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2020 | OriginalPaper | Chapter

6. International Climate Change Law and State Responsibility



This chapter studies what obligations exist regarding climate policies to be undertaken by states under customary law and the international climate change regime. It examines the classic notion of international responsibility, wondering the extent to which a state may be considered responsible for climate alterations capable of causing international displacement of individuals in third countries. The issue is addressed considering the do no harm principle, establishing that states may be held responsible where no action is taken to prevent foreseeable environmental damages in other states. “Foreseeability” is thus a crucial element. This chapter argues that the evolution of international climate change law leaves fewer and fewer opportunities to states to be indifferent to global warming, also arguing that the do no harm principle acquires growing importance when states consciously permit or promote on their territories climate-altering behaviors capable of damaging other countries.
Cf. Hoss (2005). State Responsibility, Liability, and Environmental Protection. In Wolfrum, Langenfeld & Minnerop (Eds.), Environmental Liability in International Law: Towards a Coherent Conception. Berlin: Erich Schmidt Verlag, pp. 455 ff. See also: Kiss, Shelton (2007). Strict Liability in International Environmental Law. In Nndiaye & Wolfrum (Eds.), Law of the Sea, Environmental Law and Settlement of Disputes: Liber Amicorum Judge Thomas A. Mensah. Leiden: Martinus Nijhoff Publishers, pp. 1131 ff.
Koslopova (2013). Interstate Liability for Climate Change-Related Damage. The Hague: Eleven.
For sake of completeness, it is also true that some conventional obligations dealing with greenhouse gases can also be found outside the UNFCCC system. For instance, in the Montreal Protocol, whose objective is to limit the anthropogenic depletion of the Ozone Layer. By limiting chlorofluorocarbons (CFC), which as a gas have indeed a climate-altering potential, the Montreal Protocol marginally addresses by its very nature global warming causes. The 2016 Kigali Amendment on the Protocol then intensifies the latter’s role in the subject matter by also imposing reductions o hydrofluorocarbon (HFC) emissions, which again are powerful greenhouse gases. Besides the Ozone Layer regulatory system, there are also attempts to include climate change mitigation objective within aviation and sea-related international conventions. The 1973 Convention for the Prevention of Pollution from Ships (so-called MARPOL Convention), now aims at including regulations to limit GHG emissions from ships. An International Civil Aviation Organization (ICAO) resolution of 2016 has started to lay out market-oriented schemes for the reduction of GHG emissions from the aviation sector applicable from 2027.
ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts, attached to UN Doc. A/Res/56/83, 12 December 2001.
On this subject matter, see ex multis: Fumagalli (2016). Illecito e Responsabilità. In Carbone et al. (Eds.), Istituzioni di Diritto Internazionale. Turin: Giapichelli, pp. 269 ff. See also: Crawford et al. (2010). The Law of International Responsibility. Oxford: Oxford University Press.
See UNFCCC, Preamble, para. 3 and 6: “Noting that the largest share of historical and current global emissions of greenhouse gases has originated in developed countries, that per capita emissions in developing countries are still relatively low and that the share of global emissions originating in developing countries will grow to meet their social and development needs”; “acknowledging that the global nature of climate change calls for the widest possible cooperation by all countries and their participation in an effective and appropriate international response, in accordance with their common but differentiated responsibilities and respective capabilities and their social and economic conditions”.
“[It is possible] to establish that the law of State responsibility is applicable to at least some States, either because they fail to fulfill their mitigation commitment under climate change agreements or because their excessive greenhouse gas emissions cause disproportionate harms to the global atmospheric system, in breach of the no harm/preventive principle”. In Mayer (2017). Climate Change, Migration and the Law of State Responsibility. In Mayer & Crépeau (Eds.), Research Handbook on Climate Change, Migration and the Law. Cheltenham: Elgar, p. 255.
In this sense see also: “Necessary anthropogenic greenhouse gas emissions include most obviously those resulting from human breathing but also, arguably, the emissions that, in a particular technological and development context, are inevitably generated in order to reach a minimal level of human development. It would concededly be extremely difficult to determine how much greenhouse gas emissions are thus justified as necessary and from which threshold emissions would become excessive”. Ibid., p. 248.
The do the International Court of Justice has referred to no harm principle. See for instance: Corfu Channel Case (UK c. Albania), 1949, I.C.J Rep 4, p. 22. See also Trail Smelter Arbitration (USA v. Canada), where the Tribunal concluded that: “under the principles of international law, as well as of the law of the United States, no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence”.
