(PDF) Human Rights and Climate Change Law: Added Value to Pacific Island States

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JOURNAL OF SOUTH PACIFIC LAW!

Vol. 2015, No. 1

SPECIAL ISSUE:

HUMAN RIGHTS AND

CLIMATE CHANGE LAW

TABLE OF CONTENTS

EDITORIAL INTRODUCTION

Margaretha Wewerinke and Fitilagi Fa’anunu / Human Rights and Climate Change

Law: Added Value to Pacific Island States / E-1

ARTICLES

Curtis Doebbler / Ensuring Consistency with Existing International Law of

Another Climate Change Agreement / A-1

Calvy Aonima and Shivanal Kumar / Could Vanuatu Claim Reparations under

International Law for Damages Sustained From Cyclone Pam? / A-23

Fitilagi Fa’anunu / A Breach of Fundamental Human Rights as the Legal Basis for

Reparations for Climate Change Damages and Injuries under International Law:

Case Study of Ha’apai Islands (Tonga) Following Cyclone Ian / A-41

COMMENT

Flavia Bustreo / Health and Our Shared Responsibility to Deal with Climate

Change: A WHO Perspective / C-1

ABOUT THE JOURNAL

The Journal of South Pacific Law (JSPL) is published by the University of the South Pacific

School of Law. We publish materials and analysis that deal with any aspect of law in, or of

special relevance to, the Pacific Islands region. All articles appearing in the journal are refereed

by scholars with extensive background in the region and its diverse legal systems.

EDITORIAL BOARD

Professor Donald Paterson (Acting General Editor)

Dr. Margaretha Wewerinke

Dr. Darryn Jensen

Dr. Pierre-Jean Bordahandy

Dr. Howard van Trease

EDITORS OF THE SPECIAL ISSUE

Dr. Margaretha Wewerinke

Ms. Fitilagi Fa’anunu

ADVISORY BOARD

Professor Sue Farran (University of St Andrews, UK)

Professor Jennifer Corrin (University of Queensland, Australia)

Professor Peter Macfarlane (University of South Australia, Australia)

Professor Tony Angelo (Victoria University of Wellington, New Zealand)

Professor Roger Clarke (Rutgers University, USA)

Professor Lawrence Boulle (Australian Catholic University, Australia)

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GUIDELINES FOR AUTHORS

The journal requires the submission of manuscripts by email attachment. Please include your full

contact details when submitting your manuscript.

Manuscripts should be written in standard English and sent to the Acting General Editor.

For the exact submission guidelines, please visit: www.usp.ac.fj/index.php?id=13024.

OPEN ACCESS

The Journal of South Pacific Law is an open access peer-reviewed journal. It is available online

to the reader without financial or legal barriers.

ISSN 1684-5307

CORRESPONDENCE

The Acting General Editor

Journal of South Pacific Law

University of the South Pacific School of Law

PMB 9072, Port Vila

VANUATU

Email: donald.paterson@vanuatu.usp.ac.fj

Website: www.usp.ac.fj/index.php?id=13024.

This journal may be cited as JSPL.

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HUMAN RIGHTS AND CLIMATE CHANGE LAW:

ADDED VALUE TO PACIFIC ISLAND STATES

MARGARETHA WEWERINKE AND FITILAGI FA’ANUNU *

We’re not talking about the growth [of] GDP, we’re not talking about what it means

in terms of profit and losses of the large corporations, we’re talking about our survival.

Anote Tong, President of Kiribati1

Climate change is often referred to as the defining challenge of our time, and it is well known that

Pacific Island States are particularly vulnerable to the adverse effects of climate change. Indeed,

these adverse effects are already very tangible for most communities across the region. Coastal

features are visibly changing, with rising sea-levels, higher king tides and storm surges, saltwater

intrusion and changing weather patterns posing an increasing threat to the livelihoods of Pacific

Island communities. The threats are amplified by extreme weather events becoming more intense

and more damaging as a result of climate change, with Cyclone Pam recently causing loss of human

life and catastrophic damage in Vanuatu, and to a lesser extent in the Solomon Islands, Tuvalu and

Kiribati.2 While communities and governments—assisted by regional, international and non-

governmental organisations—are proactively building resilience and adapting to climate change,

there is a real risk of much more severe and damaging impacts materialising in the coming

decades.3 The threats are so severe that most, if not all, Pacific Island States face the threat of losing

some or all of their habitable territory as a result of climate change, with related risks of the loss of

traditional livelihoods and large-scale involuntary displacement.4

This Special Issue of the Journal of South Pacific Law aims to provide insight into the role of

international law in addressing the short-term and long-term challenges posed by climate change to

Pacific Island States and their populations. It focuses on the two international legal frameworks that

were designed to protect the Earth’s climate system and the human person: international climate

change law on the one hand, and international human rights law on the other. These two

frameworks contain lofty principles with moral, political and indeed legal significance: the United

Nations Framework Convention on Climate Change (UNFCCC) was adopted to ‘prevent dangerous

anthropogenic interference with the climate system [...] within a timeframe sufficient to allow

ecosystems to adapt naturally to climate change, to ensure that food security is not threatened’.5

International human rights law, on the other hand, aims to protect the human person against

preventable interferences with a range of rights, and to provide victims of human rights violations

* Dr. Margaretha Wewerinke is a lecturer in environmental law at the University of the South Pacific (USP) School of

Law in Vanuatu. Fitilagi Fa’anunu is a Law Practitioner in Tonga and a Master of Environmental Law Candidate at

USP.

1 Interview with Radio Australia’s Pacific Beat, 13 June 2014, available at http://www.abc.net.au/news/2014-06-

13/pacific-presidents/5521478 (accessed 29 October 2015).

2 As discussed in detail by Calvy Aonima and Shivanal Kumar in their contribution to this Special Issue.

3 See Intergovernmental Panel on Climate Change (IPCC), Climate Change 2014: Synthesis Report (CUP, 2014) 67

(stating that some small island States ‘are expected to face very high impacts that could have associated damage and

adaptation costs of several percentage points of gross domestic product’).

4 Ibid 65.

5 United Nations Framework Convention on Climate Change, opened for signature 9 May 1992, 1771 UNTS 107

(entered into force 19 June 1993) (UNFCCC), Article 2.

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that have occurred with adequate and effective remedies.6 It is important to note that Pacific Island

States first started raising concerns about climate change at international human rights forums more

than a decade ago.7 This has not, of yet, resulted in the action and international cooperation needed

to prevent climate change-induced interferences with human rights.

Understanding how the UNFCCC and international human rights law currently support Pacific

Island States and local communities in the struggle against climate change is key to ensuring

effective responses. In this regard, a key point to note is that existing international law not only

requires that action to address the threats posed by climate change is effective, but also that it is

equitable. The Nobel Peace Prize winning Intergovernmental Panel on Climate Change (IPCC) has

stated unequivocally in numerous reports that human activities that produce greenhouse gases--

especially the burning of fossil fuels--are the primary cause of climate change.8 We also know that

the impacts of climate change that are being experienced today can be traced back to greenhouse

gas-emitting activities that have fuelled the development of what are now high-income States.9

Their contributions to global emission stocks are in sharp contrast to those of Pacific Island States,

which amount to less than 0.03% of the total.10 The region’s contribution to emission flows remains

extremely low.11

The disparities in responsibility for climate change and capacity to address it have both practical

and legal implications for climate change action. Practically speaking, a result of the economic

benefits reaped from high-carbon industrialisation, developed States still have the greatest capacity

for (i) making deep cuts in their domestic emissions of greenhouse gases; and (ii) supporting

developing States in achieving a transition to sustainable and inclusive development.12 For this

reason, the UNFCCC prescribes climate action in accordance with the principle of common but

differentiated responsibilities and respective capabilities (CBDRRC). 13 More specifically, the

UNFCCC requires that developed States take the lead in combating climate change and the adverse

effects thereof, including by sharing technologies and providing financial support to developing

states in a manner that promotes the right to sustainable development.14 The UNFCCC also requires

developed States to support developing States in building local capacities,15 and to provide finance

for adaptation in developing States that are particularly vulnerable to the adverse effects of climate

change.16

6 See, for example, Airey v Republic of Ireland (1979) 305 Eur Court HR (ser A) 2 [32] (where the European Court of

Human Rights found that the provisions of human rights treaties should be interpreted and applied in a way that makes

its safeguards practical and effective).

7 See, for example, Initial Report of Kiribati under the Convention on the Rights of the Child submitted to the UN

Committee on the Rights of the Child, UN Doc. CRC/C/KIR/1 (7 December 2005).

8 See, for example, IPCC (2014), above n 3, 40.

9 Ibid 44. See also Climate and Development Knowledge Network (CDKN), (2014), The IPCC’s Fifth Assessment

Report: What’s in it for Small Island Developing States? 6 http://cdkn.org/wp-content/uploads/2014/08/IPCC-AR5-

Whats-in-it-for-SIDS_WEB.pdf (accessed 23 November 2015).

10 Secretariat of the Pacific Regional Environment Programme (SPREP), (2014), Climate Change

https://www.sprep.org/international/climate-change (accessed 23 November 2015). See also the United Nations

Permanent Forum on Indigenous Issues, (2015), The Pacific Region 1

http://www.un.org/esa/socdev/unpfii/documents/2015/media/pacific.pdf (accessed 23 November 2015).

11 SPREP, (2014), above n 10.

12 CDKN (2014), above n 9, 28.

13 UNFCCC, Preamble and Article 3(1).

14 UNFCCC, Article 3(1), 3(4), 4(4) and 4(5).

15 UNFCCC, Article 4(5) and 5.

16 UNFCCC, Article 4(3).

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The contributions to this Special Issue demonstrate, amongst other things, that international human

rights law underscores rather than replaces the need for compliance with the principle of CBDRRC

and the above-mentioned obligations: non-compliance with these obligations not only increases the

threats to the enjoyment of human rights caused by the adverse effects of climate change, but also

perpetuates historical inequities that continue to hamper the full and non-discriminatory realisation

of human rights across the globe. As international human rights law is based on the premise that all

human beings are equal in dignity and rights, action to correct, rather than perpetuate, historical

inequities is required. This mutually reinforcing nature of UNFCCC principles and commitments

and human rights obligations is apparent from all contributions to this Special Issue.

This Special Issue is launched ahead of the 21st Conference of the Parties to the UNFCCC (COP21)

from 30 November to 11 December 2015 in Paris.17 As the contributing authors demonstrate, the

inter-relationship between climate change law and human rights law has important implications for

negotiations towards a new legally binding agreement under the UNFCCC, which is expected to be

adopted at COP21. At the same time, however, the comprehensive legal framework discussed in

this Special Issue is comprised of existing international laws. As such, it could be relied upon by

Pacific Island States and beneficiaries of human rights obligations in legal action outside the

UNFCCC process, including in climate change litigation. This realisation is important as it signals

the existence of multiple strategies to address climate change through the invocation of international

laws; a reality that could inform Pacific Island States’ negotiating positions and strategies.

Each of the contributions to the Special Issue sheds light on a different aspect of the UNFCCC,

international human rights law and/or the inter-relationship between these frameworks. The first

article by Dr. Curtis Doebbler, ‘Ensuring Consistency with Existing International Law of Another

Climate Change Agreement’, provides insight into legal challenges arising in the context of

negotiations to strengthen ambition in the pre-2020 period and to agree on a new climate change

agreement under the UNFCCC that would enter into force in 2020. The latter agreement is expected

to replace parts of the Kyoto Protocol—which sets legally binding quantified emission reduction

targets for developed country Parties—and contribute to the implementation of the UNFCCC.

Doebbler analyses the Draft Agreement and accompanying Draft Decision that form the basis for

negotiations under the Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP)

in Paris, focusing on the key elements of the COP21 outcome: (1) the Preamble; (2) Definitions

(Art. 1); (3) General (Art. 2 and 2bis); (4) Mitigation (Art. 3); (5) Adaptation and loss and damage

(Arts. 4 and 5); Finance (Art. 6); Capacity building (Art. 8 and 8bis); (9) Transparency (Art. 9); (10)

Timeframes and implementation (Arts. 10 and 11); (11) Procedures, institutions and decision-

making (Arts. 12-15 and 22) and Other provisions (Arts. 16-21 and 23-26). Although the structure

of the Draft Agreement resembles that of a treaty, its draft provisions remain more of a compilation

of options reflecting the widely diverging views of States than a blueprint for a new treaty. Hereby,

many articles include ‘no text’ options or options that would, when adopted and implemented, be

insufficient to achieve the full, effective and sustained implementation of the UNFCCC itself.

