rather than result.53 This is
apparent by the language used in several environmental treaties, which stipulates an obligation to ‘ensure’.54 The requirement of due diligence is for a State to ‘use all the means at its
disposal,55 which can be interpreted as an obligation to take all appropriate measures and
exercise ‘good governance’.56 The standard must therefore be assessed in light of the
circumstances of each case, the capacities and capabilities of the concerned States.57 If a State
has acted with full due diligence, the principle is not violated.58
In order to determine whether a State has breached the due diligence standard, the capabilities at the disposal of a given State are useful.59When establishing such a level, any
scientific and technological information available must be taken into consideration.60 To
establish whether due diligence has been breached, three criteria can aid in assessing the standard of care; namely (i) opportunity to act, (ii) foreseeability and (iii) taking of proportionate measures.61 The criteria will each be discussed in turn.
(i) Opportunity to act:
The universal duty not to cause harm outside one’s own jurisdiction and areas of control leaves every State to ‘make every effort’. The standard will, therefore, vary from State to State,
52 Organisation for Economic Co-Operation and Development (OECD), Environment Committee, ‘Responsibility
and Liability of States in Relation to Transfrontier Pollution’ (1984) at 4; and ILC, ‘International Liability for Injurious Consequences Arising out of Acts Not Prohibited by International Law (Prevention of Transboundary Harm from Hazardous Activities)’ in ‘Report of the International Law Commission to the General Assembly covering the Work of its fifty-third session, with commentaries, 2001’ (UN Doc A/56/10), Ch.V, in Yearbook of
the International Law Commission 2001, vol. II, Part Two (UN, 2001), Article 3, para 7.
53 Peel, J. (2015), ibid at 36, p.63.
54 Stockholm Declaration, ibid 34, Principle 21; Rio Declaration, ibid 34, Principle 2. 55 Pulp Mills, ibid at 33, para 101.
56Verheyen, R. Ibid at 31, p. 174. 57 Peel, J.(2015), Ibid at 36, P.55.
58 In the matter of the South China Sea Arbitration before an Arbitral Tribunal Constituted under Annex VII of the
United Nations Convention on the Law of the Sea (Republic of the Philippines v. People’s Republic of China), PCA
Case No. 213-19, Award (12 July 2016) (South China Sea Arbitration), paras. 941 and 977.
59 Tomuschat, C. ‘International Law: Ensuring the Survival of Mankind on the Eve of a New Century’, 281:1
Recueil de Cours (1999), p.280.
60 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area
(Advisory Opinion, 2011) ITLOS Reports 10, para 117.
dependent on the opportunity to act. 62 Almost every State has the opportunity to take measures
to prevent damage or to minimise the risk of such damage,63 but the States within the Global North States are subject to a significantly higher standard of due diligence on this basis. It is
clear from the IPCC Reports that all greenhouse gas emissions since the beginning of the industrial revolution have contributed to the global warming. 64 Thus, every tonne of GHG not
emitted into the atmosphere accounts to an appropriate effort to reduce the risk of damage.65
However, the accumulative nature of the harm also means that it is unlikely that any one single State’s reduction efforts would be effective in themselves to reduce the risk of harm.66 This is,
nevertheless, not the standard due diligence imposes on States; it merely requires States to make every effort to minimise the risk of such harm. States are simply required to do their best to reduce the risks resulting from climate change.67 Any one of the Global North States would
be able to substantially reduce the risk of damage as they are all highly emitting industrialised States.
The fact that emissions from all States contribute to the increased concentrations of GHG in the atmosphere, and that one State might not be able to effectively reduce all of these emissions or actually prevent all damage cannot lead to a finding that the no-harm rule is inapplicable per se. There is a difference between asking a State to do its best to effectively prevent any climate change related damage, and asking a State to do its best to reduce or minimise the risks that result from climate change. Voigt argued that acting in due diligence in terms of preventing climate change damages would at least require climate policies and regulations aimed at reversing the ever increasing greenhouse gas emissions.68 Any of the
bigger industrialised nations would be able to substantially reduce this risk by reducing the amount of GHG emitted in the atmosphere lowering the risk of dangerous changes in the Earth’s climate.69 Moreover, the Stern Review argued that by ignoring climate change would
create such major disruption to the economic and social activity that earlier mitigation efforts
62Verheyen, R, Ibid at 31, p.177. 63 Tol et al. Ibid. At 39.p.1117. 64 IPCC 2018: ibid at 5, p.5. 65 Voigt, C. ibid at 28, P.10. 66 Ibid, P.11. 67 Ibid. 68 Ibid p. 10. 69 Verheyen, R. Ibid at 31, p.177.
would have been less costly.70 Early action would therefore have reduced the risk of harm
significantly.
