State responsibility for climate change
related damage
Elizabeth Neeltje ‘t Gilde 10679766
Master International and European Law Track Public International Law
University of Amsterdam
Thesis supervisor: dhr. mr. dr. R.J.M. Lefeber 28 July 2016
Abstract
The current international legal climate regime and rules of customary international law have not yet resulted in sufficient mitigation of global warming to prevent dangerous climate change. This paper seeks to answer the question to what extent it is possible to invoke state responsibility for climate change related damages by using the law of state responsibility. To do this, it first identifies climate change as both an issue of individual state responsibility as well as cumulative shared responsibility. Secondly, it assesses the conditions for establishing state responsibility under the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) by the International Law Commission (ILC), being attribution of conduct to the state and the breach of an international obligation. A due diligence obligation of states with regard to emissions and various legal obligations of states originating from the UNFCCC and customary international law are identified. States have individual legal obligations to lower emissions in a progressive manner and to report on how they design and implement policies to achieve this. Additionally, states have the collective obligation to limit global warming to 2°C. Finally the paper looks into the consequences and invocation of state responsibility for climate change related damages. A state breaching one of its climate change obligations, irrespective of the type of obligation breached, must cease this conduct. However, the paper concludes that the requirement of a specific causal link between certain wrongful conduct and the occurrence of a particular damage might pose an insurmountable hurdle to award reparation for climate change related damages based on individual state responsibility. Cumulative shared state responsibility, on the other hand, overcomes this problem and allows for reparation for climate change related damages to be awarded. The various mechanisms for the allocation of costs amongst the wrongdoing states for reparation based on cumulative shared responsibility are discussed. By strongly favouring the injured state, the equivalent cause theory potentially offers a mechanism to allocate the costs of reparation by shifting the problem of establishing causality from the injured to the wrongdoing states. This theory remains silent, however, on the apportionment of costs in the right to recourse phase and it is considered that proportionate apportionment could provide a solution is this regard.
Table of contents
Introduction 5
Part 1: Climate change as an issue of individual state responsibility and cumulative
shared responsibility 8
1.1 The law of state responsibility and climate change related damage 8 1.2 Individual and cumulative shared responsibility for climate change 10
1.3 Conclusion 11
Part 2: State responsibility for climate change related damage 12
2.1 General causation 12
2.2 Attribution of conduct 13
2.2.1 Attribution to the state 13
2.2.2 Due diligence obligation 14
2.2.3 Attribution of conduct with regard to individual and cumulative
shared state responsibility 15
2.3 Primary rules: state obligations in the field of climate law 15 2.3.1 Individual obligations of states: UNFCCC 16
2.3.1.1 Kyoto Protocol 17
2.3.1.2 Paris Agreement 18
2.3.2 Individual obligations of states: customary international law 19 2.3.3 Collective obligations of states: UNFCCC 21 2.3.4 Collective obligations of states outside the UNFCCC 21
2.4 Conclusion 22
Part 3: Consequences and implementation of state responsibility for climate change
related damages 24
3.1 Existence of an injury 25
3.2 Right to invoke responsibility 26
3.2.1 Contributory Negligence 27
3.3 Causality 28
3.3.1 Condition sine qua non test 28
3.3.2 Causa proxima test; foreseeability and historical responsibility 28 3.3.3 Causality and multiple responsible states 30
3.3.4 Conclusion 31
3.4.1 Adequate cause theory 33
3.4.2 Equivalent cause theory 33
3.4.3 Proportionate apportionment 34
3.5 Role of politics 35
Conclusion 36
List of Abbreviations 38
Introduction
Climate change is a form of damage to the environment caused in a ‘progressive and cumulative manner by the action of a plurality of states, the effects of which are felt by many or even all states’.1
197 states have agreed in the United Nations Framework Convention on Climate Change2 (UNFCCC) to reduce emissions aiming at the ‘stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system’.3 However, the progress made in climate change mitigation has to date only been modest. The adoption of the UNFCCC, its subsequent agreements and the existing principles of customary international law have not yet resulted in a worldwide reduction of greenhouse gas (GHG) emissions that is sufficient to prevent dangerous anthropogenic interference with the climate system. Recent research by the Intergovernmental Panel on Climate Change (IPCC) has suggested that the continuation of current growth of emissions will result in a global temperature increase of 4°C at the end of this century.4 It warned that it is highly likely that states will encounter injury as a consequence of human-caused climate change in the near future, by stating that:
“Climate-change related risks from extreme events, such as heat waves, extreme precipitation and coastal flooding, are already moderate (high confidence) and high with 1°C additional warming (medium confidence) (…). Risks are unevenly distributed and are generally greater for disadvantaged people and communities in countries at all levels of development. (…) Based on projected decreases in regional crop yields and water availability, risks of unevenly distributed impacts are high for additional warming above 2°C (medium confidence)”.5
States play a central role in the prevention of dangerous climate change. Anthropogenic interference with the climate system originates from within the jurisdiction of states, and from both a political and legal perspective this enables and obliges states to regulate emissions
1
PM Dupuy JE Vinuales International Environmental Law (Cambridge University Press 2015) p 258
2
UN Framework Convention on Climate Change (adopted 9 May 1992) UNTS, vol. 1771, p. 107 (hereinafter: UNFCCC)
3 UNFCCC art 2 4
PBL Netherlands Environmental Assessment Agency ‘A lower limit for future climate emissions’
<http://www.pbl.nl/en/news/newsitems/2016/a-lower-limit-for-future-climate-emissions> (24 Februrary 2016)
5
IPCC ‘Summary for policymakers’ in: Climate Change 2014: Impacts, Adaptation, and Vulnerability (Cambridge University Press, 2014) p 12
originating from their territory. States have however not yet taken sufficient action to mitigate dangerous climate change.
