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Article details
State
responsib¡lity
for
human
r¡ghts
violations
associated
with
climate
change
M
arg a
reth
a
Wewe
ri
n ke - Si n gh
lntroduction
Inrernarional human rights law is prímafacie relevant
to
climate change because climate change and its associated impacts have an adverse effecl on the enjoyment of internationally recognised human rights. Indeed, thelink
between climate change and human rights has been articulatedin multilateral forums, by various human rights treaty bodies, and by the Conference of the Par-ties (COP) ro rhe United Nations Framework Convention on Ciimate Change (UNFCCC)'1 Notably, however, in the various statements of international bodies
linking
climate changewith
human rights,
no
reference is madeto'violations'of
human rights.This raises questions about the premise that the purpose of human rights lawis,to
quote the EuropeanCourt
of Humanzugilts
(ECIHR),'[ro
guarantee]not rights
that arc theoreticalorillusory
but
rights that arepractícal. and effeclive' .2
This
chapter demonstrateshow
existing normsof
internationallaw
canbe
employed toestablish State responsibility
for
acts and omissions that leadto
dangerous climate change andassociated violadons
of
human rights,or for
human rights violations resultingfrom
measllresto respond
to
climate change.3This is done throughananalysis of the law of Stateresponsibil-ity;
the
natureof
States' obligationsto
prevent human rights violations andto
take measuresto
ensure the realisationof
human rights athome
tnd
abroað; and questions relatedto
causâ-tion
and proof of damages.The conclusion elaboïates on the potential role of the law of State responsibiliryin
strengthening the legal protection offered by international 1aw to peoples andindividuals affected by climate change.
State
respons¡bility
for
human rights violations
assoc¡ated
with
climate
change
The
law
of
Srate responsibiliry is important,for
answering 1egal questions relatedto
climate change and human rights becauseit
contains'the general conditions under international lawfor the State to be considered responsible for wrongfi.rl actions or omissions, and the legal
con-sequences
which flow
therefrom'.aThis
general law buiidson
thedoctrine
expressedby
theMargaretha Wewerinke-Sin gh
even a general conception
oflaw,
thatany breach of an engagement involves an obligation to make reparation''sToday, the law of State responsibility is såted authorirativ"lyin
the,Articleson
the Responsibilicyof
Statesfor
Internationally'Wrongful Acrs'('ARS)
jroduced
by
theInternational Law Commission (,ILC').6
The relevance
of the
general rulesof
State responsibilityto
human rightsobligations has
been expressly and widely recognised by international human rights bodies,T and examples
of
cases where human rights bodies relied on these ru-les
for
the interpretationof
human rightstreaties are increasingly numerous.s Academic literature similarþ ,r'rgg"rr, that the law
of State
responsibility and international human rights 1aw are murually reinãrcing.e From
an interna-tional human rights law perspective, the
right
to
a remedy isa substantive right. This
right
isprotected under customary inteïnational lawl0 and expressed in human rights treaties in various
forms'l1The
right to
a remedy existsnot
orúy ex poitfactobut also whenthere is a threat
of
aviolation'12Accordingly, the general law of Staie resporxibili
ty
canbe understood as providing astructure through which redress for human rights violations canbe obtained by States on behalf
of the victims of the violation, or directly by victims themselves.
Esta
blishÍng state responsÍbÍlÍty
The law of State responsibiliry is based on the principie of independenr responsibility of States.
This principle basically means that each State is respãnsible for its own conducr. The principle
follows
from the
constituent elementsof
an internationallywrongf;l
actof a
State listedin
Article2
oî
the ARS,which
states that a State has committed an internationally wrongfirl actwhen an action or ornission:
is attributable to the State under international law;and
constitutes a breach of an internationai obligation of the state.13
Whether or
not
certain acts or omissions are attributableto
a State is determined by referenceto the rules on attribution.These ruies exist because states can rcrely,if
ever, guarântee the
con-duct of all private persons or entities on its territory.la
It
is important toger to grips
with
theserules for the purpose of establishing State responsibility for climate change-r.trted conduct that
alfects the enjoyment
of
human rights:afterall,
alargepart of thegr".rrho,rr.
gases that causeclimate change are emitted by entities other than
sirt"r,
corporarions that exploit fossil fuels,utility
companies that produce electriciry enterprises that manufa.trrr" prod.rcts, airlines and car companies that a1low travel, and producers and consumers-ho
srrppiy and demand theseproducts and services.
The ru-les on attribution âre expressed
inArticles
4-11of
theARS.The general rule ofattri-bution is contained
inArticle
4 (entiried'Conduct of organs of a State'),*hirh
provides that [t]he conduct of any organ shall be considere dan
act of that State under international law,whether the organ exercises legislative, executive,judicial or any other functions, whatever
position
it
holdsin
the organisation of the State, and whatever its character as an organof
the central Government or of a
territorial unit
of the State.15The Commentaries claúfy that the reference to a State organ in
Article
4 extelds to organsofgovernment'of whatever kind or ciassification, exercising
*irt.uer
functions
,and
atwhatever leveiin
the hierarchy''16This rule operates similarly,if
not
identically,in
international human rights law:theUN
Human Rightscommittee
(HRC), for example, iras found violations of thea
Covenant that were attributable
to
central government and its legislature, federal governments,municipal authorities,
judicial
authorities, police and security forces and various rypes of Stareagents.lTThe type of conduct that is generally attributable to a State âs a consequence of these
rules includes national legislation, decisions of the judiciary or administrative measures.ls
It
isworth
emphasising that the general rule of attribution reflectedinArticle
4 of theARSallows orn-issions to be attributed
to
States (that is, afathure on the part of the State's organs oragents to carry out an international obligation).1e The Commentaries to the ARS stress that '[c]
ases
in
which the international responsibility of a State has been invoked on the basis of anomis-sion are at least as numerous as those based on positive acts, and no difference in principle exists
between the two'.20 Further, the Commentaries claúfy that whethe r an act of a State involves an
act
ot
anomission,'ffihat
is crucial is that a given event is sufficiently connected to conduct .. .which
is attributable to the State.'2lThe scope
for
attribution is extended even further through the rule that an internationallywrongful
act may consistof
several acß and omissions that cumulatively amountto
â breachof
obligations.zzIn
theARS, this is expressedinArticle
15 which states that Stateresponsibil-iry
can arisefrom
a'breach consisting of a composite act',23 The breach has to extend over theentire'period'starting
with
the first of the actions or omissions of the series and lasts for as longas these actions or omissions are repeated and remain not
in
conformitywith
the internationalobligation'.2a
Together, these rules on attribution suggest that a contextual analysis of a State's conduct and
the obligations by which
it
is bound is the most appropriate method for determining whether ahuman rights violation has occurred. Such an analysis could take âccount of a range of conduct
as attributable to the State
-
from information reported to the Conference of the Parties to theUNFCCC
to its national legislation and regulatory framework, energy subsidies, trade policies and the extent of assistance provided and receivedin
accordancewith
technology transfer andfinancial obligations
-
to determine whether this conduct is in accordancewith
its international human rights obligations.The sections below set out the standards againstwhich
such conduct should be analysed.The
scope
and nature of
states' human rights obligations
related
to
climate
change
Before discussing the scope
of
States' obligations under international human rights iaw,it
isimportant to consider the sources from which these obligations emerge.The key point to
high-light
in
this regard is that ali States are bound by a wide range of human rights obligations that demand the protection of civil and political as well as economic, social and cultural rights.First ofall, the
UN
Charter contains more than a dozenreferences to human rights,proclaims the realisation of human rights as oneofthe
main purposes of the organisation and provides that Member States shall cooperate to takejoint
and separate action with theUN
to promote respectfor
and observance of human rights.25The
Universal Declaration of Human Rights(UDHR)
can be understood as an authoritative interpretation of the substantive rights referred to
in
theUN
Charter.26W'idely ratified human rights treaties provide addi¡ional human rights obligationsfor
States. For example, the International Covenanton
Civil
and PoliticalRights
(ICCPR)'??has 168 State parties,
which
include all States listed in AnnexI
to theUNFCCC,
and dozensof States located
in areas
where climate change is forecastto
have serious negative impacts onhuman
life
and livelihoods.zsThe
vastmajority
of
States have also ratifiedthe
International Covenant on Economic, Social and Cultural Rights (ICESCR),2ewith
164 State parries.3OTheMargaretha Wewerinke-Singh
with
allUN
Member States having ratífied ât least one core human rights treaty and 80 per cent having r:Ltífiedfour
or more.3lThe effect of the consolidation of human rights norms thror"rghvarious sources of international law is that the norms contained
in
theUDHR
are applicableacross different fields of internâtional law as customary norms binding on all States.32
As regards the interpretation of human rights treaties, we must note that the emphasis is,
in
Nowak's words,'[e]ssentially
...
