“PRESIDENT TRUMP MAY HAVE HIS ALTERNATIVE FACTS,
BUT ALTERNATIVE FACTS DO NOT WORK IN A COURTROOM”
References for 'no harm principle'
Trail Smelter Arbitration, 1941: '... under the principles of international law, as well as of the law of the United States, no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties of persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.'
1989 Basel Convention recognises that 'all states have the sovereign right to ban the entry or disposal of foreign hazardous wastes and other wastes in their country.'
Stockholm Declaration 1972, Principle 21 / Rio Declaration 1992, Principle 2: States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.
UN Charter, Art. 74: 'Members of the United Nations also agree that their policy in respect of the territories to which this Chapter applies, no less than in respect of their metropolitan areas, must be based on the general principle of good-neighbourliness, due account being taken of the interests and well-being of the rest of the world, in social, economic, and commercial matters.'
Urgenda v Dutch Government, 2015, 4.39: 'In this context, Urgenda also brought up the international-law “no harm” principle, which means that no state has the right to use its territory, or have it used, to cause significant damage to other states. The State has not contested the applicability of this principle.'
References for duty to prevent
UNFCCC, Preamble: Noting the importance for some of the concept of 'climate justice' ...
Recalling also that States have, in accordance with the Charter of the United Nations and the principles of international law ... the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.
UNFCCC, Art. 3(3): The Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects.
Charter of Economic Rights and Duties of States, Art 30 (UNGA Res. 3281 (1974)): All states have the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction.
Trail Smelter Arbitral Tribunal, 1941: 'As Professor Eagleton puts in (Responsibilityof States in International Law, 1928, p. 80) : "A State owes at all times a duty to protect other States against injurious acts by individuals from within its jurisdiction." A great number of such general pronouncements by leading authorities concerning the duty of a State to respect other States and their territory have been presented to the Tribunal.'
ICJ's 1996 Advisory opinion on The Legality of the Threat or Use of Nuclear Weapons, para. 29: ‘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 control is now part of the corpus of international law relating to the environment.’
Iron Rhine Arbitral Tribunal, 2005: 'Environmental law and the law on development stand not as alternatives but as mutually reinforcing, integral concepts, which require that where development may cause significant harm to the environment there is a duty to prevent, or at least mitigate, such harm. This duty,
in the opinion of the Tribunal, has now become a principle of general international law.' (para. 59).
Pulp Mills on the River Uruguay, ICJ, 2010, para. 101: The Court points out that the principle of prevention, as a customary rule, has its origins in the due diligence that is required of a State in its territory. It is “every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States” (Corfu Channel (United Kingdom v. Albania), Merits, Judgment, I.C.J. Reports 1949, p. 22). A State is thus obliged to use all the means at its disposal in order to avoid activities which take place in its territory, or in any area under its jurisdiction, causing significant damage to the environment of another State.
References for duty to co-operate
North Sea Continental Shelf Cases, 1969, para. 85: the parties are under an obligation to enter into negotiations with a view to arriving at an agreement, and not merely to go through a formal process of negotiation as a sort of prior condition for the automatic application of a certain method of delimitation in the absence of agreement; they are under an obligation so to conduct themselves that the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating any modification of it.
UNEP Draft Principles, 1978, Principle 7:
Exchange of information, notification, consultation and other forms of co-operation regarding shared natural resources are carried out on the basis of the principle of good faith and in the spirit of good neighbourliness.
Gabcikovo-Nagymaros Project case, 1997: ICJ stated that the principle of good faith required parties to apply their treaty ‘in a reasonable way and in such manner that its purpose can be realised.’
References for sustainable development
Brundtland Report, 1987: 'Sustainable development' is ‘development that meets the needs of the present without compromising the ability of future generations to meet their own needs.’
Shrimp / Turtle Case, 1998, WTO Appellate Body: the objective of sustainable development (referenced in the preamble to the WTO Agreement) 'has been generally accepted as integrating economic and social development and environmental protection'. In principle action to support sustainable development, and to protect exhaustible natural resources, might justify the imposition of trade restrictions.
ICJ's 1996 Advisory opinion on The Legality of the Threat or Use of Nuclear Weapons: 'The environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn.'
Gabcikovo-Nagymaros case, 1997:
'This need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development. For the purposes of the present case, this means that the Parties together should look afresh at the effects of the environment of the operation of the Gabcikovo power plant. In particular they must find a satisfactory solution for the volume of water to be released into the old bed of the Danume and into the side-arms on both sides of the river.'
