State Responsibility and Climate Change Governance: A Light Through the Storm

Abstract

Most excessive greenhouse gas emissions originate from developed states but the adverse impact of climate change is predominantly affecting developing states. This article submits that the law of state responsibility could provide important guidance for the development of the international regime on climate change. The failure of many states, in particular developed ones, to prevent excessive per capita emissions causing harm to global atmospheric commons constitutes arguably a breach of an obligation arising from the no-harm principle. The barriers to the implementation of the law of state responsibility through litigation do not exclude its applicability and the existence of secondary obligations. The obligation to cease a continuing wrongful act suggests a duty of industrial states to commit much more strongly to reducing their emissions. Overall, the obligation to make full reparation requires something essentially different from the current approach of cooperation with regard to adaptation, which, from a state responsibility perspective, seems to involve unjustified interference in the internal affairs of injured states. While certain discrepancies between the climate regime and the law of state responsibility are perhaps inevitable, developed states’ outright rejection of responsibility constitutes a major obstacle to achieving a substantial global consensus on responses to climate change.

Keywords: Climate change, state responsibility, internationally wrongful act, loss and damage associated with climate change impacts, common but differentiated responsibilities.