Moreover, the texts contain options that seem aimed at blurring the distinction between developed

and developing States, which could undermine both the fairness and the effectiveness of the climate

change regime. It is therefore perhaps not surprising that even the reiteration of existing principles

has become controversial, as is clear from brackets around a provision in the ‘Purpose’ section of

the Draft Agreement (Art. 2) that highlights the principle of CBDR; the (bracketed) addition of ‘in

17 See COP Decision 1/CP.17, UN Doc. FCCC/CP/2011/9/Add.1 (15 March 2012), establishing a negotiation process

with a mandate to “develop a protocol, another legal instrument or an agreed outcome with legal force under the

Convention applicable to all Parties.” COP21 also serves as the 11th Meeting of the Parties to the Kyoto Protocol

(CMP11).

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the light of national circumstances’; a bracketed reference to ‘the principles and provisions of the

Convention’; and a ‘no text’ option for this same article.18

As far as human rights are concerned, it is worth recalling that the link between climate change and

human rights has been recognised in a series of resolutions of the UN Human Rights Council, all of

which build on the recognition that climate change ‘poses an immediate and far-reaching threat to

people and communities around the world and has implications for the full enjoyment of human

rights’.19 The link between climate change and human rights has also been set out in an analytical

report produced by the UN Office of the High Commissioner for Human Rights (OHCHR) at the

request of the Council20; and in statements and press releases from human rights treaty bodies.21

Moreover, all 194 State Parties to the UNFCCC acknowledged in a 2010 decision of the

Conference of the Parties (COP) that ‘States should, in all climate change-related actions, fully

respect human rights’.22 However, the references to human rights in the operative part of the Draft

Agreement are all bracketed—indicating a lack of consensus on their inclusion. In his discussion of

cross-cutting issues in the Draft Agreement, Doebbler attributes this lack of consensus to a division

amongst States between two human rights visions, with the first emphasising participatory civil and

political rights and the second insisting on a broader perspective that includes economic, social and

cultural rights and the right to development. 23 This division is just one out of many that would need

to be overcome in order to achieve an outcome in Paris that is fully consistent with existing

international law. More generally, the draft Agreement and Decision reflect a risk that the Paris

outcome could downgrade and weaken existing international laws rather than strengthening and

implementing it.

Following Doebbler’s analysis of the Draft Agreement and Draft Decision, Calvy Aonima and

Shivanal Kumar provide a comprehensive analysis of the potential implications under international

law of Cyclone Pam, a category 5 cyclone which hit Vanuatu, Tuvalu, Kiribati and the Solomon

Islands in March 2015. As mentioned above, Vanuatu was particularly badly affected, as the

cyclone—dubbed ‘a monster’ by Vanuatu’s President Baldwin Lonsdale—claimed at least 15

human lives, destroyed thousands of homes, crippled much of Vanuatu’s infrastructure and left

some of the outer islands almost completely without food sources. The estimated damage and loss

caused to Vanuatu’s social, infrastructural and economic sectors exceeds $US443 million,

equivalent to around 64% of the country’s gross domestic product (GDP).24 For meeting these

costs, Vanuatu relied primarily on its own resources, supplemented by humanitarian aid provided

by other governments and non-governmental organisations on a charitable basis.

18 Draft Agreement and Draft Decision on Workstreams 1 and 2 of the Ad Hoc Working Group on the Durban Platform

for Enhanced Action (ADP): Work of the ADP Contact Group (edited version of 6 November 2015).

19 Human Rights and Climate Change, UN Human Rights Council Resolution 7/23, UN Doc A/HRC/7/78 (14 July

2008).

20 Report of the Office of the United Nations High Commissioner for Human Rights on the Relationship between

Climate Change and Human Rights, UN Doc A/HRC/10/61 (15 January 2009).

21 See, for example, Statement of the CEDAW Committee on Gender and Climate Change, adopted at 44th mtg, NY (7

August 2009).

22 The Cancun Agreements: Outcome of the Work of the Ad Hoc Working Group on Long-Term Cooperative Action

under the Convention, FCCC/CP/2010/7/Add.1, Decision 1/CP.15 (2010), para. 8. The UNFCCC has since been

ratified by South Sudan, which brings the number of state parties to 195.

23 Curtis Doebbler, ‘Ensuring Consistency with Existing International Law of Another Climate Change Agreement’

(2015) 1 JSPL, n 172-176 and accompanying text.

24 See Global Facility for Disaster Reduction and Recovery, Supporting Resilient Recovery in Vanuatu after Cyclone

Pam (2015), available at https://www.gfdrr.org/sites/default/files/publication/Vanuatu_SoI.pdf (accessed 22 November

2015).

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This factual situation offers a case study to examine the relevance of existing international climate

change law for Pacific Island States that are already feeling the effects of dangerous climate change.

The most pertinent question here is whether Vanuatu would have legal grounds under international

law to claim reparations for the loss and damage caused by Cyclone Pam from a State or States that

indirectly contributed to this damage. This question is particularly relevant in light of ongoing

negotiations on a framework for addressing Loss and Damage under the UNFCCC, as it involves

the important question of whether Pacific Island States already have a right to reparations for

climate change-induced loss and damage under international law, irrespective of provisions on Loss

and Damage that might be included in a new Agreement under the UNFCCC. Aonima and Kumar

suggest that the answer to these questions is affirmative. Following an explanation of the correlation

between Cyclone Pam and climate change, the two authors discuss how the UNFCCC itself, as

existing international law, can already be used as a legal basis for a State responsibility claim

against one or several States that have made material contributions to the accumulated emissions in

the global atmosphere. It is legally significant that these emission stocks have in turn increased the

likelihood that ‘super cyclones’ such as Cyclone Pam may occur. However, there are significant

obstacles to enforcing the right to reparations for internationally wrongful acts that indirectly led to

Cyclone Pam. Aonima and Kumar note that there are several avenues to invoke State responsibility,

each of which might have its own obstacles, but focus their analysis on the possibility of bringing a

contentious case before the International Court of Justice (ICJ). For Vanuatu, one of the greatest

obstacles to bringing a case before the ICJ is that Vanuatu has not recognised the jurisdiction of the

ICJ as compulsory. Accordingly, Aonima and Kumar recommend that Vanuatu—and any State in a

similar position—makes a declaration to recognise the jurisdiction of the ICJ as compulsory in

order to overcome this obstacle.

The potential relevance of climate change litigation under international law is also apparent from

Fitilagi Fa’anunu’s contribution, ‘A Breach of Fundamental Rights as the Legal Basis for

Reparations for Climate Change Damages and Injuries under International Law: Case Study of

Ha’apai Islands (Tonga) Following Cyclone Ian’. This article draws on the legal implications of

Cyclone Ian, which hit Tonga in January 2014 and affected the communities of the small Ha’apai

Islands in particular. These communities maintain a distinct cultural identity and rely primarily on

subsistence agriculture and fishing for sustenance. Fa’anunu sets out to demonstrate how these

communities can rely on international human rights law to secure remedies for the loss and damage

suffered as a result of Cyclone Ian.

Mirroring the discussion of the link between Cyclone Pam and climate change by Aonima and

Kumar, Fa’anunu first sets out how Cyclone Ian can be attributed to climate change from a factual

and a legal human rights perspective. Her contribution demonstrates how Cyclone Ian has interfered

with a range of human rights to which the Ha’apai communities are entitled, including the right to

life, the right to an adequate standard of living, the right to food, the right to health, and the right to

self-determination. As these rights are legally entrenched in a range of treaties which States have

voluntarily signed and ratified, as well as in customary international law, it is virtually undisputed

that these rights give rise to legal obligations for all States under international law. However, there

is insufficient attention for the inter-relationship between these obligations on the one hand and

obligations under the UNFCCC on the other. Fa’anunu takes the position that human rights

obligations reinforce the provisions under the UNFCCC that are aimed at preventing dangerous

anthropogenic interference with the climate system. Both legal frameworks provide a legal basis for

State responsibility claims for internationally wrongful conduct that has contributed to climate

change damage. Apart from adding an important moral dimension, international human rights law

adds value to climate change law by recognising individuals and peoples as beneficiaries of

international obligations. The rights of individuals (and, in some instances, peoples) could be

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enforced by States on their behalf. However, members of the Ha’apai communities also have access

to international human rights mechanisms, such as the Special Procedures of the UN Human Rights

Council, to raise concerns about interferences with human rights resulting from Cyclone Ian or

other extreme weather events attributable to climate change.

While observing that climate change already causes human rights violations, we must recall that

manifestations of climate change that are being experienced today are the result of a mere 0.85°C of

warming since pre-industrialisation.25 The contribution of Dr. Flavia Bustreo, ‘Health and Our

Shared Responsibility to Deal With Climate Change: a WHO Perspective’ underscores the need for

urgent action, in accordance with the precautionary principle enshrined in Article 3 of the

UNFCCC, to prevent even more pervasive and severe effects of climate change in the coming

decades. This imperative for action also follows from international human rights law: as Bustreo

points out, an overwhelming body of evidence suggests that climate change has adverse effects on

the enjoyment of the right to the highest attainable standard of health. The most vulnerable

segments of populations are most severely affected. As developing countries that are particularly

vulnerable to the adverse effects of climate change, Pacific Island States bear a disproportionate

burden of these health impacts, while being most likely to lack the resources to adequately address

these impacts.

Bustreo’s contribution is a strong call for a response to climate change that is grounded in human

rights standards, including the right to the highest attainable standard of health. Noting that the right

to health is protected under the constitution of the World Health Organization (WHO) and a range

of human rights treaties, she explains how the WHO can serve as a forum for action on health and

climate change. Much like human rights, health is a cross-cutting issue in the negotiations under the

UNFCCC which has its own expert forum for discussion and action. And while the UNFCCC is the

central forum for international action on climate change, utilising the expertise of forums and

mechanisms focused specifically on health and human rights is paramount to ensuring that

individual and joint climate action is taken in accordance with human rights standards, including the

right to health. One step that could be taken at COP21 in Paris is to include explicit references to

the right to health in the Purpose and Adaptation sections of the Paris Agreement, in a manner that

demonstrates States’ shared commitment to make health a priority in responses to climate change.

As Bustreo notes, prioritising health requires mobilising adequate resources to address the adverse

effects of climate change on the right to health, with specific attention to the most vulnerable. There

is also a need to recognise the synergies between different sectors that help build people’s resilience

to deal with the increased shocks and disease exposure resulting from climate change. This brings

us back to the need for equitable responses to climate change that promote, rather than undermine,

the realisation of the right to sustainable development in Pacific Island States and across the globe.

25 IPCC, ‘Contribution of Working Group I to the IPCC Fifth Assessment Report’ in Thomas F Stocker et al (eds),

Climate Change 2013: The Physical Science Basis (CUP 2013) 12.

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ENSURING CONSISTENCY WITH EXISTING INTERNATIONAL

LAW OF ANOTHER CLIMATE CHANGE AGREEMENT

CURTIS DOEBBLER*

We in the Pacific are innocent bystanders in the greatest act of folly of any age.

Unless the world acts decisively in the coming weeks, the Pacific as we know it is doomed.

Fiji Prime Minister Frank Bainimarama1

INTRODUCTION

Climate change is perhaps the greatest threat facing humanity and the planet Earth today and it is

likely to remain so until human beings take adequate action to address the adverse effects of climate

change. Such action can only be taken jointly. Even if every Pacific Island State took several times

the action each has capacity to take in terms of mitigation and adaptation, it would have little

impact on the adverse effects of climate change for these States in the medium and long-term. Some

of the most vulnerable States in the world are simply unable to protect the most fundamental human

rights of their people without assistance and action by the States that have been disproportionately

exploiting the atmosphere for centuries. To achieve the needed action States have entered into a

legally binding treaty, the United Nations Framework Convention on Climate Change (UNFCCC),2

which has been ratified by more States than the Charter of the United Nations. This treaty sets out

the basic contours of the needed action and provides legal obligations to address climate change in

accordance with the principle of common but differentiated responsibilities and respective

capabilities (CBDRRC). However, as it lacks a mechanism for enforcement, its implementation

remains dependent on the will of States.3 Unlike some other processes,4 time is of the essence. The

global efforts to address climate change are fighting a ticking clock set in motion by nature.