The Iron Rhine arbitration para. 59:
'Environmental law and the law on development stand not as alternatives but as mutually reinforcing, integral concepts, which require that where development may cause significant harm to the environment there is a duty to prevent, or at least mitigate, such harm (see paragraph 222). This duty, in the opinion of the Tribunal, has now become a principle of general international law.'
UN General Assembly Resolution 2015, 70/1, 'Transforming Our World: the 2030 Agenda for Sustainable Development':
'We are determined to protect the planet from degradation, including through sustainable consumption and production, sustainably managing its natural resources and taking urgent action on climate change, so that it can support the needs of the present and future generations.'
References for precautionary principle
Rio Declaration, Principle 15: In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.
UNFCCC, Art. 3(3): The Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures, taking into account that policies and measures to deal with climate change should be cost-effective so as to ensure global benefits at the lowest possible cost.
EU Communication on the Precautionary Principle, Com 2000/ 0001, February 2000: The precautionary principle should be considered within a structured approach to the analysis of risk which comprises three elements: risk assessment, risk management, risk communication ...[T]his principle has been progressively consolidated in international environmental law, and so it has since become a full-fledged and general principle of international law.
Oslo Principles on Global Obligations to Reduce Climate Change, 2015: The precautionary principle requires that:
1) GHG emissions be reduced to the extent, and at a pace, necessary to protect against the threats of climate change that can still be avoided; and
2) the level of reductions of GHG emissions required to achieve this, should be based on any credible and realistic worst-case scenario accepted by a substantial number of eminent climate change experts.
References for polluter pays
Stockholm Declaration, 1972, Principle 22: States shall cooperate 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.
OECD, Guiding Principles Concerning the International Economic Aspects of Environmental Policies, 1972, Principle 4: The principle to be used for allocating costs of pollution prevention and control measures to encourage rational use of scarce environmental resources and to avoid distortions in international trade and investment is the so-called "Polluter-Pays Principle". This principle means that the polluter should bear the expenses of carrying out the above-mentioned measures decided by public authorities to ensure that the environment is in an acceptable state. In other worlds, the cost of these measures should be reflected in the cost of goods and services which cause pollution in production and/or consumption. Such measures should not be accompanied by subsidies that would create significant distortions in international trade and investment.
UNEP Draft Principles, 1978, Principle 12(2): 'States should co-operate to develop further international Law regarding liability and compensation for the victims of environmental damage arising out of the utilization of a shared natural resource and caused to areas beyond their jurisdiction.'
International Convention on Oil Pollution Preparedness, Response and Cooperation, 1990: TAKING ACCOUNT of the "polluter pays" principle as a general principle of international environmental law [preamble] ...
Rio Declaration 1992
Principle 13: States shall develop national law regarding liability and compensation for the victims of pollution and other environmental damage. States shall also cooperate in an expeditious and more determined manner to develop further international law regarding liability and compensation for adverse effects of environmental damage caused by activities within their jurisdiction or control to areas beyond their jurisdiction.
Principle 16: National authorities should endeavour to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment.
OECD, The Polluter Pays Principle, Analyses and Recommendations, OCDE/GD(92)81, 1992: The Polluter-Pays Principle started out as an economic principle and has recently become a legal one. It has not yet been codified, for its content has changed and will continue to do so ...
The Polluter-Pays Principle is not a principle of equity; it is designed not to punish polluters but to set appropriate signals in place in the economic system so that environmental costs are incorporated in the decision-making process and hence arrive at sustainable development that is environment-friendly.
Protocol on civil liability and compensation for damage caused by the transboundary effects of industrial accidents: Taking into account the polluter pays principle as a general principle of international environmental law, accepted also by the Parties to the above-mentioned Conventions ...
Council of Europe, Lugano Convention, 1993 (not yet in force): Having regard to the desirability of providing for strict liability in the field taking into account the 'polluter pays' principle ...
Protocol on Preparedness, Response and Co-operation to Pollution Incidents by Hazardous and Noxious Substances, 2000: TAKING ACCOUNT of the "polluter pays" principle as a general principle of international environmental law
1996 Protocol to the Convention on the Prevention of Marine Pollution (as amended in 2006), Article 3(2): Taking into account the approach that the polluter should, in principle, bear the cost of pollution, each Contracting Party shall endeavour to promote practices whereby those it has authorized to engage in dumping or incineration at sea bear the cost of meeting the pollution prevention and control requirements for the authorized activities, having due regard to the public interest.
