State Responsibility in Combating Dangerous Climate Change: The Critical Role of Domestic and International Justice

Abstract

This study discusses the role that States should play to limit dangerous effects of climate change which leads to human rights violations as it’s a problem that crosses the borders and it’s already a reality that many countries and islands are threatened to disappear. The State bears the responsibility to protect human rights, a responsibility that lies on international organizations as well. In part one, we discuss the insufficient measures taken by States at the international level, as many factors constitute obstacles: (1) The lack of internationally recognized human right to the environment linked to the absence of a legal status for climate refugees make the responsibility approach untenable. (2) The difficulty to establish legal responsibility based on a causal contribution to harm makes the responsibility approach insupportable. In fact, the 2001 International Law Commission draft articles on state responsibility for internationally wrongful acts are not binding. But the great difficulty concerns the distribution of the repair burden between States responsible for the emission of greenhouse gases. It is extremely difficult, if not impossible, to measure the share of each State in climate change. (3) The limits of United Nations Frame Convention on Climate Change of which the great bargain is to avert catastrophic climate change consequences by reducing the average global temperature increase to about 2* above pre-industrial levels. Part two, suggests solutions through an advisory opinion from the International Court of Justice, and analyzes the successful regulation of climate change effects by domestic courts, by focusing on the Urgenda case in Netherlands.