on interpreting treaties...in
thelight
of their object andpur-pose'.33 And for human rights treaties, the main object and purpose is guaranteeing the enjoyment
ofthe rights protected in those treaties.3aAs discussed below, this presses in favour of a broad
inter-pretation of the substantive human rights that are afFected by the adverse effects of climate change.
OblÍgotÍons to prevent human ríghts violatÍons
Perhaps
the
mostimportant
human rights obligationsin
the
contextof
climate change areobligations
to
take measuresto
prevent future harm. Such obligations are importantnot
only to preventormitigate
a range of adverse effects of climate change that wou-ld affect the eryoy* ment of human rights, but also to allow for the establishment ofState responsibiliryfor
climate change-related human rights violations that might already be occurring as a result of past emis-sions.This section peruses an analysis of States'obligations related to the right to life as protectedunder
Article
6 of theICCPR
and numerous other human rights instrumentsto
illustrate thescope and nature of these obligations.
In its General Comment
No.6
on theRight
to Life;theHRC
states explicitþ that theright
to
life 'is aright which
shouldnot
be interpreted narrowly'.3s This reflects the positionof
al1regional and internâtional human rights bodies
with
respect to the scope of the right to life. Forexample, the Inter-American Court of Human Rights
(IACIHR)
has stated that thefundamental
right
to
life
includes,not
only the
right of
every human beingnot to
be deprived of hislife
arbítraúly,but also theright
that hewill
not be prevented from havingaccess to the conditions that gaarantee a dignified existence.s6
And
in
SERAC u Nigería,theAfrican Commission on Fluman and Peoples'Rights (ACHPR) found a violationof
theright
tolife
based on'unacceptable'levels of'pollution
and environ-mentâI degradation'.37 Commentetors understandthe
right
as protecting theability
of.eachindividual
to
'have accessto
the meansof
survival; rcaitze fu1llife
expectancy; avoid seriousenvironmental risks
to
life; andto
enjoy protection by the State against un\ryârranteddepriva-tion oflife'.38
Article
6(1)of
the
ICCPR
generatestwo
categoricsof
obligations: aprohibition
of
the arbítrary deprivation oflife,
and an obligationto
take positive measuresto
ensure that right, including measuresto
ensure its protectionin
1aw.3e As regards the obligationto
takeiegisla-tive measures, the
HRC
has found that the law's protection is required against awide
varietyof
threats,including
infanticide committedto
protect a woman's honour,aO killings resulting from the availability of firearms to the general public,al and the 'production, testing, possession,deployment and use of nuclear weapons'.42
At
the European level, the ECTHR similarly holds that the States'legislative and administrative framework must protect against a wide varietyof
threats to human life,a3 including environmental damage.aa
It
seems safe to assume thatin
asimi-lar vein, climate change-related threats must be mitigated through effective legislation
in
orderto
protect human life. Accordingto
Nowak, aviolation
of
the obligation to protect theright
to
life
by law can be assumedowhen State legislation . . . is manifestly insufficient as measuredHowever, the positive obligations
of States
under theright
toiife
go beyond an obligationto
take legislative measures.a6 For example, theHRC
has taken the view that the right requiresthat States take'measures
to
reduce infant mortality anclto
increaselife
expectancy, especiallyin
adopting measuresto
eiiminatemalnutrition
and epidenrics'.a7 Moreover,it
has slressed that these positive obligationswiil
only befully
metif
States protect individuals against violadonsby
its agents as well as violations committed by private personsor
entitieslikeþ
to
prejudicethe
enjoymentof
Covenant rights.a8In
a similar vein,the IACTHR found
in
the landmarkcase Wlásquez Radríguez u Hond.wrasae that State responsibility {or the violation had arisen 'not
because of the act fof abduction and
killing]
itsel{ bur because of the iackof
due diligence toprevent the violation or to respond to
it
as required by the Convention'.50 This lineofjurispru-dence suggests that States are obliged to take measures to prevent human rights violations
result-ing from the actions ofprivate persons that cause climate change, including fossii fuel companies
and other polluting industries.sr
ECtHRjurisprudence, starting
with
Osman u UK,suggests that the srandard of care requiredin
relation to a risk, of which the State had actual or presumed knowledge, is one of reasonableness:
The Court does not accept ...rhat the failure to perceive the risk to liG in the circumstances
known at the time or to take preventive measures to avoid that risk must be tântâmount to
gross negligence or wilfr;l disregard of the duty to protect hfe. . . . Such a
rigid
standard mustbe considered to be incompatible
wirh
the requirementsof
ftheright
to life]. . . . [H]aving regard to the [fundamental] nature of [the right], it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a rcaI andimmediate risk to
life
of which they have or ought to have know1edge.52Actual or presumed knowledge of the climate change-related risks may arise from the
UNF-CCC, the reports of the IPCC and other scientific studies, as well as from affected communities' efforts to draw attention to these risks.The case of Thtar C. u Roumanle53 illustrates the overlap between States'obligations to prevent
human rights violations and'due diligence'obligations arising from the precautionary principle
as embodied
in
international environmental law, including the UNFCCC.s4In
its ruling, theCourt stressed
that even in the absence of sciencific probability rcgarding a causal link, the exist-ence of a'serious and substantial'risk to health and weli-being of the applicants imposed on theState 'a positive obligation
to
adopt adequate meâsures capable of protecting the rights of theapplicants
to
respect for their private and {ami|y hfe and, more generally, to the enjoyment of ahealthy and protected environment'.55
States'prevention obligations under international human rights law may however go
fur-ther
than panllel 'due diligence'obligations under international environmental law.It
is clearfrom
the interpretative practiceof
human rights bodiesthat
States arenot only
obliged toassess potential risks
to
human life,but
must also respondto
any'serious and substantial' riskwith
measures 'designedto
secure respect'for
human rights, and 'capableof
protecting lthoserights]'.56
In
other words, States do not have the discretion to prioritise policy objectives such asthe protection of particular industries over mitigation and other response measures that would averl the serious and substantial risks posed by climate change
to
human life. Moreover, these response measures must themselves be compatiblewith
States'obiigations to respecl and ensurehuman rights. This means, amongst
other
things, that all States must reconcile obligations toprolect peoples and individuals against
the
adverse effectsof
climate changewith
co-existingMargaretha Wewerinke-Sin gh
Through their focus on equity and common but differentiated responsibilities and respective
capabilities
(CBDRRC),
theUNFCCC
and its associated instruments encourage States to fir1fi1their human rights obligations by taking science-based mitigation measures
without
perpetuat-ing existing inequalities. Although the principle
of
CBDRRC
applies exclusively ro relarions between States,it
shareswith
international human rights law the objective of achieving sub-stanlive equality.sT The lack of legally binding emission reduction commitmentsin
the recentþadopted ParisAgreement underscores the importance of substantive human rights obligations to
mitigate climate change in a manner that is fafu and equitable.At the same time, the Paris Agree-ment provides a procedural framework that could shed
light
on States'compliancewith
thesehuman rights obligations.
