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Climate Change Reparations and the Law and Practice of State Responsibility

  • Benoit MAYER (a1)
Abstract

It has been argued elsewhere that industrial states were legally responsible for interfering with the climate system by failing to prevent excessive greenhouse gas emissions. This paper determines the international legal principles relevant to the remedial obligations of industrial states. It assumes that climate change reparations should aim first at providing a signal for the cessation of the wrongful act (i.e. incentivizing climate change mitigation) rather than addressing the injury. A review of state practice in different fields suggests the existence of relevant exceptions to the principle of full reparation. These exceptions relate to the financial capacity of responsible states, the indirect nature of the injury, considerations of “culpability”, and the limitations of collective responsibility as “rough” justice. Accordingly, it is suggested that climate change reparations should be limited to partial compensation and symbolic measures of satisfaction prone to incentivize climate change mitigation.

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LLM (McGill), MA Pol Sci. (Sciences Po Lyon); Associate Professor, Wuhan University Institute of International Law, and PhD candidate, National University of Singapore; bnt.mayer@gmail.com. The ideas leading to this paper developed during a visiting doctoral fellowship at the Faculty of Law of the University of Tel Aviv in the winter of 2014–15, as part of the Global Trust “Sovereigns as Trustees of Humanity” Project. I greatly benefited from comments from, among others, Eyal Benvenisti, Aravind Ganesh, Ayelet Banai, Mikko Rajavuori, Mirjam Streng, Myriam Feinberg, Natalie Davidson, and Sivan Shlomo Agon.

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References
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1. See generally, Intergovernmental Panel on Climate Change, Climate Change 2013: The Physical Science Basis, Working Group I Contribution to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge: Cambridge University Press, 2014) [IPCC 2013].

2. See MAYER, Benoit, “Conceiving the Rationale for International Climate Law” (forthcoming) Climatic Change .

3. Decision 1/CP.13 [Thirteen Decision of the First Conference of the Parties to the UN Framework Convention on Climate Change], “Bali Action Plan” (2007), para. (1)(c)(iii).

4. Decision 2/CP.19, “Warsaw International Mechanism for Loss and Damage Associated with Climate Change Impacts” (2014), para. 1 [Warsaw International Mechanism].

5. KOSKENNIEMI, Martti, “What Is International Law for?” in Malcolm D. EVANS, ed., International Law (Oxford: Oxford University Press, 2010), 32 at 32.

6. See generally, International Panel on Climate Change, Climate Change 2014: Impacts, Adaptation, and Vulnerability: Volume 1, Global and Sectoral Aspects, Working Group II Contribution to the IPCC Fifth Assessment Report (Cambridge: Cambridge University Press, 2014) [IPCC 2014].

7. This is one of the main conclusions of a workshop convened by the secretariat of the UN Framework Convention on Climate Change (UNFCCC) in 2010. See UNFCCC, “Report on the Workshop on Equitable Access to Sustainable Development”, FCCC/AWGLCA/2012/INF.3/Rev.1 (2012), para. 71.

8. MAYER, Benoit, “State Responsibility and Climate Change Governance: A Light through the Storm” (2014) 13 Chinese JIL 539 . See also VOIGT, Christina, “State Responsibility for Climate Change Damages” (2008) 77 Nordic JIL 1 ; VERHEYEN, Roda and RODERICK, Peter, “Beyond Adaptation: The Legal Duty to Pay Compensation for Climate Change Damage” (2008) WWF UK.

9. Emerging economies such as China or Brazil account for steadily increasing GHG emissions, although per capita emissions in these countries remain currently several times inferior to the per capita emissions of the US, Australia, Canada, or the EU. The gap is wider when stocks of historical per capita emissions are considered. Data on greenhouse gas emissions per country can be accessed, for instance, from the World Resources Institute’s Climate Data Explorer, online: <http://cait2.wri.org>.

10. See in particular, Trail Smelter (United States v. Canada), Decision of 11 March 1941, [1941] III Reports of International Arbitral Awards 1907 at 1965; Declaration of the United Nations Conference on the Human Environment, UN Doc. A/Conf.48/14/Rev.1 (1972), principle 21 [Stockholm Declaration]; Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26 (vol. I) (1992), principle 2 [Rio Declaration]; The Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996] I.C.J. Rep. 226 at para. 29; Iron Rhine Arbitration (Belgium v. Netherlands), Decision of 24 May 2005, [2005] XXVII Reports of International Arbitral Awards 35 at para. 222; Pulp Mills on the River Uruguay (Argentina v. Uruguay), [2010] I.C.J. Rep. 14 at para. 101; SANDS, Philippe and PEEL, Jacqueline, Principles of International Environmental Law (Cambridge: Cambridge University Press, 2012) at 196 . Alternative arguments could invoke the failure of a state to comply with its obligations under diverse relevant treaties, including not only the UN Framework Convention on Climate Change, 14 June 1992, 1771 U.N.T.S. 107 (entered into force 21 March 1994) [UNFCCC], and the Kyoto Protocol to the UNFCCC, 11 December 1997, 2303 U.N.T.S. 148 (entered into force 16 February 2005) [Kyoto Protocol]), but also, among others, the Montreal Protocol on Substances that Deplete the Ozone Layer, 16 September 1987, 1522 U.N.T.S. 3 (entered into force 1 January 1989); the Convention on Long-Range Trans-boundary Air Pollution, 13 November 1979, 1302 U.N.T.S. 217 (entered into force 16 March 1983), and its eight protocols; the ASEAN Agreement on Trans-boundary Haze Pollution, 10 June 2002 (entered into force 25 November 2003); and the UN Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S. 3 (entered into force 16 November 1994), part XII.

11. UNFCCC, supra note 10, art. 2. See also the second recital of the UNFCCC, “[a]cknowledging that change in the Earth’s climate and its adverse effects are a common concern of humankind”.

