Claiming State Responsibility for Climate Change Damages

Abstract: 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. This thesis attempts to apply the doctrine of State responsibility to the issue of climate change in order to determine if said doctrine offers an applicable mean of redress. The primary obligations of interest in this context are Arts. 4.2 and 4.4 of the UNFCCC, the emission reduction targets set under the Kyoto Protocol and the customary law obligation of No Harm. The articles set up by the UNFCCC bear the disadvantages of being put in vague and non-compulsory wordings, but the advantage of having close to global applicability. The Kyoto Protocol has the advantage of setting up concrete reduction targets, but the disadvantage of being un-ambitious as to the levels of the targets set as well as having only limited applicability. The No Harm-rule is therefore the most interesting primary rule in this context. A breach of the no 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. The extent of measures expected from a reasonable Government when confronted by a high risk of significant harm depends on its capacity and applicable international standards. There are many challenges involved in awarding compensation for the damage suffered. Some of the most obvious are to prove general and specific causation, and to apportion the costs. The link between GHG emissions and climate change could be considered as being too remote, or indirect due to the complex causal chains. On the other hand, 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. Apportioning of costs can be based on either emission data, or on the concept of common but differentiated responsibilities. It can also be made with a combination of these two methods by combining the State's emissions with its GNP. It has been claimed that the State responsibility regime is ill equipped to handle environmental damages, and climate change damages is no exception. An attempt to seek redress for climate change damages by claiming responsibility based on breaches of the No Harm-rule seems indeed to be a near impossibility. However, the recognition shown towards duties to prevent and mitigate harm could still trigger and influence the adoption of additional, and more effective legislative and administrative measures.