The
referenceto
human rightsin
the Preambleof
rhe Agreement could catalysefurther
information on, and review of, the overall human rights implicationsof
States' mitigation actions.
ObligatÍons to
ensure
the realísotíon of human
rÍghts
at
home
ond
obrood
In addition to obligations to prevent future harm, international human rights law imposes
obli-gations
on
Statesto
ensure the progressive realisationof
human rightswithin
the
State's ownterritory
as well as internationally.This section discusses such obligations and their relevancein
the context of climate change, taking the
right
to health as an example.5sThe
right to
health, as protected underArticle
1"2of
the ICESCR
and numerous orher human rights instruments, is aright
that States are obligedto
progressively realise.The
Com-mittee on Economic, Social and Cultural Rights (CESCR) has emphasised that although'the right
to
health isnot to
be understood as aright to
be healthy',seit
nonetheless creates States'obligations.60 These obligations are understood as including'immediate obligations. . .
[to]
. . .guarantee that the
right
will
be exercisedwithout
discrimination of anykind'and to
take steps'towards the
full
tealization'of the right that'must be deliberate, concrete and targeted towards thefull
realization of the right to health'.ólTo
clari$' the
contentof
States' obligations,the CESCR
has used a respect-prorect-fulfiItypology
of
obligations that arise from theright
to
health.62Ir
undersrands the obligation to'respect' the
right
as 'an obligationof States
to
respect the freedom of individuals and groupsto preserve and
to
make use of their existing entitlements'.63The CESCR has interpreted theright
to
health as requiring respect for theright to
heatth of a peoplewithin
a State'srerritory
and
in
other States,6a entailing anobligation'to
refrain from unlawfirlly poiiuting air, water andsoil, e.g. through industrial waste from State-owned facilities'.65 Accordingly, the
right
could beviolated by actively engaging in'activities that harm the composition of the global armosphere
or
arbitrarily interferewith
healthy environmental conditions'.66 Moreover,the CESCR
hasexplicitþ
stated that the rightto
health obliges Statesto
ensure rhât inrernational insrruments, presumablyincluding
climate change-related agreements,'do not
adversely impact upon theright to health'.67
The
obligationto
protect theright
to
health involves 'rhe preservationof
existingentitle-ments
or
resource bases', including through regulation,68in
accordancewith
theUN
Charterand applicable international law.6e States must accordingly adopt measures against environmental
and occupational health hazardsT} and national policies
to
reduce and eliminate air,water andsoil poIlution.71 Moreover, States must prevent'encróachment on the land ofindigenous peoples
or
vulnerable groups',72 'ensure food availability, regulationof
food prices and subsidies, andIn
the
contextof
climate change,the
right to
health also appearsto
entail an obligation toregu-late private âctors
in
order to achieve and uphold emission limitation and reductionstand-ards,Ts and to adopt and implement'laws, plans, policies, programmes and projects that tackle the
adverse effects of climate change'.76
The CESCR further directs that States must give'suffìcient recognition to the right to health
in the national political and legal systems, preferably by way of legislative implementation' ,77 and
must allocate'a sufficient percentâge of a State's available budget . . . to the
right
to health'.78Thisillusrrares what the CESCR describes as the obligations to
'firlfil'the
right
to
health;a positive obligation that is triggered'whenever an individual or group is unable, for reasons beyond theircontrol'to
enjoy theright'by
the means at their disposal'.7e It basically requires that the State'bethe provider',
which
'can range anywhere from a minimum safety net, providing thatit
keepseveryone above the poverty line appropriate to the level of development
ofthat
country, to aftill
comprehensive welfare model'.80 Again, this obligation has an extraterritorial dimension: States
are required to'facilitate access to essential health facilities, goods and services
in
other countries, wherever possible and fto] provide the necessary aídwhen required'.81 In the context of climate change,this is interpreted as an obligation on high-income States to facilitate access to essentiâihealth services as well as assistance to adapt to climate change
in
low-income States.8zThe
parallel obligationsof
developed States containedin Article
4 of
the
UNFCCC
andreafiìrmed
in
the Paris Agreements3 could serve as a bottom l-inein
the interpretation of theseobligations.