12. Draft Articles on Responsibility of States for Internationally Wrongful Acts, U.N.G.A. Res. 56/8 (2001) [Draft Articles on State Responsibility], art. 42(2) and commentary under art. 42, para. 12 (“In case of breaches of obligations under article 48, it may well be that there is no State which is individually injured by the breach, yet it is highly desirable that some State or States be in a position to claim reparation, in particular restitution.”). In the context of climate change, restitution would be materially impossible as it would involve, at least, removing phenomenal quantities of GHG from the atmosphere.

13. See Mayer, supra note 8, paras. 42–3; MAYER, Benoit, “Whose ‘Loss and Damage’? Promoting the Agency of Beneficiary States” (2014) 4 Climate Law 267 .

14. See Mayer, supra note 8, paras. 27–31, 52–63.

15. See e.g. Statute of the International Court of Justice, 26 June 1945, [1946] U.K.T.S. 67 (entered into force 24 October 1945), art. 36.

16. Political pressure has already been applied on developing states against legitimate calls for responsibility. For instance, Palau (a small island developing state with a population of about 20,000), which initiated a campaign for the UN General Assembly to request an advisory opinion from the ICJ, had to back out when the US threatened to interrupt the provision of development aid. See e.g. BECK, Stuart and BURLESON, Elizabeth, “Inside the System, Outside the Box: Palau’s Pursuit of Climate Justice and Security at the United Nations” (2014) 3 Transnational Environmental Law 17 at 26 . Likewise, Tuvalu, another small island developing state (population 10,000) highly dependent on international aid, has not carried out its repeated threats to seek the responsibility of Australia or the US before an international jurisdiction.

17. A decision on an apportionment of responsibility, in a contentious case, could be precluded by the Monetary Gold principle, in application of which the ICJ has refused to determine the responsibility of a state if, in order to do so, “it would have to rule, as a prerequisite, on the lawfulness” of the conduct of a third state. East Timor (Portugal v. Australia), [1995] I.C.J. Rep. 90 at para. 35; Monetary Gold Removed from Rome in 1943 (Italy v. France), [1954] I.C.J. Rep. 19 at 32. See also, however, Certain Phosphate Lands in Nauru (Nauru v. Australia), Judgment of 26 June 1992 on preliminary objections, [1992] I.C.C. Rep. 240 at 259–60.

18. See BOYKOFF, Maxwell and BOYKOFF, Jules, “Climate Change and Journalistic Norms: A Case-Study of US Mass-Media Coverage” (2007) 38 Geoforum 1190 at 1190 , observing the media’s frequent “adherence to first-order journalistic norms—personalization, dramatization and novelty”. See also, generally, BOYKOFF, Maxwell and BOYKOFF, Jules, “Balance as Bias: Global Warming and the US Prestige Press” (2004) 14 Global Environmental Change 133 .

19. LEISEROWITZ, Anthony, “Climate Change Risk Perception and Policy Preferences: The Role of Affect, Imagery, and Values” (2006) 77 Climatic Change 45 at 64 . See also WEBER, Elke, “Experience-Based and Description-Based Perceptions of Long-Term Risk: Why Global Warming Does Not Scare Us (Yet)” (2006) 77 Climatic Change 103 ; COLLINS, Harry and EVANS, Robert, Rethinking Expertise (Chicago: University of Chicago Press, 2007) at 2 (discussing “science’s … short-term political impotence”).

20. DIAMOND, Jared, Collapse: How Societies Choose to Fail or Succeed (New York: Penguin, 2011) at 425 .

21. Draft Articles on State Responsibility, supra note 12, art. 31(1).

22. Versailles Treaty, 28 June 1919, [1919] U.K.T.S. 4 (Cmd 153) (entered into force 20 January 1920), art. 232.

23. Trail Smelter, supra note 10.

24. See generally the sources cited supra note 10.

25. UNFCCC, supra note 10, 9th recital.

26. Ibid., 4th recital.

27. Ibid., 7th recital, arts. 3(1), 4(1).

28. Ibid., art. 3(1).

29. Written statement of the United States on principle 2 of the Rio Declaration, in UN Conference on Environment and Development, UN Doc. A/CONF.151/26 vol. II (1992) at 17–18.

30. UNFCCC, supra note 10, art. 4(4): “The developed country Parties and other developed Parties included in annex II shall also assist the developing country Parties that are particularly vulnerable to the adverse effects of climate change in meeting costs of adaptation to those adverse effects.” This language is different from “meeting the costs of adaptation”.

31. See in particular, BUCHNER, Barbara et al., Global Landscape of Climate Finance 2014 (San Francisco: Climate Policy Initiative, 2014); UNFCCC Standing Committee on Finance, 2014 Biennial Assessment and Overview of Climate Finance Flows (Bonn: UNFCCC, 2014).

32. See generally, United Nations Environmental Programme (UNEP), The Adaptation Gap Report 2014: A Preliminary Assessment Report (Nairobi: UNEP, 2014).

33. See e.g. WARNER, Koko and ZAKIELDEEN, Sumaya Ahmed, Loss and Damage Due to Climate Change: An Overview of the UNFCCC Negotiations (Oxford: European Capacity Building Initiative, 2012) at 3 .

34. See e.g. BODANSKY, Daniel, “The United Nations Framework Convention on Climate Change: A Commentary” (1993) 18 Yale Journal of International Law 451 at 501 .

35. See UNFCCC, Report of the Conference of the Parties on its seventeenth session, held in Durban from 28 November to 11 December 2011, Part One: Proceedings, FCCC/CP/2011/9, paras. 13–18.

36. Beck and Burleson, supra note 16 at 26.

37. International Law Commission, Report of the Sixty-third session (2011), para. 365 and Annex II, Protection of the atmosphere, by Mr Shinya Murase.