After more than half a decade of discussions, negotiations began in October 2015 on a new climate

change agreement to complement and replace provisions of the Kyoto Protocol5 and to enhance the

UNFCCC. The current text6 (“Draft Agreement” or “23 October text”) of this new treaty and the

accompanying decisions of the Conference of the Parties (COP) to the UNFCCC (the main one

referred to here as the “Draft COP21 Decision”) will be worked on during the first week of COP21

* Dr. Curtis Doebbler is an international human rights lawyer; visiting professor of law at the University of Makeni in

Sierra Leone; and representative of International-Lawyers.org, an NGO accredited to the United Nations and the

African Union.

1 Quoted in Milman, O., “Pacific islands make las-ditch please to world before Paris climate talks, the guardian

newspaper (1 November 2015) accessed at http://www.theguardian.com/environment/2015/nov/02/pacific-islands-

make-last-ditch-plea-to-world-before-paris-climate-change-talks (on 1 November 2015).

2 1771 UNTS 107 (1992).

3 See below n 15en page 16.

4 The drawn out negotiations of the Doha Round of international trade negotiations, for example, do not have the same

urgency of timeliness, and global trade has not diminished as a result of the slow pace.

5 2303 UNTS 162 (1997).

6 The Draft agreement and draft decision on workstreams 1 and 2 of the Ad Hoc Working Group on the Durban

Platform for Enhanced Action version adopted by Member States at the Plenary held around 18:00 hours and released

by the Secretariat at 23:00 hours on 23 October 2015. On 6 November 2015 and edited and slightly revised version was

released and on 15 November 2015 the edited version was re-issued.

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by the Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP) 7 before being

adopted by the COP and opened for signature and ratification by States at the same meeting in

Paris, France in December 2015.

This contribution describes and analyses some of the most important parts of the Draft Agreement

(part II) and three cross-cutting issues (part III). It then ends with some concluding remarks about

where we may be after COP21 (part IV). It is hoped that the descriptions and analysis might

contribute to better understanding of what is at stake at COP21 from the perspective of international

climate change law and international human rights law.

THE COP21 OUTCOME (DRAFT AGREEMENT)8

The 23 October 2015 text is the negotiating text that States take with them to Paris when the last

ADP session will take place and then the COP21 will consider the text for adoption. It is a text

based on the negotiations between States, from which civil society was largely excluded and in

which suspicions of all State Parties were heightened. As a result, there was an atmosphere of

mistrust among State Parties, observers, and even co-chairs even as the negotiating text emerged

from the spin-off groups late in the evening of 23 October 2015. This text rather than being the text

of a draft treaty harkens back to the Geneva Draft of February 2015. Like the Geneva Draft, the text

is a compilation of the different proposals of States. The text of the Draft Agreement contains 26

articles and a preamble spread over 29 pages with more than 2500 brackets and almost 30 “no text”

options. The co-chairs’ 5 October effort to streamline the text had failed and States’ efforts to do so

were marginal as most of the differences remain. Nevertheless, the G77 recognised the text as “a

basis and a starting point for negotiations during the next session”9 and the European Union referred

to it as “Party-owned with a clear structure.”10 It is the 23 October text of 23:30 (Draft Agreement)

that States will be studying as they prepare for COP21. It is this text that is described and evaluated

below.

Preamble

The preamble has been expanded from the six preambular paragraphs in the 5 October text back to

15 paragraphs. Preambular paragraphs 1-3 stress that the Draft Agreement is in “furtherance” of the

UNFCCC’s objective, but a reference to its principles and provisions remains in brackets. No

mention is made of the Draft Agreement being intended to implement the UNFCCC nor is there an

express statement acknowledging that the Draft Agreement is under the UNFCCC.11 The mandate

of the ADP is recalled by a reference to four COP decisions in the preambular paragraph 3.

Preambular paragraph 4 stresses the special vulnerabilities of some States12 and the potential list of

especially vulnerable States is more limited and different than the list in article 4(8) of the

7 COP Decision 1/CP.17, UN Doc. FCCC/CP/2011/9/Add.1 (15 March 2012). The mandate of the ADP which has

functioned since 2012 is to “develop a protocol, another legal instrument or an agreed outcome with legal force under

the Convention applicable to all Parties.”

8 The following section reflects a preliminary evaluation of the 23 October text or the Draft Agreement done

immediately after the adoption of the text at ADP2.11.

9 Bose, I., “TWN Bonn Climate News Update No. 8: Balanced ‘Party-owned’ text as basis for Paris negotiations,” p. 1

Third World Network: Malaysia (23 October 2015) accessed at

http://www.twn.my/title2/climate/news/Bonn17/TWN_update8.pdf (23 October 2015).

10 Ibid at p.2.

11 Art 2, Draft Agreement.

12 These States refer to developing countries, least developed countries, small island developing States, small

mountainous developing States, Africa States, and States of the Central American isthmus.

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UNFCCC.13 The States whose economies are highly dependent on fossil fuels appear no longer to

be considered vulnerable.14

Preambular paragraphs 5, 10 and 11 seem to be a collection of thoughts for a diverse group of

interests15 and paragraphs 6 and 7 state what would seem to be obvious, which is that urgent and

sustained action is needed to address the adverse consequences of climate change and that the

impacts of climate change are already being felt.

In addition, the 15 preambular paragraphs in the 23 October text now contain references to the

inter-sectoral nature of climate change action,16 note that the “largest share of historical global

emissions” occur in developed countries but the emissions of developing countries are growing,17

recognise that future action should depend on economic and emissions trends,18 and reaffirm the

importance of education.19 The importance of sinks20 and land use in relation to food security is also

emphasised.21 Finally, carbon pricing is considered important for the cost-effective cutting of

emissions.22 This last is somewhat controversial realising as Frank Ackerman of the Stockholm

Environment Institute and Tufts University does, that “[w]hile carbon prices will change energy

costs, energy consumption and carbon emissions, relying on this mechanism alone would be both

ineffective and inequitable.”23

Definitions (art. 1)

The 5 October text limited definitions to the parties to the agreement and “the COP serving as the

meeting of the Parties to this Agreement (CMA)”.24 Although the co-chairs’ tool did not suggest

that a new governing body would need to be created, the earlier 24 July 2015 text did appear to

make such a suggestion. The 23 October text again introduces the CMA in Article 1, paragraph 3 as

is likely legally necessary until all the Parties to the UNFCCC have ratified the Draft Agreement.

While this is necessary it will likely further deplete the already dangerously weak authority of the

COP under the UNFCCC.

The 23 October text also suggests a vague definition of developing and developed countries;

however, reaching meaningful agreement on this definition will not be easy. Article 2, paragraph 1,

clearly anchors the Charter of the United Nations in the sovereign equality of all its Member States.

This equality does not mean treating countries equally in relation to matters in which they are

unequal.25 The UNFCCC contains two annexes, the first including both developed countries and

13 Art. 4(8), UNFCCC. A list of vulnerable States as stated in art. 4(8) includes those that are small islands; low-lying

coastal; arid and semi-arid; liable to floods and forest decay; prone to natural disasters, drought and desertification; have

fragile mountainous ecosystems; are landlocked, or, are highly dependent on fossil fuel.

14 Compare preambular paragraph (Pp.) 20 and art. 4(8)(h), UNFCCC.

15 The diverse group of interests range from poverty reduction, health, and sustainable development to ecosystem

integrity and human rights, including food security and the rights of indigenous peoples, women, children and persons

with disabilities.

16 Pp. 5, Draft Agreement (23 October 2015).

17 Ibid, pp. 8.

18 Ibid, pp. 9.

19 Ibid, pp. 14.

20 Ibid, pp. 13.

21 Ibid, pp. 13.

22 Ibid, pp. 15.

23 See Ackerman, F., “Carbon Markets are Not Enough (Chap. 3),” at 26 in UNCTAD, Trade and Environment Review

2009/2010: Promoting poles of clean growth to foster the transition to a more sustainable economy (2010).

24 Art. 1(1-3), Draft Agreement.

25 By way of example, as in 1992, today there are a relatively small number of countries that are high income countries

having a Gross National Income (GNI) per capita of over US$12,746. Most people in the world live on less than US12,

746. According to the World Bank in 2008 more than 80% lived on less than US$10 per day or less than US$3650 per

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countries in transition and the second only the former, which are given more responsibilities for

cutting back their emissions as well as assisting non-Annex I States. The references to developed

and developing countries in the UNFCCC are linked to Annex I. “Party included in Annex I” is

defined in the UNFCCC.26

An effort is also made to define REDD+,27 JMA (as an “alternative to REDD+),28 results-based

payments, 29 climate forcers, 30 and emissions reductions, 31 which appears to assume carbon

trading.32 An article devoted to defining the controversial REDD+ mechanism has also been added

in article 3bis in terms of COP19 decisions33 and states the purpose of the REDD+ mechanism.34

Surprisingly, there is no definition of nationally determined mitigation commitments or

contributions (NDMCs), which are instead defined in the options for article 3, paragraph 2. Finally,

every word in Article 1 after the chapeaux and definitions of “Parties present and voting,”35 “Party,”

36 and “CMA” has been placed in brackets.

General (art. 2 and 2bis)

Article 2 states the purpose of the agreement. Options for the first of two paragraphs range from

merely repeating the objective of the UNFCCC from its article 237 to defining that article in terms

of different versions of a 2°C or 1.5°C limit on global temperature rises.38 Despite calls by leading

climate experts for keeping global warming under 1°C, there is no such option in the text.39 A

second paragraph appears to be a concession to some of the most important concerns of some States

and civil society and constitutes some of the more ambitious text in the Draft Agreement.40 The

inclusion of “the right to health and sustainable development” is new and appears to significantly

year. See World Bank, World Bank Development Indicators (2008) and Chen, S., and Ravallion, M., The developing

world is poorer than we thought, but no less successful in the fight against poverty, World Bank Policy Research

Working Paper No. 4703 (August 2008). This amount of money is woefully insufficient to access even the most basic

nutrition, health, and housing services. Using the United Nations’ figures therefore would not provide a credible

indicator of States’ level of development. Perhaps for that reason the UNFCCC, although speaking of developed and

developing countries, does not define them.

26 Art. 1(13), Draft Agreement.

27 Ibid at para. 7. REDD+ is defined “as a mechanism aimed at reducing emissions from deforestation and forest

degradation and the role of conservation, sustainable management of forests and enhancement of forest carbon stocks in

developing countries that is based on the Warsaw Framework for REDD+”.

28 JMA is defined as the “joint mitigation and adaptation actions”.

29 Ibid, para. 7bis.

30 Ibid, para. 5. Climate forcers are defined as “compounds or group of compounds that contribute to climate change”.

31 Emissions reductions are defined as “the sum of all reduced emissions and increased carbon stocks”.

32 Ibid, para. 6.

33 Art. 3bis(2), Draft Agreement.

34 Ibid, para. 3.

35 Art. 1(1), Draft Agreement.

36 Ibid, para. 2.

37 Art. 2(1), Draft Agreement.

38 Ibid, para. 1(a).

39 Hansen, J., Sato, M., Hearty, P., Ruedy, R., Kelley, M., Masson-Delmotte, V., Russell, G., Tselioudis, G., Cao, J.,

Rignot, E., Velicogna, I., Kandiano, E., Schuckmann, K. von, Kharecha P., Legrande, A.N., Bauer, M., and Lo, K.W.,

“Ice melt, sea level rise and superstorms: evidence from paleoclimate data, climate modeling, and modern observations

that 2°C global warming is highly dangerous,” 15 Atmos. Chem. Phys. Discuss. 20059–20179 (2015).

40 This includes references to “equity,” “science,” “the principles of equity and common but differentiated

responsibilities and respective capabilities,” “the integrity and resilience of natural ecosystems,” “the integrity of

Mother Earth,” the “protection of health,” “a just transition of the Workforce,” “decent work and quality jobs,” “respect,

protection, promotion and fulfillment of human rights for all, including the right to health and sustainable

development,” “the right of people under occupation,” “gender equality and the full and equal participation of women,”

and “intergenerational equity.”