The international climate change regime does not entail its own secondary rules in the form of lex specialis covering situations of non-compliance with international climate obligations of states.67 However, the establishment of the ‘Warsaw International Mechanism for Loss and Damage8 (WIM) by the Conference of Parties (COP) of the UNFCCC in 2013 was a first step in creating a legal mechanism addressing loss and damage associated with impacts of climate change.9 Its functions include the enhancement of knowledge and understanding of risk management approaches, strengthening dialogue and coordination among relevant stakeholders, and enhancing action and support on loss and damage, including finance.10 The WIM intents to have established a financial mechanism to deal with climate change harm at the COP22 in 2016.11 The Paris Agreement recognized the WIM as an instrument that may (and should) be ‘enhanced and strengthened’ by the COP,12 making the WIM part of the continuous international cooperation of the climate regime.13 However, by codifying obligations of states under the WIM as being of a ‘cooperative and facilitative’ character,14 their legal strength is weak. Importantly, the COP decision adopting the Paris Agreement explicitly excludes the possibility of liability or compensation for loss and damage as a result of climate change.1516 Moreover, Article 9, covering the financial mechanism of the Paris Agreement, does not mention ‘loss and damage’ and exclusively focuses on adaptation and mitigation financing. Hence, finance of loss and damage in the UNFCCC context ‘will
6
E Kosolapova ‘Interstate Liability for Climate Change Related Damage’ (Eleven International Publishing 2013) p 133
7
J Peel ‘The Practice of Shared Responsibility in Relation to Climate Change’ in A Nollkaemper I Plakokefalos (eds) The
Practice of Shared Responsibility in International Law (Cambridge University Press 2016) p 23
8 UNFCCC Decision 2/CP.19 (2013) ‘Warsaw International Mechanism for Loss and Damage associated with Climate
Change Impacts’ Report of the Conference of the Parties on its 19th Session’, held in Warsaw from 11-‐23 November 2013, Part 2, FCCC/CP/2013/10/Add.1.
9 ibid preamble. 10 ibid para 5. 11 ibid para 2.
12 Paris Agreement (adopted 12 December 2015) FCCC/CP/2015/L.9 UNFCCC (hereinafter: 2015 Paris Agreement)
art 8(2)(3)
13 Climate Focus ‘Loss and Damage In the Paris Agreement’ (2015) Briefing Note, retrieved from
http://www.climatefocus.com/sites/default/files/20160214%20Loss%20and%20Damage%20Paris_FIN.pdf (7 June 2016) p 3
14 2015 Paris Agreement art 8(3)
15 UNFCCC, Decision 1/CP.21 ‘Adoption of the Paris Agreement’ (2015) Report of the Conference of the Parties on its
twenty-first session, held in Paris from 30 November to 13 December 2015, Part two: Action taken by the Conference of the Parties at its twenty-first session, FCCC/CP/2015/10/Add.1, para 51
16 Climate Focus ‘Loss and Damage In the Paris Agreement’ (2015) Briefing Note, retrieved from
http://www.climatefocus.com/sites/default/files/20160214%20Loss%20and%20Damage%20Paris_FIN.pdf (7 June 2016) p 4
remain under the umbrella of adaptation finance’17 and is unlikely to result in any additional financial commitments of states. Consequently, the WIM does at this point not effectively create a state liability or responsibility mechanism on which injured states can rely to obtain reparation for their climate change related damages.
Next to this, no separate liability mechanism governing harm resulting from activities that contribute to dangerous climate change exist in international law. Furthermore, it was noted by Kosolapova that none of the existing international environmental law liability models could successfully be incorporated into legal climate change regime. From a political perspective states are reluctant to accept liability for climate change related damage, as it would make them liable for conduct of private actors within their jurisdiction, given that they are the main GHG emitters. 18 Legally, liability for climate change related damages is unsuited due to the difficulty of establishing the required causal link between conduct and resulting harm,19 which will be discussed in relation to state responsibility in more detail later. Moreover, due to the cumulative character of climate change the scope of ‘hazardous activities’ does not include GHG emissions,20 and the liability obligation to take response action21 is unfit to climate change damage as it is only applicable to incidental harm, whereas climate change is a slow onset event.22
To conclude, no lex specialis on state responsibility for climate change related damage exists as the WIM does not effectively fulfil this role, nor does a liability mechanism specifically concerned with climate change related harm exist. Furthermore, liability mechanisms of international environmental law have proved inapplicable to the climate change context. However, it is submitted that the law of state responsibility potentially provides a mechanism to hold states responsible in international law for damage resulting from dangerous climate change. The Articles on the Responsibility of States for Internationally Wrongful Acts23 (ARSIWA, or ‘the (ILC) Articles’) by the International Law Commission (ILC) codify the general framework of secondary rules on international state
17 ibid.
18 Kosolapova (n 6) 43 19 ibid.
20 R Lefeber ‘Climate Change and State Responsibility’ in R Rayfuse and S V Scott (eds) ‘International Law in the Era of
Climate Change’ (Edward Elgar Publishing, 2012) p 333
21 See, for example, Article 5 of Annex VI ‘Liability Arising From Environmental Emergencies’ to the Protocol on
Environmental Protection to the Antarctic Treaty
22 Kosolapova (n 6) 57 23
responsibility, and are applicable in the absence of relevant lex specialis.24 Since the introduction of ARSIWA in 2001, the Articles have been widely referred to by the ICJ, other international courts, arbitral tribunals, domestic courts and by states in legal disputes, reiterating their high level of acceptance by the international community and their status of customary international law.2526
This paper seeks to explore the extent to which it is possible to use the law of state responsibility in order to invoke state responsibility for climate change related damages, so as to push states to comply with their international obligations on mitigation of dangerous global warming, and thereby potentially limiting future adverse effects of climate change. Obligations of states regarding adaptation to climate change are outside the scope of this assessment. In other words, this paper aims to answer the following research question: to what
extent can the law of state responsibility be applied to invoke state responsibility for climate change related damages? To do so, part 1 will conceptualize climate change responsibility as
a situation of both individual state responsibility and cumulative shared state responsibility. Part 2 will explore whether state responsibility can be established on the basis of ARSIWA given the current international legal climate change regime and rules of customary international law. Finally, part 3 will explore whether and how state responsibility for climate change related damages can be invoked.