38. Statement of Mr Simonoff (United States), in the Summary Records of the 20th meeting of the Sixth Committee of the UN General Assembly in its 66th session, UN Doc. A/C.6/66/SR.20 (2011) at para. 15.

39. Statement of Mr Buchwald (United States), in the Summary Records of the 19th meeting of the Sixth Committee of the UN General Assembly in its 67th session, UN Doc. A/C.6/67/SR.19 (2012) at para. 118.

40. Statement of Mr Macleod (United Kingdom), in the Summary Records of the 18th meeting of the Sixth Committee of the UN General Assembly in its 68th session, UN Doc. A/C.6/68/SR.18 (2013) at para. 21.

41. Shinya Murase, First Report on the Protection of the Atmosphere, UN Doc. A/CN.4/667 (2014) at para. 5. This compromise also provides that “[t]he outcome of the work on the topic will be draft guidelines that do not seek to impose on current treaty regimes legal rules or legal principles not already contained therein”. Mr Sinhaseni (Thailand) questioned the 6th Committee: “What would be left for the Commission to work on that might be of use to the international community?” See Summary Records of the 19th meeting of the Sixth Committee of the UN General Assembly in its 68th session, UN Doc. A/C.6/68/SR.19 (2013) at para. 27.

42. Submission by Vanuatu on behalf of AOSIS, “Draft annex relating to Article 23 (Insurance) for inclusion in the revised single text on elements relating to mechanisms (A/AC.237/WG.II/Misc.13) submitted by the Co-Chairmen of Working Group II” (1991), reproduced in Intergovernmental Negotiating Committee for a Framework Convention on Climate Change, 4th session, “Elements Relating to Mechanisms”, UN Doc. A/AC.237/WG.II/CRP.8 (1991) 2 at 2, para. 1(5).

43. Ibid.

44. Ibid., at 7 (para. a) and 9 (para. i).

45. Bodansky, supra note 34 at 528.

46. A non-negligible, although purely discursive concession was made when developed states agreed to a text attributing their leading role, resulting from the principle of common but differentiated responsibilities, “to [their] historical responsibility” for climate change. Decision 1/CP.16, “The Cancun Agreements: Outcome of the work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention” (2010), 2nd recital before para. 36 [Cancun Agreements]. The UNFCCC had noted the historical contribution of developed nations, but it had not made any explicit link with the principle of common but differentiated responsibilities.

47. “Bali Action Plan”, supra note 3 at para. 1(c)(iii). The provision in a preliminary draft extended to all “vulnerable developing countries”. See Draft decision 1/CP.13: Consolidated text prepared by the co-facilitators on agenda item 4 (Report of the co-facilitators of the dialogue on long-term cooperative action to address climate change by enhancing implementation of the Convention), FCCC/CP/2007/CRP.1 (2007), at para. 1(c)(iii).

48. “Bali Action Plan”, supra note 3 at para. 1 (chapeau).

49. Warner and Zakieldeen, supra note 33 at 4.

50. Cancun Agreements, supra note 46, para. 26. The work programme was conducted within the Subsidiary Body for Implementation [SBI].

51. Ibid., para. 25.

52. Ibid., para. 25, note 3.

53. UNFCCC, Decision 7/CP.7, “Funding Under the Convention” (2001). These thematic areas are: (1) “Assessing the risk of loss and damage … and the current knowledge of the same”, (2) developing “a range of approaches to address loss and damage”, and (3) defining “the role of the Convention”.

54. A draft decision text adopted at the 37th session of the SBI included multiple references to compensation. See UNFCCC SBI, “Approaches to address loss and damage associated with climate change impacts in developing countries that are particularly vulnerable to the adverse effects of climate change to enhance adaptive capacity, Draft conclusions proposed by the Chair”, FCCC/SBI/2012/L.44 (2012), Annex. Yet, Decision 3/CP.18, adopted on the basis of this draft, contains no reference to compensation. See UNFCCC, Decision 3/CP.18, “Approaches to address loss and damage associated with climate change impacts in developing countries that are particularly vulnerable to the adverse effects of climate change to enhance adaptive capacity” (2012) [Approaches to address loss and damage]. Discussions on compensatory financial mechanisms remain generally sidelined in the work programme on loss and damage. See e.g. “Report on the expert meeting to consider future needs, including capacity needs associated with possible approaches to address slow onset events”, Note by the Secretariat, FCCC/SBI/2013/INF.14 (16 October 2013), where a compensatory financial mechanism is addressed in no more than one single sub-paragraph (para. 32(b)).

55. Approaches to address loss and damage, supra note 54, para. 5(c).

56. Warsaw International Mechanism, supra note 4, para. 1.

57. Ibid., para. 14.

58. “Initial two-year workplan of the Executive Committee of the Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts”, in Annex II of the Report of the Executive Committee of the Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts, FCCC/SB/2014/4 (2014).

59. Warsaw International Mechanism, supra note 4, paras. 9 and 10.

60. UNFCCC, Decision 1/CP.21, “Adoption of the Paris Agreement”, para. 52.

61. See generally, Warner and Zakieldeen, supra note 33.

62. Thus, developed states have sometimes criticized the concept of loss and damage as duplicative of existing efforts on climate change adaptation. See, for instance, Submission of Norway, “Work programme on approaches to address loss and damage associated with climate change impacts in developing countries that are particularly vulnerable to the adverse effects of climate change to enhance adaptive capacity” (2 October 2012), reproduced as Paper 2 in UNFCCC Secretariat, “Views and information from Parties and relevant organizations on the possible elements to be included in the recommendations on loss and damage in accordance with decision 1/CP.16”, FCCC/SBI/2012/MISC.14, 13 at 14. While the Bali Action Plan (supra note 3) and the Cancun Agreements (supra note 46) included loss and damage as part of “enhanced action on adaptation”, developing states have constantly claimed that loss and damage should constitute a third pillar beyond mitigation and adaptation. See e.g. “Warsaw establishes international mechanism for loss and damage” (November–December 2013) 279/280 Third World Resurgence 15–18.