EU Treaty of Lisbon, 2007, Art 191(2): Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.
IMF, Counting the Cost of Energy Subsidies, July 2015: Energy subsidies are projected at US$5.3 trillion in 2015, or 6.5 percent of global GDP, according to a recent IMF study. Most of this arises from countries setting energy taxes below levels that fully reflect the environmental damage associated with energy consumption
Tracing anthropogenic carbon dioxide and methane emissions to fossil fuel and cement producers, 1854–2010, Climatic Change, January 2014, Volume 122, Issue 1, pp 229-241: The 90 largest corporate investor-owned and state-owned producers of fossil fuels and cement are responsible for nearly two thirds of global GHG emissions.
References for CBDR
Rio Declaration, Principle 7: States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth's ecosystem. 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 to sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command.
UNFCCC, Article 3(1): The Parties should protect the climate system ... on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities.
Paris Agreement, Preamble: In pursuit of the objective of the Convention, and being guided by its principles, including the principle of equity and common but differentiated responsibilities and respective capabilities, in the light of different national circumstances ...
Paris Agreement, Article 4(3): Each Party’s successive nationally determined contribution will ... reflect its highest possible ambition, reflecting its common but differentiated responsibilities and respective capabilities, in the light of different national circumstances.
Paris Decision, Preamble: Emphasizing with serious concern the urgent need to address the significant gap between the aggregate effect of Parties’ mitigation pledges in terms of global annual emissions of greenhouse gases by 2020 and aggregate emission pathways consistent with holding the increase in the global average temperature to well below 2 °C above pre- industrial levels and pursuing efforts to limit the temperature increase to 1.5 °C above pre- industrial levels
References on Equity
UNFCCC, Art. 3(1): The Parties should protect the climate system ... on the basis of equity ...
Paris Agreement, Preamble: In pursuit of the objective of the Convention, and being guided by its principles, including the principle of equity ... [Preamble]
Art. 4(1): In order to achieve the long-term temperature goal set out in Article 2, Parties aim to reach global peaking of greenhouse gas emissions as soon as possible ... and to undertake rapid reductions thereafter ... on the basis of equity ...
IPCC, AR5, 2014
220.127.116.11, 'Equity principles pertinent to burden sharing in an international climate regime ': Here these equity principles are given along four key dimensions—responsibility, capacity, equality, and the right to sustainable development.
18.104.22.168, 'Frameworks for equitable burden sharing': There are various ways of interpreting the above equity principles and applying them to the design of burden sharing frameworks. It is helpful to categorize them into two broad classes. ‘Resource-sharing’ frame- works are aimed at applying ethical principles to establish a basis for sharing the agreed global ‘carbon budget’. ‘Effort-sharing’ frameworks are aimed at sharing the costs of the global climate response ... Neither of these framings is objectively the ‘correct’ one, just as neither collective action framing of the climate change problem is correct.
North Sea Continental Shelf Cases, 1969:
para. 85: the parties are under an obligation to act in such a way that, in the particular case, and taking all the circumstances into account, equitable principles are applied ...
para. 88: The Court comes next to the rule of equity. The legal basis of that rule in the particular case of the delimitation of the continental shelf as between adjoining States has already been stated. It must however be noted that the rule rests also on a broader basis. Whatever the legal reasoning of a court of justice, its decisions must by definition be just, and therefore in that sense equitable.
para. 92: Although the Parties have made it known that they intend to reserve for themselves the application of the principles and rules laid down by the Court, it would, even so, be insufficient simply to rely on the rule of equity without giving some degree of indication as to the possible ways in which it might be applied in the present case, it being understood that the Parties will be free to agree upon one method rather than another, or different methods if they so prefer.
para. 93: In fact, there is no legal limit to the considerations which States may take account of for the purpose of making sure that they apply equitable procedures, and more often than not it is the balancing-up of all such considerations that will produce this result rather than reliance on one to the exclusion of all others. The problem of the relative weight to be accorded to different considerations naturally varies with the circumstances of the case.
Gabcikovo-Nagymaros: ICJ cites with approval the principle of 'equitable utilisation' referred to in Art. 5(2) of the 1997 Watercourses Convention.