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strengthen the rights language in the Draft Agreement. References to Mother Earth, indigenous

rights and the rights of people living under occupation have been proposed before but usually

disappear from the text. Some of the above mentioned text in article 2, paragraph 2, as well as

article 2 as a whole, is in brackets. This could mean that this ambitious text could be among the first

victims of political compromise. This is signaled by the “no text” option.

Article 2bis focuses on States reporting requirements of their voluntary contributions suggesting

that they become legally binding, using the word “implement” in its paragraph 1.41 Paragraph 2

states that nationally determined contributions “will represent a progression in light of Parties'

differentiated responsibilities and commitments” 42 in an effort to reach the ambition that is

necessary to achieve the objectives of the UNFCCC. The paragraph complements and details the

common but differentiated nature of States’ commitments.43 It nevertheless represents a very weak

attempt to make voluntary contributions legally binding, which may inadvertently result in locking

in commitments that are inadequate to protect billions of vulnerable people. The “no text” Option 2

indicates that even this weak attempt is controversial for some States.

Mitigation (art. 3)

By far the longest article in the 23 October text, article 3 runs for more than 8 pages with 19 sub-

paragraphs.44 Despite the lengthy text, the Draft Agreement currently contains no clear mitigation

obligations for any State and certainly no adequate collective objective. The collective long-term

goal is defined at anything between 40% and 70% reductions based on 2010 emissions levels by

2050.45 Thus considering that the IPCC’s Fourth Assessment Report stressed the need for the

peaking of global emissions by 2015, even the most optimistic of the above collective goals is

wholly inadequate. The individual efforts seem to be based on a version of the voluntary-pledges-

option proposed in Copenhagen at COP15 despite the controversy it caused at that time.46 In the

Draft Agreement some options require States to implement their NDMCs. If the Draft Agreement

voluntary commitments are anywhere near the commitments made by States in the INDCs, they

will fall far short of what is required for adequate action to address the adverse effects of climate

change. Paragraphs 3 to 5 make an effort to increase the mitigation ambition of States, but without

an accountability mechanism these paragraphs on differentiated efforts, 47 progression, 48 and

ambition49 are likely to lack enforceability. Despite these de minimis provisions, some Western

commentators have even called for further weakening the Draft Agreement by ensuring it is not

legally binding.50 Such suggestions are inconsistent with the agreed mandate of the ADP to

41 Art. 2bis(1), Option 1, Draft Agreement.

42 Ibid, para. 2.

43 Ibid, para. 2. The paragraph states that “[t]he extent to which developing country Parties will effectively implement

this Agreement will depend on the effective implementation by developed country Parties of their commitments on

provision of finance, technology development and transfer and capacity-building.”

44 These paragraphs are on (1) the collective long-term goal, (2) individual efforts, (3) differentiated efforts, (4)

progression, (5) ambition, (6) information, (7) features, (8) timing, (9) housing, (10) accounting, (11) methods and

guidance, (12) long-term strategies; (13) response measures; (14) unilateral measures, (15) REIOS, (16) cooperative

approaches, (17) support, (18) framing, and (19) international transport emissions.

45 Art. 3(1), Option 1, Draft Agreement.

46 See, for example, Doebbler, C.F.J. and Wewerinke, M.J., “What happened in Copenhagen,” Al-Ahram Weekly, Issue

No. 978 (24 – 30 December 2009).

47 Art. 3, para. 3, Draft Agreement.

48 Ibid para. 4.

49 Ibid para. 5.

50 See Ottinger, R., “For CoP-21 “Legally Binding” Means Bound To Fail,” 45(5) Environmental Policy and

Law179 (2015).

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“develop a protocol, another legal instrument or an agreed outcome with legal force under the

Convention applicable to all Parties.”51

In the proposed paragraph on the information States should communicate in regards to their

NDMCs, the description of the information as providing “clarity, transparency and understanding”

appears agreed in a rare step forward in the text.52 There are two options for paragraphs on the

features of the NDMCs. The first provides for obligations for all States without consideration of

CBDR,53 the second for a differentiated approach that is consistent with CBDR.54

The remaining paragraphs 8 through 19 deal generally with technical aspects of reporting

NDMCs.55 Some options for paragraphs 8 and 9 speak of an annex.56 Unlike the annex B of the

Kyoto Protocol that contains emissions reduction commitments as quantified percentages of a base

year, a footnote indicates that commitments would be based on national determined voluntary

contributions or NDMCs.57 In the provision on methods and guidance, one option allows loose

counting including land use and REDD+,58 while another Option expressly rejects provisions on

accounting and land use.59 The Options for long-term strategies include a requirement that States

“shall formulate low emissions development strategies with time frames for zero emissions.”60

Developing countries also submitted proposals for ensuring adequate response measures61 and

prohibiting unilateral measures,62 but these proposals were met with “no text” proposals from the

developed countries. A provision allowing regional economic integration organisations to report

collectively for their Member States appears in paragraph 15 in brackets as is true for most of the

proposals already mentioned. However, such a provision is mirrored in the UNFCCC and the KP

texts. Provisions for cooperative approaches range from “no text”63 to provisions that appear aimed

at ensuring that cooperative action is only counted once.64 Both Options for provisions on support

appear aimed at ensuring developing countries “new and additional financial resources, technology

transfer and capacity building”65 as is already required by article 4 of the UNFCCC. Paragraph 18

of the article 3 repeats the references to CBDR. Finally, the provisions on international transport

emissions essentially repeat article 2, paragraph 2 of the Kyoto Protocol.66 As a consequence

aviation and maritime emissions that are growing at the rate of 300% by 2050 are left to the

discretion of industry monitors who have not been willing to set clear emissions limitation targets.

Moreover, the complete silence about military emissions leaves a huge amount of emissions

unfairly reported and increases the potential that they could be under-reported.67

51 COP Decision 1/CP.17, UN Doc. FCCC/CP/2011/9/Add.1 (15 March 2012).

52 Ibid para. 6.

53 Ibid para. 7, Option 1.

54 Ibid para. 7, Option 2.

55 Reporting should be timely, transparent, and without double counting.

56 Ibid paras. 8 and 9.

57 Ibid para. 8(a), Option 1, nn. 7.

58 Ibid para. 11, Option 1.

59 Ibid para. 11, Option 2.

60 Ibid para. 12.

61 Ibid para. 13.

62 Ibid para. 14.

63 Ibid para. 16, Option 4.

64 Ibid para. 16, Option 2.

65 Ibid para. 17.

66 See above n 5.

67 See International Panel on Climate Change, Revised 1996 IPCC Guidelines for National Greenhouse Gas

Inventories, IPCC: Bracknell, UK (2007), stating that military emissions can be reported in aggregate or in the country

where they are actually being made, thus allowing the real source of military emissions to be obscured and controls on

this reporting to be more difficult. It can also lead to the consequences that overseas military bases, even in occupied

territories are counted as emissions of the occupied country.

A-7

Articles 3bis and 3ter seem to transcend the mitigation and adaptation divide. The former deals with

REDD-plus (REDD+) and thus states its purpose.68 It also appears from the lack of brackets around

paragraph 3 in article 3bis that the definition accorded to REDD+ is agreed, although difference

remains on whether to describe REDD-plus as a “[m]echanism for mitigation and adaptation”69 and

whether to create a “Joint Mitigation and Adaptation Mechanism.” 70 In contrast to article 3bis that

is based on an issue that the COP began discussing in 2005,71 the discussion of article 3ter seems to

have been inspired by the recently adopted Sustainable Development Goals.72 As such it is not

without controversy and includes widely divergent options among the five options,73 including a

“no text”74 option. The article appears to be an effort to ensure climate action achieves sustainable

development, but it is vague and incomplete.75

The agreement contains alternatives that include both binding mitigation obligations and voluntary

mitigation pledges. The division between mainly developing States that support the former and

developed States that are stubbornly fighting to maintain the latter, which they introduced at

COP15, appears to be widening.76 Unless this gap can be bridged any mitigation action prompted

by the Draft Agreement is likely to be inadequate. The hope that the INDCs that all countries

agreed to provide might help to increase ambition seems to have dissipated as their due date was

moved back to a now almost meaningless 31 October 2015. Nevertheless, the INDCs provided by

many States by this date have been shown to be very inadequate to achieve even a 2°C warming

limit.77 At this late date it was too late for the INDCs to have a significant impact on the Draft

Agreement as the UNFCCC Secretariat and States' delegations have not had adequate time to

evaluate the INDCs. Nevertheless, the UNFCCC’s report issued on 30 October 2015 indicates that

the INDCs of States producing more than 90% of the world emissions are not ambitious enough to

prevent global warming well in excess of the already dangerous 2°C limit,78 not to mention the

safer 1.5°C or 1°C goals. Nevertheless, it optimistically concludes that as a first step, the INDCs are

valuable. The danger that this level of warming means is emphasised by seventeen of the world's

leading climate scientists in their recently published study that concludes that “2°C global warming

above the preindustrial level, which would spur more ice shelf melt, is highly dangerous.”79 Their

conclusions showed that much of the harm that had been predicted by the IPCC had become

unavoidable and was already taking place at a much faster rate than had been earlier predicted.

68 The purpose of REDD+ is to “incentivize the reduction of emissions from deforestation and forest degradation and to

promote conservation, sustainable management of forests and enhancement of forest carbon stocks in developing

countries, while enhancing the non-carbon benefits derived as a result of the multiple functions of forests, including

alleviating poverty and building ecosystem resilience.”

69 Ibid para. 1.

70 Ibid para. 4.

71 See UNFCCC COP Decisions 2/CP.13 (The Bali Action Plan) and 2/CP.13 (2007).

72 “Transforming our world: the 2030 Agenda for Sustainable Development,” UNGA Res. A/RES/70/1 (21 October

2015) adopted at the 4th plenary meeting of the UNGA (25 September 2015).

73 For example, Art. 3ter, Option 4 of the Draft Agreement seems to favour a differentiated approach in which

assistance to developing countries is a focus, while Option 1seems to encourage ambition in a manner by which they

contributions of States are not differentiated.

74 Art. 3ter, Option 5, Draft Agreement.

75 For example, Option 1

76 This needs more explanation. G-77 wants binding for OECD and voluntary for themselves. EU wants binding for all,

but could give some voluntariness to some G-77. US+ wants voluntary for all if China does not take binding.

77 NGO Coalition, “Fair Shares: A Civil Society Equity Review of INDCs (Summary)” (October 2015) accessed at

https://www.oxfam.org/sites/www.oxfam.org/files/file_attachments/ib-civil-society-review-climate-indcs-191015-

en_2.pdf (1 November 2015).

78 UNFCCC, “Synthesis report on the aggregate effect of the intended nationally determined contributions,” UN Doc.

FCCC/CP/2015/7 (30 October 2015).

79 See above n 39.

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A bright spot might have been that there is attention to zero emissions in the mitigation section of

the Draft Agreement, but the vaguely worded alternatives and the lack of any specific commitments

in the near term even create suspicion about the intention behind this reference. Indeed the use of

the word “net” seems to indicate that these limits will be reached by wealthy industrialised

countries either buying the right to pollute from poorer countries that would otherwise not produce

emissions or resorting to untested or potentially dangerous technologies.80 These practices are

unsustainable, often dangerous, and will likely not achieve the stabilisation of greenhouse gases

under dangerous levels.81

The majority of countries, represented by the 134-States G77 and China, have been pushing for

legally binding quantified emission reduction commitments for developed or Annex I countries, but

the majority of Annex I countries have resisted by insisting non-Annex I countries take on

unconditional commitments as well. Moreover, the developed countries appear only willing to

agree to act in the future if developing countries commit to action first. This tactic has been

employed by the largest fossil fuel consuming countries throughout the talks and it is hard, at this

time, to imagine that in the future it will change. The result is that the goal of zero emissions seems

to be an illusion that is being used as leverage on other issues on which developed countries wish to

gain concessions. The lack of any mention of fossil fuels in the mitigation section adds to this

suspicion.

