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7/29/2019 climate change damage
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Unit 5
Climate Change Damage in
International Law: An
Overview
Objectives
After completion of this unit, the students will be aware of the
following topics:
Failure of Climate Regime to Address Climate Change Damage Role of IPCC in Climate Change Damage Regime Categories of rules International law Commission
Introduction
Climate change is a comparatively well-explored subject,
both scientifically and lawfully. Nevertheless, "climate
change law," as it might be termed, has primarily conducted
with setting and determining responsibilities with respect tothe diminution of greenhouse gases, and instruments to
attain such minimisations on the international and national
level. A good e.g. of this has been the broad debate on
emissions trading & the regulation of energy efficiency
standards both domestically and internationally, Up to
now, legal scholars for the most part have put aside the issue
of damages due to climate change, that is the legal
implications of the affects the climate change to nations and
their populations. It is this gap in the analysis which this
thesis intends to explore. Accordingly the analysis attempts
to answer a paramount question:
How does international law regulate damages arising from
climate change? Does it
1) render sufficient protection to States;
2) sufficiently prevent climate change damage; and
3) does it provide a basis for action should such damage
happen?
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This unit starts with an analysis of the current status of
international law (excluding the field of human rights) with
respect to damages caused by climate.
The concept focus on the assumption that, although
international law is sometimes thought of a "doubtful case'
with regard to its legal character, it in fact supplies many
rules leading and determining State behaviour and by State
responsibilities also
that of private people, and thus also covers the issue of
damages associated with climate change. Because of the
worldwide nature of the climate change process, inter-
national law can be thought of the natural starting point foran analysis of climate change damages even though the
impacts of climate change might also have profound legal
implications on a domestic law level.
Another assumption underlying this concept is the
judgment of conviction of the author that Nations which let
out GHG, thereby supporting and expanding economies built
on fossil fuels, are responsible for protecting the climate
system for Future generations, as well a the lives and
livelihoods of those potentially most at risk from the resultsof climate change, and that international law must and does
respond to this (moral) duty. This thesis is consciously written
from the perspective of the victims, be they poor
communities in developing nations, ecosystems or whole
geographical regions.
5.1 Failure of Climate Regime to Address
Climate Change Damage
The Kyoto Protocol and the Convention comprise
commitments on the mitigation of Green House Gases
emissions and on adaptation to the adverse effects of climate
change. Although, these do not guarantee to address and
redress all the climate change damage suffered by particular
nations.
For the purposes of regulatory responses, there are three
types of climate change damage. Some foreseeable loss and
damage will be avoided, because of the mitigation of
Greenhouse Gases emissions or timely adaptation measures.
Some foreseeable loss and damage would not be avoided,
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because of insufficient mitigation efforts and delays in
accessing adequate adaptation funding and technologies, or
challenges in institutional capacity. Ultimately, some loss and
harm is inescapable, regardless of future adaptation
measures to be undertaken. This ultimate category includes,
for instance, land that has been and will be lost because of
sea level rise, agricultural land lost to persistent drought, and
lives that have been and will be lost due to increasingly
severe utmost weather events.
Table 5.1: Categories of damage
Avoided Unavoided Unavoidable
Avoidable damage avoidedAvoidable damage and
loss
Unavoidable
damage
not avoided and loss
Damage prevented throughWhere the avoidance of
further
Damage that could
not be
mitigation and/or adaptation
measures.
damage was possible
through
avoided through
mitigation
adequate mitigation
and/or
and/or adaptation
measures;
adaptation, but where
adaptation
e.g., coral bleaching,
sea level
measures were not
implemented
rise, damage due to
extreme
due to financial or
technical
events where no
adaptation
constraints. efforts wouldhave helped
In addition to commitments on mitigation, the climate
regimes approach with respect to these categories of
damage is essentially one of adaptation. It currently consists
of:
a. an obligation on all Convention Parties to implement
measures to facilitate adequate adaptation, under Article
4.1(b);
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b. responsibilities on Annex II Parties to finance and support
developing country adaptation measures under Articles
4.3, 4.4, and 4.5, reflecting the principle of common but
differentiated responsibilities enshrined in Article 3.1and
recognising that the extent to which developing nations
meet their commitments on adaptation depends on these
efforts by developed nations;
c. evolving responsibilities to generate information on
adaptation needs, under Article 12.1;
d. an adaptation funding architecture under the Convention
and Kyoto Protocol, supplemented by bilateral funding
(see Box 2, below); and
e. structures to generate information on adaptation needs
and efforts through reporting under Article 12.1; through
National Adaptation Programmes of Action (NAPAs) ; and
through the ongoing Nairobi Work Programme.
