THE IMPACT OF CLIMATE CHANGE ON INTERNATIONAL LAW: OBLIGATIONS AND LIABILITIES OF STATES

This article is written by Khalid Mohamed Abdelwahab Fadlalla of University of Khartoum, an Intern under Legal Vidhiya

ABSTRACT

Climate change is one of the greatest threats facing humanity, impacting not only the environment but also international legal frameworks.

This research explores how climate change has reshaped international law, particularly focusing on the obligations and liabilities of states under key environmental treaties, such as the United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Agreement. It examines the principle of state responsibility for transboundary harm, legal obligations regarding mitigation and adaptation, and liability for climate-related damages. Key cases, including the Urgenda case in the Netherlands and recent developments at the International Tribunal for the Law of the Sea (ITLOS), are analyzed to illustrate how courts are addressing state accountability for climate inaction.

The research also discusses the enforcement challenges within international law and highlights the evolving nature of state obligations to combat climate change. By examining the current state of international climate law and its effectiveness, this paper aims to contribute to ongoing debates about state responsibility and climate justice in the context of a rapidly warming world.

KEYWORDS

Climate change, international law, state liability, Paris Agreement, UNFCCC, transboundary harm, mitigation, adaptation, loss and damage, environmental treaties.

INTRODUCTION

Climate change has become a major concern for the international community, affecting both the natural environment and human societies. As temperatures rise, sea levels increase, and extreme weather events become more frequent, the world is witnessing the devastating effects of climate change. These impacts are global, transcending national boundaries and affecting the global commons, leading to shifts in international legal norms and obligations.

The science behind climate change is unequivocal. The Intergovernmental Panel on Climate Change (IPCC) has repeatedly confirmed that human activities, particularly the burning of fossil fuels, are the primary drivers of global warming. The 2021 IPCC report notes that global temperatures have already increased by more than 1°C compared to pre-industrial levels, and the world is on track to exceed the 2°C threshold that could lead to catastrophic consequences.

In response to this growing crisis, international law has evolved to address the responsibilities and liabilities of states in mitigating climate change and adapting to its impacts. The United Nations Framework Convention on Climate Change (UNFCCC), adopted in 1992, laid the foundation for international cooperation on climate action, and subsequent agreements, including the Kyoto Protocol and the Paris Agreement, have further clarified the legal obligations of states. However, enforcing these obligations and holding states accountable for their contributions to climate change remains a significant challenge[1].

This legal research aims to explore the evolving obligations of states under international law, the concept of state responsibility for transboundary harm, and the potential legal liabilities for failing to mitigate or adapt to the impacts of climate change. It will also examine key legal cases 

and mechanisms, such as the Urgenda case and the Warsaw International Mechanism for Loss and Damage, which are shaping the legal discourse on climate accountability.

Obligations of States under International Climate Agreements

States have clear obligations under international climate agreements, most notably the UNFCCC and the Paris Agreement.

These treaties outline the responsibilities of states to reduce greenhouse gas emissions, adapt to the impacts of climate change, and cooperate in providing financial and technical assistance to developing countries[2].

The UNFCCC and the Principle of Common but Differentiated Responsibilities (CBDR): The UNFCCC established the principle of “common but differentiated responsibilities” (CBDR), recognizing that while all states are responsible for addressing climate change, their respective capacities and historical contributions to greenhouse gas emissions vary. Developed countries, which have historically been the largest emitters, are expected to take the lead in reducing emissions and supporting developing countries in their efforts to adapt to climate change.

Under Article 4 of the UNFCCC, developed countries are required to provide financial resources and transfer technology to developing countries to help them meet their climate obligations. In addition, states are expected to periodically report on their progress in implementing national climate strategies and action plans[3].

The Paris Agreement and Nationally Determined Contributions (NDCs): The 2015 Paris Agreement, which builds upon the UNFCCC, legally binds states to take action to limit global temperature increases to well below 2°C above pre-industrial levels, with efforts to limit the increase to 1.5°C. Under the agreement, each state is required to submit and update “nationally determined contributions” (NDCs), which outline the specific actions they will take to reduce emissions.

However, the Paris Agreement lacks a formal enforcement mechanism. While states are required to submit NDCs, there are no punitive measures for non-compliance, and the agreement relies Heavily on peer pressure and international scrutiny to ensure that states fulfill their obligations.

State Responsibility for Transboundary Harm

The Principle of State Responsibility in International Law: The principle of state responsibility for transboundary harm is well-established in international law. This principle holds that states are responsible for ensuring that activities within their jurisdiction do not cause harm to other states. The Trail Smelter arbitration, a landmark case decided in 1938 and 1941, established the precedent that a state can be held liable for environmental harm caused by activities within its territory that affect another state.

In the context of climate change, the principle of state responsibility is particularly relevant, as greenhouse gas emissions contribute to global warming and have transboundary effects. For example, the emissions of a developed country may cause sea-level rise and extreme weather events in vulnerable island nations, leading to questions of legal liability for the resulting damages[4].

