“It’s a collective endeavour, its collective accountability and it may not be too late.”[i]
Christine Lagarde - Former Managing Director, IMF
1. Terminal Condition
Global climate change may be the most pivotal environmental problem of our time. It is cogent, not just for its predicted consequences, which are austere, but also for its ability to test the extent of humankind’s cumulative conscience to take moral responsibility for an issue of its own making. [ii] Oceans have augmented and depleted over time, continually changing their level relative to land due to earthly, geomorphological and climate-related processes. [iii]
In recent times, anthropogenic activities have contributed significantly to an anomalous behaviour of the sea, witnessed by scientists all over the world. [iv] They saw that the melting of glaciers and ice sheets at polar caps is now the dominant cause of sea level rise. Sea level rise is widely recognised to threaten coastal and low-lying areas of the world. The nature of this threat varies from region to region as rising sea levels are imbalanced across space and time. [v] These are likely to hinder human mobility and the long-term livelihood of various communities forecasting widespread displacement.
The lasting nature of challenges presented by the brunt of sea level rise means that even relatively well resourced States like the United States and states within the European region with durable industrial and institutional competencies and obedience to human rights, may battle to move away from their human rights obligations. [vi]
2. Regressive and inequitable consequences
All the same, the science conveys this idea that the impacts of sea level rise will be distributed haphazardly. [vii] They will affect poorer parts of the world where responsive competence is already hampered by insufficient resources, limited technical and professional support and other stressors such as population growth, limited education and weak human rights protection. [viii] States that have contributed the least to anthropogenic changes in the carbon cycle of the climate system may well be the worst affected. In this context, greater lucidity is needed on the role and responsibility of the international community to step into the breach.
With regard to the impacts of sea level rise, there is one cardinal principle of customary international law: the principle of common but differentiated responsibilities. This principle has the potential to provide greater transparency on the role and responsibilities of the international community of States. [ix].
Principle 7 of the Rio Declaration on Environment and Development reads as follows:
“In view of the different contributions to global environmental degradation, states have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command”. [x]
The principle of common but differentiated responsibility demands common responsibility of states in the protection of the environment. Accordingly, common but differentiated responsibility operates to require the acknowledgement of developed states that they bear immediate but not exclusive responsibility for creating climate change by taking into consideration their specific contribution. Unfortunately, this principle is not binding on states and its interpretation is subject to controversy. States do not generally endorse environmental treaties as they are afraid of the fact that some might be used against them in future. Subsequently, an allocation of responsibility and the creation of international environmental regime with liability rules is a necessity. This is in keeping with the clarion call raised at the Rio and Stockholm Conferences regarding the climate action. [xi]
4. A cure?
The imposition of liability could take endless forms but the principle of civil liability could act as an elixir for this never-ending problem. States are responsible for the breaches of international law. [xii] While this principle is largely affirmed, there is no binding international legal regime regarding this. The lack of ardour on the part of States could be well compensated by the civil liability principles.
There is currently no civil liability regime directly applicable to climate change. However, there are an increasing number of regional instruments that could pave the way for the same. The Council of Europe has made significant strides through the adoption of the Lugano Convention. [xiii] The convention is devoted to liability and environmental damage, ensuring fair compensation for damage resulting from activities dangerous to the environment. Such damage is defined to include not only ruination of the environment, but also the costs of mitigation measures and any loss associated with those measures.
In practice, most recent international environmental treaties that include a liability regime have chosen civil liability as the better suited instrument. Since 1960, a number of treaties concerning environmental harm have been concluded to facilitate the bringing of (transnational) civil liability claims before municipal courts by those suffering harm from such activities. [xiv] For instance the Vienna Convention on Civil Liability for Nuclear Damage. [xv] Furthermore, Principle 22 of the Stockholm Declaration of the 1972 UN Conference on the Human Environment calls on states to "co- operate to develop further the international law regarding liability and compensation for the victims of pollution and other environmental damage caused by activities within the jurisdiction or control of such States to areas beyond their jurisdiction."
Liability and redress rules are already well developed in international environmental law; however, they lack a standardized set of rules common to civil liability rules. Environmental harm regimes in current operation are sectoral in nature, and are not directed to climate change. Under the present legal framework, there will be an increasing necessity to address the consequences of the climate change. Therefore, it becomes necessary that the international courts impose liabilities on major polluters by resorting to the principles already enunciated by regional civil liability treaties.
5. Moving Forward
Climate change is more than an environmental issue posing an existential threat to humanity. Thus, it is inappropriate for developed countries to claim apportionment of liability on the basis of their present emissions and developing countries to argue that it is appropriate for them to follow the same developmental pattern previously followed by developed countries. It has become necessary to develop a liability and redress framework to reduce degree of risk to the environment.