According to the precautionary principle, States have a duty to take all necessary measures available in order to prevent significant harm. This also includes appropriate preventive measures; even where there is scientific uncertainty as to the extent and gravity of the potential damages.71 On this basis, due diligence is not a static standard, but changes with time. As such,
the standard is significantly higher at present, than in the 1990s when the first assessment report was published. As such, the failure of States to take appropriate measures becomes increasingly wrongful as science establishes an increasingly darker image of the consequences of excessive emissions.72 States must therefore keep up with scientific developments and technological
changes relating to climate change, and the mitigation measures must be based on the best available technologies (BAT) in the particular field.73 In order to limit the risk of climate
change damage, all States must reduce their GHG emissions. Consequently, it can be said that every State has an opportunity to act.74
(ii) Foreseeability:
Foreseeability is an essential element in regards to the prevention duties attached to the no-harm rule, but also when damage actually materialises.75 Although a certain behaviour might
make a risk foreseeable, specific damages might not be as clearly envisaged. Scientific estimates can to an increasing degree predict the specific impact a certain conduct will have on the territory of other States. A link between the omitted activity, namely the regulation of GHG reductions, and the injurious consequences can be established if the State ‘actually knew or foresaw or ought to have known or foreseen that its individual conduct was or would be part of a composite cause bringing about inadmissible harm’.76 The test excludes losses
‘unconnected with the initial act… which could only have occurred with the help of causes that
70 Stern, N. The Economics of Climate Change: The Stern Review (Cambridge University Press 2007), p.ii. 71 Responsibilities in the Area, ibid at 60, para.131.
72 Mayer p. (2016), ibid, 9 p.94. 73 Voigt, C. ibid at 28 p.11. 74 Ibid p.11.
75 Verheyen, R. ibid at 31. p.179.
76 ‘International Committee on Legal Aspects of Long-Distance Air Pollution’, International Law Association
are independent of the author of the act’.77 The wrongdoing State must not have foreseen the
exact magnitude or location of the injury, and need not have positive knowledge of foreseeability of a certain situation. ‘Ought to have known’ suffices to establish that a State should have foreseen the consequences.78 By way of example, in Corfu Channel the ICJ did
not require that Albania knew precisely which ships might be damaged by the mines. It was sufficiently foreseeable that damage would be caused to ships when passing through the Channel.79 A State cannot, therefore, argue that it was unaware of the facts if it could have, or
should have, been aware. It is sufficient that the State was able to envision the general consequences of an act or omission.80 Keeping this in mind, it is objectively known that an
increase in greenhouse gas emissions will result in an increase in the global mean temperatures. This will further result in climate change damages.81 On this well-established scientific basis,82
there is little scope for States to argue that such impacts were not foreseeable. Moreover, the continued climate change mitigation efforts since the 1970s onwards stand as proof that this knowledge of the, at least potential, risk was well-known.83
The prevention duties under the no-harm rule, namely to request States to reduce their emissions, is regulated by the best scientific knowledge available at any current point. In its
Advisory Opinion on Seabed Activities, the Seabed Chamber drew a strong link between the
due diligence obligation and precaution, stipulating that even where scientific uncertainty exists regarding the possible extent of transboundary damage, ignoring the ‘plausible indications of potential risks’ would amount to a failure of due diligence. 84 There has been an
increasing amount of data from the 1960s onwards, 85 and States have recognised the problem
of global warming and climate change since 1972 Stockholm Declaration, and more specifically in 1992 Rio. Moreover, the first Assessment Report by the IPCC made the risks
77 Portuguese Colonies case (Portugal v. Germany) Award of 1928, II RIAA (1949), para.1031. 78 Voigt, C. ibid at 28, p.12.
79 Corfu Channel, ibid at 38, p.18. 80 Voigt, C. ibid at 28, p.12. 81 IPCC: 2018, ibid at 5, p.4.
82 Generally provided by the IPCC Reports from 1990, 1995, 2007 and 2013. 83 1972 Stockholm; 1992 UNFCCC; 1992 Rio; ibid at 34.
84Responsibilities in the Area, ibid at 60,para 131.