Part 1: Climate change as an issue of individual and cumulative shared
state responsibility
This part will first identify the content of the law of state responsibility and its applicability in the climate change context, and secondly explore the concepts of individual and cumulative shared state responsibility.
1.1 The law of state responsibility and climate change related damages
The law of state responsibility functions as a legal tool to hold states responsible for breaches of international law. International state responsibility has been described as the ‘corollary of
24
ARSIWA art 55
25
S Olleson ‘Internationally Wrongful Acts in the Domestic Courts: The Contribution of Domestic Courts to the Development of Customary International Law Relating to the Engagement of International Responsibility’ (2013) Leiden Journal of International Law vol. 26(3) p 641
26
A Nollkaemper and I Plakokefalos (eds) ‘Principles of Shared Responsibility in International Law: An Appraisal of the State of Art’ (Cambrigde University Press 2014) p 3
international law’ and ‘the most credible measure of its effectiveness’.27 A state incurs international responsibility if it commits an internationally wrongful act, consisting of conduct (an act or omission) that can be attributed to the state, which breaches an international obligation of that state.28 The international legal order does not impose uniform obligations on all states, however the ‘underlying concept of state responsibility, [being] attribution, breach, excuses and consequences, seems to be general in character’,29 making it equally applicable to all states. The law of state responsibility is codified in the ILC Articles.
For conduct to be attributable to the state a certain link between the entity performing the conduct and the state or state functions must exist.30 In principle, the state cannot be held responsible for activities carried out by private persons. With regard to environmental law and more specifically the legal climate change regime this poses a limitation to the effectiveness of state responsibility, given that the majority of conduct causing dangerous global warming originates from private entities.31 However, ‘[t]he non-attribution of private conduct is without prejudice to the existence of obligations incumbent on states to regulate and control the conduct of private persons in their territory and in areas within its jurisdiction or control’.32 The issue of attribution will be discussed more extensively below.
Using the law of state responsibility as a tool to establish responsibility for climate change related damage fits with the sociological perspective of responsibility provided by Kutz. He notes that it makes sense to ascribe responsibility (for climate change related damages) to states, as we ‘cannot ascribe responsibility outside a real network of relations of accountability’.33 A global conception of justice is a necessary prerequisite for the political acceptance of the legal invocation of state responsibility. It is therefore important that newly established relations of responsibility are organized within the existing social framework of justice, along the existing lines of nation states and not through individual actors. This makes state responsibility the most convenient structure to base responsibility for climate change
27
A Pellet ‘The Definition of Responsibility in International Law’ in J Crawford S Olleson and A Pellet (eds) ‘The Law of International Responsibility’ (Oxford University Press 2010) p 4
28
ARSIWA art 2
29
J Crawford S Olleson ‘The Character and Forms of International Responsibility’ Law’ in J Crawford S Olleson and A Pellet (eds) ‘The Law of International Responsibility’ (Oxford University Press 2010) p 447
30
Chapter II of the ILC Articles sets out the conditions under which conduct is attributable to the state, ranging from the conduct of organs of the state(Art. 4) to conduct directed or controlled by the state (Art. 8) and conduct that the state adopts as its own (Art. 11)
31
R Lefeber Transboundary Environmental Interference and the Origin of State Liability (The Hague: Kluwer Law International, 1996) as found in E Kosolapova (n 6) 62
32
ibid.
33
C L Kutz ‘Shared Responsibility for Climate Change: From Guilt to Taxes’ in A Nollkaemper and D Jacobs (eds)
related damages on.34 Nevertheless, it must be noted that while indeed nation states are perceived as central actors at the international level, this does not automatically mean that such an inter-state concept of justice exists. The lack of a collective notion of responsibility for the conservation of the earth, its ecosystems and the human living environment by states could be considered the main cause for the insufficient political progress in the field of climate change regulation over the past years.
1.2 Individual and cumulative shared state responsibility for climate change
Inter-state claims for the invocation of responsibility for climate change related damages create certain conceptual challenges for international law. The large number of contributors to the problem, the indirect and globally spread consequences of the actions of states and the potentially extremely high costs of reparation for climate change make it a legal issue incomparable to other issues in international law.
State responsibility for climate change related damages can be treated as an issue of individual state responsibility. Individual state responsibility arises when it can be established that a state breaches, through its own conduct, one of its international obligations towards one or multiple other states. Additionally, it is useful to regard climate change related damage as an issue of cumulative shared responsibility of states, a concept less prominent in the practice of state responsibility, but which is particularly fitted for climate change related damages.
The concept of shared responsibility can be used as an analytical category to describe situations where multiple actors contribute to a single harm. Nollkaemper and Jacobs characterize shared state responsibility by four elements.35 First, it entails the responsibility of multiple states and secondly, their responsibility must relate to a single injury. Third, the ‘proportion of harm attributable to each contributing actor cannot be determined’ through the causal link.36 This element distinguishes shared responsibility from individual responsibility, since in case of the latter the causal link between the conduct of each separate actor and a certain part of the harmful outcome can factually be established.37 Fourth, in the case of shared responsibility the responsibility for a harmful outcome does not rest on the group of actors collectively but is distributed between the individual actors.38
34
ibid 351.
35
A Nollkaemper and D Jacobs ‘Shared Responsibility In International Law: A Conceptual Framework’ (2013) Michigan Journal of International Law, vol. 34 p 366.
36
Nollkaemper and Plakokefalos (eds) (n 26) 7
37
Nollkaemper and Jacobs (n 35) 369
38
A distinction must be made between instances where multiple actors coordinate their actions and jointly cooperate towards a common aim (cooperative responsibility), and instances where multiple actors have contributed to a single outcome without acting as a collective (cumulative responsibility).39 Opposed to cooperative responsibility, cumulative responsibility does not require consent of the individual actor to a collective action and its possible consequences.