And
again, the procedural framework established under the Paris Agreement could servero
shedlight
on compliancewith
these obligations. The Agreement specifically requíresdeveloped States to communicate information related to the fulfilment of their finance obliga-tions,
while
other States providing resources are encouragedto
communicate suchinforma-tion.sa This information is to
inform
the global stocktâking process aimed at reviewing States''collective progress towards achieving the purpose of [theAgreement] and its long-term goals',85
including the goals of 'fm]aking finance flows consistent
with
a
pathway towardslow
green-house gas emissions and climate resilient development'and'[i]ncreasing the abiiityto
adapt tothe
adverse impactsof
climate change and foster climate resilience andlow
greenhouse gasemissions development,
in
a manner that doesnot
threaten food production'.86 To meet thesegoals and
fulfil
parallel obligations under international human rights law, developed States wouldneed ro scale up funding to assist developing States in taking the resilence-buiiding and
adapta-tion
actions requiredto
ensure the realisation of human rights'87Legal consequences
of
state respons¡b¡l¡ty
When
a State actualTy violates its human rights obligations, State responsibilicy is established'as immediately asbetween the
two
[or more] States'.88This rule indicates that the legalconse-quences of State responsíbility arise automatically once a State violates a human rights obliga-tion, irrespective of whether any
victim
of the violations actively seeks a remedy for the damageor
harm suffered.This section spellsout
the legal consequencesof
an internationally wrongfirlact, ofrce
it
occurs.CessatÍon
of
wrongful conduct
The basic principle governing the 1egal consequences of wrongfül conduct (or what the ARS
call the 'content' of State responsibility) is that a State that commits an internationally
wrong-firl
act'must, so far as possible,wipe-out
a1l the consequences of the illegal act and re-establishMargaretha Wewerinke'Singh
The emphasis on restoring the situation to what
it
was before the wrongful act was committedrefl.ects the broader objective of compliance
with
obligations, which is emphasisedin
the ARSthrough the codification of the continued duty of performance,eO and of the duty
to cease
the wrongfi,rl act (ifit
is ongoing)elin
two sepârate articles.Together, these provisions makeit
clear that the lawof
State responsibiliry is not aliability
systemwith
the
primaryor
exciusive goalof providing
injured
personswith
compensation.The
Commentaries further emphasise that compliancewith
existing obligations is a prerequisiteto
the restoration and repair of the legal relationships affected by the brcach.ez The duty of cessation further comprises an obligation tooffer appropriate assurances and guarântees of non-repetition where the circumstances require.e3
International human rights law similarþ recognises that adequate and effective remedies
for
violations 'serve
to
deter violations and uphold the legal order that the treaties create'.ea The dutyof
cessation has been characterisedby
theHRC
as 'an essential elementof
the humanright
to
a remedy' that entails an obligation'to
take measuresto
prevent the recurrenceof
aviolation',
including
through changesin
the
State Party's lawsor
practiceif
necessary.e5 TheACHPR's findings
in
SER 4C u Nigeria illustrate thatin
the human rights context, the duty tooffer appropriate assurances and guarantees of non*repetition may reinforce existing procedural rights; when violating a range of human rights, Nigeria had incurred 'secondary' obligations to provide'information on health and environmental risks and meaningfirl âccess to regulatory and
decision-making bodies to cornmunities likely to be affected by
oil
operations'.e6The consequences for States that incur these types
of
obligations based on climatechange-related wrong{irl conduct could be drastic, particularþ where the violation involves not a single
act,but a series of wrongfi.rl acts and omissions.To meet its obligation of cessation,a State may need
to
make changes to significant pârts of its laws, regulatory system and levels of assistancerequested from, or provided to, other States in ordpr
to
restore compliancewith
the substantiveobligation that was violated. For example, a State may need
to
withdraw fossil fuei subsidies,adopt new regulations and policies to phase out fossil fuels, and bring all existing regulations and policies in line
with
emission reduction goals that reflect its highest possible ambition as well asCBDRRC.eT
\n
a simiiar vein, a developed Statemight
be under an immediate obligation toscale up funding for mitigation, adaptation and capaciry-building actions
in
developing States torestore compliance
with
its human rights obligations.RealÍsing
víctÍms'
right
to
øremedy
The
second setof
obligations arisingfrom
an internationailywrongfil
act centre around anobligation to make
fiíl
reparations for theinjury
caused by the wrong{ìrl act.e8Injury
isunder-stood as including any material
or
moral damage causedby
the acfe and includes'theinjury
resulting from and ascribable
to
the wrong{ì.rl act'rather than'anyandúl
consequences'fl.ow-ingflom
it.1o0This makesit
clear that there must be alink
bet'uveen the wrongful act and someinjury in
orderfor
thereto
be an obligationof
reparation. However, the causal requirement inherentin
thelink
isnot
the samein
relationto
every breachl0l and can be established evenwhen the wrongfi.rl conduct was only one of several factors that contributed to the iqjury.1O2
'Where
the obligation breached relates
to
the preventionof
harm, thelink
benveeninjury
and the breach is likely to involve consideration of the extent to which the harm was a
reason-ably foreseeable consequence of the action taken.103 Based on the reports
of
theIPCC,input
from affected communities and the definition of'climate change'inArticle 1 of the
UNFCCC,
a broad range of climate change-related risks and harm could be considered as reasonably
fore-seeable consequences of climate change and the human activities that arc known to cause it.As
at least part of the risk of uncertainty to the State where
it
can be establishedwith
a reasonabledegree of certainry that specific irr,lrry has occurred as a result of gfobal warming.loa Moreover,
asWbrksman suggests, the correiation between greenhouse gas emissions, atmospheric chemistry
and global warming has probably
been demonstrated
with
suflicient confidence thatit
seemsunlikely
that an adjudicatorwould require a complainant,
in
orderto
obtain relief, to demonstrate what would not bepossible
-
that a specific emission of greenhouse gâses by State S directþ caused the specificimpact
in
State I.105All
this meâns that existing evidence may we11be sufücient to substantiate claims forrepara-tion for climate change-related State conduct that constitutes a violation ofinternational human
rights law.As the science of attribution evolves,the chances that the victims of such wrongf,rl conduct
will
be ableto
ascertaintheir
entitlementto
reparations shouldfurther
increase.[n
addition, where State responsibility is invoked through individual complaint procedures under human rights treaties, victims have usually been identified in a claim's admissibility stage. In such
cases, a
link
befween State conduct and the individual's situationwill
already have beenestab-lished once the case reaches the reparations stage.106
Once the duty
to
make fu1l reparations has been triggered, the scopeof
theiqjury
has to be established.Thiswill
be a fact-sensitive exercise whichwill
require significant interpretationof complex evidence related
to
risks and probabilities. However, the lawof
State responsibilitydoes provide some clear road signs
for
determining the nature and amountof
reparations due.The
first is the principle thatno
reductionor
attenuation of reparâtionwill
be madefor
anyconcurrent causes.107The duty to make reparâtions is similarþ unaffected by a responsible State's
ability to pay,los or by a claimant's inability to determine the quantity and value of the losses
suf-fered.lOe In other words, the duty of the responsible State to make íull reparations for the injury
is unqualified
in
general international law.110The
understanding of theright
to
a romedy as a substantive humanright
implies that the focus of the duty to make reparationsfor
abrcach ofinternational human rights iaw lies squareþon
restoring the rightsof
victims,insofar as victims of the violation can be identified.Whereit
isnot
certain whether an individual qualifies as a victim of the breach, uncertainty could beaddressed
in
accordancewith
the human rights princíple in dubio pro libertate etdþnitate.Fur-thermore, irrespective of whether victims can be identifìed, the content of the obligation must
reflect the aim of re-establishing the status qüo anteJll The wide range
of
remedies awarded for human rights violations (including restitution, compensation, rehabilitation, and measuresof
satisfaction such as public apologies, public memorials, guarantees of non-repefition and, more importantly, changes in relevant laws or practices) reflect the potential for constructing remedies
for
climate change damage that are consistentwith
human rights objectives.ll2These remediesshould materialise through bottom-up processes: individuals and communities affected by
cli-mate change themselves are
in
the best positionto
identify and develop suitable remedies for violationsof
their human rights. Thus,in
cases where a State plansto
invoke the lawof
Stateresponsibility on behalf of affected communities, consultative processes
will
be needed to ensurethat rcparation claims accurately reflect the demands of those communities.