85Keeling, C. ‘The Concentration and Isotopic Abundances of Carbon Dioxide in the Atmosphere’, Tellus 12, no.2
(1960): 200-203; the 1972 Stockholm Declaration, the 1987 Brundtland Report, the First Assessment Report of the IPCC in 1990; the 1992 Rio Declaration and the 1992 UNFCCC.
flowing from human interference known by presenting the potential impacts of climate change.86 That Report also projected that by 2050 some island States would be uninhabitable
as a result of sea-level rise.87 The Second Assessment Report specifically warned about the
dangers of a 2 degree increase. 88 Moreover, a near universal group of States acknowledged
that climate change was a real threat and a ‘common concern to humankind’ that had to be counteracted upon ratification of the UNFCCC in 1992.89 However, States can only be held
liable for the excessive emissions they have emitted after the potential risks of the emissions were known.90
This, however, begs the question of how much certainty there should be before States must take action? Is knowledge, rather than damage, the reference point? Since the First Assessment Report in 1990 there has been close to uniform scientific consensus that human activities interfered with the climate system, and that changes would occur. The scope for States to argue they did not know about the likely effects of anthropogenic climate change is, today, extremely limited.91 On this basis, climate change damages as a result of anthropogenic
emissions have been sufficiently foreseeable to all States since 1990, and States cannot dispute possessing such knowledge after 1990.92 Moreover, the general duty to undertake
Environmental Impact Assessment (EIA) requires States to assess the impact all activities have on the environmental before given clearing.93 This obligation therefore ensures that States must
be aware of the environmental risks involved.94
(iii) Proportionate Measures:
86 IPCC First Assessment Report p.4.
87 Tegart, W.J.M., G.W. Sheldon, and D.C. Griffiths, 1990: Policymakers’ summary. In: Climate Change: The IPCC
Impacts Assessment. Contribution ofWorking Group II to the First Assessment Report of the Intergovernmental Panel on Climate Change [Tegart, W.J.M., G.W. Sheldon, and D.C. Griffiths (eds.)]. Australian Government Publishing Service, Canberra, ACT, Australia, pp. 1-5, p.4.
88 IPCC Assessment Reports 1990 and 2001. 89 UNFCCC, ibid 27, preamble.
90 Mayer, (2016) ibid at 9 p.93. 91 Verheyen, R. Ibid at 31 p. 181. 92 IPPC: Report.
93 Principle 17 Rio Declaration ibid at 34; Voigt,C, ibid 28 p.14. 94 Pulp Mills, ibid, para 204; and Voigt, ibid at 28 p.14.
The legitimate interests of both the defendant State’s territorial sovereignty and Kiribati’s territorial integrity must be balanced against each other. 95 What constitutes a proportionate
measure depends on the capabilities of a given State, as well as the circumstances. Given the gravity of the risks involved for Kiribati, namely extinction, the defendant State(s) will have a great burden. The human activity, namely the GHG emissions, created the risk. Thus, the failure of taking preventive measures in order to lower the risk can be said to breach the preventive obligation not to cause harm.
The balancing of interests is particularly complicated in the case of climate change, as one State cannot guarantee the prevention of injury. The ability and capabilities to reduce GHG emissions vary from State to State. As such, the individual circumstances of a State will determine whether that State took proportionate measures to act with due diligence of not.96
Additionally, because the cumulation of GHG in the atmosphere has reached a critical level where the capacity of the terrestrial biospheres to absorb and store the carbon is full, the global warming is accelerating faster than before. In other words, the emissions cause an increasingly greater harm.97 Moreover, Shue argued that if separated into ‘luxury’ and ‘necessary’
emissions, it is clear that the Global North’s per capita emissions are significantly greater than developing States, and should carry a greater burden as a result of their contribution to the damage. 98A proportionate measure would require the Global North to reduce their emissions
at a far faster rate than developing States in order to act proportionately. 99
The principle of Common but Differentiated Responsibilities and Respective Capabilities (CBDRRC), which stipulates that States shall protect and restore the environment, and that the different contributions to the global environmental degradation have left States with a ‘common but differentiated responsibility’,100 holds developed States to a higher
standard.101 Despite being confirmed in several international climate instruments,102 it is still
95 Lefeber, R. Transboundary Environmental Interference and the Origin of State Liability, Kluwer Law
International, (1996). p. 66
96 Voigt, C. ibid at 31, p.13. 97 Verheyen ibid at 28 p.184. 98 Peel (2017) ibid at p.1035.
99 Shue, H. 'Subsistence Emissions and Luxury Emissions' (1993) 15 Law & Policy 39. 42. 100 Rio Declaration, ibid at 34, Principle 7 and UNFCCC, ibid at 27, Article 3.1.
