UNIT 1 Introduction to Port and Shipping

1
Notes ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________

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 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. 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?

IT Applications in Port and Shipping

2
Notes ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________

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, international law can be thought of the natural starting point for an 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 results of 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,

11

UNIT 1 Introduction to Port and Shipping

3
Notes ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________

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 avoided

Avoidable damage and loss not avoided

Unavoidable damage and loss Damage that could not be avoided through mitigation and/or adaptation measures; e.g., coral bleaching, sea level rise, damage due to extreme

Damage prevented through mitigation and/or adaptation measures.

Where the avoidance of further damage was possible through adequate mitigation and/or adaptation, but where adaptation measures were not implemented due to financial or technical constraints.

events where no adaptation efforts would have 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);

IT Applications in Port and Shipping

4
Notes ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________

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 3.1 and recognising that the extent to which developing nations meet their commitments on adaptation depends on these efforts by developed nations ; evolving responsibilities to generate adaptation needs, under Article 12.1; information on

c. d.

an adaptation funding architecture under the Convention and Kyoto Protocol, supplemented by bilateral funding (see Box 2, below); and 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.

e.

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 become insufficient 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

UNIT 1 Introduction to Port and Shipping

5
Notes ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________

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 waterrelated 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 SouthEast 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

10

IT Applications in Port and Shipping

6
Notes ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________

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 to decrease 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 nonnative species is expected to occur, particularly on midand 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

UNIT 1 Introduction to Port and Shipping

7
Notes ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________

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 to keep 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 states

The 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-recognised principles 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

IT Applications in Port and Shipping

8
Notes ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________

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 risk and 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 activity that bears a risk of transboundary damage is forbidden

16

UNIT 1 Introduction to Port and Shipping

9
Notes ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________

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 noharm 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 between states 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

IT Applications in Port and Shipping

10
Notes ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________

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 or suspended. 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

UNIT 1 Introduction to Port and Shipping

11
Notes ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________

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 omissions which 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 it was 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, or a 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

IT Applications in Port and Shipping

12
Notes ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________

specific state interest, distinguishing the injured state for purposes of reparation becomes equally tough. The many-sided nature of present-day legal responsibilities, particularly in the discourse of the notion of common concern which has given rise to the legitimate interest of the international community as a whole (i.e. erga omnes responsibilities) has in some way been considered by Article 48 of the ILCs Draft Articles. In terms of this provision any state other than an injured state, may evoke a remedy if the obligation violated is owed to a group of states and is directed at the protection of the collective interests of the group, or, if the obligation is owed to the international community as a whole. In such cases the state bringing up the violation may claim from the responsible state the stopping of the misconduct, an assurance of non-repetition of the misconduct and the execution of any applicable obligation of reparation in terms of the Draft Articles. Despite the concession made to claims by non-injured states and the concept of a collective interest, this article has not overcome the problems linked with describing a responsible state and with the classical forms of reparation which are still based on bilateral relations between states. It is due to this that the existing climate change regime has preferred the multilateral compliance operations founded in terms of the applicable treaties themselves and aimed at an agreed and negotiated execution of the states parties differentiated responsibilities under a treaty-based monitoring mechanism. These procedures, discussed later on in this Unit, do not replace but supplement the ordinary, strictly judicial remedies for conflict resolution in international law.

The Principle of Good Neighbourliness

The key rule in international law that defines are forbidden from using or jeopardizing coerce against another state is also the foundation for the principle that a province must not permit its district to be used for moves that could compromise the territorial integrity or political independence of another province. What lies behind these rules is the principle of good neighbourliness which has also assumed significant importance in environmental law. Accordingly, it is

UNIT 1 Introduction to Port and Shipping

13
Notes ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________

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 the obligation, 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 the principle 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 managing environmental risk in circumstances of scientific uncertainty.

IT Applications in Port and Shipping

14
Notes ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________

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 13.1 of 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

UNIT 1 Introduction to Port and Shipping

15
Notes ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________

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 legal scholars, 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

IT Applications in Port and Shipping

16
Notes ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________

No-harm rule: This admits that no State should hurt another. Law of Treaties: It defines a treaty as a a legal document between states 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, Virginia Journal 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