Thus although achieving adequate mitigation ambition in the Draft Agreement is essential, it is

highly unlikely that it will be achieved given the slow progress to date and the distance between

States positions. At the center of the slow progress is the dispute over the principle of CBDR, which

States are obliged to respect according to article 3 of the UNFCCC and which some developed

States still challenge as to its existence or its interpretation. While the challenges are subsiding with

a narrowing number of holdout States able to defend their positions in light of the clear words of

article 3, the number of States seeking to interpret the principle in their unique manner has remained

stable. Developed States generally claim that the principle means that all States that can take action

on climate change to an equal degree. The consequence of this interpretation is that if developing

States will not accept binding legal obligations then all States should have merely ‘voluntary

commitments’, which are not legal obligations at all. Developing States counter, that the UNFCCC

framework was intended to create a system for addressing climate change in which developed

States took the lead and were the only States that had legal obligations on mitigation. The reason for

this, say developing States, is that the developed States have benefited for centuries from over

exploitation of the planet’s atmosphere and they, developing States, need the chance to catch up.

Behind these often articulated positions seems to be a sense of entitlement by many developed

countries. Despite all the moral pronouncements by such figures as the Catholic Church’s Pope

Francis82 and the Geneva Interfaith Forum on Climate Change, Environment and Human Rights,83

the moral message has not yet resonated with developed countries.

Adaptation and loss and damage (arts. 4 and 5)

80 The achievement of mitigation obligations by carbon trading or turning to dangerous technologies is expressly

supported by some developed States and by some oil rich States.

81 Preventing a dangerous level of greenhouses to accumulate in the atmosphere is the objective of the UNFCCC to

which all States Parties have committed as an international legal obligation.

82 See, for example, “Encyclical Letter Laudato Si’ of The Holy Father Francis on Care for Our Common Home” (24

May 2015) accessed at http://w2.vatican.va/content/francesco/en/encyclicals/documents/papa-

francesco_20150524_enciclica-laudato-si.html (accessed 5 June 2015).

83 This group has organised side-events that stress the moral imperative of responsibility by countries who have

benefited from the historical exploitation of the atmosphere at several interim UNFCCC meetings as well as at the

COPs since COP15 in 2009.

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Adaptation, one of the most important aspects of climate action and the Draft Agreement for

developing countries, covers about two-and-a-half pages of the Draft Agreement but appears far

from agreed. There are 12 paragraphs, seven of them with more than one option and four with “no

text” options. Even paragraphs 4 through 8 that have only one option and much text that is not in

brackets, still contain the significantly different language options of “shall” and “should” as

alternatives on which there is no agreement. Much of the key differences come down to how the

principle of CBDR, to which State Parties committed in article 384 will be expressed, or sometimes

whether it will even be mentioned. This matter has not been resolved and there is little to warrant

optimism that it will be by COP21. For developing countries it is not only a matter of upholding the

principle, but also a matter of their very ability to develop economically. Few developing States

have become developed States over the past 70 years and many fear they will never be able to catch

up with the developed countries in terms of development under the current climate system that

would lock them into an apparent choice between their development and contributing to climate

action.85 This was realised already in 1992, when developed and developing States agreed that

developed States must take the lead and offer assistance to developing States. However, today,

many developed States are seeking to renege on this agreement. These developed States appear to

fear a real realignment of the international order towards a more democratic and equitable one in

which power and wealth is more evenly shared. The international climate negotiations are perhaps

the forum in which this tension plays itself out most clearly in international political decision

making.

As one might expect this tension is reflected in articles 4 and 5 of the Draft Agreement. Paragraph 1

contains two vague options providing for goals. Although both paragraphs appear to concern long-

term goals this is not entirely clear. Only Option 1 contains a reference to concrete goals linked to

temperature rise limits, using both 2°C and 1.5°C. Option 2 is a weak call that merely states that

adaptation is a shared goal and may in fact run counter to the principle of CBDR. Paragraph 2

contains a catch all Option 1 and an Option 2 based on CBDR. There is also a “no text” option 3.

Paragraph 3 contains two options, which both acknowledge that “adaptation action should follow a

country-driven, gender-responsive, participatory and fully transparent approach” and the important

role of indigenous knowledge.86 There still seems to be a disagreement, however, how CBDR will

be incorporated. Human rights, the right to life, and the rights of people living under occupation are

in brackets in the Option 1, but do not appear in Option 2. More importantly, neither health nor the

right to health is mentioned in either option or in the article on adaptation despite the fact that the

majority of States presenting INDCs say it is important to adaptation and many, that it is a

priority.87 Paragraph 4 contains agreement on the importance of adaptation, at least for the most

vulnerable, although a reference to international cooperation remains in brackets. The theme of

cooperation is taken up again in paragraph 5, but whether it is an obligation as in the UNFCCC88 or

has been weakened to a mere aspiration is unclear. Paragraph 6 describes what action States should

take for adaptation planning and includes assessment, strengthening and monitoring, but exactly of

what remains unclear. Paragraphs 7 and 8 further specify that States should submit some sort of

communications about adaptation89 as 50 Least Developed Countries already do to qualify for

funding; and, there is an option for periodic submissions.90 Paragraph 9 calls for a register for

84 Art.3, UNFCCC.

85 Although using sustainable energy could help developing States to develop without emitting significant levels of

greenhouse gases, the technology for a ‘green economy’ is being withheld from developing States through the

intellectual property protections and

86 Art. 4(3), Option 1, Draft Agreement.

87 This is based on the author’s review of 100 of the 118 INDCs submitted.

88 See, for example, art. 4(1)(e), UNFCCC.

89 Art. 4, para. 7, Draft Agreement.

90 Ibid Art. 4(8(b)).

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adaptation communications in one option91 and for “no text” on this matter in another option.92

Paragraph 10 indicates that States disagree over whether there should be a special high-level

stocktaking on adaptation at regular intervals93 or that this responsibility should be part of the tasks

of the CMA of the Draft Agreement’s bodies.94 A third option refers to “no text” at all on this

matter.95 Paragraph 11 has two options for the involvement of the UNFCCC bodies dealing with

adaptation, but it appears that there is disagreement about whether the Adaptation Committee and

the Least Developed Countries Expert Group should be involved in adaptation decisions under the

Draft Agreement.96 Similarly, States have apparently not agreed on the conditions for eligibility for

assistance in paragraph 12,97 with one option calling “no text” on separate text on adaptation

support and for provisions on adaptation to be distributed among article 6 through 9.98

Adaptation includes securing adequate finance, capacity-building, and access to technology that

will enable vulnerable States to become more resilient to the adverse impacts of climate change.

Each of these constituents is dealt with elsewhere in the Draft Agreement. This section was

intended to provide the overall framework for adaptation. It has been bogged down by the

continuing controversy over the principle of CBDR, which as noted in the section on mitigation,

States are obliged to respect according to the UNFCCC.99 It is unlikely that much progress will be

made until an agreement on CBDR is reached.

Article 5 concerns loss and damage, which was previously combined with adaptation in the 5

October text and put with the undecided elements of the 24 July Tool. Loss and damage is an

important issue for developing States given that much of the damage they will suffer is now

unavoidable due to the failure of the international community to act in a timely manner. Article 5

contains two options. Option 1 is built on the foundation of the Warsaw International Mechanism

on Loss and Damage,100 defining the mechanism under the Draft Agreement.101 However, exactly

how the mechanism will be defined is not clear. The purpose of the mechanism, however, is stated

as “to promote and support the development and implementation of approaches to address loss and

damage associated with the adverse effects of climate change, inter alia, extreme events and slow

onset events, in developing countries that are particularly vulnerable to the adverse effects of

climate change.”102 It should be noted that the whole of Option 1 is in brackets and that Option 2 is

a “no text” option that states “No reference to loss and damage (no Article 5).” As a result the

inclusion of loss and damage in the Draft Agreement is still very much up in the air.

The term loss and damage “refers to negative effects of climate variability and climate change that

people have not been able to cope with or adapt to.”103 While developing States want developed

States to assist them in dealing with the damage they cannot avoid from climate change, developed

States retort that they will only assist if their liability is limited. This latter view seems to ignore the

fact that under general international law, developed States that have contributed to causing climate

91 Ibid Art. 4(9), Option 1.

92 Ibid Art. 4(9), Option 2.

93 Ibid Art. 4(10), Option 1.

94 Ibid Option 2.

95 Ibid Option 3.

96 Ibid Art. 4(11), Option 1.

97 Ibid Art. 4(12), Options 1 and 2.

98 Ibid Art. 4(12), Option 3.

99 See Article 3, UNFCCC.

100 See Warsaw international mechanism for loss and damage associated with climate change impacts, COP Decision

2/CP.19, UN Doc. FCCC/CP/2013/10/Add.1, pp. 6-8 (31 January 2014).

101 Ibid Art. 5(1), Option 1.

102 Ibid Art. 5(2).

103 Warner, K., and Geest, K., van der, “Loss and damage from climate change: local-level evidence from nine

vulnerable countries,” 5 (4) International Journal of Global Warming 367, 369 (2013).

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change, despite their legal obligations to cut their emissions, are likely to be liable under

international law, with very few legal limits, for the damage they cause to developing States.104 A

provision limiting the liability of developed States will therefore be contrary to the existing legal

rights of developing States. One would think that developing States would not easily cede their

legal rights as it appears developed State are demanding.

Finance (art. 6)

Finance is the first of a trinity of obligations that developed States have towards developing States.

The other two are the obligation to transfer technology105 and to help developing countries build

their capacity to adapt to climate change, to contribute to mitigation, and to meet their reporting

obligations under the UNFCCC and the Draft Agreement.106 Perhaps the weakest provisions in the

Draft Agreement are those concerning finance. This is perhaps the most troubling aspect of

international climate action. Although there are two options of 4 and 21 paragraphs, respectively,

neither contains any concrete financial commitments. The first Option uses phrases like “mobilize,

and/or facilitate” that are unlikely to contribute to building the trust needed to achieve an ambitious

Draft Agreement. Furthermore, although scaling up financing is mentioned,107 no mechanism to

ensure this is put in place, in fact no mechanism to ensure States meet their already existing

financing obligation, appears in the Draft Agreement. This was a major issue for developing States

during the negotiating session that took place between February and October 2015, but it was not

resolved.

The approximately three pages of provisions on finance in the co-Chairs tool fail to provide for any

meaningful obligations for developing States to provide climate finance. The need to focus on

public finance is not even articulated clearly. Even though private sources of finance will be

woefully inadequate to meet the cost of dealing with climate change,108 even the 100 billion per

year goal is proving overly optimistic given the ambiguity about how the finance will materialise.

The principles that are supposed to guide finance and which are already embedded in the UNFCCC,

such as the obligation for developed countries to provide new and additional finance to assist

developing countries, is not clearly articulated in Option 1109 and only within brackets in Option

2.110 Missing from the text is also any mention of curbing fossil fuel subsidies.

The UNFCCC unambiguously states that “[t]he developed country Parties and other developed

Parties included in Annex II shall provide new and additional financial resources to meet the agreed

full costs incurred by developing country Parties in complying with their obligations” to report and

104 The law of State responsibility for harm caused to another State by an act that is inconsistent with an existing legal

obligation towards that State, such as a legal obligation flowing from a multilateral treaty like the UNFCCC, creates the

duty to, among other obligations, pay adequate compensation to the injured State. See The Factory at Chorzow (Claim

for Indemnity) (The Merits) (Germany v. Poland), PCIJ Reports, (Ser. A), No. 17 (13 September 1928) at para. 125, p.

48 and Trail Smelter, UNRIAA, vol. III (Sales No. 1949.V.2), p. 1905 (1938, 1941). The reason developed States will

carry this burden of State responsibility is that only they, and not developing States, have obligations to mitigate their

greenhouse gas emissions that they have not met.

105 Art. 7 in the Draft Agreement. See also 4(4)(concerning least developed countries), art. 4(8) read in conjunction with

arts. 4(7) and 11(1), UNFCCC.