The establishment of a causal contribution of states to an injury is a necessary but not a sufficient condition for establishing the legal responsibility of states. Only if the contribution to a harmful outcome triggers the legal responsibility of the state for that contribution, shared responsibility under international law can arise.40 In the case of cumulative shared responsibility, international law treats individual contributions that would have been insufficient to result in a wrongful act as sufficient to trigger the legal responsibility of that actor,41 given that the cumulative contributions cause the injury.
Responsibility for climate change harm fits the concept of cumulative shared responsibility. First of all, (1) multiple actors – all states from within whose jurisdiction GHG is emitted – (2) contribute to a single injury, being climate change related damage. This does not happen through a joint effort but rather as the cumulative result of separate conduct. Moreover, it is extremely difficult or maybe impossible to (3) find the causal link between the contribution of an individual state to a certain climate change related harm. Finally, an inter-state claim allocates liability to an (4) individual wrongdoing inter-state rather than to the collective.
1.3 Conclusion
The law of state responsibility is a legal mechanism fit to invoke state responsibility for climate change related damages. State responsibility for climate change related damage can be treated both as an issue of individual state responsibility and cumulative shared state responsibility, depending on the legal obligations of states invoked. Whereas the system can hold states responsible for breaches of the law through their own conduct, the concept of cumulative shared responsibility allows for the establishment of state responsibility for a state’s conduct that by itself would not suffice to trigger the legal responsibility of that state. It treats a state’s contribution to a shared breach as triggering this legal responsibility under
39
ibid 368.
40
Nollkaemper and Plakokefalos (eds) (n 26) 12
41
international law. How these two concepts play out with regard to inter-state claims aiming to invoke state responsibility for climate change related damages will be explored below.
Part 2: Establishing State Responsibility for Climate Change Related
Damages
The law of state responsibility provides a system of secondary rules that can be used to establish state responsibility for climate change related damages. Moreover, it could serve as a mechanism to compel states to comply with their legal obligations with regard to climate change mitigation. Importantly, whereas the WIM can be considered a first step in the direction of establishing an international mechanism on compensation for climate change related damages, its incorporation into the Paris Agreement does not (yet) result in the effective working of the WIM to that end.42 The Paris Decision excludes the possibility of the WIM as a basis for climate change liability or compensation.43
Based on the ILC Articles, state responsibility follows from an internationally wrongful act of the state. An internationally wrongful act entails that certain conduct can be attributed to the state and secondly that this conduct breaches an international obligation of the state. The occurrence of material injury is not a condition for the establishment of an internationally wrongful act. Importantly, a causal link between the conduct and the breach must be found. This part will first discuss this issue of ‘general causation’, followed by attribution and breach.
2.1 General causation
States can only be held responsible for climate change related damage if a causal link between their conduct and the occurrence of dangerous climate change is established, being the causal link between human caused GHG emissions and dangerous global warming. A distinction is made between ‘general causation’ and ‘specific causation’.44 General causation is the link between certain conduct and the occurrence of a general consequence, here GHG emissions and dangerous climate change, which is dealt with in this section. Specific causation, on the other hand, is relevant for the question of reparation, and concerns the causal link between a particular conduct and a particular consequence. This issue will be discussed in part 3.
42 2015 Paris Agreement art 8
43 UNFCCC, Decision 1/CP.21 ‘Adoption of the Paris Agreement’ (2015) Report of the Conference of the Parties on its
twenty-first session, held in Paris from 30 November to 13 December 2015, Part two: Action taken by the Conference of the Parties at its twenty-first session, FCCC/CP/2015/10/Add.1, para 51
44
Scientific uncertainty has long hampered international action on climate change. However, with the presentation of the first IPCC assessment report in 1990 and the adoption of the UNFCCC in 1992 it was widely known and accepted by states that human caused emissions contribute to dangerous global warming. Even though these dates do not reflect the start of wide political acceptance of science proving this link, for legal purposes it can be held that since 1990 states cannot argue a lack of awareness about GHG emissions leading to dangerous global warming to justify a breach of international obligations limiting emissions aiming to prevent climate change damage. Additionally, at the national level, in multiple cases national courts have recognized the causal link between anthropogenic emissions and dangerous climate change. For example, in the recent Dutch ‘climate case’, the Court expressly recognized that ‘[a]nthropogenic greenhouse gas emissions are causing climate change’.45 Legal recognition of the general causal link between anthropogenic emissions and dangerous global warming at the national level cannot substitute a legal finding at the international level, but further supports acceptance of general causality between GHG emissions and dangerous climate change.
Additionally, by including the precautionary principle in the UNFCCC preamble, the notion that scientific uncertainty cannot weaken the obligation of states in the international climate change regime is further strengthened. It states that the ‘lack of full scientific certainty should not be used as a reason for postponing [mitigation] measures’.46
2.2 Attribution of conduct
Following the ILC Articles, the first condition for establishing an internationally wrongful act of a state is attribution of conduct to the state. Attribution is the process by which international law establishes whether the conduct of a natural person or other entity resulting in the breach of an international obligation, can legally be considered conduct of the state. 2.2.1 Attribution to the state
In general, ‘the only conduct attributed to the State at the international level is that of its organs of government, or of others who have acted under the direction, instigation or control of those organs, i.e. as agents of the State’, and consequently ‘conduct of private persons is
45
Klimaatzaak (Urgenda Foundation v The State of The Netherlands) [2015] C/09/456689 / HA ZA 13-1396 para 4.18.
not as such attributable to the State’.47 A gap therefore exists with regard to state responsibility for conduct originating within the jurisdiction of a state that cannot be attributed to the state. This can be problematic in particular with regard to climate change related damage. Whereas for example the breach of an obligation to adopt policies to limit emissions can be easily attributed to the state, for GHG emissions this is less straightforward. Given that the vast majority of emissions contributing to dangerous climate change originate from the conduct of private actors acting within a state’s jurisdiction, it is questionable whether GHG emissions are attributable to the state at all.