Sariakandi Upazila, Bogra District
'Steps must be taken by the States where the Carbon Majors are incorporated, such as Australia, Canada, and the United States, and by the states where the harm is suffered, such as the Philippines, to ensure that the Carbon Majors refrain from the activities that are interfering with the rights of Filipinos. The States where the Carbon Majors are incorporated need to adequately regulate, while the states that are acutely vulnerable to the impacts of climate change need to monitor, assess, notify the Carbon Majors, and their states, of imminent or on-going human rights violations, and to take further action if deemed necessary. This petition presents an opportunity for the States where the Carbon Majors are incorporated to cooperate with the Philippines, a State profoundly affected by climate change, and specifically with the Honourable Commission in fully investigating this urgent matter.'
From Petition to the Philippines Human Rights Commission, 2015
Relations between states are governed by law, in much the same way as are relations between citizens. Under international law it is illegal for one country to cause substantial harm to the territory of another.
Countries consuming more than their fair share of the 'carbon budget' are damaging their neighbours in two important ways:
The Preamble to the United Nations Framework Convention on Climate Change (UNFCCC) explicitly refers to obligations under general international law:
Recalling also that States have, in accordance with the Charter of the United Nations and the principles of international law ... the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.
If a country fails to take reasonable steps to prevent such damage it is breaching international law. If the ICJ were confronted with such a case it would need to consider developing principles for:
The outcome of such a case might be a science-based, legally binding framework for reducing global greenhouse gas emissions at the rate required to limit warming to 1.5 or 'well below' 2 degrees Celsius.
In some cases obligations between states are specified in treaties, along with particular enforcement mechanisms. In the absence of a specific treaty obligation or enforcement mechanism, an alleged breach of international law may be brought before the International Court of Justice (ICJ), the principal court of the UN.
The governments of climate vulnerable countries may be reluctant to commence legal action for a variety of reasons. NGOs and civil society should consider the merits of such action for themselves, with a view to making appropriate representations. An action might take the form of an actio popularis on the basis that developing legal principles to prevent dangerous climate change would be in the interests of the wider international community.
While the Paris Agreement brings the existing Warsaw international Mechanism for Loss and Damage under its ambit, the accompanying Decision specifically excludes liability and compensation from its scope. Consequently liability and compensation are left to be determined on the basis of general principles of law.
This section discusses the principles of international law that may be relevant to a claim by one state (or group of states) that another is failing to take sufficient steps to prevent climate change.
Some of the principles, such as the precautionary principle and the polluter pays, may also be relevant in the context of national law.
Countries might also consider commencing action under the UN Convention on the Law of the Sea (UNCLOS), which includes an enforcement mechanism providing for liability and compensation. As well as warming the ocean, CO2 causes it to acidify, and falls within the UNCLOS definition of 'pollution of the marine environment.'
Nine principles of International Environmental Law
Philippe Sands QC, in the Third Edition of his Principles of International Environmental Law, sets out the following 7 principles that 'are potentially applicable to all members of the international community across the range of activities that they carry out or authorise' and that 'have broad, if not necessarily universal, support and are frequently endorsed in practice':
Breach of the first three of these principles may give rise to a free-standing cause of legal action. The latter four principles may be invoked to develop and define the scope of legal responsibility.
To these seven, two more may be added:
All nine principles are pertinent to the context of climate change litigation, informing and supplementing a true interpretation of UNFCCC and the Paris Agreement. Taken together they demand that states make equitable contributions to meeting the long-term climate goal (both in terms of limiting GHG emissions and providing finance for mitigation and adaptation).
1. State sovereignty / 'no harm' principle
Arguably this principle is the foundation not just of international environmental law, but of international law generally. Recognising the interdependence of states' rights and obligations, it consists of both right and corresponding duty:
Its application to cross-border pollution was first considered by the Trail Smelter Arbitral Tribunal in 1941. Sulphur Dioxide emissions from a smelting plant in Canada (owned by a Canadian company) were causing substantial damage to land in the US. The Tribunal held the Government of Canada responsible for the damage on the basis that no state may permit activity on its territory which causes serious injury to another.
On the same principle, if State A permits greenhouse gas emissions on its territory on a scale which cause significant harm within State B, State B has a good cause of action against State A. In practice the principal challenges for an action brought on this basis are likely to be causation and attribution, i.e.:
Until recently these issues were considered to be substantial impediments to an action for breach of the no harm principle. Advances in climate science, however, and the approach Courts have taken to causation in domestic cases in the Netherlands and the US, are now prompting a reassessment of this view.