106 Arts. 8 and 9 of the Draft Agreement. See also arts. 4(1)(c)-(e) and (g)-(i), 5(b) and (c), UNFCCC .

107 Art. 6(8bis) (in brackets).

108 See Kowalzig, J., “Climate, Poverty, and Justice: What the Poznan UN climate conference needs to deliver for a fair

and effective global deal,” 124 Oxfam Briefing Paper p. 15 (December 2008). Although few academics or institutions

have even attempted to estimate private financial flows, it is logical to understand that private finance will not be

adequate because private fiancé is done on a profit making basis and today financial flows from North to South—as

climate finance should be—result in profits being repatriated to the North

109 Art. 6, Option 1.

110 Ibid, Option 2.

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take action on climate change.111 The UNFCCC further obliges States to take into account

“adequacy and predictability in the flow of funds and the importance of appropriate burden sharing

among the developed country Parties” in the funds they provide.112 This vision does not seem to be

communicated by the current draft text concerning finance. The same vague language that plagues

other parts of the Draft Argument is also present in the financing options. Options range from

binding commitments, to which developed States steadfastly object, to aspirations that again

threaten to render the agreement irrelevant for achieving international action.

In the negotiations developed States have been insisting on provisions that provide for a larger role

for the private sector, while refusing to commit to providing adequate finance, capacity building,

and technology to developing countries. Developing countries in turn demanded that developed

States provide them the new and additional finance, capacity building, and technology with even

more assurances of adequacy. An example is the developed countries refusal to engage fully in

discussions about exceptions to the intellectual property rights, which often prevent developing

States from acquiring the technology necessary to green their economies. While almost all but a

handful of States have embraced market mechanisms, few are willing to rely on them without the

State committing to be the ultimate provider of last resort. The controversy over market and non-

market mechanisms may, however, merely be masking the larger problem that some of the

wealthiest and historically most polluting States are unwilling to give up the advantages they have

gained by their overexploitation of the planet's atmosphere and many of its people.

The real test of the commitment to financing will be what money is actually put forward, for

example by deposit or at least signed agreement, in the Green Climate Fund. Recent moves by

developed countries to double count, provide vague oral promises without any money on the table,

and to generally restrict their financing obligations, could render the Draft Agreement incapable of

implementation, especially at the level that existing law and science indicates is necessary.

The lack of any type of accountability mechanism to ensure that commitments will be fulfilled I

likely to ensure the inadequacy of any financing. Equally concerning is that other forums where it

was hoped progress would be made towards providing adequate climate finance, turned out to be

failures. Perhaps most notable of these failures was the Third Financing for Development

Conference held in Addis Ababa, Ethiopia in July 2015 which adopted an outcome document,

which did not contain any real commitments, back-tracked on some, and appeared to perpetuate a

failing business as usual, scenario.113 This meeting, it had been hoped at one point, would provide

the resources for the achievement of both climate change goals and the Sustainable Development

Goals.114 In fact no money was put on the table and there was instead backtracking by States from

the pledges that they had made decades ago. As a consequence the mobilisation of 100 billion USD

per year by 2020 to address climate change looks quite unrealistic, despite the fact that the amount

of financing estimated to be needed globally is almost 6 trillion USD per year by 2020.115

Technology development and transfer (art. 7)

Together with finance and capacity-building, technology development and transfer is one of the

main consequences of CBDR and thus one of the primary responsibilities of developed States

111 Art. 4(3), UNFCCC.

112 Ibid.

113 Addis Ababa Action Agenda of the Third International Conference on Financing for Development (Addis Ababa

Action Agenda), annexed to UN Doc. A/69/313 (27 July 2015).

114 See above n 72.

115 World Economic Forum, The Green Investment Report: The ways and means to unlock private finance for green

growth (A Report of the Green Growth Action Alliance) p. 13 (2013). 32 See arts. 4, para. 5, 5, 6, and 9, para. 2(d) of

the UNFCCC.

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towards developing States.116 It has also been a standing concern of the COP. As long ago as COP7

in Marrakesh, Morocco, an Expert Group on Technology Transfer was created to advise the COP

through its Subsidiary Body for Scientific and Technical Advice (SBSTA).117 A major obstacle to

adequate transfer of technology between developed and developing countries, however, has been

intellectual property rights. These rights are not even mentioned in the Draft Agreement, and only

meekly mentioned in the draft COP21 decision.118

Elsewhere in the Draft Agreement seven paragraphs are concerned with technology development

and transfer, but four of them include “no text” options. Paragraph 1 states a general goal of

development and transfer and some vague language of encouragement.119 Paragraph 1ter makes an

effort to encourage the same thing by giving authority to the CMA to take action of encouragement

and by requiring States to submit reports at regular, but otherwise undefined, intervals.120 Paragraph

2 contains an option calling for the CMA to adopt a technology framework121 and another merely

referring to the framework. 122 Other paragraphs address developed countries’ duty to help

developing countries overcome barriers to technology access and development, 123 strengthen

existing mechanisms,124 and support developing countries.125

Capacity-building (art. 8 and 8bis)

Capacity building is also found in the UNFCCC across several articles that deal with strengthening

the resilience of countries to withstand climate change shocks.126 Although the UNFCCC only uses

the phrase “capacity building” once, reference to enhancing endogenous capacity, strengthening the

scientific capabilities of countries, and cooperation on education and training are all in reality

references to capacity-building. Several forums have been created to discuss capacity-building. One

of these, the Durban Forum on Capacity-building, held its fourth meeting during the June 2015

meeting of the UNFCCC's Subsidiary Body for Implementation. In addition, existing bodies like

the Technology Executive Committee, the Climate Technology Centre and Network, the Standing

Committee on Finance, and the Green Climate Fund, all play an important role in capacity building

and participate in the Durban forum.

Capacity-building was first addressed explicitly at COP5 held in Bonn, Germany. 127 It also

appeared as part of the COP7 outcome known as the Marrakesh Accords in a decision entitled

“Capacity building in developing countries (non-Annex I Parties)” focusing on assistance by

developed countries to developing countries. 128 The COP decisions emphasise that capacity

116 Art. 4(1, 3, 5, 7- 9), UNFCCC.

117 COP Decision 4/CP.7 (2001), UN Doc. FCCC/CP/2001/13/Add.1 at pp. 22.

118 Paras. 2bis, Options 1, and 50, Option 1(d), option (a), COP21 Decision. In both cases the mention of intellectual

property is met with “no text” options.

119 Art. 7, para. 1, Draft Agreement.

120 Ibid 7, para. 1ter.

121 Ibid 7, para. 2, Option 1.

122 Such a framework would complement the “Framework for meaningful and effective actions, to enhance the

implementation of Article 4, paragraph 5, of the Convention” agreed in an annex to COP Decision 4/CP.7, UN Doc.

FCCC/CP/2001/13/Add.1 at p. 24 (21 January 2002).

123 Art. 7(2bis), Option 1. Option two is a “no text” option.

124 Ibid para. 3, on which there appears to be agreement in both Options that the Technology Mechanism established in

2010, see COP Dec., that consists of two advisory bodies, namely Technology Executive Committee and a Climate

Technology Centre and Network, should be strengthened.

125 Ibid paras. 4 and 5.

126 See arts. 4(5), 5(a) and (b), 6, and 9(2)(d), UNFCCC.

127 COP Dec. 10/CP.5, UN Doc. FCCC/CP/1999/6/Add.1 (2 February 2000) at p. 24.

128 COP Dec. 2/CP.7, UN Doc. FCCC/CP/2001/13/Add.1 (21 January 2002) at p. 5. But see, COP Dec. 3/CP.7 Ibid, at

15, on capacity building in countries with economies in transition.

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building should be country-driven and aimed at assisting developing countries. The BRICS

ministers of environment from Brazil, Russia, India, China and South Africa reiterated this in their

recent meeting.129

The Draft Agreement is not so explicit in the four options for paragraph 1 of Article 8.130 In each

case “countries developing” is modified, but usually in way that merely gives particular attention to

specific types of developing countries such as the most vulnerable. This could be understood as

merely stressing the importance of the most vulnerable developing countries, or, if there are

inadequate resources to really achieve adequate capacity-building as meaning that only the special

groups are assisted, which would be contrary to the intention expressed in the UNFCCC. The idea

of country ownership is expressed in both the two options for paragraph 2.131 Paragraph 3 contains

an Option 1 calling for scaling up, but an option 2 merely calls for “All Parties” to cooperate,

apparently ignoring the differentiated responsibilities of States required by the principle of CBDR.

Paragraph 3bis concerns the preparation and communication of “plans, policies, actions and

measures on capacity-building” by developed countries132 as well as a “no text” option.133 Finally,

paragraph 4 concerns institutional arrangements including an option calling for enhancing the

institutions and existing provisions on capacity-building 134 and the other for ensuring the

institutional arrangements to “enhance the effectiveness of capacity building efforts.”135 The latter it

would appear points towards monitoring and evaluation of developing countries activities for

capacity-building. The result is a weak article 8 that seems to offer little new in relation to capacity

building.

Capacity-building is also the theme of article 8bis on education. The first option for this single

paragraph article strongly calls for cooperation “to develop, adopt and implement policies,

strategies, regulations and/or action plans on climate change education, training, public awareness,

public participation and public access to information.”136 The second option is limited to the very

different “should” and “shall” alternatives for cooperation and enhancing the actions just

mentioned.137 This paragraph does little to add to that to which States have already agreed.138

Transparency (art. 9)

Considering that States have legal obligations to fulfil their treaty obligations in good faith139 one

might wonder why an article on transparency is necessary. The answer appears to lie in the lack of

trust between States. As a result a ten paragraph article 9 on Transparency has been included in the

Draft Agreement. Article 9 is based on the “Guidelines for the preparation of national

communications by Parties included in Annex I to the Convention, Part I: UNFCCC reporting

guidelines on annual greenhouse gas inventories” adopted at COP17.140 These Guidelines explain

129 Third World Network, “Developed countries should fulfill their obligations under the Convention, says BASIC,”

Third World Network: Malaysia (2 November 2015) accessed at

http://www.twn.my/title2/climate/info.service/2015/cc151101.htm (2 November 2015). This has never been an un-

biased source for reporting!

130 See art. 8(1), options 1-4.

131 Art. 8(2), Options 1 and 2, Draft Agreement.

132 Ibid para. 3bis, Option 1.

133 Ibid Option 3.

134 Ibid para. 4, Option 1.

135 Ibid para. 4, Option 2.

136 Art. 8bis, Option 1.

137 Ibid Option 2.

138 Art. 4(1)(i) and article 6, UNFCCC.

139 See, for example, Art. 26, Convention on the Law of Treaties (VCLT), 1155 UNTS 331 (1980) and Nuclear Tests

(Australia v. France), ICJ Reports p. 268, para. 46 (1974).

140 COP Dec. 15/CP.17, UN Doc. FCCC/CP/2011/9/Add.2 (15 March 2012) at 24.

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that “[t]ransparency means that the data sources, assumptions and methodologies used for an

inventory should be clearly explained, in order to facilitate the replication and assessment of the

inventory by users of the reported information.”141 Article 9 goes on to encourage States to report

accurately and in a comparable manner that is linked to the obligations to which the particular

States have agreed. To achieve this, however, the current provisions would have to be significantly

strengthened. This would especially require an accountability mechanism such as has been

suggested by Bolivia in its proposal for an International Climate Justice Tribunal.142

Timeframes and implementation (arts. 10 and 11)

One of the weakest parts of the Draft Agreement is its provisions on facilitating implementation and

compliance. The paragraphs on timeframes are confusing and largely bracketed. On the one hand,

there seems to be a push for new INDCs, but as national determined contributions or NDCs. On the

other hand, most of the provisions remain in brackets. The lack of legally binding commitments

make the timeframes appear illusionary. In fact, a closer reading shows that the only commitments

which appear to have timeframes are commitments of intention, but not action. The provisions

allowing countries to adjust their contributions only ‘upwards’ is a small, if barely perceivable, step

towards increasing ambition, but it is also one based on voluntary good faith, something that has not

been in abundance during the negotiations to date.