Concluding
remark
This
chapter has demonstrated that States'obligations under international human rights lawMargaretha Weweri n ke-Singh
responsibility claims related
to
climâte change and associated human rights violations.In
anutshell, international human rights
law
requires climate action thatnot only
reflects States'maúmum efforts
to
combat climate change,but
also leadsto
afair
distribution of mitigationanó adaptation burdens at local, domestic and global levels. Moreover, ali States must take
meas-ures to prevent human rights from being violated
in
the context of response measures.The lawof State responsibility is automatically triggered once a State breaches âny of these obligations. '\üVhether
a State has breached its human rights obligations through climate change-related conduct needs
to
be
established on a case-by-case basis, takinginto
account the effectsofits
conduct on the enjoyment of human rights at home and abroad and the foreseeability of thoseeffects. Hereby the States''obligations under the
UNFCCC
and the Paris Agreement could be taken asbottom
linesfor
human rights obligations relatedto
international cooperation andassistance.ll3
Once a breach
of
obligations has occurred,the
responsible State mustfirst
and foremostrestore compliance
with
the obligations that were violated.In
other words, a State whoseleg-islative framework
or
conduct is notin
accordancewith
a human rights obligation incurs anobligation to bring its laws and practices in line
with
the relevant obligation. M'oreover, the Statemust take meâsures to prevent future breaches of the obligation.And where the unlawfirl
con-duct
-
such as a State's failure to take adequate measures to prevent lossoflife associated
with
theadverse effects of climate change
-
has actually caused harm, the State also incurs an obligationto make
firll
reparations for the injury.These reparations must be directed to the beneficiariesof
the obligation,
which
usually means the victims of the human rights violation.The
scope and natureof
appropriate remediesmight
be relatively eâsyto
establish where the violation concerns localised damageto
individualsor
communities, such as harm resultingfrom land grabbing
or
the exclusion of vulnerable cornmunities from adaptation prcgrâmmes. However, wherethe
unlawfi¡l conduct relatesto
the
impactof
climate change per seon
the enjoyment of human rights, the severity and scale of damage and the virtually limitless numberof potential victims
will
trigger difficult questions related do causarion, proof and victimhood.These questions
will
be complicated by the fact that multiple States might be responsible for thesame damage.In such cases, the effectiveness of the law
of
State responsibility is hinged on the extentto
which States cooperate to give effect to thevictims'right to
a remedy andto
restorethe
rule
of law.'Withliability
and compensation excluded, at leastfor
now, from the scopeof
the'W'arsaw Mechanism
on
Loss and Damage Associatedwith
Climate Change,llait
wouldseem opportune
to
explore the roleof
human rights bodiesin
facilitating such cooperation.Meanwhile,
the
human rights community couldwork with
affected communitiesto
develop guidance on the types of remedies that might be appropriate for varioús climare change-related human rights violations.Notes
1" United Nations Framework Conuention on Climøte Change 1992,1777 UNTS 107 (UNFCCC). See
Deci-sion 1/CP1.6,
uN
Doc. FCCC/CP/20L0/7/Add.1 (10 December 2010), at preambular para.7 andch. I, para. 8. See also Paris Agreement on Climate Change,
UN
Doc. FCCC/CP/201,5/L.g7kev.l (1,2December 2015) ('ParisAgreement'), at preambular para.
l!.
2
ECIHR, Airey u, Republic of lreland,Appl.no 6289/T,Judgment of 9 October 7979.AltECrHR deci-sions are available online at http : / / hudoc. echr. coe.int.3
As the focus of this chapter is on human rights,it
does not specifically discuss State responsibiliryfor non-compliance with the UNFCCC. On concurrent responsibility under the two international
regimes, see-W'ewerinke,'The Role of the UN Human Rights Council inAddressing Climate Change',
4 J. Crawford,The International Law Cornmissìon's Articles on State Responsíbílity: Introductíon,Tëxt, Commen' taries (2A02) 3I.
5
Case Concerníng the Factory at Chorzów (Cermany u Poland),1927 PCIJ SeriesA, No. 17, at 29.6
ILC, Articles on the Responsibitity of States Jor Internatíonally Wrongful Acts, Report of the ILC on the Work, of lts Sjrd Session, Ofaial Records of the GeneralAxernbly, 56th Session, Supplement No. 10,UN
DocA/56/ 1.0 (2001), at chapter IVE.2 ('ILC ARS'). On the legal authority of the Articles, see J. Crawford
and S. Olleson,'The Continuing Debate on a UN Convention on State Responsibility',54 International
and Comparative l-aw Quarteily (ICLQ (2005) 959,at968 and 971 (pointing out that'there is an
ongo-ing process of consolidation of the international rules of State responsibility as reflected in the Articles'
with the Articles 'performing a constructive role in articulating the secondary rules of responsibility').
Cf.D.D. Caron,'The ILCArticles on State Responsibilify; the Paradoxical Relationship Between Form
andAuthoriy',96 ArnericanJournal of International
lnw
(AIIL) (2002) 857,at 867 (argcing that theArticles are'similar in authority to the writings of higtrly qualified publicists').
7
Patrick CoÍeman u Austrølia, Communication No. 1.157 /2003,UN
Doc. CCPR/C/87 /D/1.1.57 /2003,para. 6.2; S Jegatheeswara Sarma
u
Sri Lankø, CommunicationNo.
950/2000,UN
Doc. CCPR/ C/78/D/950/2000,pata.9.2; Hurnberto Menanteau Aceituno and Mr.José Carrasco Vasquez (represented bycounsel Mr. Nelson Caucoto Pereira of the Fundación de. yuda Social de las þlesias Crßtianas) v ChíIe,
Com-munication No746/7997,
UN
Doc. CCPR/C/66/C/746/1"997,para.5.4. See also, the Individualconcurring opinion ofKurt Herndl and'W'aleed Sadi in Cox u Canada, Communication No. 539/L993,
UN
Doc. CCPR/C/52 /D / 539 / 79930.8
Fora
cleæ example, see IACIHR, The Møyagnø (Sumo) AwøsTingní Com.munity vNicaragua,Judg-ment (31 August 2001), at paru'.754;.IACtHR, Maríno López et al. u Colombiø, Judgment (Merits) (31
March 2011), at para.42. See also D. McGoldrick, The Human Ríghts Conmittee (1997), at 1.69. !\JJ'
IACTHR decisions are available online at wwwcorteidh.or.crlindex.php/en/jurisprudencia.