63. See, for instance, US Senate, 105th Cong., 143 Cong. Rec. S8117 (25 July 1997) (debates on the adoption of the Byrd-Hagel Resolution).

64. Thus, Posner and Weisbach criticize those who “treat climate negotiations as an opportunity to solve some of the world’s most serious problems—the admittedly unfair distribution of wealth across northern and southern countries, the lingering harms of the legacy of colonialism, and so forth”. See POSNER, Eric A. and WEISBACH, David A., Climate Change Justice (Princeton: Princeton University Press, 2010) at 5 .

65. The polluter-pays principle is not recognized as such in international law as it is in certain domestic laws. See, for instance, Sands and Peel, supra note 10 at 228–33.

66. This suggests solutions similar to the “grandfathering” of GHG emissions rights.

67. Draft Articles on State Responsibility, supra note 12 at 31.

68. See ibid., art. 35(2), excluding restitution when it would “involve a burden out of all proportion to the benefit deriving from restitution instead of compensation”.

69. See ibid., art. 37(3), excluding satisfaction when it would “be out of proportion to the injury” or if it would “take a form humiliating to the responsible State”.

70. F.V. Garcia-Amador, Fourth report on State Responsibility, in (1959) Yearbook of the International Law Commission, vol. II.1, at para. 89.

71. Statement of S. Rao, in Summary Records of the 2314th meeting of the International Law Commission, UN Doc. A/CN.4/SR.2314 (1993), at para. 78.

72. Summary Records of the 2392th meeting of the International Law Commission, UN Doc. A/CN.4/SR.2392 (1995), at para. 31 (using the word “restitution” in the general sense of “reparation”). See also the statement of C. Tomuschat, in ibid. at para. 37; statement of A. Mahiou, in Summary Records of the 2314th meeting of the International Law Commission, UN Doc. A/CN.4/SR.2314 (1996), at para. 19; Summary Records of the 2454th meeting of the International Law Commission, UN Doc. A/CN.4/SR.1454 (1996), at para. 19.

73. Draft Articles on the Responsibility of States for Internationally Wrongful Acts adopted in first reading (1996) Yearbook of the International Law Commission, vol. II.2, at 58 [First Reading of the Draft Articles on State Responsibility].

74. International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 U.N.T.S. 3 (entered into force 3 January 1976), art. 1(2): “In no case may a people be deprived of its own means of subsistence.”

75. First Reading of the Draft Articles on State Responsibility, supra note 73, commentary under art. 42, para. 8(a).

76. “Comments and observations received by Governments” (1998) Yearbook of the International Law Commission, vol. II.1, 81, at 146 (United States).

77. “Comments and observations received by Governments” (1999) Yearbook of the International Law Commission, vol. II.1, 101, at 108 (Japan).

78. See, in particular, “Comments and observations received by Governments” (1998), supra note 76 at 145–6 (United Kingdom); “Comments and observations received from Government” (2001) Yearbook of the International Law Commission, vol. II.1, 33, at 61–2 (Poland).

79. Thus, the reports of the brief discussions of the question reflect a focus on the necessity of any limitation to the obligation to make full reparation, given the general nature of the project on the responsibility of states and the difficulty in defining a precise limitation to the obligation to make full reparation. See, in particular, the statement of James Crawford in the Summary Records of the 2613th meeting of the International Law Commission (2000), at para. 17.

80. Ibid., para. 18.

81. Ibid. See also James Crawford’s Third Report on State Responsibility (2000) Yearbook of the International Law Commission, vol. II.1, at 3, para. 42: “there is no history of orders for restitution in the narrow sense, or of the award of damages by way of satisfaction, which have threatened to deprive a people of its own means of subsistence”.

82. See the Summary Records of the 2615th meeting of the International Law Commission (2000), at paras. 52, 55.

83. Versailles Treaty, 28 June 1919, [1919] U.K.T.S. 4 (Cmd 153) (entered into force on 20 January 1920), art. 232.

84. TOMUSCHAT, Christian, “International Law: Ensuring the Survival of Mankind on the Eve of a New Century: General Course on Public International Law” (2001) 281 Collected Courses of the Hague Academy of International Law at 293 .

85. See, in particular, Treaty of Peace with Japan, 8 September 1951, 136 U.N.T.S. 45 (entered into force 5 August 1952), art. 14(1).

86. See, for instance, M. SHARETT, 14 March 1951, cited in SAGI, N., German Reparations: A History of the Negotiations (New York: Magnes Press, 1980), at 55 , requesting a sum estimated to represent a quarter of the property that was seized.

87. Bilateral agreement between Germany and Israel, signed in Luxembourg on 10 December 1952, 162 U.N.T.S. 206 (entered into force 27 March 1953), 1st and 2nd recitals [Luxembourg Agreement].

88. GRAY, C.D., Judicial Remedies in International Law (Oxford: Clarendon Press, 1987) at 216217 .

89. Ibid., at 217. Gray notes that the president of Guinea once set aside considerations of the UN Security Council to require Portugal to take some measures of reparation, on the motive that only independence could be an appropriate measure of reparation. See ibid. and (1971) UN Monthly Chronicle No 1, para. 18.

90. See, for instance, the discussion in GATTINI, Andrea, “The UN Compensation Commission: Old Rules, New Procedures on War Reparations” (2002) 13 European Journal of International Law 161 .