In the absence of agreed, legally-binding limits, the principles for attribution will need to be developed through the courts on the basis of equity (see Blueprint).
Despite the basic principle of territorial jurisdiction, States may apply their environmental laws extra-territorially where:
a) the subject is a company registered or incorporated in that state; or
b) activities in another state are having, or are likely to have, effects in that state.
The UK, in other words, could require BP to comply with UK environmental law in respect of all of its operations; and any country likely to be affected by BP's operations might apply its laws to BP.
2. Duty to prevent / due diligence
The duty to prevent is closely related to the 'no harm' principle. Indeed many would argue they are one and the same. The International Court of Justice has confirmed the legal status of the duty to prevent harm to other states or areas beyond their jurisdiction (see opposite).
The duty is incorporated within the UNFCCC: the Preamble refers to it directly as a principle of international law, and Article 3(3) obliges Parties to take preventative measures on the basis of the precautionary principle.
If the duty to prevent and the ‘no harm’ principle can be distinguished, it is on the following basis: an action brought on the basis of the duty to prevent requires proof neither of causation nor of harm that has already occurred. It is enough for State A to show that State B is taking insufficient steps to protect State A from harm. If, for example, States A, B, C, D and E can show that:
i) they are at serious risk of harm if average global warming exceeds 1.5 degrees Celsius; and that
ii) State F is taking insufficient steps to prevent warming exceeding 1.5 degrees Celsius,
then, under general principles of law, States A, B, C, D and E have a good cause of action against State B.
Put another way, States have a legally binding duty to prevent harm to other states from their GHG emissions; a duty, which arises independently of the UNFCCC process and the Paris Agreement.
On what basis would the adequacy of Party F’s NDC be assessed?
UNFCCC directly incorporates a number of relevant principles of law, the most significant of which are:
the precautionary principle; and
The question for the court might therefore be framed as follows:
In light of the precautionary principle, and principles of equity, is Party F’s NDC adequate to discharge its duty to prevent climate induced harm to Parties A, B, C and D?
For all the talk of the voluntary nature of NDCs, it appears we have a legally binding framework for GHG emissions after all (albeit one which requires development through the courts).
the Precautionary Principle and Equity (below)
The Structured Expert Dialogue (SED), established at COP18 to review the adequacy of the climate change long-term goal, concluded in May 2015 that ‘in some regions and vulnerable ecosystems, high risks are projected even for warming above 1.5 degrees Celsius. We are therefore of the view that Parties would profit from restating the long-term goal as a ‘defence line’ or ‘buffer zone’, instead of a ‘guardrail’ up to which all would be safe.’
This conclusion helps define the duty to prevent in the context of climate change. Reinforced by the incorporation of the 1.5 degree Celsius target in the Paris Agreement, States are now, almost certainly, under a legal obligation to the more vulnerable regions of the world to exercise due diligence in preventing warming exceeding 1.5 degrees.
A State may discharge the obligation of prevention by, for example, legislative, administrative or other action necessary for enforcing the laws (see International Law Commission's Draft articles on Prevention of Transboundary Harm from Hazardous Activities, with commentaries, 2001).
3. The duty to co-operate in good faith
Whereas the ‘no harm’ principle and the duty to prevent are substantive, outcome based obligations, the duty to co-operate in good faith over shared resources is, essentially, an obligation of procedure, reflected in Principle 7 of the UNEP Draft Principles 1978 (see opposite).
As the ICJ has stated in the Gabcikovo-Nagymaros Project Case 1997 it also requires that states apply a treaty: 'in a reasonable way and in such manner that its purpose can be realised'.
In the context of climate change the duty implies that States should inter alia:
While the UNFCCC process is the de facto mechanism through which Parties implement the duty to co-operate over climate change, it is worth noting that obligations to exchange information and consult over GHG emissions arise independently of the UNFCCC process and the Paris Agreement. A failure to engage in good faith with others over national GHG emission reduction targets should be construed as a breach of this principle.
4. Sustainable development
Sustainable Development is the principle that integrates considerations of economic development with environmental protection. As such it might be regarded as the founding principle of the international community (as reflected in the 2015 Resolution of the UN General Assembly: 'Transforming Our World: the 2030 Agenda for Sustainable Development'.)
Crucially 'sustainable development' is not simply a generalised aspiration, it is a principle with legal consequences (as recognised in judgements of the ICJ and WTO).