The Urgenda Case and the Role of Domestic Courts: The Urgenda case in the Netherlands is one of the most prominent examples of how courts are addressing state responsibility for climate change. In 2015, the District Court of The Hague ruled that the Dutch government had violated its duty of care by failing to take adequate measures to reduce greenhouse gas emissions. The court ordered the government to reduce emissions by at least 25% by 2020, based on its obligations under the European Convention on Human Rights (ECHR) and the UNFCCC.

The case was significant because it marked the first time a court had ordered a government to take specific action to address climate change. The decision was upheld by the Dutch Supreme Court in 2019, which confirmed that the government had a legal obligation to protect its citizens from the dangers of climate change.

The Urgenda case has inspired similar climate litigation in other countries, with courts increasingly recognizing the link between human rights and climate change. However, extending

This reasoning to the international level remains challenging, as international courts have been reluctant to directly address the issue of state liability for climate change.

Legal Liability for Climate-Related Damages

The Warsaw International Mechanism for Loss and Damage: The issue of liability for climate- related damages is a contentious one in international law. The Warsaw International Mechanism for Loss and Damage, established under the UNFCCC in 2013, aims to address the financial and legal responsibility of states for the loss and damage caused by climate change, particularly in vulnerable developing countries. The mechanism focuses on providing financial assistance to countries that suffer from the impacts of climate change, such as extreme weather events, sea- level rise, and loss of livelihoods.

However, the mechanism does not explicitly assign legal liability to states for causing climate- related harm. Instead, it operates on the principle of “solidarity” and seeks to mobilize financial resources to help affected countries recover from climate-induced disasters. This approach has been criticized for failing to hold major emitters accountable for their contributions to climate change and for not providing a clear legal pathway for affected states to seek compensation[5].

Attribution of Liability and the Role of International Courts: One of the key challenges in assigning liability for climate-related damages is the difficulty of attributing specific harm to individual states or actors. Greenhouse gas emissions are a global problem, and the effects of climate change are often diffuse and long-term, making it difficult to establish a direct causal link between a state’s emissions and the damage experienced by another state.

Despite these challenges, there is growing interest in using international courts and tribunals to address climate-related disputes. The International Tribunal for the Law of the Sea (ITLOS) recently announced that it would hear cases related to the impacts of climate change on the marine environment and sea-level rise. This development could pave the way for a more

robust legal framework that holds states accountable for their contributions to climate change, particularly in the context of transboundary environmental harm.

Challenges in Enforcing Climate Obligations

Weak Enforcement Mechanisms in International Law: While international climate agreements, such as the Paris Agreement, provide a framework for addressing climate change, their enforcement mechanisms remain weak. Unlike other areas of international law, such as trade or human rights, climate agreements typically lack binding dispute resolution mechanisms or sanctions for non-compliance. As a result, states that fail to meet their climate commitments often face little to no legal consequences.

This lack of enforcement has led to calls for stronger international mechanisms to hold states accountable for their climate obligations. Some have suggested that international courts, such as the International Court of Justice (ICJ) or ITLOS, could play a greater role in adjudicating climate disputes and ensuring that states comply with their legal obligations.

Geopolitical Tensions and the North-South Divide: Geopolitical tensions, particularly between developed and developing countries, have also hampered efforts to enforce climate obligations.

Developing countries, which are often the most vulnerable to the impacts of climate change, have argued that developed countries should bear the brunt of the responsibility for addressing climate change due to their historical emissions. This North-South divide has made it difficult to reach consensus on key issues, such as financial assistance and the allocation of responsibility for climate-related damages.

Despite these challenges, there are signs of progress. The establishment of the Green Climate Fund, which aims to provide financial support to developing countries for climate mitigation and adaptation efforts, represents a step toward addressing the equity concerns that have long plagued international climate negotiations[6].

SUSTAINABLE DEVELOPMENT GOALS AND THEIR IMPACT ON CLIMATE CHANGE

Sustainable Development Goals (SDGs) are an essential framework for addressing climate change and promoting global sustainability. Adopted by the United Nations in 2015, the SDGs consist of 17 interconnected goals designed to address various social, economic, and environmental challenges. Among these, several goals directly or indirectly impact climate change and emphasize the need for urgent action to mitigate its effects.

KEY SDGs RELATED TO CLIMATE CHANGE:

1. SDG 13: Climate Action

This goal directly addresses climate change, calling for urgent action to combat it and its impacts. SDG 13 encourages countries to integrate climate measures into national policies, improve resilience, and increase adaptive capacity to climate-related hazards and natural disasters. It also stresses the importance of global cooperation in financing, capacity building, and technology transfer, particularly for developing nations.

2. SDG 7: Affordable and Clean Energy

This goal emphasizes the need for universal access to affordable, reliable, sustainable, and modern energy. By promoting the use of renewable energy sources, such as solar, wind, and hydropower, SDG 7 plays a critical role in reducing global greenhouse gas emissions, which are a major driver of climate change.