Generally private parties are only allowed those emissions they are permitted for by the state, it has therefore been argued that emissions fall under the ‘control’ of the state as meant in ARSIWA Article 8.48 In the Dutch ‘climate case’, the District Court of The Hague argued that ‘the State has the power to issue rules or other measures, including community information, to promote the transition to a sustainable society and to reduce greenhouse gas emission in the Netherlands’.49 Moreover, ‘when [the Netherlands] became a signatory to the UNFCCC and the Kyoto Protocol, the State expressly accepted its responsibility for the national emission level and in this context accepted the obligation to reduce this emission level as much as needed to prevent dangerous climate change’.50 For these reasons, the Court concluded that the failure to reduce emissions could be attributed to the state. However, at the international level, the Commentaries to ARSIWA expressly distinguish between acts of private actors and public entities; moreover, a state cannot be held internationally responsible for private entities failing to adhere to national legislation. For conduct to be attributable to the state, the state must have ‘directed or controlled the specific operation and the conduct complained of was an integral part of that operation’.5152 This makes it unlikely that attribution of emissions to the state will occur under ARSIWA.
2.2.2 Due Diligence obligation
The responsibility gap can be partly closed by the state’s obligation of due diligence. This is an obligation of conduct of the state to prevent harm to third parties originating from within
47
Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, ILC Yearbook 2001/II(2) (hereinafter ARSIWA with commentaries) Commentary to Chapter II, p 38, para 2-3
48
R S J Tol R Verheyen ‘State Responsibility and compensation for climate change damages – a legal and economic assessment’ (2004) Energy Policy vol 32 p 1111
49
Klimaatzaak (Urgenda Foundation v The State of The Netherlands) [2015] C/09/456689 / HA ZA 13-1396 para 4.87.
50
ibid para 4.66
51
ARSIWA with commentaries, ILC Yearbook 2001/II(2) Commentary to Article 8, p 47, para 3
52
its jurisdiction, which comes into play with regard to conduct not directly attributable to the state. In the climate change context, this would for example mean that the breach of an international obligation to reduce emissions could be attributed to the state by establishing that the state has not acted diligently in establishing regulation and control within its territory with the aim of complying with the set emission reduction standards. In other words, this would mean that the ‘failure of the state to implement adequate measures to reduce emissions from private polluters’ could trigger state responsibility5354 instead of holding the state responsible for the emissions themselves. For breach of a due diligence obligation of the state it needs to be established that the state had (i) awareness of the requirement to fulfil the obligation, (ii) means to fulfil the obligation and (iii) failed to use these means.55 The level of required diligence must be determined on a case-by-case basis, taking into account these various elements. Given the existence of multiple norms and international agreements on the mitigation of climate change, it can be assumed that with regard to the first element in general there is sufficient awareness by states. The second element is to a large extent dependent on the level of (economic) development of a state, while the third element mainly reflects a political choice whether or not to adapt policies to mitigation obligations.
It must be kept in mind that in this context the due diligence obligation of states is part of the process of attribution under the secondary rules of international law. As will be shown below, the customary no-harm obligation of states contains a similar due diligence obligation of states, entailing that states are obliged to act diligently to prevent transboundary harm originating from their territory. For the no-harm obligation, not acting diligently means breaching the primary norm itself.
2.2.3 Attribution of conduct with regard to individual and cumulative shared state responsibility
The distinction between individual and cumulative shared responsibility of states for climate change related damages does not need to be made with regard to the attribution of conduct, the same rules of attribution apply in both cases. With regard to whether the conduct of a state breaches one of its international obligations, however, the distinction is relevant, as will be shown below.
53
ibid 26.
54
Tol and Verheyen (n 48) 1112
55
2.3 Primary rules: state obligations in the field of climate law
This paper limits itself to primary rules in the field of climate law on mitigation of climate change, rules that aim to limit global warming ‘through the regulation of the concentration of greenhouse gases in the atmosphere that have an anthropogenic origin’.56 Both the UNFCCC and customary international law entail obligations of states with regard to the mitigation of climate change.57 A distinction is made between individual and collective obligations of states, the latter being obligations ‘of each individual [state] to do his or her part in achieving a goal that can only be achieved together (…)’.58 Individual obligations are linked to individual state responsibility; a state breaches one of its obligations through its own conduct. Collective obligations are linked to cumulative shared responsibility, where only the totality of conduct of multiple states results in a breach, but state responsibility is triggered for each of the contributors.
2.3.1 Individual obligations of states: UNFCCC
The UNFCCC is a framework instrument that entered into force in 1994, enjoying near-universal membership today.59 The UNFCCC aims “to achieve (…) the stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system’.60 The Convention allows for the progressive development of its broad obligations through international agreements adopted by the Conference of Parties (COP). 61 Its content is based upon principles such as the precautionary principle and ‘common but differentiated responsibilities and respective capabilities (CBDR-RC)’.62
The UNFCCC does not directly address the issue of state responsibility for climate change related damage. Moreover, the ambiguous wording of the text of the treaty, which speaks about ‘aims’, does not amount to an enforceable duty under international law.63 Article
56 Lefeber (n 20) 323
57
Tol and Verheyen (2004) as well as Faure and Nollkaemper (2007) mention UNCLOS as additional possible source of state obligations with regard to climate change responsibility, the assessment of this source being beyond the scope of this paper.