The legal content of the principle is as follows:
In relation to common resources, equitable principles may need to be invoked both to determine 'fair shares' as between states and between generations: indeed the Preamble the Paris Agreement urges Parties to respect and promote 'intergenerational equity' in taking action on climate change: See Blueprint.
One interesting legal question is the extent to which the rights of future generations may be enforced through the courts. There is a good argument that a key component of the right to family life is a healthy environment for one's children and grand-children. On that basis individuals as well as NGOs might find a basis for bringing actions on behalf generations to come.
5. The precautionary principle
The precautionary principle, as set out in Principle 15 of the Rio Declaration, is really just the legal formulation of a common sense proposition for managing risk: preventative steps should reflect both an event's probability and its impact. If the consequences of an adverse event would be severe, you take steps to guard against it, even while the probability of it occurring remains relatively low.
Unlikely as it seems to me that my London house will burn down, in the event that it did, the financial consequences would be so serious that it makes sense to insure against the risk (indeed my lender requires me to do so). For a national government, even if there's just a 1% chance of an epidemic of avian flu, that's probably a sufficient reason to stock-pile anti-viral medications. Let's say there was a 40% risk of an epidemic, and that the US government, in full knowledge of this, failed to prepare. Most likely it would bear legal responsibility for the consequent, avoidable loss of life to its citizens. Likewise, if there were a scientific consensus of a 60% chance of a meteor striking the earth in the next 50 years, with sufficient force to kill hundreds of millions of people, obliterating a number of small island states, lack of scientific certainty could not excuse (morally or legally) governmental inaction.
Some in the US have challenged the principle (fearing it might be used to justify protectionist trade measures), and the ICJ has not specifically invoked it in its judgements. Nevertheless it has been widely incorporated into environmental treaties (including the UNFCCC), and, in practice, it is a necessary corollary of the 'duty to prevent' / 'principle of due diligence'.
In the context of climate change UNFCCC Art. 3(3) is explicit that the precautionary principle should be applied:
The Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects.
There is, of course, no serious scientific doubt that global warming is already occurring, nor that serious and irreversible damage is becoming increasingly severe. Nevertheless the precautionary principle will support legal action on climate change by helping to determine the scope of the 'duty to prevent / duty of due diligence', reinforcing the point that states are legally bound to take action which leaves a low probability of the long-term temperature goal being exceeded.
The Structured Expert Dialogue (SED), established at COP18 to review the adequacy of the long-term goal, concluded in May 2015 that:
in some regions and vulnerable ecosystems, high risks are projected even for warming above 1.5 degrees Celsius. We are therefore of the view that Parties would profit from restating the long-term goal as a ‘defence line’ or ‘buffer zone’, instead of a ‘guardrail’ up to which all would be safe.
The 1.5 degree Celsius target is now embedded in the Paris Agreement. On this basis the duty to prevent demands that high polluting states take precautionary measures to prevent the target being exceeded. If they fail to do so they will potentially be liable for the consequences to vulnerable states.
6. The Polluter Pays
Legal responsibility for harm caused to others is one of the mainstays of the modern life. Imagine a world in which drivers were unaccountable for the accidents they cause; or doctors could remove the wrong lung with impunity; or an architect miscalculate the foundations for a bridge without being liable etc, etc. Legal responsibility is not just a mechanism for compensating those who suffer injury; it's a harm prevention strategy incentivising due care and diligence towards others.
It is unfortunate that this basic principle, which is generally taken for granted as elementary and indispensable, has not been applied where it's needed most: those who profit from the development and exploitation of fossil fuels, generally do so believing 'someone else' will pay the price.
It's not that the international community has failed to recognise the significance of making the polluter pay. Indeed in 1972, the OECD asserted that this was the principle for encouraging 'rational use of scarce environmental resources.' In the same year Principle 22 of the Stockholm Declaration committed states to further developing international law 'regarding liability and compensation for the victims of pollution and other environmental damage'.
Since then 'the polluter pays' has been widely referenced as a general principle of law. The Rio Declaration 1992, Principle 16 states that: 'National authorities should endeavour to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution.' A number of international treaties (such as the International Convention on Oil Pollution Preparedness, Response and Cooperation, 1990; the Protocol on civil liability and compensation for damage caused by the transboundary effects of industrial accidents; and the Protocol on Preparedness, Response and Co-operation to Pollution Incidents by Hazardous and Noxious Substances, 2000) expressly refer to the 'polluter pays' principle as 'a general principle of international environmental law'. Art. 191(2) of the EU's 2007 Lisbon Treaty states that EU environmental policy shall be based on the principle (inter alia) that 'the polluter should pay'.