5.2 Role of IPCC in Climate Change Damage
Regime
The IPCC has noted numerous examples of future changes
that it projects with a particularly high degree of certainty,
and which can be expected to result in some degree of
damage and loss. As can be seen below, developing nations
will continue to be particularly hard hit.
Changes expected in small islands with very high
confidence
Climate change is projected by mid-century to reduce
water resources in many small islands, e.g., in the
Caribbean and Pacific, to the point where they becomeinsufficient to meet demand during low-rainfall periods.
Sea level rise is expected to exacerbate inundation,
storm surge, erosion and other coastal hazards, thus
threatening vital infrastructure, settlements and facilities
that support the livelihood of island communities.
Changes expected in Africa, Asia, Latin America and
small islands with high confidence
Africa
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Agricultural production, including access to food, in many
African nations and regions is projected to be severely
compromised by climate variability and change.
By 2020, between 75 million and 250 million individual
are projected to be exposed to increased water stress due
to climate change. If coupled with increased demand, this
will adversely affect livelihoods and exacerbate water-
related problems.
for agriculture, the length of growing seasons and yield
potential, particularly along the margins of semi-arid and arid
areas, are expected to decrease. This would further
adversely affect food security and exacerbate malnutrition in
the continent. In some nations, yields from rain-fed
agriculture could be reduced by up to 50% by 2020.
Towards the end of the 21st century, projected sea-level
rise will affect low-lying coastal areas with large
populations. The cost of adaptation could amount to at
least 5-10% of Gross Domestic Product (GDP). Mangroves
and coral reefs are projected to be further degraded, with
additional consequences for fisheries and tourism.
Local food supplies are projected to be negatively
affected by decreasing fisheries resources in large lakes
due to rising water temperatures, which may be
exacerbated by continued over-fishing.
Asia
Coastal areas, especially heavily-populated mega delta
regions in South, East and South-East Asia, will be at
greatest risk due to increased flooding from the sea and,
in some mega deltas, flooding from the rivers.
Freshwater availability in Central, South, East and South-
East Asia, particularly in large river basins, is projected to
decrease due to climate change which, along with
population growth and increasing demand arising from
higher standards of living, could adversely affect more
than a billion individual by the 2050s.
Endemic morbidity and mortality due to diarrhoeal
disease primarily associated with floods and droughts are
expected to rise in East, South and South-East Asia due to
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projected changes in the hydrological cycle associated
with global warming. Increases in coastal water
temperature would exacerbate the abundance and/or
toxicity of cholera in South Asia.
Latin America
By mid-century, increases in temperature and associated
decreases in soil water are projected to lead to gradual
replacement of tropical forest by savannah in eastern
Amazonia. Semi-arid vegetation will tend to be replaced
by arid-land vegetation. There is a risk of significant
biodiversity loss through species extinction in many areas
of tropical Latin America.
Sea-level rise is projected to cause increased risk of
flooding in low-lying areas. Increases in sea surface
temperature due to climate change are projected to have
adverse effects on Mesoamerican coral reefs, and cause
shifts in the location of south-east Pacific fish stocks.
In drier areas, climate change is expected to lead to
salinisation and desertification of agricultural land.
Productivity of some important crops is projected todecrease and livestock productivity to decline, with
adverse consequences for food security. In temperate
zones soybean yields are projected to increase.
Changes in precipitation patterns and the disappearance
of glaciers are projected to significantly affect water
availability for human consumption, agriculture and
energy generation.
Small islands
With higher temperatures, increased invasion by non-
native species is expected to occur, particularly on mid-
and high-latitude islands.
Deterioration in coastal conditions, for example through
erosion of beaches and coral bleaching, is expected to
affect local resources, e.g., fisheries, and reduce the value
of these destinations for tourism.
Source: IPCC AR4 WGII SPM.
5.3 Categories of rules
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It is defined in the Article 38 of the Statute of the
International Court of Justice (ICJ) that the customary
international law as evidence of general practice accepted
as law, and the it has been stated by the ICJ that customary
law originates when a practice between nations is wide and
almost uniform and is companioned by a conviction that it is
obligatory under international law (opinio juris).