101 Peel, J. (2015) P.64.
102 Principle 7 1992 Rio Declaration, UNCCCC, Article 3(1) (herein after FCCC); Kyoto Protocol;Paris Agreement
an ambiguous principle that is largely empty when establishing the moral or causal responsibility of those responsible for an act, or those capable of helping those in need.103
Despite the acceptance of a greater moral responsibility, no specific responsibility has been placed on the industrial states.104 However, the Chamber in the Advisory Opinion on Seabed Activities referred to the approach being applied by States ‘according to their capabilities’, and
that developed States could be held to a stricter level of obligation.105 It also made clear that
what counts in a specific situation is the level of the technical capacity and scientific knowledge of a given State.106
As a result of this disagreement of what the principle actually entails and how it should be interpreted in order to achieve a somewhat just outcome,107 the costs of climate change today
largely lie where they fall.108 Paradoxically, the living standards of the Global North rests on
the ecological harm poorer States bear. This indirect effect of globalisation and economic development further exacerbates the uneven distribution of wealth.109 On this basis, the
interests of specially affected States should be given priority.110
Moreover, it can be argued that the risk climate change poses to Pacific Island States is so severe that States can be required to reduce their emissions more quickly than what they committed to politically. Thus,only significant reductions in greenhouse gas emissions should be considered as proportionate. 111Moreover, by failing to take preventive action through for
example mitigation obligations, States have continued to feed the problem by increasing emissions at an even greater rate after becoming aware of the risk of damage. of climate change.112 It is therefore clear that the measures taken by the Global North does not fulfil the
103 Mayer, B. (2016) ibid at.9, p.80. 104 Rio Declaration, ibid at 34, Principle 7. 105 Responsibilities in the Area, Para 161. 106ibid, para 162; Peel, J. (2015) p.65.
107 Weijers, D. Eng, D. and Das, R. ‘Sharing the Responsibility of dealing with climate change: Interpreting the
principle of common but differentiated responsibilities’, in Boston, J. Bradstock, A. and Eng, D. (eds), Public
Policy: Why Ethics Matters (Canberra: ANU E-Press, 2008), Ch.8. p.141.
108 Kutz, C.L. ‘Shared Responsibility for Climate Change: From Guilt to Taxes’, in André Nollkaemper and Dov
Jacobs (eds), Distribution of Responsibilities in International Law (Cambridge University Press 2015) Ch. 12, pp. 341-365. p.344.
109 Srinivasan, U. T. et al, ‘The Debt of Nations and the Distribution of Ecological Impacts from Human Activities’
(2008) 105 Proceedings of the National Academy of Sciences 1768, at 1771.
110 Tol et al. Ibid at P.1112. 111 IPCC, ibid at 5 2018. P.9. 112 Burkett (2009) ibid, p. 530.
proportionate measure required by the due diligence obligation. The three criteria of the (i) opportunity to act, (ii) foreseeability and (iii) proportionate measures are not fulfilled, giving rise to the breach of the due diligence standard of care of the no-harm rule.
2.1.3. The causal link
Having established that the Global North does have a due diligence obligation not to cause transboundary harm to areas beyond their jurisdiction and control, and that such an obligation has been breached, the causal link between the two must be established. Although the Tribunal in Trail Smelter required a direct link between the emissions and the damage done to the neighbouring territory, this duty has later been extended to include all activities that could potentially harm shared resources; including areas outside territorial jurisdiction.113
Although it is generally considered that the injury must be the proximate and foreseeable consequence of the wrongful act, it does not have to be a direct consequence of the wrongful act.114 A causal link can be established where there is a ‘sufficiently direct causal relationship’
and foreseeability. Thus, it would be sufficient to prove that in the ordinary cause of events, the excessive emission of greenhouse gasses would cause significant transboundary harm. There is overwhelming scientific evidence that the slow incurring harms experienced today such as sea-level rise, ocean acidification, land degradation, desertification and increase in the global mean temperature is the result of human-induced contributions to the accumulation of GHG in the atmosphere.115 Scientifically, this link is established beyond any reasonable doubt.