States should follow the principles enforced by the existing treaties. As Gunther Doeker and Thomas Gehring have warned, "future attempts to regulate liability will have to focus primarily on the economic capacity of the risk-creating industry to bear the burden of increased liability" and there is little use but still some use in applying one of the existing civil liability regimes to “other areas without careful scrutiny of the political and economic background”. [xvi]
[i]. Christine Lagarde, ‘Tackling Climate, Development and Growth’ (World Economic Forum, 23 Jan 2015) <https://www.weforum.org/agenda/2015/01/24-quotes-on-climate-change-from-davos-2015/> accessed on 7 August 2020
[ii]. Lavanya Rajamani, ‘The Principle of Common but Differentiated Responsibility and the
Balance of Commitments under the Climate Regime’ RECIEL 9 (2) 2000 < https://onlinelibrary.wiley.com/doi/abs/10.1111/1467-9388.00243> accessed on 2 August 2020
[iii]. Davor Vidas, ‘Sea-Level Rise and International Law: At the Convergence of Two Epochs’ Climate Law 4 (2014) 70-84 < https://www.fni.no/getfile.php/131454-1467392591/Filer/Publikasjoner/DAV-ClimateLaw-2014.pdf > accessed on 3 August 2020
[iv]. IPCC, 2019: IPCC Special Report on the Ocean and Cryosphere in a Changing Climate [H.-O. Pörtner, D.C. Roberts, V. Masson-Delmotte, P. Zhai, M. Tignor, E. Poloczanska, K. Mintenbeck, A. Alegría, M. Nicolai, A. Okem, J. Petzold, B. Rama, N.M. Weyer (eds.) <https://www.ipcc.ch/site/assets/uploads/sites/3/2019/12/02_SROCC_FM_FINAL.pdf> accessed on 31 July 2020
[vi]. IPCC, Climate Change 2014: Synthesis Report. Contribution of Working Group I, II, and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change, 2015, 2. <https://www.ipcc.ch/site/assets/uploads/2018/02/AR5_SYR_FINAL_Front_matters.pdf > accessed on 29 July 2020
[vii]. Robin Kundis Craig, ‘A Public Health Perspective on Sea-Level Rise: Starting Points for Climate Change Adaptation’ (April 2010) <file:///C:/Users/mypc/Downloads/A_Public_Health_Perspective_on_Sea-Level_Rise_Star.pdf> accessed on 29 July 2020
[viii]. Barry Smit (Canada) & Olga Pilifosova (Kazakhstan), “Adaptation to Climate Change in the Context of Sustainable Development and Equity’ (IPCC 2018) < https://www.ipcc.ch/site/assets/uploads/2018/03/wg2TARchap18.pdf>
[ix]. Estefania Jimenez, “The Principle of Common but Differentiated Responsibilities and Respective Capabilities, and the Compliance Branch of the Paris Agreement” 2013 <http://www.oas.org/en/sedi/dsd/IWRM/Documentspot/Papers/The%20Principle%20of%20Comm on%20but%20Differentiated%20Responsibilities%20and%20Respective%20Capabilities%20(CB DRRC)%20and%20the%20Compliance%20Branch%20of%20the%20Paris%20Agreement.pdf>
[x]. The Rio Declaration on Environment and Development, Rio de Janerio, 13 June 1992. <https://www.jus.uio.no/lm/environmental.development.rio.declaration.1992/portrait.a4.pdf>
[xi]. IPCC, ‘Declaration of the United Nations Conference on the Human Environment’ 1972 <file:///C:/Users/mypc/Downloads/6471%20(2).pdf> accessed on 30 July 2020
[xii]. Draft Articles on Responsibility of States for Internationally wrongful Acts art. 1 International Law Commission, G.A Res. 56/83, Annex. U.N Doc. A/56/10 (SUPP) (Dec. 12,
[xiii]. Official Journal of the EU, ‘Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters’ (21 December 2007) <https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A22007A1221%2803%29>
[xiv]. Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment, June 21, 1993 <https://rm.coe.int/168007c079>
[xv]. International Atomic Energy Agency, ‘Vienna Convention on Civil Liability for Nuclear Damage’ (20 March 1996) <https://www.iaea.org/sites/default/files/infcirc500.pdf>
[xvi]. Gunther Doeker and Thomas Gehring, ‘Private or International Liability for Transnational Environmental Damage- The Precedent of Conventional Liability Regimes, 1989 <https://pdfs.semanticscholar.org/8ab4/e3c143c2655155f5c07c43d70c6d64fbfc30.pdf>