58
Kutz (n 33) 359
59 In July 2016, the UNFCCC had 197 ratifications 60
UNFCCC art 2
61
Dupuy and Vinuales (n 1) 148
62
UNFCCC art 3
63
4(2)(a) can be considered the strongest legal obligation in the UNFCCC,64 requiring states to ‘adopt policies and take corresponding measures on the mitigation of climate change by limiting its anthropogenic emissions of greenhouse gasses (…)’. Even though this provision is ‘still rather vague’ in its wording, it could ‘arguably be considered’ a basis for a liability claim.65 Importantly, this obligation merely requires states to adopt policies to mitigate climate change; it does not require the actual result of mitigation of climate change.66 Simultaneously, the UNFCCC requires a progressive reduction of emissions over time. Tol and Verheyen have argued that the continuous increase of emissions by a state since its ratification of the UNFCCC could result in a breach of the treaty.67
Hence, by not adopting policies and measures aiming to lower emissions, or by increased emissions through the years, a state breaches its international obligations under the UNFCCC. As a result of the CBDR-RC the UNFCCC merely legally obliges industralized states to adopt policies and measures with the aim of lowering emissions.68
2.3.1.1 Kyoto Protocol
The Kyoto Protocol was concluded under the UNFCCC has entered into force on 16 February 2005,69 committing its parties by setting binding emission reduction targets. For the first commitment period (2006-2012) the agreed collective target was a 5.2% GHG emission reduction compared to the emissions level in 1990.70 The second commitment period (2013-2020) was agreed in the Doha Amendment in 2012 and requires an 18% reduction.71 Moreover, Annex B to the Kyoto Protocol sets out quantified emission limitations for every separate industrialized state party. In order to assist the parties in achieving these targets, a joint implementation72 and clean development73 mechanism, and an emission trading system74 were put into place.
64
DH Cole ‘The problem of shared irresponsibility in international climate law’ in A Nollkaemper D Jacobs (eds)
Distribution of Responsibilities in International Law (Cambridge University Press 2015) p 305
65
M Faure A Nollkaemper ‘International Liability as an Instrument to Prevent and Compensate for Climate Change’ (2007) 43A Stanford Journal of International Law p 143
66 Lefeber (n 20) 331 67
Tol and Verheyen (n 48) 1115
68
Kosolapova (n 6) 138
69
UNFCCC ‘Kyoto Protocol’ retrieved from http://unfccc.int/kyoto_protocol/items/2830.php (13 June 2016)
70
1997 Kyoto Protocol art 3(1)
71
2012 Doha Amendment to the Kyoto Protocol art 3(1)bis.
72 1997 Kyoto Protocol art 6 73 ibid 12.
States party to the Kyoto Protocol are legally bound to reducing emissions by the agreed percentages. If reduction targets are not met, the Kyoto Protocol compliance mechanism functions to facilitate, promote and enforce the Protocol’s commitments. 75 The compliance mechanism is compulsory and requires states to implement measures to remedy the non-compliance,76 but does not deal with the legal consequences of non-compliance. Therefore, state responsibility is a tool that could be used complementary to the Kyoto Protocol compliance mechanism. Both function to improve state compliance with the obligations under the Kyoto protocol, albeit through legal dispute settling in the case of state responsibility, and through a process of review, assistance and enforcement of compliance in the compliance procedure.
A state that does not meet its Kyoto Protocol emission reduction target is in breach of an international obligation.77 However, joint implementation, the clean development mechanism and the emissions trading system enable states to trade those emissions it failed to reduce during the ‘true-up period’, running 100 days after the completion of the review process.78 Through this trading system a state is able to fulfil its obligation under the Kyoto protocol without reducing its own emissions with the required amount. Moreover, the review process of the first commitment period, which is the tool to give insight in the emission reductions achieved by states, had to be completed only in August 2015,79 three years after the end of the first commitment period. This lengthy process slows down potential invocation of responsibility considerably.
2.3.1.2 Paris Agreement
The Paris Agreement was unanimously adopted in December 2015 under the UNFCCC. In July 2016 it was ratified by 20 parties, which account for 0.40% of the global GHG emissions.80 Its adoption has been widely received as a political success, being called a major
75 1997 Kyoto Protocol Art. 18 and UNFCCC Decision 27/CMP.1 ‘Procedures and mechanisms relating to compliance
under the Kyoto Protocol’ (2005) Report of the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol on its first session, held at Montreal from 28 November to 10 December 2005, Part Two: Action taken by the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol at its first session,
FCCC/KP/CMP/2005/8/Add.3
76 UNFCCC Decision 27/CMP.1 art XV(2)(b) and (c) 77
Faure and Nollkaemper (n 65) 144
78 UNFCCC Decision 27/CMP.1, section XIII 79
UNFCCC ‘True-up period reporting and review process’ retrieved from < http://unfccc.int/kyoto_protocol/true-up_process/items/9023.php> (14 June 2016)
80 UNFCCC ‘Paris Agreement - Status of Ratification’ retrieved from <http://unfccc.int/paris_agreement/items/9444.php>
step forward in combatting dangerous consequences of climate change.81 This enthusiasm was mainly based on the newly agreed aim of limiting the rise in global temperatures to 1.5°C, compared to 2°C in previous international agreements.
The Paris Agreement does not impose emission reduction targets upon its parties but obliges states to establish ‘nationally determined contributions’ (NDCs),82 which will be publicly registered by the Secretariat.83 The NDCs must entail ‘economy-wide absolute emission targets’84, reflecting the party’s ‘highest possible ambition’, with ‘progression’ over time,85 meaning that when states are to pledge a new contribution after a 5-year period,86 this contribution must be more ambitious that the previous one. The NDCs reflect aims of the parties and do not create an obligation of result. The working of the Agreement as a mechanism to mitigate dangerous global warming is based on the logic that scientific certainty about, and the political acceptance of, the causes and consequences of climate change will progressively develop over time. As a result, increased peer pressure between states will amount into increased (political) incentives on states to aim at higher reduction targets.87
With regard to mitigation, next to setting NDCs, under the Paris Agreement states must report on progress in achieving these contributions. 88 A state breaches its international obligation under the Paris Agreement by failing to set a NDC in time, or by failing to report on its progress.
2.3.2 Individual obligations of states: customary international law
International customary law creates legal obligations of states that are equally applicable to all, its relevance in the legal climate change framework being that it additionally binds those states without obligations under the UNFCCC and its subsequent agreements.89
81
F Harvey ‘Paris Climate Change Agreement: The World’s Greatest Diplomatic Success’ The Guardian (14 December 2015) retrieved from http://www.theguardian.com/environment/2015/dec/13/paris-climate-deal-cop-diplomacy-developing-united-nations (3 May 2016)
82 2015 Paris Agreement art 4(2) 83 ibid 4(12).
84
ibid 4(4).
85
ibid 4(3).
86 UNFCCC Decision 1/CP.21para 23 87
S McAnsch ‘The Paris Climate Agreement: What does it really mean for climate change?’ EcoJustice (19 January 2016) retrieved from <http://www.ecojustice.ca/the-paris-climate-agreement-what-does-it-really-mean-for-climate-change/> (3 May 2016)
88 2015 Paris Agreement art 13(7) 89
This includes those states that are not party to the UNFCCC, most notably the USA, but also developing states (non-Annex I countries) that are not bound to the Kyoto Protocol obligation to lower emissions with 5.2% in 2012 based on the CBDR principle. In the Paris Agreement this principle plays a less important role with regard to obligations of mitigation
First, the no-harm principle, which is accepted as international custom by the ICJ90 and reiterated in the 1992 Rio Declaration,91 is of particular relevance for climate change damages. This obligation not to cause transboundary harm entails an obligation of conduct of states: the state is obliged to ‘use all 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’92 or to areas beyond the limits of national jurisdiction. This includes activities of private actors. Moreover, damage does not have to occur as long as it can be shown that conduct within the state’s jurisdiction potentially will result in significant damage’.93 Also in the context of climate change, states can be considered to be under the obligation to prevent transboundary harm based on this customary obligation. More specifically, states are under an obligation ‘to adopt regulatory and administrative measures, designed to prevent climate change harm to other states and areas beyond national jurisdiction, in accordance with a ‘due diligence’ standard’.94 The degree of diligence required of states depends on the circumstances of a situation, such as the availability of resources and the interests that are being protected;95 there is no objective standard to determine the required level of action. Moreover, the no-harm obligation being a due diligence obligation means that the failure to prevent harm from occurring does ‘not automatically result in non-compliance with the [no harm] obligation’.96
Second, the polluter pays principle, as recognized in the 1992 Rio Declaration, entails the proposition that an actor who is responsible for pollution must pay for the damage done to the environment.97 In other words, the costs of pollution must be internalized, and with regard to responsibility for climate change related damage this would mean that the actor whose conduct is the source of emissions causing dangerous global warming is obliged to pay for resulting damage. Lefeber argues that the application of the principle could hypothetically be extended to the state from within whose control the emissions originate.98 However, while the
since states determine their own contributions. However, indirectly the principle still applies given that the contributions need to be based upon a state’s ‘highest achievable aim’, resulting in a differentiation between developed and developing states.
90
The most important case being the Trail Smelter case (United States v. Canada), 16 April 1938 and 11 March 1941, UNRIAA, vol. III p 1965
91
Rio Declaration on Environment and Development (adopted 12 August 1992) A/CONF.151/26 (Vol. I)Principle 2
92
Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, ICJ Reports 2010, p. 14, para 101
93 Lefeber (n 20) 337 94 Peel (n 7) 17 95 Kosolapova (n 6) 148 96 Lefeber (n 20) 333 97
Rio Declaration on Environment and Development (adopted 12 August 1992) A/CONF.151/26 (Vol. I)Principle 16
principle is widely recognized at the national level,99 it remains unclear whether it can be regarded as a rule of customary international law applicable between states,100 and no case law or international instruments incorporating this mechanism exist.101 As a consequence it would be premature to apply the polluter pays principle as a principle of customary law between states, hence it does not amount into a legal obligation of states on the mitigation of climate change.
2.3.3 Collective obligations of states: UNFCCC
The objective of the UNFCCC is the ‘stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system’.102 According to Verheyen, this provision creates at its highest a collective obligation on part of the parties to ‘stabilize emissions at a level adequate to protect the climate system now and in the future, and to avoid dangerous anthropogenic warming’.103 Consequently, the occurrence of climate change damage as a result of global warming could be considered a breach of this collective obligation. Furthermore, it is argued by Peel that developed state parties to the Convention could be held responsible under Articles 3(1) and 4(2)(a) for failing to have taken a leadership role in addressing the climate change problem.104 By being separately addressed in the Convention, the group of developed states is bound to a collective obligation with regard to achieving the objective of the UNFCCC. Moreover, under the Kyoto Protocol a collective obligation rests upon the states parties to achieve the agreed collective reduction targets. Finally, by agreeing that global warming should be limited to 2°C, ‘pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels’,105 the Paris Agreement has extended this obligation to collectively limiting emissions by those percentages that will result in these maximum increases in the global temperature. 2.3.4 Collective obligations of states outside the UNFCCC
Climate change has been identified as a ‘common concern of mankind’ by the UN General Assembly for the first time in 1988, a term later reiterated in the UNFCCC preamble which
99 M R Khan ‘Polluter-Pays-Principle: The Cardinal Instrument for Addressing Climate Change’ (2015) Laws vol. 4 p 643;
644; 645
100
Tol and Verheyen (n 48) 1113
101 Lefeber (n 20) 327 102 1992 UNFCCC art 2 103
R Verheyen ‘Climate Change Damage and International Law: Prevention Duties and State Responsibility’ (Marinus Nijhoff Publishers 2005) in Peel (n 7) 13
104
Peel (n 7) 6
105
acknowledges that ‘change in the Earth’s climate and its adverse effects are a common concern of humankind’. The concept entails the idea that the international community has to collectively cooperate to achieve an equitable sharing of the burden (and benefits) of environmental protection as opposed to assigning responsibility and liability to individual states.106 It does not establish explicit rules of conduct, but rather recognizes the importance for states to engage in international cooperation on climate change related matters.
The legal status of a ‘common concern of mankind’ has been described as an ‘emerging principle of international law’.107108 The ICJ has recognized general principles of law as a source of international law and notes that they are based on principles law recognized by ‘civilized nations’.109 In other words, the existence of a legal principle at the domestic level of civilized nations can establish a general principle of international law, as opposed to the combination of state practice and opinion juris at the international level required for the establishment of international custom.110 A principle of international law can function to fill gaps in the law111 and comes into play if there is no rule covering a situation, or if a rule is open to interpretation and can be specified by the principle.112 As for collective legal obligation of the international community to mitigate dangerous climate change, its appearance in various multilateral documents over the past years reinforces the idea of ‘implicit state consensus’.113 However, due to its relatively scarce use it would be premature to consider ‘common concern kind’ a principle of international law. Still, it reinforces legal obligations of states to collectively mitigate dangerous climate change and provides guidance in the interpretation of relevant customary rules. But the notion of ‘common concern of mankind’ in itself cannot be considered a collective legal obligation of states.
2.4 Conclusion
As has been shown, multiple obligations of states that are relevant with regard to state responsibility for climate change related damage exist. The general rule of ‘lex specialis derogat legi generali’ in international law entails that a more specific norm prevails over a
106
T Cottier et al ‘The Principle of Common Concern and Climate Change’ (2015) Archiv des Völkerrechts 52(3) p 317
107
ibid 317.
108
N Mirovitskaya W L Ascher (eds) Guide to Sustainable Development and Environmental Policy (Duke University Press Books 2002) p 242
109 ICJ Statute art 38(1)(c)
110 N Petersen ‘Customary Law Without Custom? Rules, Principles, and the Role of State Practice in International Norm
Creation’ (2007) American University International Law Review Vol 23 Issue 3 p 292
111 M N Shaw International Law (Cambridge University Press, 2014) p 70 112 Petersen (n 110) 292
113
more general norm if both norms are concerned with the same subject matter. According to Kosolapova, however, the duty to prevent transboundary harm and international obligations of climate change mitigation coexist in parallel, given that both sources of obligations do not cover exactly the same subject manner.114 In other words, states that are bound to the international climate change regime are simultaneously bound to the principle of customary law not to cause transboundary harm.
Being the most narrowly defined and explicit rules established by the international community, individual legal obligations of states originating from the UNFCCC and its subsequent international agreements have, if breached, the biggest potential of resulting in state responsibility for climate change related damages. First, states are legally bound to adopt policies and regulatory measures to progressively lower emissions. Secondly, certain conduct of states is required through the binding emission reduction targets of the Kyoto Protocol for developed countries, and states are obliged to set (and report on their progress with regard to) nationally determined contributions under the Paris Agreement. Breach of either of these obligations could be the basis for state responsibility for climate change related damages.
The no-harm rule requires that states reduce emissions to the extent that prevents transboundary climate change related harm. Moreover, the no-harm principle may also be breached if a ‘high probability of causing significant transboundary damage or a low probability of causing disastrous transboundary damage’ occurs, 115 which is a lower threshold than ‘dangerous anthropogenic interference with the climate system’ required under the UNFCCC.116 The main limitation to this obligation, however, is the absence of an internationally agreed benchmark on what is required of states in terms of policies and measures to comply with their obligation to prevent transboundary harm,117 complicating an assessment of whether a state has breached its no-harm obligation.
The UNFCCC also establishes collective obligations of states. The international community has committed to clear targets to limit global warming and to mitigate the effects of climate change. Not achieving these targets could be regarded as the breach of a legal obligation of the state parties. Moreover, under the Kyoto protocol industrialized states have the collective obligation to reduce emissions with 18% in 2020. However, these targets are
114
Kosolapova (n 6) 162
115
2001 Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities, with Commentaries, ILC Report on the work of its 53rd session (A/56/10) YILC, vol. II, Part Two, Commentary to Art. 2 p 152
116
Peel (n 7) 18
framed as ‘aims’,118 and failing to aim for reaching a target is relatively hard to proof compared to failing to reach a target. Still, an obligation of conduct is a legal obligation, which requires a certain threshold of effort by states that can be breached. Finally, the principle of climate change being a ‘common concern of mankind’ might add additional legal weight to claims of shared responsibility of states in the legal climate change framework.
Through using the concept of cumulative shared responsibility of states it is relatively easy to establish a breach of an international obligation of states compared to using individual state responsibility. Climate change related damage typically fits the concept of cumulative shared responsibility, given that the cumulative conduct of multiple states breaches the collective obligation on the mitigation of climate change resulting from the international legal climate change framework. Whereas no conduct of an individual state by itself breaches the international obligation to limit global warming to 2°C, the cumulative conduct of states does. By treating each individual contribution to the single harm as sufficient to trigger the conduct of a contributing state, state responsibility for damages resulting from dangerous climate change can be established.
To summarize, extensive scientific proof exists showing the causal relationship between emissions and dangerous climate change. Moreover, through the due diligence obligation of states GHG emissions causing dangerous climate change can be attributed to the state, and with regard to the customary no-harm principle states can be held responsible for conduct of private entities. Hence, based on the legal obligations of states identified above, state responsibility for climate change related damages could in certain cases be established. The next step is assessing whether and how state responsibility could be invoked. This step comes with additional hurdles that are specific to the climate change context, which will be dealt with below.
Part 3: Consequences and implementation of state responsibility for climate
change related damages
If international state responsibility for climate change related damages is established, the wrongdoing state is legally obliged to restore the legal relation and to repair the breach.119 Importantly, the existence of international responsibility of a state does not depend on the
118 1992 Kyoto Protocol art 3(1) uses the terms ‘with a view to’, however, the 2015 Paris Agreement art 2(1) uses stronger
language: ‘holding the increase in the global average temperature to well below 2 °C above pre-industrial levels and to
pursue efforts to limit the temperature increase to 1.5 °C [emphasis added]