Due to the cumulative nature of GHG emissions, every tonne emitted further accumulates in the atmosphere. This accumulation leads to further global warming, and any damage flowing from this can therefore be regarded as a normal consequence of the act, and is capable of being attributable to the State as a proximate cause. 116At an abstract level then, the
consequences of GHG emissions are relatively proximate and foreseeable. 117 However, it
remains impossible to directly link emissions caused by the States belonging to the Global
113 Verheyen, R. ibid at 28, P.167; This view was also accepted by States when incorporating the no-harm rule in
the UNFCCC preamble.
114 Mayer, B. ibid 9, p.91. 115 IPCC, 2014 ibid, at, p.5.
116 Graefrath, B. ‘Responsibility and Damages Caused: Relationship Between Responsibility and Damages’ (1985)
184 Rec des cours 9, p.95.
117 IPCC, Climate Change 2001: The Scientific Basis 61; Sands, P. ‘Climate Change and the Rule of Law:
North, despite its significant contribution, to the specific impacts of climate change.118 Thus,
although the damages are predictable in science, this does not always equate the required predictability in law.
Moreover, to make up for the information gaps, methodology deficiencies and other uncertainty in scientific evidence that transfers badly into legal terms,119 principles such as the
precautionary and inter-generational equity principles can be used to fill such gaps. According to the precautionary principle, uncertainty ‘should not be used as a reason for postponing measures to prevent environmental degradation’ where the potential risk is one of ‘serious irreversible damage’.120 Additionally, the inter-generational equity principle requires due
weight to be given to the interest of future generations.121 Taken together with the scientific
estimates, the principles requires the interests of future generations, as well as precaution when there is doubt regarding the actual extent of the damage, it should be adequate to establish an adequate indirect causal link. 122 However, other factors such as natural variations in climate
complicates the chain of causation. Allen argued that rather than looking at the actual event, the causal link can be established by the substantially increased probability of occurrence of the event in question.123 Thus, looking at the probability of an event occurring, the causal link
can be established by finding a link between the emissions and the harm.124 Such a link has
been recognized by States, both as a common concern of humankind,125 and their agreed goal
of avoiding ‘dangerous anthropogenic interference with the climate system’.126
On this basis, it is unlikely that any adjudicator would require a claimant to demonstrate a direct link between a specific emission and a specific impact.127 A relaxation of the required
causal link would therefore probably be appropriate in climate change litigation.
118 Mayer, B. (2016), ibid.9, p.92. 119 Peel, J. (2015), ibid. P.70.
120 Ibid; and Rio Declaration, ibid 34, principle 15 121 Rio Declaration, ibid 34,. Principle 3
122 Peel, J.(2015), ibid. p. 72.
123 Allen, M. ‘The Scientific Basis for Climate Change Liability’, in Richard Lord et al. (eds), Climate Change
Liability: Transnational Law and Practice (Cambridge University Press,2012). P.12.
124 ibid p.13.
125 UNFCCC, ibid 27, preamble. 126Ibid Article 2.
127 Werksman, J.D. ‘Could a Small Island Successfully Sue a Big Emitter?’, in M.B. Gerrard and G.E. Wannier (eds),
Threatened Island Nations: Legal Implications of Rising Seas and a Changing Climate (New York: Cambridge University Press, 2013), 409.p.412.
To conclude the discussion, it is clear that there is a customary obligation not to cause harm. The standard of care is one of due diligence, and has therefore been analysed through the three criteria of (i) opportunity to act, (ii) foreseeability and (iii) proportionate measures. Having established that there has been cross-boundary environmental damage caused by the excessive GHG emissions from the Global North, and that it breached its due diligence obligation to take reasonable measures to prevent the harm, it is clear that the no-harm rule has been breached. Moreover, the causal link between the GHG emissions and the harm has been established by relying on the scientific evidence available. Thus, a State continuing to undertake activities causing excessive GHG emissions after the possible harm was scientifically proven in the early 1990s, has knowingly violated the no-harm obligation.128
Chapter 3: Can Kiribati claim reparations from the Global North for the
damages it suffers as a result of climate change?