9
D. McGoldrick,'State Responsibility and the International Covenant on Civil and Political Rights', in M. Fitzmaurice and D. Sarooshi (eds.),Issøes of State Responsíbílity Beþre InternationalJudicíal Institutions(2004), at 199; E.WVierdag,'Some Remarks About Special Features of Human Rights Treaties', 25 NetherlaridsYearbook of International Law (NYIL) (1"994) tL9 , at I35 .
10 See Bøsíc Princþles and Cuidelines on the Right to a Remedy and ReparationforVictims of GrossViolations of
Intentational Human Righn Law and Serious Violations of International Humanitarian I'aw, GA Res. 60/747
(16 December 2005), atAnnex, Principles 1(b),2 and 3 þertaining to gross violations of international
human rights law and international crimes), and TL See also D. Shelton, Remedíes in International Hunan
Ríghß Law,Znd ed. (2010),at 103.
11 For an overview of global and regional human rights treaties that incorporate the right to a remed¡ see
Shelton, supra note 10, at 77310. See also, Crawford, The ILC Articles, supra note 4, at 95,paras 3-4.
12 Shelton, supra noï,e I0, at 1"Q4ff. 13
Art.2
ILCARS.14 J. Crawford,'The ILCtArticles on Responsibiliry of States for Internationally'WrongfulActs:a
Retro-spect', 96 American Journal of International Law (AJIL) (2002) 87 4, at 879 .
15 Art. 4(2) ILC ARS clarifies that '[a]n organ includes any person or entity which has that status in
accordance with the internal law of the State'. See also R.B. Lillich et al.,'frttribution Issues in State
Responsibility',84 Proceedings of the Annual Meeting (American Soeiety of International lnw)(1990) 51, at
52 þointing out thar the principle that 'a State may act through its own independent fajlure of duty
or inaction when an international obligation requires state âction in relation to non-State conduct'is
reflected in all codifications and restatements of the law on State responsibility).
76 ILC ARS, Commentary to Article 4,para.5.
17 McGoldrick, 'State Responsibility', supra note 9, at
h
74-83 and accompanying text, containingcitations,
18 rhíd.
19 This formulation was used inArticle 1 of the Outcome Document of theThird Committee of the
1930 Hague Conference, reproduced inYearbook of the United Nations 1956,Vo1. II,p.225,
Docu-ment A/CN,4 / 96, Annex 3.
20
Crawford, The ILC Articles, supra note 4, at 35 and at Cornürentary to Article 2, para. 4.21 lbid., at
Commentary to Article 2,patas 5-6.22
See,for example, ECIHR, Paul and Audrey Edwards u. United Kingdom,Appl,No. 46477 /99,Judgementof 14 March 2002,atpata.64.
Margaretha Wewerinke-Singh
24 Arr 15(2) ILC ARS. See also ECIHR, Ireland v. United Kingdom,Appl. No. 5310/71.,Judgment of 18
January 1'978 atpara.Isg,inwhich the ECTHR discussed the concept ofa'practice incompatíble with
the Convention'.
25 1 UNTS XVI. See especially Arts 1, 55 and 56.
26 Universal Declaration of Human Rights 7948, GA Res. 217
A
(IIÐ, A/g1"0 (LIDHR), 10Decem-ber 1"948, at preambular recitals 6 and 7 . See also, Proclamation ofTeheran, F¡naìl Act of the Intemational
conference on Human Righß, Tëhuan, 22 Aprìl to
Ij
May lg6g,uN
Doc.A/coNp.
zuqt
3(96g)
(staring that the IJDHR'states a common understanding of the peoples of the world concerning the inalienable and inviolable rights of all members of the human faattly and,consrirures an obligatiol for
all members of the international community'). See furthe¿De Sclu*er et al.,'ComrnentaÐ/
to the
Maastricht Principles on Extraterritorial obligations of States
in the
Area of Economic, Social andCultural Rights', 34 Human Rights Quarterly
@Rq
Q01"2) 1084,at 1,092 arñN.Jayawickrama, The Judicial Applhatíon of Human Rights lnw: Natíonal, Regional and Internationat Jurisprudinie (2002) 30.27 Internarional Covenant on Civil and Polirical Rights 7966,999 UNTS f Z1
ilCCln¡,
28 Fot ratification status, ,see http://treaties.un.org/Pages,/Treaties.æpx?id=4&subid:Â&hrrg="n (last
visited 1 September 2016).
29 International Covenant on Economic, Social and Cultural Rights 1,966,993 UNTS 3 (ICESCR).
30
For
tatificítion status, see http://treaaes.un.orglPages/Trea=ties.aspx?id=4&subid=A&lang="r, 6.rtvisited 1 September 2016).
31 See website of the
UN
OHCHR, www.ohchr.orglEN/HRSodies/Pages/HumanRighrsBodies.as¡x(last visited lTAugust 2016).
32 Legality of theThreat or Use of NuclearWeapons,Advisory Opinion, B July L996,ICJ Reports (1996) Z4l, pan'79. See also M. Salomon,oDeprivation, Causafion, and the Law of Interrratiorr¿-Cooperation',in
M. Langford et al. (eds.), ClobalJustiæ, State Dutles:The Extratenitorial Scope of Economíc, Socíal and Cul-tural Rights ín International Law (2012) 259, at 304 (arguing that '[t]oday, the existence of a cusromary international law principle to respect and observe,luman rights inthe main, which can be said to appþ
to basic socio-economic rights, is increasingly difficult to refute). Ç.J. Ctawîorð,, Brownlie,s prinrìeú
,f
Public Internatíonal Inw,Sth ed. (201,2) 21.
33 M' Nowak, (J'N, couenant on cívil and Politìcal Righ*:
ccpR
commentary,2nd, ed, (2004)
xxru
See alsoA, orakhelæhvili, 'Restrictive Interpretation of Human Rights Tre¿ries ìn the Reàent jurisprudence
of
the European Court ofHuman Rights', 74 EuropeanJournalof International Inw¡nyq
QOOZ¡ SzO.34 M. Nowak, Introduction to the International Human Righx Regine Q0a3) 65. Seã
"lro
nCtgn
, OtherTi'eaties Subject to theAduisoryJurisdiction of the Court ¡artlcte ø*+ACnA¡,Advisory Opinion,24
Septem-bet 7982,at para. 24 and IACIHR, The Efeu of Rese:ruatíons on the Entry into Force ojtheACHR (Artíctes
7 4 and 7 5), Advtsory Opinion, 24 Seprembe
r
7992, at pan. 27 .35 Yry Human Rights Committee (UNHRC), General Comment No. 6:The Rþht to ufe (Artick
6),avar1-able online at www.refiüorld.ory/docid/45388400a.htm1, at pans
!,5
(quotãm*
p"rà. r¡.16 IACtHR, villagrán-Morales, et al., u Guaremala,Jud,gment, 19 ñovemb
"riggg,
at pia.144.37 ACHPR, SËR/C and Another u Nigerla, Decision (Merits), 27 'October 2001,'at paru.67. See also,
--
lctHR,
oneryildizuTurkey,Appl.no.4\g3g/99,Juð.gmenr of30 November 2004,itr15.38 Ramcharan, 'The Concept and Dimension of rhè Right to Life' , in B. G. Ramcharan (ed.), The Right to Lífe ín International l^a,w (l9BS)
l,
at7.39 SeeUNHRC,GeneralComment,supranote35,atparas3-S;Nowak,(J.N.Couercant,suprdnote33,at105.
