History is evidence of mankind’s unvarying intervention with nature. It has exploited resources, disrupted ecosystems, and degraded the environment in its quest to transform the world around it. The paradoxical nature of nation-states also calls for close consideration in today’s global landscape. Where it has acted as the building blocks of international order, it has also played a very prominent role in increasing the pace of climate change, specifically through unsustainable development practices.
In the 21st century, most climate scientists and researchers have been grappling with the question of what the future will be amidst the rapidly changing climate. Will unchecked global emissions continue to wreak environmental devastation in less developed countries? According to a report by EDGAR, around 50% of global greenhouse emissions in 2022 were attributed to six major players: the USA, India, China, Russia, Brazil, and the EU27. This sheer lack of accountability has proven to be a tremendous challenge for the international legal framework that bases itself on the principles of accountability and equality.
What is State Responsibility in International Law?
According to prominent scholar Hedley Bull, states exist in what can be termed an “international society.” In this international society, they consider themselves to be bound by certain rules in their relations with one another. This concept was further refined when, in the wake of detailed research and analysis of state practices, the International Law Commission devised the “Draft Articles on Responsibility of States for Internationally Wrongful Acts” in 2001.
According to Article 1, “Every internationally wrongful act by a state entails state responsibility.” This means that when a state violates what it is obligated to do under international law, through an action or omission, the affected nation will evoke state responsibility.
The Trail Smelter Arbitration between the USA and Canada is viewed as an important example. The smelting operations of the Trail Smelter, initiated by Canada, damaged crops and forests in the US state of Washington. When the matter was taken for arbitration, the tribunal, in its decision, ruled that Canada was responsible for the pollution caused by the Trail Smelter. The tribunal’s decision established that a state has an obligation not to cause harm to another state, even if the harm results from activities within its own territory. This principle is often referred to as the “no-harm rule” in international law.
It is also imperative to note that sometimes a wrongful act by a state impacts not only its fellow state to whom the act is directed, but also the non-state entities existing within the geographical boundaries of that fellow state, such as individuals. In such a scenario, the affected state is entitled to take a claim before the international court on behalf of its citizens.
This is because individuals can only claim rights through their states, as argued by the realist theory in international law. This has been manifested several times, for instance in the Barcelona Traction (Belgium vs. Spain, ICJ) case. The court, in a notable decision, ruled that Belgium had a right to bring the case on behalf of its nationals who had been adversely impacted by the actions of the then-Spanish government.
Under international law, state responsibility stems from three essential factors:
- There is an international obligation in force between the parties.
- A party violates that international obligation through an act or omission.
- Finally, the act or omission results in a loss or damage.
The Case of Climate Change
The case of climate change presents a unique and complex phenomenon when viewed in light of state responsibility. Conventions such as the United Nations Framework Convention on Climate Change (UNFCCC), the Paris Agreement, and the Montreal Protocol acknowledged the role of humans in propelling climate change and therefore, called for global cooperation to reduce greenhouse emissions.
Article (2) of UNFCCC mentions the objectives of the convention as “stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.” Similarly, the Kyoto Protocol, adopted in February 1997, apart from operationalizing the UNFCCC, ensured that industrialized countries committed to limiting and reducing greenhouse gas (GHG) emissions. These conventions introduced binding commitments for states.
However, decades later, reality paints a starkly different picture. According to the International Rescue Committee (IRC), currently, there are ten countries across the globe that are on the verge of experiencing a humanitarian crisis owing to climate change. They include Somalia, Afghanistan, Yemen, South Sudan, Syria, and some other African countries.
The common element among these countries is that, despite contributing minimally to global emissions, they are most vulnerable to climate change. Hence, the concern that surfaces is that if the activities of the developed world, despite the presence of binding conventions and agreements, are affecting the underdeveloped world, shouldn’t state responsibility be evoked?
The Vienna Convention on the Law of Treaties (1969) asserts that “every treaty in force is binding upon the parties and must be performed in good faith.” Therefore, the binding nature of these above-mentioned treaties and conventions means that the party states are legally obliged to abide by them, and failing to do so might result in legal consequences.
In the context of environment and climate, related illustrations were noted in many cases. The Pulp Mills on the River Uruguay (Argentina vs. Uruguay, ICJ) and Whaling in the Antarctic (Australia vs. Japan, ICJ,) are among the few examples. Argentina initiated legal proceedings against Uruguay at the ICJ when Uruguay began the construction of pulp mills at the River Uruguay, which, according to Argentina, was in violation of the Statute of River Uruguay, concluded between Uruguay and Argentina in 1975. Similarly, Australia initiated legal proceedings against Japan in 2010, asserting that the whaling program initiated by Japan in the Antarctic was in violation of the provisions of the International Convention for the Regulation of Whaling (ICRW).
State Responsibility from the Lens of Climate Change
Where most analysts and activists advocate for states being liable for state responsibility owing to large-scale emissions, the opposing view argues that climate change is a consequence of a wide range of factors, many of which are beyond the control of individual states. Under Article 28 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts, the conduct of a wrongful act by a state is to be met with legal consequences.
There are three main outcomes of state responsibility. Primarily, the state’s indulgence in wrongdoing is supposed to cease immediately. Secondly, restitution is the idea that the wrongdoing state would have to re-establish the situation that existed before the wrongful act was committed. However, if the violation falls under material breach and restoring the situation that existed before the violation is no longer possible, the third legal consequence is applied: reparations. It means paying monetary compensation for the damage caused.
In light of climate change, cessation would prove to be the first legal ramification. It means that global emitters must immediately put an end to activities that contribute to the climate crisis, such as greenhouse gas emissions. Since restitution is no longer feasible in the wake of massive destruction in many countries, reparations come into play.
Presently, reparations appear to be a crucial step towards ensuring state responsibility. The idea is to compensate poor nations that have been devastated due to climate change. During COP 28, which took place in November 2023 in Dubai, delegates decided to create a new fund, “The Loss and Damage Fund,” to help poor countries cope with the disastrous impacts of climate change. Both the UAE and Germany pledged $100m each.
Furthermore, it is essential to enlighten, mobilize, and engage the masses at the ground level. Throughout history, a collective and dedicated human effort has helped achieve significant milestones. Unfortunately, there is still a considerable chunk of the global population that remains unaware of the disastrous effects of climate change in the years to come. By propelling their individual governments, there is a high probability that they can help bring down overall global greenhouse emissions.
Finally, there is also a need to speed up the overall process of climate-related litigation globally. Currently, an increased number of individuals as well as environmental organizations have begun to seek legal assistance for issues related to climate change. According to a report, since 2017, the number of climate-related court cases has almost doubled. This appears to be a very significant step in holding states accountable when addressing climate change.
Conclusion
Implementation of various statutes, conventions, and treaties has always remained a perplexing task in international law. It is for this purpose that it has frequently been referred to as a “positive morality” rather than a legal framework. Currently, with climate tipping points approaching at an unprecedented speed, addressing climate change has become the need of the hour. It is high time that states acknowledge their responsibility to protect the global environment and specifically their fellow states that are on the verge of experiencing a humanitarian crisis due to the unprecedented changes in climate.
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