The no-harm rule of customary international law is to a great
extent accepted all around the world. This basically admits
that no State should hurt another. This rule allows for a basis
for consideration and negotiation in the case of
transboundary environmental disputes. It requires a State tokeep away from damage and to minimise the risk of harm to
other States. Both avoidable and unavoidable climate change
damage fall within the ambit of legal effects of going against
the no-harm rule, so that financing and enforcing adaptation
measures as addressed in the climate regime are just as
much a legal effect of going against the international law as
the provision of compensation for loss and damage.
The no-harm rule prohibits states from damaging other
statesThe no-harm rules relevance in the environmental
circumstance is not arguable. It has been to a great degree
acknowledged and can provide affected States with a basis
for diplomatic consultation and negotiation, as well as legal
action, in transboundary environmental conflicts.
This rule came up significantly in the 1938-1941 Trail Smelter
Arbitration and was restated by the International Court of
Justice (ICJ) in the 1949 Corfu Channel Case, where the court
discovered that there were general and well-recognisedprinciples of international law pertaining every States
obligation not to allow knowingly its territory to be used for
acts contrary to the rights of other States and by the Arbitral
Tribunal in the 1956 Lac Lanoux arbitration. It has also been
restated in the preamble to the UNFCCC. In 1996, the ICJ
declared that:
the existence of the general obligation of States to ensure
that activities within their jurisdiction and control respect the
environment of other States or of areas beyond national
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control is now part of the corpus of international law relating
to the environment.
This implies that the rule is relevant every State, without
differentiation, and without the need for a particular
international treaty to rely on.
States are responsible for preventing harm and minimise risk.
The no-harm rule carries a worldwide obligation to prevent
substantial transboundary harm and minimise the risk of
transboundary harm. The rule thus makes legal
responsibilities before any harm has happened.
It is relevant to all activities that contribute to a specific riskand does not require a State to be able to prevent the harm
completely. The rule is a pure duty of conduct, and no intent
to cause damage is required. As long as an activity can be
fairly demonstrated to cause harm or risk thereof, the
prevention duty applies, irrespective of the physical
character of the activity.
Lately a subset of rules comprised in the no-harm rule has
been enacted by the International Law Commission (ILC)s
2001 Draft Articles on Prevention of Transboundary Harm
from Hazardous Activities. Witness of the existence, and
examples of the preparation, are plenty in number.The exact
content of the rule could be taken from the 3rd Restatement
of US Foreign Relations Law, which allows a intended
representation of international law from the perspective of
US and other scholars and practitioners:
(1) A State is obligated to take such measures as may be
necessary, to the extent practicable under the
circumstances, to ensure that activities within its jurisdiction
or control:
(a) conform to generally accepted international rules
and standards for the prevention, minimisation, and
control of injury to the environment of another State or
of areas beyond the limits of national jurisdiction; and
(b) are conducted so as not to cause significant injury
to the environment of another State or of areas beyond
the limits of national jurisdiction.
Although, as the above expression shows, not every activitythat bears a risk of transboundary damage is forbidden
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beneath the no-harm rule. In the climate context for
example, international law would not hold a conclusion that a
State emitting GHGs and thus imparting to global climate
change should be held responsible for harm happening per
se, merely because it has emitted such gases.Rather, the no-
harm rule is a fault-based rule. A States behaviour must be
encountered to be contradictory to a particular standard of
care. Once this duty of care is defined, if a State fails to take
proportionate steps to minimise the risk of predictable harm,
the no-harm rule is violated. There is a solid parallel to what
is widely known as negligence or due diligence under
national law in all legal systems.
In general, the due diligence standard can be identified as
the conduct that can be expected of a good government, in
terms of an objective and international standard. Common
components discernible in writings and jurisprudence
demonstrate the following components of a standard of care:
(i) the opportunity to act or prevent;
(ii) foreseeability or knowledge that a certain activity
could lead to transboundary damage; and
(iii) proportionality in the choice of measures to prevent
harm or minimise risk.
These components can be applied in the context of climate
change damage.
The Law of Treaties
The primary source on the conclusion, entry into force,
interpretation, enforcement, invalidity and termination of
treaties is the 1969 Vienna Convention on the Law of
Treaties. It defines a treaty as a a legal document betweenstates which is governed by international law whatsoever its
specific designation. This explicates why the term treaty is
often used in an interchangeable manner with convention,
agreement, protocol or charter. What counts are the
substantial necessities and not the formal designation? For
aims of this unit only a few essentialia of the law of treaties
need to be singled out.
At the international level a state demonstrates its acceptance
to be adhered by a treaty by ratification, acceptance,approval or accession. For a treaty to have domestic legal
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consequence another act of consolidation in conformity with
national law is generally needed.