An attempt has been made to address the lack of an accountability mechanism in article 9 and 10 by

creating, respectively, another body similar to the Kyoto Protocol’s Compliance Committee143 and a

periodic stocktaking procedure.144

To date the failure to create a strong accountability mechanism applicable to all States with the

authority to make legally binding decisions, has significantly hampered the implementation of

UNFCCC and the Kyoto Protocol. While both these treaties include provisions for the settlement of

disputes, they rely on the acceptance by State Parties either of the International Court of Justice or

of an arbitration procedure that has never been defined.145 And although States have created a

Compliance Committee made up of a facilitative branch and an enforcement branch for the Kyoto

Protocol,146 this mechanism has proved relatively toothless.147 For example, when the Compliance

Committee determined Canada was in breach of its obligations under the Kyoto Protocol,148 Canada

141 Ibid at p. 27, para.4(a).

142 See art. 11, Option II, Draft Agreement.

143 Art. 11, Draft Agreement. The Kyoto Protocol Compliance Mechanism was established by COP decision 27/CMP.1,

144 Art. 9, Draft Agreement.

145 Art. 14(2)(a) and (b), UNFCCC, provide States the opportunity to accept either the International Court of Justice or

arbitrary, but does not require them to do so. This article also requires that an annex to the UNFCCC be adopted “as

soon as practicable” establishing the procedures for arbitration. These procedures have never been established.

146 COP Decision 24/CP.7, UN Doc. FCCC/CP/2001/13/Add.3 at p. 64 and decision of the Conference of the Parties

serving as the meeting of the Parties to the Kyoto Protocol (CMP), CMP decision 27/CMP.1. (The enforcement branch

for the Kyoto Protocol has the authority to determine that a State Party has exceeded its assigned emissions and to make

a finding that the State Party is in non-compliance with its legal obligations under the Kyoto Protocol. When this

happens the State Party is required to make-up the difference between its de facto emissions and its assigned emissions

limits during the next commitment period with a penalty of 30%).

147 See Hovi, J., Stokke, O., and Ulfstein, G., Implementing the Climate Regime: International Compliance 136 (2013)

(pointing out that States can avoid any consequences of the Compliance Committee by merely withdrawing from the

Kyoto Protocol).

148 Para. 17, p. 3, Decision of the Enforcement Branch, UNFCCC Doc. CC-2008-1-6/Canada/EB (15 June 2008) (the

decision also decides that “[t]here is a sufficient factual basis to avert a finding of non-compliance on the date of this

decision” at para. 17(b), p. 3).

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merely withdrew from the Protocol before it could be found to have failed to meet its compliance

obligations.149

A call for a legally binding climate justice tribunal or court has been ardently supported in two

meetings that combined actors from civil society and State representatives, including heads of

States, hosted by the Bolivian government.150 To make any implementation agreement effective, a

legally binding mechanism is likely to be necessary. States, however, have not yet been willing to

create such an effective mechanism. In some cases domestic legal action seems to have overtaken

international action to ensure adequate action on climate change.151 One voice clearly calling for an

international legal mechanism is Bolivia, which has championed the creation of an International

Tribunal on Climate Justice that would provide legally binding decisions on States’ compliance

with their obligations in UNFCCC. While the proposal seems to be gaining acceptance among more

developing States, especially in South America, it has come under attack by European States and

the United States. Nevertheless, the proposal appears in Option II for article 11 of the Draft

Agreement152 and again in paragraph 63 of the Draft COP21 Decision. Whether States will have the

courage and integrity to reiterate their commitment to the principles they agreed in the UNFCCC

and appear to reaffirm in the Draft Agreement, will be determined at COP21.

Procedures, institutions and decision-making (arts. 12-15 and 22)

The procedures, institutions and decision-making procedures of the Draft agreement are among the

least controversial. Article 12 deals with the Conference of the Parties serving as the meeting of the

Parties to this Draft Agreement or the CMA. A new body is necessary, as there was for the Kyoto

Protocol until all the State Parties to the UNFCCC also become Parties to the new Agreement.

States not Party to a treaty cannot be bound by it and have no right to participate in the decision

making related to that treaty.153 Paragraph 4 shows there is still disagreement over the Rules of

Procedure and the strength of the implementation activities of the CMA by the several Options

different States have recorded.

149 Apparently to avoid a decision on non-compliance, Canada withdrew from Kyoto Protocol effective 15 December

2012. See Compliance Committee, “Note by the secretariat: Canada’s withdrawal from the Kyoto Protocol and its

effects on Canada’s reporting obligations under the Protocol, UNFCCC Dec. No. CC/EB/25/2014/2 (20 August 2014)

at para. 5, p. 1.

150 From 19 to 22 April 2010 over 15,000 people and up to 70 governments from all over the world attended the World

People’s Conference on Climate Change and the Rights of Mother Earth in Cochabamba, Bolivia that concluded with

a10-page People’s Agreement on Climate Change and the Rights of Mother Earth, accessed at

http://readingfromtheleft.com/PDF/CochabambaDocuments.pdf, which demands “the creation of an International

Climate and Environmental Justice Tribunal that has the legal capacity to prevent, judge and penalize States, industries

and people that by commission or omission contaminate and provoke climate change.” Ibid at p. 11. From 10 to 12

October about 2,500 people and up to 40 governments from all over the world attended the World People’s Conference

on Climate Change and the Defense of Life in Tiquipaya, Bolivia, which concluded with the adoption of the

Declaration of the World Peoples’ Conference on Climate Change and the Defense of Life in

http://www.planificacion.gob.bo/sites/folders/2.STATEMENT%20WORLD%20PEOPLE%20TIQUIPAYA.pdf, which

in several places calls for the establishment of an international climate justice court. Ibid at pp. 6, 18 and 22. See also

D’Escoto Brockmann, M., Reinventing the U.N: A Proposal (2011) (which contains a draft statute of a Statute of the

International Tribunal for Climate Justice and Environmental Protection, at pp. 157-172).

151 See, for example, Urgenda Foundation v. Netherlands, case number: C/09/456689/HA ZA 13-1396 (24 June 2015)

(in which a Dutch Court “orders the State to limit the joint volume of Dutch annual greenhouse gas emissions, or have

them limited, so that this volume will have reduced by at least 25% at the end of 2020 compared to the level of the year

1990, as claimed by Urgenda, in so far as acting on its own behalf” [translation from original Dutch] at para. 5.1).

152 At p. 27, Draft Agreement, and, p. 50, Draft COP21 Decision.

153 Art. 34, VCLT, above n 139, (stating that “[a] treaty does not create either obligations or rights for a third State

without its consent.”).

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Articles 13 and 14 on the Secretariat and the two subsidiary bodies154 both of which already existed

under the UNFCCC, suggests that these bodies will continue to carry out similar responsibilities

under the Draft Agreement. The texts of these two articles are agreed without brackets.

Nevertheless, all the bracketed text in Article 15 indicates that States still do not agree on the role of

other subsidiary bodies.

Finally, Article 22 first states some obvious rules of voting in paragraphs 1155 and 2156 that are not

bracketed, and then in bracketed paragraph 3 provides for decision making by a vote of three-

fourths of the States present and voting, by casting an affirmative or negative vote,157 when

consensus cannot be reached.158 This indicates that the problem of decision making by voting

remains an ongoing problem.159

Other provisions (arts. 16-21 and 23-26)

The miscellaneous articles include surprises or controversial text and leave fewer issues unresolved

than the previous articles. Only article 17 contains options which relate to the right to participate in

decision-making that either make this right conditioned on having submitted NDMCs 160 or

unconditional.161 The provisions on signature,162 the application of the UNFCCC dispute settlement

provisions,163 the UN Secretary-General as depository,164 and the six UN language of the Draft

Agreement,165 have all apparently been agreed. The provision on withdrawal contains not only the

usual one year waiting period in brackets,166 but also a bracketed proposal that a withdrawal only

takes effect after a State has satisfied its existing obligations under the Draft Agreement.167

In addition, States have not agreed on the provisions for entry into force. These provisions still have

bracketed options concerning the necessary number of ratifications, reference year, percentage of

emissions, and whether “total” or “net” emissions are counted.168 As suggested above, allowing the

counting of “net” emissions could introduce the possibilities that rich countries could buy the right

to pollute or resort to untested and risky technologies to remove emissions from the atmosphere,

thus defeating the purpose of the Draft Agreement. It also appears that agreement may not have

been reached on allowing reservations,169 although it is hard to see how reservations can be allowed

to the Draft Agreement when States cannot make reservations to the UNFCCC.170

154 The two subsidiary bodies established by the UNFCCC are the Subsidiary Body for Implementation (art. 10) and the

SBSTA Subsidiary Body for Scientific and Technological Advice (art. 9).

155 Art. 22(1), Draft Agreement (stating that each States has one vote).

156 Ibid para. 2 (stating that regional economic integration organisations, currently only the European Union, can either

vote for its members or allow them to vote).

157 Ibid para. 4.

158 Ibid para. 3.

159 The COP under the UNFCCC has never adopted its Rules of Procedure which contains provisions on decision-

making by voting, despite the imperative legal obligation it had to do so at its very first session. See art. 7(3),

UNFCCC.

160 Art. 17, Option 1, Draft Agreement.

161 Ibid Option 2.

162 Art. 16, Draft Agreement.

163 Art. 21, Draft Agreement.

164 Art. 23, Draft Agreement.

165 Art. 26, Draft Agreement.

166 Art. 26, para. 1, Draft Agreement.

167 Art. 26, para. 2, Draft Agreement.

168 Art. 18, Draft Agreement.

169 Art. 23, Draft Agreement.

170 Art. 24, UNFCCC.

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The fact that States have still not agreed on some of these formal provisions could mean that they

are being left until the end as there is confidence they can be quickly resolved or that the divisions

elsewhere are so substantial that States do not see the value in agreeing to formalities, when there

are such significant disagreements on substance.

THREE CROSS-CUTTING ISSUES

Three issues appear to cut across several of the articles in the Draft Agreement. These relate to

human rights and participation, health, and sustainable development.

Human rights and participation

The impact of climate change on the enjoyment of human rights has been documented not only by

successive reports of the IPCC but also by the Human Rights Council.171 This realisation is also the

basis of the Geneva Pledge initiated by the Mary Robinson Foundation. Nevertheless, most States

have not shown the willingness or interest in addressing climate change from a human rights

approach. The Geneva Pledge may even have contributed to the skepticism as it appeared to be

satisfied with a limited approach to human rights that was anchored in participatory civil and

political rights, instead of addressing the threats that climate change poses to the right to

development and social and economic rights that are as great a concern to developing States.

Moreover, the pledge was launched at an informal dinner dubbed a “Climate Justice Dialogue” on 7

February 2015 to which the majority of NGOs who had been leading the work on human rights and

climate change within the Geneva-based Human Rights Council were not even invited. Instead of

encouraging unity among States on human rights on which there was widespread agreement, the

Geneva Pledge appears to have contributed to the division among States.

Accordingly, it appears that there are now two human rights visions dividing States. The first based

on the Geneva Pledge and apparently championed by the UN Human Rights Council’s Special

Rapporteur on human rights and the environment, American Law Professor John Knox, focuses on

the civil and political right of participation in decision making.172 This approach is anchored in the

European Aarhus Convention on Access to Information, Public Participation in Decision-Making

and Access to Justice in Environmental Matters,173 and, as one might expect, focuses on the civil

and political right to participate in decision making. Nevertheless, the Special Rapporteur did not

reply to requests for his support for the rights of observers in the UNFCCC process to be able to

attend the ADP meetings where negotiations were taking place.174

At the same time, at the Geneva meeting, Iran for the Non-Aligned Movement’s 120 Member States

—just under two-thirds of the United Nations Member States representing approximately 55% of

the world population—called for any mention of human rights to include the right to development

171 See, for example, Office of the High Commissioner for Human Rights, UN Report of the Office of the United

Nations High Commissioner for Human Rights on the relationship between climate change and human rights, UN Doc.

A/HRC/10/61 (15 January 2009) as well as Human Rights Council Resolutions 7/23 (2008), 10/4 (2009), 18/22 (2011),

26/27 (2014).

172 See, for example, UN Doc. A/HRC/28/61 (3 February 2015) and “Human Rights and Climate Change: the Briefing

Paper drafted for the purpose of informing the Climate Justice Dialogue on 7 February 2015, co-hosted by the OHCHR

and the Mary Robinson Foundation in Geneva (which emphasises participation in decision making processes).

173 2161 UNTS 447 (2001). This convention is ratified by 47 States exclusively from Europe and a few central Asia

States that are trying to establish stronger ties to the European Union. Not a single African, Latin American or Eastern

Asia State has ratified this treaty.

174 At least one non-governmental organisation accredited to the United Nations’ Economic and Social Council did not

receive a response to a request for assistance that was directed to the Special Rapporteur. The Communication is on file

with the author.