See International Court of Justice, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1. C.J. Reports 1996, p. 226, para. 242.
See the 1972 Stockholm Declaration, Principle 21. 1992 Rio Declaration, Principle 21. In legal literature, see ex multis: Bratspies & Miller (2006). Transboundary Harm in International Law: Lessons from the Trail Smelter Arbitration. Cambridge: Cambridge University Press.
Cf. Picone (2013). Comunità Internazionale ed Obblighi Erga Omnes. Naples: Jovene Editore, p. 13.
See UNFCCC, Preamble and Articles 1 and 2.
UNFCCC, Article 4(2)(a).
UNFCCC, Article 4(1)(a).
See Mayer (2017) (op. cit.), p. 243.
It is sobering to remember that international responsibility rules cannot be applied retroactively. Cf. ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts, attached to UN Doc. A/Res/56/83, 12 December 2001, Article 13.
See: Bodansky (2015). Reflections on the Paris Conference, in Opinio Juris. http://​opiniojuris.​org/​2015/​12/​15/​reflections-on-the-paris-conference/​. Accessed 14 January 2019. Doelle (2015). The Paris Agreement: Historic Breakthrough or High Stakes Experiment? https://​papers.​ssrn.​com/​sol3/​papers.​cfm?​abstract_​id=​2708148. Accessed 14 January 2018. European Commission (2016). The Road from Paris: Assessing the Implications of the Paris Agreement and Accompanying the Proposal for a Council Decision on the Signing, on Behalf of the European Union, of the Paris Agreement Adopted Under the United Nations Framework Convention on Climate Change. Communication (COM(2016) 110 final). Huang (2015). The 2015 Climate Agreement: Key Lessons Learned and Legal Issues on the Road to Paris. https://​papers.​ssrn.​com/​sol3/​papers.​cfm?​abstract_​id=​2724109. Accessed 14 April 2019. Baker & McKenzie (2016). The Paris Agreement Putting the first universal climate change treaty in context. https://​www.​lexology.​com/​library/​detail.​aspx?​g=​7f89d079-a97c-4c87-99ba-16f3c9ff5fdf. Accessed 13 January 2018. Obergassel et al. (2016). Phoenix from Ashes—An Analysis of the Paris Agreement to the United Nations Framework, Wuppertal Institute for Climate, Environment and Energy. https://​epub.​wupperinst.​org/​frontdoor/​deliver/​index/​docId/​6374/​file/​6374_​Obergassel.​pdf. Accessed 13 January 2018. Gervasi (2016). Rilievi critici sull’Accordo di Parigi: le sue potenzialità e il suo ruolo nell’evoluzione dell’azione internazionale di contrasto al cambiamento climatico, La Comunità Internazionale, p. 21 ff. Romanin Jacur (2016). The Paris Agreement on Climate Change: Progresses Achieved and Challenges Ahead. NCTM Newsletter. https://​www.​nctm.​it/​news/​articoli/​the-paris-agreement-on-climate-change-progresses-achieved-and-challenges-ahead. Accessed 12 January 2018.
With an opposite view, Mayer does not understand the whole evolution of international climate change law as the states’ determination to assume rights and obligations vis-à-vis the management of the atmosphere: “Every climate change agreement has embodied a notion of progression towards more demanding obligations until the ultimate objective of preventing a dangerous anthropogenic interference with the climate would be reached. Therefore, climate change agreements can be understood as a transitory regime of collective emulation and collaboration, but not as the definitive determination of States’ rights and obligations with regard to their usage of the atmosphere” in Mayer, Climate Change, migration and the law of State responsibility, in Mayer (2017) (op. cit.), p. 244.
Burkett (2018). Justice and Climate Migration, The Importance of Nomenclature in the Discourse on Twenty-First-Century Mobility. In Behrman and Kent (Eds.) (op. cit.), pp. 73 ff.
Paris Agreement, Article 28.
Paris Agreement, Articles 4.2 and 4.3.
As known, the United States refused to comply with the system and did not ratify the Kyoto Protocol. Furthermore, Canada and Japan have withdrawn from it before the end of the first commitment period, leaving in the end just the EU Member States, alongside with Switzerland, Iceland, and Norway to comply with it.
International Climate Change Law and State Responsibility
Giovanni Sciaccaluga
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