This frequently takes the form of parliamentary legislation
through which the treaty will be given domestic legal
consequence.
As soon as a treaty is in force and adhering on a state that
state is under a legal obligation to execute the treaty in good
faith. The good faith obligation is regarded as one of the
basic principles governing the foundation and performance of
legal responsibilities in international law, regardless of the
source of the legal obligation. The principles of trust and
assurance that underlie this obligation are inbuilt in
international cooperation, which in many fields, is becoming
increasingly requisite, no less in matters requiring the
security of the environment. The good faith obligation further
implies that a state may not appeal for the provisions of its
national law as justification for its failure to execute the
treaty.
The expiry or suspension of a treaty must be accomplished in
conformity with the directions of the Vienna Convention on
the Law of Treaties and of the treaty to be terminated orsuspended. Non-conformity with this rule or the braechment
of a treaty provision necessary for the accomplishment of the
object or purpose of a treaty will establish a material breach
of the treaty. Such a breach will give the right to the other
parties to terminate the treaty or suspend its operation
wholly or partially. Under certain conditions a state party may
also invoke the disappearing or destructing an object
indispensible for the implementation of the treaty, or a
fundamental change of conditions which has happened since
the time of determination of the treaty and not anticipated by
the parties at the time as a basis for drawing back from the
treaty. The latter rule will only apply if the conditions in
question comprised an essential basis of the consent of the
parties to be bound by the treaty and the consequence of the
change will in a radical manner transform the extent of the
responsibilities still to be executed by the parties in terms of
the treaty.
State Responsibility
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In international law, the state responsibility is used in the
objective sense of violation of an obligation, which obligation
could derive from either treaty law or customary international
law. The principles concerning to this concept have been
subject to a codification process by the International Law
Commission (ILC) which started in 1956 and which ended in
2001 with the publication of the ILCs Draft Articles on
Responsibility of States for Internationally Wrongful Acts.
The fundamental approach to state responsibility is that any
act or omission which comprises a breach of an international
obligation and which can be assigned to the state will render
the state responsible in international law. Acts or omissionswhich can be assigned to the state are those of organs of the
state; of persons or entities, which, although not organs of
the state, are empowered by the law of the state to execute
governmental functions; or of a person or group of persons
acting on the instructions of, or under the direction or control
of the state.
A state which has internationally misconducted is under an
obligation to make redressal to the offended state which
means that the situation must be re-established to what itwas before the misconduct happened. Restitution as a form
of compensation in international law falls away if it is
materially impossible to achieve or if it involves a burden out
of proportion to the benefit that could be inferred from it. In
such cases the responsible state is under an obligation to
compensate the injured state for any financially assessable
damage not covered under the redressal option. In the last
case, compensation may also take the form of contentment
given by a state and which may take the form of an
acknowledgment of the violation, an expression of regret, ora formal apology.
These considerable principles of state responsibility in
international law may face serious obstructions in the
discourse of the climate change phenomenon. Since a variety
of state and non-state entities may impart in several ways to
elements inducing climate change, ascertaining whose
wrongful conduct can causally be linked to the harmful
consequence is virtually impossible. In the second case, since
it is the atmosphere which is affected and not necessarily a
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now an founded rule of customary international law and a
basis of international environmental law that states have, in
conformity with the United Nations Charter and the rules of
international law, the sovereign right to tap their own natural
resources consistent to their own environmental policies.
Simultaneously, and as an inherent part of this right, states
have the duty to ensure that activities within their legal
power or control do not cause harm to the environment of
other states or of areas outside the limits of domestic legal
power.
The obligation of a province to exert control over activities
under its jurisdiction or control is closely linked to theobligation, in both the Stockholm and Rio Declarations, to
develop, through international cooperation, international as
well as domestic law considering financial obligation and
compensation for the victims of pollution and other
environmental damage, even if it occurs in areas beyond
their jurisdiction. The obligation of states in this respect
accords with the general obligation, especially well-settled in
human rights law, to ensure that effective remedies are
available for someone seeking redress for the violation of a
right or interest.
The rule of good good-neighbourliness moreover needs
preventive standards to be adopted by a state when required
to avoid activities which establish in its district or under its
control or jurisdiction and which may cause important harm
to the environment of another state or to areas beyond its
jurisdiction. In both Pulp Mills case (Argentina v Uruguay, ICJ
case no 135, 20 April 2010) and the Nuclear Weapons case
(ICJ Advisory Opinion, 1996) and the the International Court
of Justice has asserted the customary law status of theprinciple of prevention.
