Legal challenges attributing State responsibility for the effects of climate change on small island States
Small Island Developing States’ are particularly vulnerable to the impact of climate change. More legal clarity is needed to seek justice for these States’ inhabitants.
It is increasingly clear that certain groups are more vulnerable to the adverse effects of climate change than others. Small Island Developing States (SIDS), while contributing to under 1% of global greenhouse gas emissions, are experiencing significant impact from climate change. While it may be clear that the realization of certain human rights is more difficult for their inhabitants, it has been difficult to establish State responsibility for damages suffered. This paper will provide a critical analysis of these issues, and conclude that more legal clarity is necessary to seek justice for these inhabitants.
HUMAN RIGHTS AFFECTED
Given SIDS’ proximity to the coast and low elevation, they may experience significant consequences of climate change, despite their minimal contribution towards it. For instance, the population of Tuvalu, a small island State in the South Pacific, is ‘prepar[ing] for emigration’ as the current rising sea level has made their homes uninhabitable. This affects the right to adequate housing under Article 11(1) of the International Covenant on Economic, Social, and Cultural rights (ICESCR).
Further, SIDS are more susceptible to climate-sensitive diseases such as malaria. Rising sea levels and extreme weather conditions will exacerbate this situation, leading to a predicted increase in illnesses, death, and poorer access to safe food and water. This impedes the right to ‘the enjoyment of the highest attainable standard of…health’ in Article 12 of the ICESCR, as well as the right to adequate food in Article 11(1). Further, it hinders the realization of the ‘inherent right to life’ protected under Article 6 of the International Covenant on Civil and Political Rights (ICCPR).
STATE RESPONSIBILITY AND CLIMATE CHANGE
Considering the human rights implications, determining State responsibility is important when dealing with the effects of climate change on SIDS. They may need assistance or compensation for the consequences of increased greenhouse gas emissions.
The International Law Commission has codified the rules of State responsibility in the 2001 Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA). According to Article 1, ‘[e]very internationally wrongful act of a State entails the international responsibility of that State’. This will depend on the requirements of the obligation that the State has supposedly breached, as well as ‘the framework conditions’ for the act in question. International responsibility applies when a State’s conduct ‘is attributable to the State under international law’ and ‘constitutes a breach of an international obligation’. Attribution in the context of climate change is difficult, however, since its nature makes it challenging to prove how much damage is caused by climate change, as well as which States are responsible.
RIO AND THE FCCC
The Rio Declaration on Environment and Development addresses the issue of transboundary damage. Principle 2 declares that ‘States have the sovereign right to exploit their own resources… and the responsibility to ensure that activities within the jurisdiction do not cause damage to the environment of other States’ [emphasis added]. Therefore, they cannot exploit their own resources to the extent that this affects the enjoyment of a healthy environment by other States. This Principle is reflected in the United Nations Framework Convention on Climate Change (FCCC). Nonetheless, the FCCC and the corresponding Kyoto Protocol lack clarity on the rules of compensation for damages caused by climate change.
For instance, Article 2 of the FCCC outlines its objective: ‘to achieve… stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system’. This does not specify how much greenhouse gas concentration is to be stabilized, and may be interpreted as declaratory rather than mandatory. Further, Article 4(4) provides that developed countries ‘shall’ assist developing countries that are more vulnerable to the effects of climate change in ‘meeting the costs of adaptation to those adverse effects’. While this is a possible way for developing States to claim payments, the extent of this is unclear because it is difficult to prove, for example, how much the rise in the sea level is due to climate change. As such, it is difficult to see how SIDS may claim compensation for damages resulting from other States’ emissions.
The uneven impact of climate change cannot be ignored. The vulnerability of SIDS is extremely high, and some already face severe consequences. The impediments that inhabitants are facing with respect to human rights may partially be the result of emissions by other countries, and yet they suffer some of the most adverse effects. There are currently difficulties in establishing State responsibility for damages caused by climate change, making it necessary to clarify international rules on compensation with regards to vulnerable populations. Without this legal certainty, the challenge will persist for SIDS and other vulnerable populations to effectively deal with the consequences of climate change, to which they have contributed only to a minor extent.