91. Eritrea-Ethiopia Claims Commission, Decision number 7 of 27 July 2007, providing guidance relating jus ad bellum liability, XXVI Reports of International Arbitral Awards 10, at 19, para. 29.

92. Note of the Secretary-General, UN Doc. S/22559 (1991), at para. 7. See also U.N.S.C. Res. 705 (1991), para. 2.

93. Agreement Between the Eritrea and Ethiopia, 12 December 2000, 2138 U.N.T.S. 94, art. 5 [Algiers Agreement].

94. See Eritrea-Ethiopia Claims Commission, decision of 17 August 2009, Final Award: Eritrea’s Damages Claims, decision of 17 August 2009, XXVI Reports of International Arbitral Awards 505, at 522, para. 18.

95. Ibid., at para. 22.

96. Understanding on Rules and Procedures Governing the Settlement of Disputes, 15 April 1994, 1869 U.N.T.S. 401 (entered into force 1 January 1995), art. 3(7) [DSU].

97. Ibid., art. 19(1). See also Understanding Regarding Notification, Consultation, Dispute Settlement and Surveillance, 28 November 1979, GATT Doc L/4907, at 210.

98. DSU, supra note 96, art. 22(1).

99. See MATSUSHITA, M., SCHOENBAUM, T., and MAVROIDIS, P.C., The World Trade Organization: Law, Practice, and Policy (Oxford: Oxford University Press, 2003) at 78 ; GRANÉ, P., “Remedies Under WTO Law” (2001) 4 Journal of International Economic Law 755 .

100. WTO, Australia-Automotive Leather II (Art 21.5), decision of 21 January 2000, WT/DS126RW, para. 6.42. The Panel’s decision was not based on art. 19(1) DSU, but on a similar provision: art. 4.7 of the Agreement on Subsidies and Countervailing Measure, 15 April 1994, 1867 U.N.T.S. 14.

101. See Minutes of Meeting of the WTO Dispute Settlement Body on 11 February 2000, WT/DSB/M/75, at 5. The report was criticized by representatives of the United States, Australia, Brazil, Canada, Japan, Malaysia, and the European Union; Hong Kong was the only party supporting its conclusion.

102. Ibid., at 8 (Japan).

103. Ibid., at 7 (Canada).

104. Ibid., at 9 (United States).

105. U.N.G.A. Res. 1803 (XVII) (1962), part I, para. 4.

106. Institut de Droit International, Tokyo Res. 2013/1, “Legal Aspects of Recourse to Arbitration by an Investor against the Authorities of the Host State under Inter-State Treaties”, art. 14(2).

107. American Law Institute, Second Restatement of the Foreign Relations Law of the United States, para. 188(2): “In the absence of the conditions specified in Subsection (1), compensation must nevertheless be equivalent to full value unless special circumstances make such requirement unreasonable.” See also ibid., Explanatory Note (c): “The law is not settled as to what special circumstances may make the requirement of full value unreasonable.”

108. SWEENEY, J.M., “The Restatement of the Foreign Relations Law of the United States and the Responsibility of States for Injury to Aliens” (1964) 16 Syracuse Law Review 762, at 766 .

109. SORNARAJAH, M., The International Law on Foreign Investment (Cambridge: Cambridge University Press, 2010) at 417 .

110. See generally, LILLICH, Richard B. and WESTON, Burns H., International Claims: Their Settlement by Lump Sum Agreements (Charlottesville: University Press of Virginia, 1975); WESTON, Burns H., BEDERMAN, David J., and LILLICH, Richard B., International Claims: Their Settlement by Lump Sum Agreements, 1975–1995 (Ardsley: Martinus Nijhoff, 1999).

111. Correspondence with the Swedish embassy in London, 10 December 1987, cited in SANDS, Philippe, Chernobyl: Transboundary Nuclear Air Pollution—The Legal Materials (Cambridge: Cambridge University Press, 1988), at 27 . See also KISS, Alexander, “L’accident the Tchernobyl et ses consequences au point de vue du droit international” (1986) 32 Annuaire français de droit international 139 at 151152 .

112. (1973) Yearbook of the International Law Commission, vol. II, at 169, para. 39.

113. Prevention of Transboundary Harm from Hazardous Activities, (2001) Yearbook of the International Law Commission, vol. II.2, 146, art. 2(a); Draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities, in (2006) Yearbook of the International Law Commission, vol. II.2, 110, commentary under art. 1, at para. 2 [Draft principles on the allocation of loss].

114. For instance, the International Law Commission has analyzed the Trail Smelter case both as a breach of an obligation from which the responsibility of a state can arise and as the archetypical case of international liability for injurious consequences arising out of acts not prohibited by international law. Regarding the former, see Draft Articles on State Responsibility, supra note 12, commentary under art. 14, at para. 14. Concerning the latter, see the report of the working group on international liability for injurious consequences arising out of acts not prohibited by international law, in (1996) Yearbook of the International Law Commission, vol. II.2, 100 (Annex I), at 103, general commentary, para. 2 [1996 report on international liability]; Draft principles on the allocation of loss, supra note 113 at 122, commentary under art. 2, at para. 1.

115. See Prevention of Transboundary Harm from Hazardous Activities, supra note 113 at 146; Draft principles on the allocation of loss, supra note 113, principle 3(b).

116. Draft principles on the allocation of loss, supra note 113, principle 4.

117. Ibid., commentary under principle 4, para. 8.

118. 1996 report on international liability, supra note 114, art. 21.

119. Ibid., commentary on art. 21, para. 4.

120. OKOWA, Phoebe N., State Responsibility for Transboundary Air Pollution in International Law (Oxford: Oxford University Press, 2000) at 209 .