40 UNHRC, Concludíng Obseruatíons on Parøguay (1,9g5),UN Doc. CcpF'/7g/Add 4g,5
April
99S,at
pan.76.
41
UNHRC,
Concluding Observations on the (Jnited States(lggl), UN
Doc. CCpR/C79/Add 50,7April 1995, at pan.17.
42 UNHRC, General Comment No. 14: NuclearWeapons and the Ríght to Llfe (Articte 6),avælab?e
online ar
www.refworld.ory/docid/453883191'Lhtml (tastvisited 1s n¿arch z}ri),àtpalasá-2.
s".
also Nowak,
U'N' Couenant, supra note 33, at I26;S,Joseph,J. Schultz and M. Casran, The Intemational Couenant on
civil and Polítical Ríghx: cases, Materíals, and commentary,2nd ed.(2005) 1g5.
43 See, for example, ECIHR, osman u lJnited Kingdom,Appl. no. 4ï%g;/gg,Judgment of 30
Novem-bet 2004,para'775;EC¡HR, Ilhan vTurl<ey, pl. no. zzizztoz,ludgment oizob"cemb er 201.t,para.
91; ECIHR, KíIíc u Tìuleey,Appl. no. 22492/93,Judgment of 2ã Ma¡ch 2000, para. 62; and,ECtHR,
44 See ECIHR, Oneryildíz uThrkey, supra note 37,paru.79 (concerning the State's fülure to prevent a
pos-sible explosion of methane gas from a garbage dump under the authority of the City Council)'
45 Nowak, u.N. Couenant, suprø note 33, at 123. See also Ramcharan, supra nate 38, at 20.
46 See Ceneral Comment No. 6:The Right to Lfe (Article 6), swpra note 35, para. 5.
47 lbid.,para.5. In Nowak's opinion, the HRC's interpretation ofArt.6(1) shows'not only a willingness
to innovate, but also a resolute application of the premises derived fromArt. 6, whereby the right to life is not to be interpreted narrowly and States parties are obligated to take positive measures lo ensure it.'
Nowak, U.N. Couenant, supra note 33, at 127.
48 UNHRC, General Comment No 31:The Nature of the General bgal Obligation Imposed on States Partíes to
the Couenant,UN Doc. CCPk/C/21lRev1/,\dd 1"3 (26 }/ray 2004),para.8.
49
IACIHR, Velásquez Radr{guez u Honduras,Judgment, 29 July 1988.50 Ihíd.,paru.172.
51 See also Trøil Smelter pnited States u Canada),11 March L941.,3
UN
Reports ofInternationalA¡bitra-tionAwards 1.905,at 1965.Although this case concerned injury caused by fumes, the principle that all
States are obliged to take meâsures to prevent injury'established by clear and convincing evidence'has
a more general application to all sorts of environmental damage, including damage to the world's
com-mon spaces. See J. Charney,'Third State Remedies for Environmental Damage to the'Worldb Common
Spaces',in E Francioni andT, Scovazzi (eds.), International Responsibilítyfor Enuironmental Harm (1991) 149.
52
Osman u tlnited Kingdorm., supra note 43, paræ It5-76, See also ECIHR, Budayeua et al u Russiø, AppLNo.48939/99,Judgment of 30 Nov 2004,pan.732.
53 ECIHR, Tatar c. Roumanie, lrppl. no. 67 027101, Judgme nt of 5 July 2007 .
54 UNFCCC,ATt.3(1).
55
Tatar c. Roumanie, suprd note 53,paras 1,0714.56 ECIHR, X. andY. u Netherlands, Appl. no. 8978/80, Judgment o{ 26 March 1985, pata. 23.
57 See C. Segger et al.,'Prospects for Principles
of
lnternational Sustainable Development Law Afterthe'W'SSD: Common But Differentiated Responsibilities, Precaution and Participatton',1'2 Review of
European, Comparatiue and International Environmental Law (KECIEL) (2003) 54, at 57 (explaining that
differentiated responsibiliry'aims to promote substantive equality between developing and developed
States within a regime, mther than mere formal equaliry').
58 For an examination of climate change and economic, social and cultural rights, see generally S.Jodoin
and K. Lofts (eds.), Economic, Social, and Cultural Rights and Climate Change:
A
I*gaI Referen'ce Cuíde(201.3),avatlable online
athttps://environment.yale.edu/content/documents/00004236/ESC-Rights-and- Climate-Change-Legal-Reference-Guide,pdf? 1 3B 687 7 0 62'
59 CESCR, General Comment No. 14:The Right to the Highest Attainable Standard of Health (Article l2), UN
Doc. E/C t2/2000/4 (11 August 2000), para. 8.
60 Ihid.,paras 30-45.
61 lbid.,para,30.
62 Ibid.,para. 15.This typology is based on the work of the former Special Rapporteur on the Right to
Food,fubjørn Eide. See Eide,'Economic, Social and Cultural Rights as Human Rights', in A. Eide, C.
Krause andA, Rosas (eds.), Economic, Social and Cultural Rigþts,2nd edn (2001) 9 at23-25.
63 See A. Eide,'The Right to an,tdequate Standard of Living Including the Right to Food', in A. Eide, C.
Krause andA. Rosas (eds.), Economíq Social and Cultural Righß,Znd edn (2001) 1,33 at 142.
64
Ceneral Comment No. 14, suprø îote 59, at p$a. 39.65 lhid.,pañ.34.
66 P Hunt and R. Khosla,'Climate Change and the Right to the HighestAttainable Standard of Health',
in S. Humphreys (ed,), Climate Change and Human Rights (2009) 238,at252.
67
Ceneral Comment No. 14, supru note 59, at para,39.68 See Eide,'The Right to an Adequate Standard of Living', supra note 63,at 743. See also General Com'
ment No. 74, supra note 59 at para.35.
69
General Comment No. 14, sryra note 59 at para.39.70
Ihid.,pans 36-37.71 Ihid.
72 Eide,'The Right to anAdequate Standard ofliving', suprarlote 63,atL43.
73 Ihid.,at L44.
74 CESCR, Concludíng Obseruations on the Russían Federatíon,UN Doc E/C,L2/1"/Add.13 (2A }day 7997),
Margaretha Wewerinke-Singh
75 Hunt and Khosla, supra îote 66,at252,Inspiration may also be drawn from the Minors Oposa decision
of the Philippine Supreme Court, which decided that on the bæis of the rights ro health and ecology contained in the Philippines Constitution, the Philippine governmenr hadlo prorecr the populariJn
against the impacts of rainforest logging acuvities.Juan Antonio Oposa et al. v-the Honoraile'Fulgencio
FatoranJr., Secretary of tke Department of the Enuironment and Naturai Resources et al.,supreme Court
of
the Philippines, G.R. No. 101083 (phit).76 Hunt and Khosla, suprd note 66, at 2SS.