The thesis now moves on to discuss what reparations Kiribati can claim for the breach of the no-harm obligation. However, in order to seek reparations, it must first be established that the breach of the no-harm obligation caused the damage Kiribati suffers as a result of climate change. Given the multiple actors contributing to the harm, the cumulative nature of breaches, and the substantial time-lag between the emissions and the materialisation of harm, this level of causation is particularly difficult to establish.129 It will nevertheless be argued that a causal
link can be established by applying the test of ‘material contribution to risk’ the conduct is attributable to the Global North as a collective, and Kiribati has the right to claim reparations. On the basis of Article 47 it will be argued that any one of the Global North States to be sued individually. That State is then obliged to provide full reparations to Kiribati; subject to the right to recourse.
3.1. The required causal link
According to Article 31(1) ARSIWA ‘the responsible State is under an obligation to make reparation for the injury that caused the internationally wrongful act.130A defendant State
128 Verheyen, ibid. at 28, p.181.
129Nollkaemper, P.A., Faure, M. ‘International Liability as an Instrument to Prevent and Compensate for Climate
Change’, Stanford Journal of International Law, (2007), 123-179, p.171-2.
is only responsible for the injury flowing from the wrongful act in question. However, it is often difficult to establish that the particular actions of any State constituted the ‘proximate’ cause of the harm.131 Although there is no general test for establishing the causal link, 132
domestic and International Courts have applied the ‘but for’ test to establish causation, requiring claimants to demonstrate that the injury would not have occurred ‘but for’ the defendant’s wrongful conduct.133 However, this test is particularly unsuitable in climate change
litigation due to the multiplicity of causes and indirect nature of the harm as it is impossible to say that ‘but for the emissions of State X Kiribati would not suffer from climate change damages’.134 This is further complicated by the time-lag between the point of emissions, the
time that the damage materialised in Kiribati, as well as alternative contributing causes such as natural emissions.135 The combined failure of many States to reduce emissions in line with
internationally agreed targets has led to an indivisible injury, making it exceptionally difficult to establish a satisfactory causal link.136
Commentators have suggested different tests originating from domestic systems, such as the ‘foreseeability’ test, the ‘jointly sufficient contribution to risk’ and the ‘material contribution to risk’ tests to establish a ‘proximate’ cause for the harm.137 In Clements v Clements the Canadian Supreme Court applied the ‘material contribution to risk’ test, which
only requires proof that the defendant materially contributed to the risk of injury significantly lowered the causational threshold.138 The Court justified the move away from a test of factual
causation on the basis of fairness and justice.139 This test was also applied by Courts in the
United Kingdom and in the Dutch case of Urgenda.140
131 ARSIWA Commentaries Article 31, para 9 and 10. 132 ARSIWA Commentary Article 31 para 10.
133 Okowa, P. N., State Responsibility for Transboundary Air Pollution in International Law, (Oxford: Oxford
University Press, 2000), p.185.
134 Mayer, B. (2016), ibid. at 9, p.85. 135 Nollkaemper & Faure, ibid 129, p.171-2.
136 Nollkaemper, A. et al, ‘Guiding Principles on Shared Responsibility in International Law, with
commentaries’, European Journal of International Law (forthcoming 2020),p.13, para 8.
137 Plakokefalos, I. ‘Causation in the Law of State Responsibility and the Problem of Overdetermination: In
Search of Clarity’, 26 EJIL (2015) 471, at 477.; Peel p.1043.
138 Clements v Clements 2012, SCC 32, (2012) 2 SCR at 181. 139 Ibid, para 43.
140 Fairchild v Glenhaven Funeral Services Ltd (2002) UKHL 22, (2002) 3 All ER at 305; and Baker v Corus UK Ltd
However, exactly what constitutes a meaningful or material contribution to the risk remains a question. The ILC merely stipulated that injury only excludes consequences too ‘remote’ or ‘uncertain’ or ‘indirect’ to be the subject of reparation’.141 Responsibility could
then be invoked if the conduct played ‘a major, not marginal, role in a mechanism that was causally sufficient for the claimant’s damage’.142 Moreover, in Urgenda the Court rejected the
Netherlands’ argument that because the emissions were so small compared to other emitters, it could not be held liable for failing to take adequate prevention measures. Finding that any emission, no matter how small, contributed to climate change, the Court held the Netherlands as having materially contribute to the risk of climate change damage.143
Additionally, the Claims commission in the Ethiopia-Eritrea arbitration found that so long a harmful act was foreseeable in the chain of causation, that could be sufficiently close to establish the causal link, and would not require the particular damage in itself to be foreseeable.144 Applying this analogy to climate change, the specific damage in Kiribati need
not be foreseen in order to establish a causal link, as long as some damage is foreseeable. Besides, international jurisprudence has accepted that so long there is no breach in the chain of causation, it does not matter how many links it contains.145
However, these tests all produce a result that comes close to strict liability, which is not reconcilable with the due diligence standard. Peel argued that a better option for establishing causation in climate change cases would be to address a group of States a collective entity.146
Following this approach, the Global North as a collective could be said to be responsible for a significant portion of the GHG emissions historically, which is estimated to be 62 percent of all total emissions.147 This will arguably be a sufficiently ‘material contribution to the risk’ of
and the Environment), ECLI:NL:RBDHA:2015:7196 (24 June 2015), Case No.C/09/456689/HA/ZA/13-1396 (English Translation) (‘Urgenda’),