To act preventively, states may be required to adopt a
precautionary approach to the assessment of the risk of
future harm which could necessitate the taking of
anticipatory action. In its present form the precautionary
approach originates from the Vorzorgeprinzip in German law
and since the1980s has become explicitly accepted in
several national legal systems and in environmental law
treaties for the purpose of assessing and managingenvironmental risk in circumstances of scientific uncertainty.
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Applying the precautionary strategy could imply a complex
balancing act between costs & risks, between the overall
social and economic and advantages of the action and its
potential damage and between the degree of risk of
significant harm and the accessibility of way to keep the
harm from taking place, etc.
In essence the obligation of a state to take preventive action
is one of due diligence against which the conduct of the state
in question must be examined. At the national level this will
involve an enquiry about the appropriateness and
effectiveness of the states legal, governance and
administrative system to achieve the necessary objectives,while at the international level it is a question about the
states compliance with its obligation to cooperate with other
states in good faith, which is universally considered as one of
the basic principles governing the creation and performance
of all legal responsibilities in international law. In the
environmental law field, this obligation has often been
applied in relation to the exchange of information,
notification, consultation and monitoring when activities over
which states exercise control involve a significant risk of
environmental harm.
5.4 International Law Commission
As is well known, apart from the restrictive right to pass
binding resolutions in the Security Council. the UN does not
have ally formal legislative powers and thus cannot enact
binding rules of international law. Still, the nations involved in
drafting the UN Charter after the Second World War wanted
to entrust the UN system at least with some recommendatory
powers regarding international law. Accordingly, Article 13.1of the eN Charter provides:
The General Assembly shall initiate studies and make
recommendations for the purpose of encouraging the
progressive development of international law and its
codification....
In 1947, the General Assembly laid down a preliminary
Committee to carry out this task,'' and at its 2nd session, it
laid down and sanctioned its Statute' which establishes the
objective of the ILC
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In 1963, the MC mentioned that the range of its work on the
Law on State Responsibility could also encompass damages
due to special (risky) activities that are legal under in law,
that is. cases where no direct violation or responsibility takes
place but nevertheless damage may arise; and in 1977 the
UN General Assembly assigned the TLC with the task of
developing the topic of "International liability for injurious
consequence.s arising out of acts not prohibited by
international law"_ The Draft Articles on Prevention of
Transboundary Harm from Hazardous Activities, which
establish part of this topic and were adopted in 2001 fiarm.
The deliberations of ILC have been affirmed on by many legalscholars, and have been the impetus for many official
judgments of' States on components of international law. The
resulting reports, drafts and other documents thus serve as a
tool for discerning the status of law, both in terms of State
practice, or opinio iurb, and the opinions of scholars. It is for
this reason the IL C material is used widely in this thesis.
5.5 Student Activity
Highlight the role of state responsibility in maintaining the
international law.
5.6 Summary
Climate change is a comparatively well-explored subject,
both scientifically and lawfully. Nevertheless, "climate
change law", as it might be termed, has primarily conducted
with setting and determining responsibilities with respect to
the diminution of greenhouse gases, and instruments to
attain such minimisations on the international and national
level.A good e.g. of this has been the broad debate on emissions
trading & the regulation of energy efficiency standards
both domestically and internationally, Up to now, legal
scholars for the most part have put aside the issue of
damages due to climate change, that is the legal implications
of the affects the climate change to nations and their
populations. It is this gap in the analysis which this thesis
intends to explore.
5.7 Keywords
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No-harm rule: This admits that no State should hurt another.
Law of Treaties: It defines a treaty as a a legal document betweenstates which is governed by international law whatsoever its specific
designation.
The state responsibility: It is used in the objective sense of violation of
an obligation, which obligation could derive from either treaty law or
customary international law.
5.8 Review Questions
1. Explain the failure of climate regime to address climate
change damage.
2. Describe the role of IPCC in Climate Change Damage
Regime
3. Explain the categories of rules.
4. Describe the International Law Commission.
5.9 Further Readings
Books
Alexander Yankov, The Law of the Sea Conference at the Crossroads, VirginiaJournal of International Law, 1977, Vol. 18, pp. 31 and 36; Also see P. S. Rao,
India and the Law of the Sea, World Focus, Vol. 15 (9), 1992, pp. 15 to 19.
Web Readings
http://www.un.org/law/ilc/index.htm
http://assets.wwf.org.uk/downloads/beyond_adaptation_lowre
s.pdf
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http://www.un.org/law/ilc/index.htmhttp://www.un.org/law/ilc/index.htm