77 Ceneral Comment No. 14, suprd note 59 , at para. 36.
78 See, for example, CESCR, Concluding Obseruations on Chile, UN Doc E/C.1.2/1.gBBlSR.13, pan.72
and CESCR,Concluding Obseruations on North Korea,LJNDocE/C.12/7g87/Sk.22,patxS-and17.
See also, C. Doebbler and F Bustreo,'Making Health an Imperative of Foreign PolicyfheValue of a
Human Rights Approach', 12 Heakh and Human RigþxJournat (HHR) (201,01 47,et á3.
79 CESCR, Generøl Comment No, 12: Substantiue ksues Arßing in the Imptementation of the International
Couenant on Econonic, Social and CulturøI Rights: The Right io Adequate-Food (Art. 1fl, UN Doc.
E/C
1,2/1999/5 (12 May 1999),at para. 15.
80 see Eide,'The Right to anAdequate standard
ofliving',
supîanote 63,at1.4s.8t
General Comment,No. 14, supra note 59, at parà.39. See atso Doebbler and Bustre o, supra note 78, at, 53 (stating that the right to health'encourages a world order in which donor states can point our human rights obligations to recipient countries, while recipient countries can point out thJduties to cooperate to ensure human rights, including the obligations for providing adequate resources that ate
incumbent upon donor countries,).
82 Hunt and Khosla, supra note 66, at 252.
83 Paris Agreemenr,Arricle 9(1).
84 Paris Agreemenr,Arricle 9(5).
85 Paris Agreemenr,Arrick 1a(1).
86 ParisAgreemenr,Arricle 2(1)(c) and (b).
87
See,forexample,Callaghan,'ClimateFinanceAfterCOP21:PathwaystoEffectiveFinancingofCom-mitments and Needs,' a report for Investor Watch pecemb et 201,5) at 10 þointing our thJt ,[o]n the evidence of the INDCs, financial requirements of developing nations to
*."t
pioposed actions farexceeds þrobably by a factor of five times) the USD 100 billion'pledged by devetoped counrries. See
further M,'Wewerinke-Singh and C. Doebbler,'The Paris Agreemenr: Some Cririial Reflections on
Process and Substance',39(4) (Jnfuersity of New SouthWøles lawJournal (2016) 1.14.
88 Phosphates in Morocco (Itaþ u Franre),1938 pcIJ SeriesA,/8, No. z+ at La,pan.4g.
8l
case concerníng the Factory at chorzów (cermany u poland), supra note 5s,at 47at 4790 ILCARS,Art.29.
91 ILC ARS,Art. 30(a).The treatment of cessation as a distinct legal consequence of an internationally
wrongfirl acts is a relatively novel development; previously, ceisation was considered æ part of the
remedy of satisfaction. See also, Shelton, Remedies ln Internaiional Human Rights Law, supra note 10 and
Crawford, The ILC Artícles, supra note 4, at 68,pan.714 and Crawford, Brownltel Princíples of pubtic
Internøtional Law, supra note 3232567567.
92 ILCARS, Commenrary to Art. 3},pata.l.
93 ILCARS,ATt,30þ) and Com¡nefitary toArt.30,para. L.
94 shelton, Remedies in Internationøl Human Rights I-nw, sry)ra note !0, at 99.
95 UNHRC,Ceneral Comment No jl,suprûrLote 4g,parai 1,6-17.
96 SERAC
and Another u Nígeria, supra note 37,pan.69.97 This requirement matches the procedural
oblþtion under the ParisAgreement
ofsubmitting,nation-ally determined contributions'that reflect these objectives. See Paris Agreement,,{ tucle 4(3).
98 ILCARS,Art.31(1).
99 ILCARS, Commenrary to Art. 37,para.S.
700 lbid.,para. 10. 1,01 tbid.
102 See, for example , IJnited States Diplomatic and Consular Staf ín Tëhran, Judgment, 24 May 19g0, ICJ
Reports (1980) 3.
103 shelton , Remedies ln Internøtianal Human Rígþl.s Inw, suÍ)ra note '1,0, at g9 ,99 .
704 lbíd',at 50,317 (stating that the burden of uãcertainty or lack ofproof may somerimes shift to the State
i
I l.
i
I
105 J, W'erksman,'Could a Small Island Successfully Sue a Big Emitter? Pursuing a Legal Theory and a
Venue for Climate Justice', in M. B. Gerrard and G. E.Wannier (eds.), Threatened Island Nations: Itgal
Implicatíons of Rßing Seas and a Chan$ng Climate (2012) 409,at 4t2.
106 The'victim requirement'is one of the admissibility criteria that need to be met before a particular
judiciat or quasi-judicial human rights body can consider the merits of an international complaint for
an alleged human rights violation. For example,Art. 34 of the ECHR provides that only
complain-ants who are directly affected by rhe alleged breach of the ECHR have a right to complain about the
violation before the ËCtHR.Art. 1 ofthe Optional Protocol ofthe ICCPR andArt.2 of the Oprional
Protocol to the ICESCR contain a similar requirement.
107 See, for example, Unìted States Díplomatíc and Consular Staf ínTëhran, supra note 1A2.
108 SeeJ, Crawford, Støte Responsibílity:The General Part (2073) 481..
109 ECTHR , Mentes et aî. v Tiukey, Appl. no. 58/1.996/677 /867 ,Judgment of 2a
lny
7998, at para. 106(stating that there should be some pecuniary remedy, but'since the applicants have not substantiated
their claims as to the quantity and value of their lost properry with any documentary or other
evi-dence, the Government have not provided any detailed documents, and the Commission has made no
findings of fact in this respect, the Court's assessment of amounts to be awarded must, by necessity, be
speclrlative and bæed on principles of equity').
110 III,C ARS, Commentary to Art. 31, paru. 72 (stating that'international practice ærd the decisions
ofinternational tribunals do not support the reduction or attenuation ofreparation for concurrent causes'), See also Crawford, State Rerytonsíbilíty:The General Part,supra note 108, at 496,
7L'1" Case Concerning Applkation of the Conuentíon an the Preuention and Punishtnent of the Crime of Cenocíde
(Bosnía and Herzegouína u Serbía and Montenegro),Judgment,26 Febrsary 2007,ICJ Reports (2007)
43; Ahnadou Sadio Diallo (Guinea u DRC), Judgment, 30 November 2070,ICJ Reports (2010) 639;
Velásquez Radr{guez p Honduras, sr'ryra note 49.
1 1 2 UNHR C, General Comment No 3 1 , supra note 48, at para. 76 .
L13 See further'Wewetfttke, supra note 3 et 72tr.
114 UNFCçC, COp Decísion 1/CP.21,
UN
Doc. CP/2075/10/Add,.t Q9 Jantary 2076), para. 52. Seefurther M. J. Mace and R.Verheyen, 'Loss, Damage and Responsibility After COP21: