Summary:
Climate change is an issue that crosses borders. Countries and communities have already and will in the future suffer more from the effects of climate change. The United Nations Framework Convention on Climate Change (UNFCCC) is the regime that sets out the ground framework and objectives for addressing climate change, but provide only limited guidance on the concrete actions and targets. Therefore, countries have needed to further negotiate agreements under the regime that provide the rights and obligations. The last attempt of the international community to address the impacts of climate change was with the establishment of the Paris Agreement, which implements further the UNFCCC Framework’s goals.
The anthropogenic climate change that we are experiencing today has primarily been brought on by GHG emissions from developed countries. However, scientific estimates show that some of the most severe adverse impacts of climate change will strike in regions of the world that have made only minor contributions to the making of the current climate change and that have little capacity to adapt to the changes as they occur. The question put to the fore by this situation is to what extent the GHG emitting States are responsible to compensate the injured States for the damage suffered.
The current thesis submits that the law of State responsibility could provide important guidance for the development of the international regime on climate change. The failure of many States, in particular developed ones, to prevent excessive per capita emissions causing harm to global atmospheric commons constitutes arguably a breach of an obligation arising from the no-harm principle. The barriers to the implementation of the law of State responsibility through litigation do not exclude its applicability and the existence of secondary obligations. The obligation to cease a continuing wrongful act suggests a duty of industrial States to commit much more strongly to reducing their emissions.
The intuition of this research work is that the principles underpinning international law reflect a shared moral understanding, and that such a shared moral understanding may provide important guidance to climate negotiations, even as proper ethical theories remain underdeveloped. More specifically, this research work suggests that the concept of State responsibility could play the role of a prominent and familiar reference that international lawyers could follow.
The key legal question is whether the international law regarding state responsibility is equipped to address injury caused to states by anthropogenic climate change. For example, can an injured state claim compensation for the loss of land and property to sea-level rise or extreme weather events? Is there an obligation to prevent damages on which such responsibility could be shaped? If so, which States? Do States contain duties of State conduct that can be breached i.e. an obligation of States to avoid damages. Another question is whether the UNFCCC and the Paris Agreement contain direct obligations regarding climate change damages that would give rise to a claim for reparation under the law of State responsibility.
This paper will attempt to address these issues by discussing, in Part I the examination of primary obligations for States relating to climate change and in case of violation of these obligations, how the international law of state responsibility applies to breaches of the obligations. The No-Harm-rule is therefore the most interesting primary rule in this context. A breach of the Νο-Harm rule would, in respect to climate change, consist of failure to exercise diligent control of activities, when it is foreseeable that the activities could cause significant deleterious effects. During the attempt to allocate state responsibility, we have to face several difficulties in bringing claims, such as determination of causality, the multitude of wrongdoers and historic emissions, and withdrawal from treaties by state parties.
There is almost global consensus among scientists as to the causes behind anthropogenic climate change. As for specific causation, it would be unfeasible to link specific emissions to specific damages. However, if claims for responsibility were to be precluded due to difficulties with establishing causation, it would undermine the objective of the primary rule. It should therefore be sufficient that the damage at least to some extent was caused by the emission in order for a tribunal to award damages. If excessive greenhouse gas emissions can be considered as an internationally wrongful act of States, State responsibility could provide important guidance to climate governance.
In Part II, it will be examined the implementation of the law of State responsibility, and how and where a claim could be arise, regarding the dispute settlement procedures. It will be examined the judicial and non-judicial dispute settlement deriving from the treaty law, namely the Paris Agreement and the UNFCCC. Does the Paris Agreement provide an effective compliance mechanism or a dispute settlement mechanism? If not, which procedures we could use in order to give rise to a claim? Have been arisen climate change disputes to date? Which courts or tribunals could settle these kinds of disputes? Do States want to settle their disputes regarding environmental harm, or they did not want to establish procedures regarding the settlement of environmental and climate change disputes? It will be further examined the eventuality of settling any disputes before few of the international courts and tribunals.
Keywords:
climate change, state responsibility, dispute settlement, Paris Agreement, UNFCCC, ICJ, ITLOS, ICSID, climate change reparations, non-compliance mechanisms, climate change disputes