141 ARSIWA, Commentary Article 31, para 10., p.92.
142 Nollkaemper et al. (2020) ibid at p.13, citing Pustai, D., ‘Causation in the Law of State Responsibility (2017),
Doctoral dissertation, University of Cambridge, at 235-254.
143 Stichting Urgenda v Government of the Netherlands (Ministry of Infrastructure and the Environment),
ECLI:NL:RBDHA:2015:7196 (24 June 2015), Case No.C/09/456689/HA/ZA/13-1396 (English Translation) (‘Urgenda’).para 4.78-4.79.
144 Final Award – Ethiopia’s Damages Claim between the Federal Democratic Republic of Ethiopia and the State
of Eritrea, Eritrea-Ethiopia Claims Commission, 17 August, (2009) 26 RIAA 631, 733.
145 Mixed Claims Commission, War Insurance Premium Claim, Administrative Decisions, No. II, VII RIAA (1956)
p.29.
146 Peel, J. (2017), p.1044. 147 Ritchie, ibid at.14.
climate change damages. This material contribution can then be assumed to qualify as a proximate cause in giving rise to the harms Kiribati is suffering as a result of climate change damage.148 The test is arguably the best in establishing that the acts or omissions of a certain
State was the ‘proximate’ cause of the harm Kiribati experiences.149 How such responsibility
is to be shared will be further discussed in section 3.3.
3.2. What can Pacific Island States claim from the Global North?
The Global North is under an obligation to make ‘full reparation’ for the injury caused by the internationally wrongful act.150 In Chorzow Factory the PCIJ stipulated that remedies
should, ‘as far as possible, wipe out all harm caused, and restore the situation that would most likely have been had the damage not been committed’.151 Moreover, the Court stipulated that
it is ‘a principle of international law that any breach of an engagement involves an obligation to make reparation’. 152
The obligation to make reparations is set out in Article 34, which makes clear that full reparation for the injury caused by the internationally wrongful act shall take form of restitution, compensation and satisfaction. This can be achieved either singly or in combination, so long it fully makes good the damage caused.153 The injured State has the right
of choice of remedies, and can be strategic when choosing what reparations it requests.154
The ILC commentary to Article 31 makes clear that although there are cases where the injury in question was caused by a combination of factors, and only one out of several acts is to be ascribed to the responsible State, international practice and case law does not supports the reduction or of reparation for concurrent causes.155 This is seen for example in Corfu Channel where the United Kingdom recovered the full amount of its claim from Albania,
despite another third party also having committed a wrongful act.156
There is of course a possibility that a defendant State will have to repair more than it believed to have caused. However, Article 39 secures that reparations are adjusted if the
148 Nollkeamper & Faure, ibid at. 128 p.174. 149 Peel (2017), ibid at p.1042.
150 Article 31 ARSIWA., codifying Chorzów Factory, Permanent Court of International Law (PCIL) Reports Ser. A
Nr.7 (1927), p.30.
151 Chorzów Factory (Germany v Poland) (Merits) PCIJ, Ser. A No 17, 47 (Judgement of 13 September 1928). 152 Confirmed in Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), ICJ Rep. 2007 p.43, 232; and Ahmadou Sabido Diallo (Guinea v. DRC), ICJ, 30 November 2010.
