climate change damage

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?

1UNIT 1Introduction to Port and Shipping

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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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IT Applications in Port and Shipping

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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

climate change damage

Documents