In practice, however, the principle has not been applied in a way that would encourage the rational use of the atmosphere and carbon sinks. Indeed the very opposite has been happening. A 2015 IMF Report, 'Counting the Cost of Energy Subsidies', concludes that the failure to internalise the environmental costs of fossil fuels amounts to an annual subsidy of $5.3 trillion (that's $10 million a minute). Such a figure implies a market distortion on an astronomical scale; and a systematic failure to implement the principle of the 'polluter pays' in the context of climate change.
Addressing this situation gives rise to a number of questions:
How do you 'make the polluter pay'?
Taxation, the creation of carbon markets and legal liability may all serve to internalise the costs of activities generating social risk: it is not a case of either / or and the different approaches are complementary. A local government, for example, confronting a high accident rate on a road system, might introduce a road tax as a nudge towards public transport and to generate funds for road safety measures. That wouldn't exempt a driver, who pays the tax, from liability for a specific accident they cause or contribute to. On the same principle, carbon taxation should not be seen as an alternative or substitute for legal liability.
Looked at another way, if taxes were sufficiently high to internalise costs, and to compensate victims, no legal liability would actually arise. Uncompensated loss and damage, therefore, represents the inadequacy or shortfall in taxation (or carbon trading schemes) to be addressed through the courts: the more effective the taxation the narrower the role for legal liability.
Conversely the less effective taxation is at making the polluter bear its social and environmental costs, the greater the potential legal liability. On the basis of the IMF's stated methodology for determining subsidies ('[The paper] focuses on the broad notion of post-tax energy subsidies, which arise when consumer prices are below supply costs plus a tax to reflect environmental damage and an additional tax applied to all consumption goods to raise government revenues.']) the $5.3 trillion annual subsidy arguably offers a rough estimate of the annual potential legal liability of polluters.
For the most part, however, there has been little effort to enforce the principle of the 'polluter pays' through the courts.
Who is 'the polluter'?
Everyone has a 'carbon footprint'. That does not make everyone a 'polluter'. In order to function as an economic tool, polluters should rather be identified as the principal economic operators profiting from the polluting activities. Such an approach is supported by the OECD Recommendations of 1992, 1(2):
'On grounds of economic efficiency and administrative convenience, it is occasionally appropriate to identify the polluter as the economic agent playing a decisive role in the pollution, rather than the agent actually originating it. Hence a vehicle manufacturer could be deemed the polluter, although pollution results from the vehicle’s use by its owner. Similarly, a pesticide producer could be the polluter, even though the pollution is the outcome of proper or improper use of pesticides.'
Recent research has shown that the 90 largest corporate investor-owned and state-owned producers of fossil fuels and cement are responsible for nearly two thirds of global GHG emissions. The fact that there are vast number of actors emitting some level of greenhouse gases prevents neither identification of the major polluters, nor assessment of the scale of their responsibility for loss and damage.
Does the principle make the polluter liable for loss and damage?
As a principle of international, environmental law 'the polluter pays' principle does not necessarily make the polluter liable for loss and damage. Rather it requires states to impose conditions which make the polluter bear the social and environmental cost to its activities. Thus, in so far as State X is subsidising polluting activities within its jurisdiction, State Y might invoke the polluter pays principle in bringing an action against State X (e.g. on the basis of a breach of the duty to prevent).
Nevertheless the principal may be relevant to private international law in the following respects:
Imposing on governments an obligation to facilitate private legal action against polluters (particularly in conjunction with Rio Declaration, Principle 13 etc);
As evidence of the policy considerations to be considered in the course of a private legs action against a polluter.
See also: Causation.
Our political and economic system is founded on obedience to the economic incentive. For as long as polluters can profit from polluting, while displacing the social and environmental costs onto others, market forces all but guarantee environmental destruction. Making the polluter pay is critical to changing course.
7. Principle of Common but Differentiated Responsibility
The principle of common but differentiated responsibility (CBDR) implies three things:
Significantly the principle is directly incorporated into both the UNFCCC and the Paris Agreement. In conjunction with principles of equity, therefore, it provides the conceptual framework for determining Party contributions towards meeting the ultimate objective of UNFCCC.
