State responsibility and liability for climate damages caused by non-state actors
Mohamed Elagouz is a PhD student in the department of Governance and Technology for Sustainability. (Co)Promotors are prof.dr. M.A. Heldeweg and dr. C. Matera from the faculty of Behavioural, Management and Social Sciences.
Climate change with its dreadful impacts (including extreme weather conditions, and rising sea levels) correlates positively with the increasing climatically polluting activities of Non-State Actors (NSAs). Despite how the activities of these NSAs result in dreadful damages to the people(s) and their environment, there is no direct international legal basis for holding these NSAs liable for these damages. Since States are the main actors and subjects of International law, the objective of this dissertation is to address the main question that reads: To what extent can States incur responsibility and liability for climate change damages caused by NSAs?
This dissertation disaggregates this question to 5 sub-questions as follow:
- What is the general legal framework governing State responsibility for damages caused by NSAs? And to what extent can this legal framework be applied on climate change damages caused by NSAs?
- Are there legal obligations on States concerning climate harmful activities of NSAs in the ex-ante to Paris Agreement climate international legal regime – as lex specialis – that trigger States’ liability?
- What is the ‘added-value’ that PA presents to climate change law concerning the responsibility/liability of States for climate change damages caused by NSAs?
- To what extent do domestic courts and regional human rights bodies contribute to establish the responsibility and liability of States for climate change damages caused by NSAs?
- To what extent can analogous analysis provide a basis for State responsibility/liability for climate change damages caused by NSAs?
This dissertation is divided into Chapters whose elements, to answer these questions, are described as follows:
Chapter 1 provides an introductory framework. It identifies definitional background for these questions that are addressed, respectively in Chapters 2,3,4,5 and 6. Chapter 1 elaborates the climate change damage caused by NSAs. This Chapter explains the definitions used in this dissertation such as NSAs, climate change law, State responsibility and international liability, direct and indirect State responsibility, and the due diligence obligation. Also, this Chapter identifies the legal pluralism approach to answer these questions.
Chapter 2 discusses the fit between the general framework of State responsibility under international law and the case of climate change-related damage caused by NSAs. It reviews the conditions of triggering the State responsibility and liability, and the possible types of this responsibility (i.e. direct and indirect) under the International Law Commission’s (Articles on Responsibility of State for Internationally Wrongful Acts) ARSIWA 2001. This Chapter concludes that, in event of a State’s (in)action in breach of its obligation and an occurrence of a loss or damage, a State’s direct and indirect responsibility can be established depending on the sort of connections (imputation) that the State has with the NSAs and the climate damage caused. This responsibility can be distributed proportionately among States that host polluting NSAs.
Considering that the extant breach of a climate State obligation is a prerequisite for this responsibility to be triggered, Chapters 3 and 4 discuss the possible State obligations regarding the climate harmful activities of NSAs, whether before Paris Agreement (PA) (chapter 3) or under PA and thereafter (chapter 4).
Chapter 3, to answer the second sub question, elaborated that due to the axiomatic nature of the UNFCCC before the PA, there is no sufficient basis of State’s responsibility and liability for climate change-related damage caused by NSAs. Although the KP provided GHGs reduction obligations on Annex 1 developed States and combines these with specific sanctions, the State practice did not reflect any implementation for such sanctions. The developed States in ex-ante to the PA climate legal regime agreed to provide financial resources to the developing States. However, these financial commitments did not came into force and do not establish for States’ liability.
Chapter 4 discusses the added-value of the PA to establish the responsibility of a State for climate harmful activities of NSAs, in the third sub question. This Chapter evidences that the PA triggered initiatives of NSAs to reduce their GHGs emissions. However, these initiatives lack a clear mechanism of compliance and do not establish the responsibility of NSAs in case of non-compliance. Furthermore, the soft parlance of the PA or even thereafter, in terms of States’ obligations, does not help establish the international responsibility and liability for NSAs’ climate harmful activities. Nevertheless, it gives a springboard for domestic courts to have a say in climate change claims against States at national levels. This is addressed in Chapter 5.
Chapter 5 tackles the 4th sub question. It starts from the deficiency in the traditional international climate change law to provide clear cut State obligations regarding such harmful NSA activities, and trigger State responsibility and liability; except for its obligation to communicate its nationally determined contributions. Also, the precautionary duties are not well-specified or applied under climate change law. Therefore, a post-modern legal pluralist approach is pursued. The dissertation concludes that State responsibility can be triggered on basis of breaching the precautionary duties towards the climate activities of NSAs from a human rights perspective even if the risk of damage attached with their activities is uncertain, as approached by domestic and regional courts. This responsibility is limited to the territorial jurisdiction that a State has over the NSAs’ activities.
Chapter 6 reflects on the 5th sub question. It analyses an extensive interpretation of the due diligence obligation on States regarding the activities of NSAs under the Biodiversity Law and the Law of the Sea because of the ill-defined nature of the due diligence obligation in traditional climate change law. This is to figure out whether breaching such obligation can trigger the State responsibility under the liability mechanisms of the Law of the Sea. This Chapter finds that an extensive identification and application of the State’s due diligence obligation under Biodiversity Law and the Law of the Sea help plug a dysmetrium in the traditional climate change law. Also, this extensive interpretation helps bring the liability mechanism of the Law of the Sea, i.e. ITLOS, into play to adjudicate for claims related to the States’ responsibility for climate change-related damage caused by NSAs.
Chapter 7 addressed the main question of the dissertation. It concludes that although the State direct and indirect responsibility can be triggered internationally for the harmful activities of NSAs, its intra responsibility at the domestic level is likely to be more legally suitable. This is due to the bottom-up approach that the PA maintained in addressing State responsibility for climate change-related damage. Also, this conclusion is substantiated by the State-consent-based international law and the power politics of international relations. Therefore, States can be held liable for ceasing the climate harmful GHG emitting activities of NSAs, for restitution, and even more compensating for any damage that occurs as a result of such harmful activities.