121. First Reading of the Draft Articles on State Responsibility, supra note 73 at 58, art. 42(3).

122. See supra notes 79–81 and accompanying text.

123. Such grounds for a diminution of a payment were recognized, just a few years after the adoption of Draft Articles on State Responsibility, by the Eritrea-Ethiopia Claims Commissions; see supra note 94.

124. See James Crawford’s Third Report on State Responsibility, supra note 81 at para. 41, referring to Russian Indemnity (1912) XI Reports of International Arbitral Awards 421, at 443. This case, however, related to a transient inability to pay.

125. See e.g. supra note 94.

126. Tomuschat, supra note 84 at 293. Tomuschat further noted that, in the determination of war reparations, “account was always taken of the actual capacity to pay”.

127. See, for instance, supra note 71.

128. See, in particular, NORDHAUS, William D., “A Review of the Stern Review on the Economics of Climate Change” (2007) 45 Journal of Economic Literature 686 .

129. International Covenant on Economic, Social and Cultural Rights, supra note 74, art. 2.1.

130. Williams v. Garner, 268 So. 2d. 56 (U.S., La. App. 1st Cir. 1972) at 61.

131. Such considerations are perhaps the explanation for a surprising reasoning of the ICJ regarding the remedial obligations of Serbia, in the case regarding the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia v. Serbia), Judgment of 26 February 2007, [2007] I.C.J. Rep. 43, para. 462–5. See discussions in TOMUSCHAT, Christian, “Reparation in Cases of Genocide” (2007) 5 Journal of International Criminal Justice 905 ; MILANOVIĆ, Marko, “State Responsibility for Genocide: A Follow-Up” (2007) 18 European Journal of International Law 669 at 691 (noting that it would have been “far, far better for the Court to provide no explanation at all as to why it was not awarding compensation in this concrete case than for it to give the particular justification that it did”).

132. See, in particular, Charter of the United Nations, 26 June 1945, 892 U.N.T.S. 119 (entered into force 24 October 1945), art. 1.

133. IPCC, Managing the Risks of Extreme Events and Disasters to Advance Climate Change Adaptation: A Special Report of Working Groups I and II of the Intergovernmental Panel on Climate Change (New York: Cambridge University Press, 2012) at 8 [SREX]. See also “Summary for Policymakers”, in IPCC, supra note 1, 3 at 5.

134. See SREX, ibid., at 13; “Summary for Policymakers”, ibid., at 20.

135. STONE, Dáithí A. and ALLEN, Myles R., “The End-to-End Attribution Problem: From Emissions to Impacts” (2005) 71(3) Climatic Change 303 .

136. HULME, Mike, O’NEILL, Saffron J., and DESSAI, Suraje, “Is Weather Event Attribution Necessary for Adaptation Funding?” (2011) 334 Science 764 at 764 .

137. See e.g. PALL, Pardeep et al., “Anthropogenic Greenhouse Gas Contribution to Flood Risk in England and Wales in Autumn 2000” (2011) 470 Nature 382 at 382 , proposing a “probabilistic event attribution framework”; HUGGEL, et al., “Loss and Damage Attribution” (2013) 3 Nature Climate Change 694 ; ALLEN, Myles et al., “Scientific Challenges in the Attribution of Harm to Human Influence on Climate” (2006) 155 University of Pennsylvania Law Review 1353 . For a critique of this methodology, see, in particular, Hulme et al., supra note 136.

138. Draft Articles on State Responsibility, supra note 12, art. 31(1).

139. Ibid., commentary under art. 31, para. 10.

140. Exposure can be defined as “[t]he presence of people, livelihoods, species or ecosystems, environmental functions, services, and resources, infrastructure, or economic, social, or cultural assets in places and settings that could be adversely affected”. See “Summary for Policymakers”, in IPCC 2014, supra note 6 at 5.

141. Vulnerability is “[t]he propensity or predisposition to be adversely affected”. It “encompasses a variety of concepts and elements including sensitivity or susceptibility to harm and lack of capacity to cope and adapt”. See ibid.

142. See “Summary for Policymakers”, IPCC 2013, supra note 1 at 9. See also Huggel et al., supra note 137 at 695.

143. “Summary for Policymakers”, IPCC 2013, supra note 1 at 9; BOUWER, Laurens M., “Have Disaster Losses Increased Due to Anthropogenic Climate Change?” (2010) 92 Bulletin of the American Meteorological Society 39 .

144. See, in particular, BOUWER, Laurens M., “Projections of Future Extreme Weather Losses Under Changes in Climate and Exposure” (2013) 33 Risk Analysis 915 , noting that “the signal from anthropogenic climate change is likely to be lost among the other causes for changes in risk, at least during the period until 2040”.

145. Precedents in international law, varying between a requirement of “direct”, “foreseeable”, or “proximate” causal relation, leave ample room for such a pragmatic interpretation. In fact, the ILC itself stated that “the question of remoteness of damage is not a part of the law which can be satisfactorily solved by search for a single verbal formula”. Draft Articles on State Responsibility, supra note 12, commentary under art. 31, at para. 10.

146. Responsabilité de l’Allemagne à raison des dommages causés dans les colonies portugaises du sud de l’Afrique (Portuval v. Germany), decision of 31 July 1928, II Reports of International Arbitral Awards 1011, 1032–3 [translated by the author].

147. Ibid., decision of 30 June 1930, II Reports of International Arbitral 1035, at 1074.

148. See Section III.C.

149. See Draft Articles on State Responsibility, supra note 12, commentary under art. 36, para. 3, noting that the prevailing view is that “the consequences of an internationally wrongful act cannot be limited either to reparation or to a ‘sanction’”. See also AGO, R., “Le délit international” (1939) 68 Collected Courses of the Hague Academy of International Law 417 at 430440 .

150. See, in particular, Draft Articles on State Responsibility, supra note 12, commentary under art. 36, para. 4; CRAWFORD, James, State Responsibility: The General Part (Cambridge: Cambridge University Press, 2013) at 523526 ; Inter-American Court of Human Rights, Velásquez Rodríguez Case, Judgment of 21 July 1989 on compensatory damages, Series C, No. 7, at para. 38.

151. See e.g. the statement of P.S. RAO in the Summary Records of the 2399th meeting of the International Law Commission, UN Doc. A/CN.4/SR.2399 (1995), at para. 24.

152. Tomuschat, supra note 84 at 296–7.

153. Okowa, supra note 120 at 209.

154. See supra notes 116–17 and accompanying text. Nothing would have prevented the ILC from approaching the strict liability regime regulating hazardous activities as primary rules (an obligation of result to prevent a disaster from occurring) subject, in case of breach (i.e. the occurrence of a disaster), to the general regime of state responsibility. See, in this sense, the statement of S. Fomba in the Summary Records of the 2414th meeting of the International Law Commission, UN Doc. A/CN.4/SR.2414 (1995), at para. 36; and the statement of Bennouna in the Summary Records of the 2450th meeting of the International Law Commission, UN Doc. A/CN.4/SR.2450 (1996), at paras. 28–9, 33.

155. 1996 report on international liability, supra note 114, art. 22.

156. See also, more generally, the statement of P.S. Rao in the Summary Records of the 2615th meeting of the International Law Commission, UN Doc A/CN.4/SR.2615 (2000), at para. 55, arguing that “intentional wrongs and other aspects” need to be factored into the determination of reparation in each particular case.

157. Charles Keeling detected a rise in the atmospheric concentration of carbon dioxide in 1960, thus confirming the possibility of earlier theories (some from the nineteenth century) of an anthropogenic increase of the greenhouse effect that would alter climatic conditions. In 1979, a US National Academy of Sciences report considered anthropogenic climate change as highly credible. See generally, WEART, Spencer, The Discovery of Global Warming, 2nd ed. (Cambridge, MA: Harvard University Press, 2008).

158. See UNFCCC, 3rd recital, noting that: “human activities have been substantially increasing the atmospheric concentrations of greenhouse gases, that these increases enhance the natural greenhouse effect, and that this will result on average in an additional warming of the Earth’s surface and atmosphere and may adversely affect natural ecosystems and humankind.”

159. By analogy, Pierre-Marie Dupuy once suggested that the limitation of international responsibility for catastrophic damages arising out of hazardous activities was related to a “a diffuse feeling of shameful solidarity between states in front of the degradation of a human environment to which they all contribute” [translated by the author]. DUPUY, Pierre-Marie, “L’État et la reparation des dommages catastrophiques” in Francesco FRANCIONI and Tullio SCOVAZZI, eds., International Responsibility for Environmental Harm (London: Graham and Trotman, 1991), 125 at 142 .

160. See, in particular, ALLOTT, Philip, “State Responsibility and the Unmaking of International Law” (1988) 29 Harvard International Law Journal 1 at 14 , arguing that “[t]he wrongful act of a State is the wrongful act of one set of human beings in relation to another set of human beings”. See also the Judgment of the International Military Tribunal, in Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, 14 November 1945–1 October 1946, vol. 1 (1947) at 223, noting that “[c]rimes against humanity are committed by men, not by abstract entities”.

161. See Draft Articles on State Responsibility, supra note 12, art. 7.

162. See, in particular, the Rome Statute of the International Criminal Court, 17 July 1998, 2187 U.N.T.S. 90 (entered into force 1 July 2002), art. 25(4); Application of the Convention on the Prevention and Punishment of the Crime of Genocide, supra note 131 at 43, para. 173. See also CASSESE, A., “When May Senior State Officials Be Tried for International Crimes? Some Comments on the Congo v. Belgium Case” (2002) 13 European Journal of International Law 853 at 864 ; NOLLKAEMPER, A., “Concurrence Between Individual Responsibility and State Responsibility in International Law” (2003) 52 International and Comparative Law Quarterly 615 .

163. See Section II.B.2.

164. In contrast to the excess of authority of a state organ or state agent (which does not prevent the attribution of a conduct to the state), the circumstances discussed here relate to an excess of power by a government as a whole. The case-law and doctrine developed in relation to the former do not automatically apply to the latter.

165. See, in particular, Draft Articles on State Responsibility, supra note 12, art. 58; and generally Rome Statute, supra note 162.

166. See discussion in James Crawford’s First Report on State Responsibility, (1998) Yearbook of the International Law Commission, vol. I.1, at 9–24, paras. 43–95. See also XXII Trial of the Major War Criminals before the International Military Tribunal, Nuremberg at 466: “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”

167. See e.g. DREZNER, D.W., “Sanctions Sometimes Smart: Targeted Sanctions in Theory and Practice” (2011) 13 International Studies Review 96 .

168. See generally, Universal Declaration of Human Rights, GA Res. 217(III); International Covenant on Economic, Social and Cultural Rights, supra note 74; International Covenant on Civil and Political Rights, 16 December 1966, 999 U.N.T.S. 171 (entered into force 23 March 1976).

169. See e.g. Rio Declaration, supra note 10; Stockholm Declaration, supra note 10; UNFCCC, supra note 10.

170. This is certainly the basis for Posner and Weisbach’s assertion that collective responsibility for climate change can only rely on “collectivist habits of thinking that do not survive scrutiny”. See Posner and Weisbach, supra note 64 at 116.

171. See, for instance, FLEURBAEY, Marc et al., “Sustainable Development and Equity” in O. EDENHOFER et al., eds., Climate Change 2014: Mitigation of Climate Change, Contribution of Working Group III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge: Cambridge University Press, 2015) 283 at 312313 .