What, then, is the relationship between CBDR, principles of equity and the 'Nationally Determined Contributions' (NDCs), which are also required by the Paris Agreement?
The Preamble to the Paris Decision notes 'with grave concern' the gap between aggregate NDCs, and the total emission reductions required to meet the long-term goal. The words are stark recognition of the inadequacy of aggregated NDCs in terms of the UNFCCC's ultimate objective. It would therefore be contrary to the purposes of UNFCCC if the Paris Agreement were to 'set-in-stone' or indemnify such inadequate commitments and the Vienna Convention 1969, Art. 31(1) calls for an interpretation that avoids such a consequence. Such an interpretation is easily arrived at.
NDCs are not intended to override the principles of CBDR and equity in determining Party responsibilities. General principles of the UNFCCC, the Convention's overall object and purpose (Vienna Convention 1969, Article 31(1), as well as general rules of international law (Vienna Convention 1969, Article 31(3)(c)) dictate that Country emissions conform to these principles. More specifically Article 4(3) of the Paris Agreement mandates that NDCs reflect Parties' 'common but differentiated responsibilities and respective capabilities.'
In contrast to the Montreal Convention or the Kyoto Protocol, for example, the concept of NDCs imposes on Parties procedural rather than substantive obligations. It does not, in other words, provide a mechanism for determining the content of Party emission reductions (this was considered to be beyond the scope of the political process). Rather it requires Parties to:
a) plan a long-term emission reduction pathway;
b) share the plan with others; and
c) periodically review and increase the ambition of the pathway.
Essentially NDCs (and the Paris Agreement) may be thought of as giving effect to the procedural 'duty to co-operate in good faith.' The mere submission of an NDC, however, is plainly insufficient to discharge a Party's substantive 'duty to prevent' or its 'duty of due diligence'. Since the Paris Agreement does not provide a top-down mechanism for determining such duties, a formal challenge would need to be conducted on the basis of general principles of the UNFCC and international law, i.e. a claim to the ICJ, alleging breach of these duties, invoking principles of equity and CBDR to determine their proper scope.
The principle of equity demands that general considerations of justice and fairness are taken into account in the development and application of international law.
More precisely, following the ICJ ruling in the North Sea Continental Shelf Cases, ICJ, 1969, equitable principles will be applied to determining the appropriate use, delimitation or division of natural resources in the absence of a specific rule to the contrary.
The case provides a paradigm for how the ICJ might define the duty to prevent in the context of GHG emissions (if called upon to do so). Since the Paris Agreement does not provide a mechanism for determining the content of NDCs, the Court would need to apply equitable principles and CBDR in determining a country's obligations. Such an approach is reinforced by the terms of the UNFCCC and the Paris Agreement, which highlight equity as the basis for protecting the climate system and the reduction of GHG emissions.
How might equity be interpreted in this context? A number of approaches have been proposed. The Intergovernmental Panel on Climate Change (IPCC), for example, reviews equitable principles and frameworks in its Fifth Assessment Report (2014). It proposes 'four key dimensions':
The Report goes on to describe two different types of implementing framework:
As the IPCC notes, it is not, however, a case of 'either / or'. The 'duty to prevent' imposes obligations on states both to:
limit their own GHG emissions; and
finance the mitigation and adaptation efforts of others.
An equitable framework will need to reflect the interrelationship between both sets of obligations. For further discussion on how this might be elaborated see:
9. Elementary considerations of humanity
Corfu Channel Case, ICJ, 1949: Obligation to notify others of existence of a minefield in territorial waters derives from 'elementary considerations of humanity'.
Effect of treaty prior to entry into force
Vienna Convention 1969, Article 18: Even prior to its entry into force States are obliged not to defeat the objects and purposes of a treaty they have signed.
Principles 1-3 'are sufficiently well established to provide the basis for an international cause of action; that is to say to reflect, to reflect an international customary legal obligation the violation of which would give rise to a free-standing legal remedy.'
Principles 4-7 'may bind as treaty obligations or, in particular contexts, as customary obligations. Whether they give rise to actionable obligations of a general nature is open to question.' (Philippe Sands QC)
Countries' legal obligations to each other
'For all the talk of the voluntary nature of Nationally Determined Contributions, the combined effect of the Paris Agreement and general principles of law is to produce an effective, legally binding framework for GHG emissions after all.'
LEGAL ACTION FOR THE CLIMATE GOAL: TOWARDS EQUITY, SURVIVAL AND THE RULE OF LAW