The Legal Basis of Reparation Claim for Climate Change Damage under International Law: The Perspective of Vulnerable Developing Countries
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Date
2010-12
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Addis Ababa University
Abstract
There is unequivocal scientific consensus that the global climate is changing and that
man-made GHG emissions have caused the warming observed since the 1950s. The
principal cause for high level accumulation of GHGs in the atmosphere is that of burning
of fossil fuels which are connected with the economic activities of industrialized world.
This human-induced climate change is producing or will produce significant adverse
effects on economies, people and environment of the international community. The
impacts of climate change are experienced unevenly. Even if poor countries are least
responsible for causing the problem, scientific predictions of impacts of climate change
have demonstrated that they will suffer the most severe consequences of climate change.
The legal regimes put in place are inadequate to tackle the global climate change
problem. UNFCCC is a framework agreement and hence contain no specific binding
commitments. Even if the Kyoto protocol to the convention imposed concrete obligation
on developed states to reduce their GHG emissions by specific amount, these standards
do not meet those recommended by climate scientists. Moreover, the worst emitters of
GHG are either outside the protocol such as USA or have no binding reduction obligation
such as China. In light of this regulatory failure, victims of climate change are warning
that they are thinking ways to bring the worst emitters of GHGs to justice. The question
that could arises is whether there is a legal basis under international legal framework that
oblige the industrialized nations to compensate particularly vulnerable developing
countries for inevitable damage and loss associated with climate change. The analysis in
this thesis has shown that the climate change regime offer no opportunity for particularly
vulnerable countries to oblige the worst GHG emitters to pay compensation for climate
change damage. A better opportunity may indeed lie in appealing to primary rule of
general international law and to the rules of state responsibility. The most important rule
identified is that of the well-established rule of customary international law called the noharm
rule. The no-harm rule requires states to prevent damage and to minimize the risk of
damage to other states. The writer argue that despite remaining gaps and legal as well as
factual problems, claims by particularly vulnerable developing countries against specified
developed countries, alleging violation of the no-harm rule and seeking compensation
would have a firm basis in international law. However, the writer is also of the opinion
that to claim the discharge of the legal duty under the no-harm rule, instituting
adjudication proceedings for several individual cases should not be the choice. The first
choice must be that both the developed countries and the vulnerable developing countries
should act in collaborative manner to establish a comprehensive and practical
compensation scheme.
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Keywords
climate change, climate change damage, reparation, particularly vulnerable developing countries