172. Even if all anthropogenic GHG emissions ceased today (extremely unlikely because of paths accepted by our generation that almost necessarily engage next generations to keep on with unsustainable practices), the climate would continue to change for many centuries until a new global equilibrium could be reached. Continuing sea-level rise in the coming centuries will, for instance, almost inevitably flood most of the cultural heritage of mankind. See, for instance, Deliang BRUAER et al., “Introduction”, IPCC, supra note 1, 119 at 128–9.

173. See Nordhaus, supra note 128.

174. See Statement of Chancellor Konrad Adenauer to the Bundestag on 27 September 1951 concerning the attitude of the German Federal Republic toward the Jews, reproduced in SCHWEITZER, C.C., ed., Politics and Government in Germany, 1944–1994: Basic Documents (Providence: Berghahn, 1995), at 123 : “The unmentionable crimes committed in the name of the German people demand a moral and material restitution” [emphasis added]. Adenauer thus insisted that these crimes were committed despite the opposition of the majority of the Germany people.

175. This would apply for instance to confiscation of the Amerindian or Palestinian lands, from which peoples draw a benefit even in the absence of any personal responsibility.

176. See generally, BARKAN, Elazar, The Guilt of Nations: Restitution and Negotiating Historical Injustices (New York: Norton, 2000). A parallel can be drawn with measures promoting education on climate change. See infra note 184.

177. Limitations of reparations for historical emissions could also partly be justified in relation to the characterization of states’ obligations under the no-harm principle. If the no-harm principle only gives rise to a due diligence obligation, state responsibility should not arise in relation to excessive GHG emissions which predate the emergence of a scientific consensus on the anthropogenic cause of climate change. See discussion in Mayer, supra note 8, para. 25.

178. GOODIN, Robert E., “Selling Environmental Indulgences” (1994) 47 Kyklos 573 at 575 .

179. This might appear as an extraordinarily unambitious objective, except that it is already well beyond the current agreements or negotiations.

180. See, for instance, Luxembourg Agreement, supra note 87; and, more generally, Barkan, supra note 176.

181. BAKIR, Caner, “Policy Entrepreneurship and Institutional Change: Multilevel Governance of Central Banking Reform” (2009) 22 Governance 571 ; MINTROM, Michael and NORMAN, Phillipa, “Policy Entrepreneurship and Policy Change” (2009) 37 Policy Studies Journal 649 .

182. FINNEMORE, Martha and SIKKINK, Kathryn, “International Norm Dynamics and Political Change” (1998) 52 International Organization 887 ; JOHNSTONE, Ian, “The Secretary-General as Norm Entrepreneur” in Simon CHESTERMAN, ed., Secretary or General: The UN Secretary-General in World Politics (Cambridge: Cambridge University Press, 2007), 123 ; WEXLER, Lesley, “The International Deployment of Shame, Second-Best Responses, and Norm Entrepreneurship: The Campaign to Ban Landmines and the Landmine Ban Treaty” (2003) 20 Arizona Journal of International and Comparative Law 561 .

183. See Section II.C.

184. See e.g. UNFCCC, supra note 10, art. 6(a)(i); Kyoto Protocol, supra note 10, art. 10(e); and decision 19/CP.20, “The Lima Ministerial Declaration on Education and Awareness-raising” (2014).

185. Draft Articles on State Responsibility, supra note 12, art. 31(1).

186. First Reading of the Draft Articles on State Responsibility, supra note 73, commentary under art. 48, at para. 8(a).

187. See, in particular, UN Charter, supra note 132, art. 1.

188. See e.g. ALLEN, B.E., “The Use of Non-pecuniary Remedies in WTO Dispute Settlement: Lessons from Arbitral Practitioners” in M.E. SCHNEIDER and J. KNOLL, eds., Performance as a Remedy: Non-Monetary Relief in International Arbitration (Huntington: Swiss Arbitration Association and Juris, 2011), 281 at 299 ; Summary Records of the 2399th meeting of the International Law Commission, UN Doc. A/CN.4/SR.2399 (1995), at para. 24.

189. Factory at Chorzów, P.C.I.J. Ser. A No. 17, at 47.

190. Opinion in the Lusitania Cases, decision of 1 November 1923, VII Reports of International Arbitral Awards 32, 39: “The remedy should be commensurate with the loss, so that the injured party may be made whole.”

191. See SHARPE, S., “The Idea of Reparation” in G. JOHNSTONE and D.W. van NEES, eds., Handbook of Restorative Justice (Cullompton: Willan, 2007), at 26 .

192. SHELTON, D., “Righting Wrongs: Reparations in the Articles on State Responsibility” (2002) 96 American Journal of International Law 833 at 845 .

193. See supra note 149.

194. See, however, Tomuschat, supra note 84 at 293. Tomuschat noted that, in the determination of war reparations, “account was always taken of the actual capacity to pay”.

195. On the case of Application of the Convention on the Prevention and Punishment of the Crime of Genocide, see supra note 131.

196. US Senate, 105th Cong., 143 Cong. Rec. S8117 (25 July 1997). Senator Byrd also proclaimed: “the time for pointing fingers is over.” The present paper is an argument about how to bring the time for pointing fingers to an end, through a reasonable offer of reparations.

* LLM (McGill), MA Pol Sci. (Sciences Po Lyon); Associate Professor, Wuhan University Institute of International Law, and PhD candidate, National University of Singapore; . The ideas leading to this paper developed during a visiting doctoral fellowship at the Faculty of Law of the University of Tel Aviv in the winter of 2014–15, as part of the Global Trust “Sovereigns as Trustees of Humanity” Project. I greatly benefited from comments from, among others, Eyal Benvenisti, Aravind Ganesh, Ayelet Banai, Mikko Rajavuori, Mirjam Streng, Myriam Feinberg, Natalie Davidson, and Sivan Shlomo Agon.

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Asian Journal of International Law
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