3. SDG 12: Responsible Consumption and Production:

SDG 12 focuses on sustainable consumption and production patterns, which directly influence climate change. By encouraging the efficient use of resources, reducing waste, and promoting sustainable supply chains, this goal helps reduce the environmental footprint of industries and consumers.

4. SDG 15: Life on Land

Protecting ecosystems and biodiversity is crucial for combating climate change. SDG 15 promotes the sustainable management of forests, the fight against desertification, and the halting of biodiversity loss. Healthy ecosystems act as carbon sinks, absorbing carbon dioxide from the atmosphere and reducing the overall concentration of greenhouse gases.

5. SDG 11: Sustainable Cities and Communities:

Urbanization is a key factor in climate change, as cities are responsible for a significant share of global emissions. SDG 11 promotes sustainable urban development, including energy-efficient buildings, renewable energy, and improved waste management systems. Sustainable cities are crucial for reducing emissions and adapting to climate change impacts, such as sea-level rise and extreme weather events[7].

IMPACT OF SDGs ON CLIMATE CHANGE

1. Integration of Climate Policies: SDG 13 emphasizes the need for integrating climate action into national policies. This has led many countries to develop national strategies for reducing emissions, transitioning to renewable energy, and building resilience to climate impacts.
2. Financial and Technical Assistance: SDG 13 calls for developed countries to assist developing nations in tackling climate change by providing financial resources and technology transfers. This support is crucial for building the capacity of vulnerable countries to mitigate and adapt to climate change.
3. Increased Accountability: The SDGs provide a framework for monitoring and reporting on progress. By including targets related to climate change, the SDGs hold countries accountable for their climate actions and encourage peer review, which helps ensure that countries are meeting their commitments under international agreements like the Paris Agreement.

• Holistic Approach to Sustainability: The SDGs recognize that climate change cannot be tackled in isolation. They promote a holistic approach that links climate action with economic growth, social equity, and environmental sustainability. For instance, transitioning to clean energy (SDG 7) and promoting responsible consumption (SDG 12) are essential for achieving climate goals.

In summary, the SDGs provide a comprehensive framework for addressing climate change by promoting sustainable development across multiple sectors. By fostering international cooperation and integrating climate action into broader sustainability efforts, the SDGs offer a pathway toward reducing emissions, protecting ecosystems, and building resilient communities capable of withstanding the impacts of a changing climate[8].

CONCLUSION

The impact of climate change on international law is profound and far-reaching. As global temperatures continue to rise and the effects of climate change become more severe, states will Face increasing legal and moral obligations to take action. International legal frameworks, such as the UNFCCC and the Paris Agreement, provide a foundation for state action, but significant challenges remain in enforcing these obligations and holding states accountable for their contributions to climate change.

The principle of state responsibility for transboundary harm, as established in cases like Trail Smelter and Urgenda, offers a potential pathway for addressing state liability for climate-related damages. However, the difficulty of attributing specific harm to individual states and the lack of binding enforcement mechanisms in international climate agreements remain significant barriers.

Moving forward, the international community must continue to develop and strengthen legal frameworks for addressing climate change. This includes exploring new avenues for adjudicating climate disputes in international courts, increasing financial support for vulnerable countries, and

ensuring that states fulfill their obligations to mitigate and adapt to the impacts of climate change.

As the world grapples with the realities of a changing climate, the role of international law in shaping state behavior and ensuring climate justice will become increasingly important. It is essential that the legal mechanisms in place are robust enough to meet the challenges of the future and hold states accountable for their role in this global crisis.

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5. Green, J. (2017). The Role of the United Nations Framework Convention on Climate Change in International Law. Climate Policy, 17(6), pp. 845-857.
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5. UNFCCC (2015). Paris Agreement. Available at: https://unfccc.int/sites/default/files/english_paris_agreement.pdf (Accessed: 28 October 2024).
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[1] López, Pablo, “Climate Change and International Law: Legal Obligations for Developed and Developing Countries,” Environmental Law Review 19, no. 2 (2017): 1-25.

[2] Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 11, 1997, 2303 U.N.T.S. 162.

[3] International Tribunal for the Law of the Sea, Request for an Advisory Opinion Submitted by The Commission of Small Island States on Climate Change and International Law, ITLOS Case No. 22.

[4] International Court of Justice, Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, I.C.J. Rep. 1996.

[5] Intergovernmental Panel on Climate Change, Climate Change 2021: The Physical Science Basis, Contribution of Working Group I to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge: Cambridge University Press, 2021).

[6] Falkner, Robert, “The Paris Agreement and the New Logic of International Climate Politics,” International Affairs 92, no. 5 (2016): 1107-1125.

[7] Crawford, James, Brownlie’s Principles of Public International Law (9^th ed. 2019).

[8] Bodansky, Daniel, The United Nations Framework Convention on Climate Change: A Commentary (Cambridge: Cambridge University Press, 2010).

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