153 ARSIWA, Article 34 154 ARSIWA, Article 43(2)(b). 155 ARSIWA Article 31 para 12. 156 Corfu Channel, ibid p.4, 23.
claimants that have contributed to the injury.157 For the purposes of this discussion, it is highly
unlikely that any adjustments to the amount recoverable will be made as all Small Island States are responsible for less than 1 percent of all emissions historically – combined.158 Despite its
continuous calls for action, and the knowledge of what a 1,5 degree increase would mean for these States, the majority was incapable of committing to anything beyond a 2 degree increase. As such, this can be seen as a ‘tolerable’ worsening of the global climate, and anything exceeding it as intolerable. 159 It can, therefore, be argued that the International community
knowingly let the specially affected States down by failing to adequately limit the risk of harm. They therefore not only have a legal responsibility, but a moral one too. Full reparations are therefore necessary.
3.2.1 Cessation
Article 30(a) ARSIWA establishes an obligation of cessation of the wrongful act or omission in question if is continuing.160 The obligation has been confirmed by the ICJ in case
law,161 and is arguably a cornerstone of international law that requires States to respect their international obligations.162 Theoretically, the duty is straight forward, and would merely
require States to fulfil the due diligence obligation of preventing the excessive greenhouse gas emissions contributing to climate change.163 However, modern societies are largely built upon
the very industries emitting most of the greenhouse gasses, 164 and cessation would therefore,
arguably, require a enormous adjustment that cannot be done overnight.165
157 ARSIWA, Article 39.
158 Office of the High Representative for the Least Developed Countries, Landlocked Developing Countries and
Small Island Developing States (UN-OHRLL), ‘Small Island Developing States in Numbers’, Climate Change edition (2015), p.6.
159Shue, H and Schechinger, JNM, “Transboundary Damage in Climate Change Criteria for Allocating
Responsibility” in André Nollkaemper and Dov Jacobs (eds), Distribution of Responsibilities in International Law (Cambridge University Press 2015). P.325.
160 Article 30(a) in line with Article 2.
161 Jurisdictional Immunities of the State (Germany v Italy; Greece Intervening), ICJ, 3 February 2012, para.137;
and Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Rep. 2004 p.136, p.197. (‘The Wall’)
162 Corten, O. ‘The Obligation of Cessation’, in Crawford, J., Pellet, A. and Olleson, S. (eds), The Law of
International Responsibility, (Oxford University Press) 545, p.546.
163 Mayer, B. (2016) ibid. at 9, p.95. 164 Ibid.
Moreover, due to the cumulative nature of the greenhouse gasses in the atmosphere, climate change damages would continue to harm the environment for decades to come, even if all emissions ceased today.166 Any reasonable foreseeable change in GHG emissions will take
some decades to have any actual effect on the climate.167Although the obligation of cessation
is an absolute obligation in the law of State Responsibility and ARSIWA does not allow for any flexibility,168 it has previously been applied in a more flexible manner in Trail Smelter,
where the interests of the parties were balanced, and the Tribunal found cessation not to be in the interest of either of the parties.169 Instead, Canada was required to introduce control
measures to prevent future damage, as well as to pay compensation for the damages. 170
Regardless, in this case the power-balance is radically different, with Kiribati being the ultimate loser. As such, there is little speaking for such a flexible approach to be adopted.
Although the GHG emissions are stored in the atmosphere for decades to come,171
cessation could still limit future harm from escalating further than what is already the case.172
However, despite States having committed to mitigation measures under the UNFCCC regime, these measures fall short of the action required to save Kiribati and the other States disproportionately affected by a 1,5 degree increase.173 As such, although unrealistic, an
obligation of cessation might be exactly what is needed in order to limit the hazardous harm.
3.2.2. Restitution
Restitution is the starting point to wipe out the consequences of the wrongful act by attempting to re-establish the situation that would have existed had the act not been committed.174 The provision is, however, subject to the exceptions of if restitution is (a) it is
not materially possible, or (b) it would be disproportionate to the benefit deriving from restitution instead of compensation.175 Where property is permanently lost or destroyed, it is
likely sufficient to hold restitution to be ‘materially impossible.176 However, it should be noted
166 Solomon, S. et al., ‘Irreversible Climate Change due to Carbon Dioxide Emissions’, Proceedings of the National
Academy of Sciences of the United States of America, 106(6) (2009), 1704-1709, p.1704.
167Allen, M. ibid. At. p.9.
168 Verheyen, R. ibid at 28, p.243. 169 Trail Smelter, p. 1939.
170 Trail Smelter at 1974-8, 1980-1. 171Allen, M. ibid, p.8.
172 Crawford, (2013), ibid, p.465. 173 Climate Action Tracker, ibid??? 174 Crawford, (2013), ibid. p.509. 175 ARSIWA, Article 35.