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as a crucial foundation. This was not acceptable to the several European States, the United States,

and some other States, that continue to object to the right to development.175 As a result the issue of

human rights appears to be contributing to the widening of divergent views, instead of

convergences of views among States. Unless international human rights law is seen as a tool to

achieve climate justice, its utility is questionable. Even more troubling is the failure of the Draft

Agreement to ensure climate change action that will prevent the violation of fundamental human

rights as this will put States in conflict with their international legal obligations and allow others—

both State and non-State actors—to invoke their responsibility.176

Health

Health is a red elephant in the room that States cannot ignore, but towards which they have still

tried to turn a blind eye. Its relevance to the Rio texts, of which the UNFCCC is one, goes back at

least to the 1992 Rio meeting. Principle 1 of the Rio Declaration on Environment and

Development177 states that all human beings are “entitled to a healthy and productive life in

harmony with nature.” The UNFCCC itself states expressly that harm to “human health” is one of

the consequences of the adverse effects of climate change in its very first article.178 Moreover,

based on the figures of the World Health Organization (WHO) from 2004,179 it can be estimated

that in this century at least 154,400,000 (one hundred and fifty-four million and four hundred

thousand) people will die globally from the adverse effects of climate change in Africa alone, and it

is likely this figure is increasing because of the global failure to take action to limit emissions.180

Outside the field of health, the right to health is also reaffirmed in numerous universal and regional

human rights treaties. For example, the International Covenant on Economic, Social and Cultural

Rights181 to which 160 states have consented as state parties, in article 12 includes the right to

health. Article 5(e)(iv) of International Convention on the Elimination of All Forms of Racial

Discrimination provides for “the right to public health … [and] … medical care” for persons of all

racial and ethnic groups without discrimination. 182 Articles 11(1)(f), 12 and 14(2)(b) of the

Convention on the Elimination of All Forms of Discrimination against Women provides for special

protection of the right to health of women.183 And the most widely ratified human rights treaty in

the world, the Convention on the Rights of the Child provides a wide range of protection for a

child's health.184 In addition, the preamble to the WHO Constitution that was adopted in 1946

recognises that the “enjoyment of the highest attainable standard of health is one of the fundamental

175 This is the case despite the adoption of the Declaration of the Right to Development by the overwhelming majority

of States in UN General Assembly Resolution A/RES/41/128 (1986).

176 Compare Wewerinke, M., and Doebbler, C.F.J., “Exploring the Legal Basis of a Human Rights Approach to Climate

Change,” 10(1) Chinese Journal of International Law 141-160 (2011) and “Development Cooperation and Human

Rights: International Climate Change Action: Saving Human Rights After Cancun,” 2 Indian Yearbook of International

Law and Policy 119-153 (2010-2011).

177 UN Doc. A/CONF.151/26 (Vol. I).

178 Art. 1(1), UNFCCC.

179 See World Health Organization, Preventing disease through healthy environments (2006) (Table A2.3: Deaths

attributable to environmental factors, by disease and mortality stratum for WHO regions in 2004, updated data for 2004,

listing 1,544,000 deaths per year attributable to environmental risk factors in Africa).

180 The WHO calculation was based on deaths in Africa that are attributable to the adverse effects of climate change and

based on conditions existing in 2004. These conditions have deteriorated as emissions continue to rise and did not peak

by 2015. See also International Panel on Climate Change, “The long-term perspective: scientific and socio-economic

aspects relevant to adaptation and mitigation, consistent with the objectives and provisions of the Convention, and in

the context of sustainable development (Topic 5)” at 63, 67, Table 5.1 in Pachauri, R.K., Reisinger, A., and The Core

Writing Team, (eds.), Climate Change 2007: Synthesis Report (IPPCC Fourth Assessment Report) (2007).

181 993 UNTS 3.

182 660 UNTS 195 (1969).

183 1249 UNTS 13 (1981).

184 1577 UNTS 3 (1990), art. 24. This treaty is ratified by 194 States.

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rights of every human being”185 and the Universal Declaration of Human Rights, an instrument

reflecting customary international law on this issue, states that “[e]veryone has the right to … health

and well-being of himself and his family....”186 Hardly any country denies the right to health. The

United States was perhaps the lone exception that had persistently objected to the right to health,

but at the May 2013 World Health Assembly of the WHO, the US Secretary of Health and Human

Services, Kathleen Sebelius, appeared to drop that objection.187 Nevertheless, in the spring of 2015

the US allegedly stood alone among the Member States of the Organization of American States to

block the adoption of a Summit of the Americas final declaration with its objection to including a

reference to the right to health.188 This was likely a violation of international law because the right

to health is customary international law189 to which the US could no longer be a persistent

objector.190

Although health was mentioned in some of the many options for the COP21 decision, it has been

completely ignored in the text distributed on 5 October 2015. It has come back in the Draft

Agreement distributed on 23 October. Health is mentioned in preambular paragraphs and in article

2 that describe the purpose of the agreement. It is not, however, mentioned in article 4 on

Adaptation despite the fact that the majority of countries submitting their INDCs included health as

a concern of Adaptation, and in many cases a priority.

The main obstacle to including health as an adaptation priority appeared to be the United States. But

the United States has also provided itself with good scientific reasons to be concerned with the

consequences of climate change on health. Citing these adverse effects, a United States’ study on

climate change and health concluded that there are three principles that should guide public health

action on climate change.191 First, the US study claims, effects of climate change on health should

be prioritised in research, policy and programmes, and regulatory agendas.192 A significant part of

the rationale behind this suggestion appears to be the lack of clear evidence of the impact of climate

change on health to date. In contrast to the United States’ skepticism, many of the impacts of health

on developing countries, especially those in the Pacific are much clearer, and need more urgently

than a better understanding of the problem, resources to deal with the adverse effects of climate

change on health. Secondly, the study suggests avoiding exposure to harm as a policy strategy.193

For many developing States, especially small island States, avoiding exposure to a phenomenon like

sea level rise is no longer an option as they hardly contribute to causing these consequences and

must rely on action by others to avoid them; action which has not been forthcoming. For many

small island States to adequately protect their people from exposure to harm is an issue of

185 Constitution of the World Health Organization (1946).

186 UNGA Res. 217A (III), UN Doc. A/810 at 71 (1948), art. 25.

187 “U.S. Secretary for Health and Human Services Kathleen Sebelius addresses the 66thWorld Health Assembly” (20

May 2013) at https://geneva.usmission.gov/2013/05/20/world-health-assembly/ (accessed 15 August 2015).

188 Zuesse, E., “U.S. Blocked Declaration of a Right to Health Care, Says Bolivia's President,” Transcend Media

Service, published on 20 April 2015 at https://www.transcend.org/tms/?p=56692 (accessed on 2 September 2015).

189 See Xiong, P., An International Law Perspective on the Protection of Human Rights in the TRIPS Agreement: An

Interpretation of the TRIPS Agreement in Relation to the Right to Health 254 (2012), and Kenny, E.D., “The

International Human Right to Health: What Does This Mean for Our Nation and World?” 34 Indiana Law Review 1457,

1475 (2001).

190 International law provides that although a State may legitimately object to a rule of customary international law

when it is created, a State is bound by the customary international law once it has lifted its objections. See generally,

Quince, C., The Persistent Objector and Customary International Law, Outskirts Press: Parker, CO, USA (2010). As

the right to health is arguably a rule of customary international law once the US ended its persistent objection by

admitting the right, it is bound by it.

191 Committee on the Effect of Climate Change on Indoor Air Quality and Public Health of the US Institute of

Medicine, Climate Change, the Indoor Environment and Health, National Academies Press: Washington, D.C., USA

(August 2011).

192 Ibid at 244.

193 Ibid

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adaptation and often even loss and damage as the harm has become impossible to avoid. And, the

final and third guiding principle in the American study is to improve the collection of data to ensure

better informed decision making.194 Linked to the first principle, this is an important, but conditional

principle. For developing countries this is an issue of demanding that developed States fulfil their

obligations to provide financing, capacity-building and technology transfer to developing countries.

Thus while countries that have achieved the level of social and economic development may have

the internal resources to put adequate data collections structures in place, many developing

countries do not yet have adequate resources. Moreover, the resources they have must be diverted to

more urgent concerns. This brief comparison of three suggested priorities for American policy

makers serves as a stark reminder of the unequal manner in which climate change will adversely

impact the health of especially small island States inhabitants and inhabitants from other developing

States.

The failure to adequately address health in the Draft Agreement appears to follow the same logic as

the American study just discussed. It is based on priorities that are apparently biased towards the

interests of those States that already have the resilience to adapt to the most serious health

consequences of climate change. States that do not have the resources necessary for adequate

adaptation are significantly disadvantaged.

Sustainable development

The relationship between resilience to the adverse effects of climate change and countries’ social

and economic development is the foundation of the Rio Declaration from 1992. It is also

fundamental to the UNFCCC as reflected by the principle of CBDR that is imbedded through the

Convention.195 Ensuring their development was perhaps the major concern of developing States in

1992. Especially Small Island Developing States (SIDS) and the negotiating block of the Alliance

of Small Island States (AOSIS) in the climate talks, have seen the Rio treaties as a way to fight back

into the development ring from which their special circumstances were otherwise being excluded.196

Today, the concerns of AOSIS remain as few island States have graduated to the level of developed

States economically, island States continue to face particularly damaging adverse effects of climate

change, and developed States continue to marginalise the particularities of island States in relation

to the obligation of developed States to provide finance, capacity building, and adequate access to

technology to these States.

In the current agreement, almost every effort by the G77 and China to ensure the preferential

treatment of developing States in order to secure their development for the future, was refuted and

objected to with brackets or options that include “no text”. The current state of negotiations of the

Draft Agreement therefore does little to address the concerns of developing States that their

development will be handicapped by the actions they are being asked to agree to take without

guarantees of adequate finance, capacity building, or technology. For example, the Statement in

article 2bis that “[t]he extent to which developing country Parties will effectively implement this

Agreement will depend on the effective implementation by developed country Parties of their

commitments on provision of finance, technology development and transfer and capacity-building”,

was met with a call for “no text” at all by developed countries.

Developing countries downplayed the concerns of developing countries during ADP 2.11. For

example, the Organisation of Economic Cooperation and Development, a cooperation agency for

194 Ibid

195 See, for example, art. 3 and 4, UNFCCC (article 3, para. 1, expressly states the principle, while article 4 relies on the

principle for the expression of the commitments of States).

196 See Stoutenberg, J.G., Disappearing Island States in International Law 17-30 (2015).

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developed countries, claimed that the climate finance goals of 100 billion would be met, as a report

launched during ADP 2.11 claimed that US$ 62 billion had already been mobilised.197 The claims

made in this report have since been shown to be misleading by some evaluators198 and they appear

contradicted by the fact that Green Climate Fund, the primary vehicle for providing climate finance

under the UNFCCC, apparently has less than US$ 5 billion in its coffers.199

If the proposal of developing States for article 2bis, paragraph 2, were adopted this would be a

significant step towards building trust between the G77 and China on the one side and the United

States, European Union and its allies on the other side.

CONCLUDING REMARKS

As the comments on the several areas above indicate, not only must all States be involved at the

global level to adequately address the adverse effects of climate change, but the will of States must

be cultivated to a level that it will bear fruit for their people. This has not yet happened. The Draft

Agreement to be agreed in Paris in December 2015 does not appear to contain language to ensure

adequate action.

The main flaw of the Draft Agreement is still its repeated references to alternatives or options of

“shall,” “should,” and “other” that reflect a lack of consensus on large parts of the text and almost

all the crucial elements. This ambiguity or failure to agree, sometimes even to reiterate existing

legal obligations, threatens to undermine any chance of achieving consensus. It is also troubling that

some topics such as health, human rights, and an accountability mechanism like a climate justice

court or tribunal are not mentioned. Although some of these are mentioned in the Draft COP21

Decision, their exclusion from the Draft Agreement is a disquieting sign that States do not intend to

build on or strengthen the UNFCCC.

The consequences of our failure will be deadly for many of the most vulnerable people on the

planet. Among these are the indigenous peoples, many of whom have lived and prospered in an

entirely sustainable manner on the planet they call Mother Earth or Pachamama.200 There are also

the women and children who are vulnerable because of their youth or due to the disproportionate

burden of the adverse effects of climate change they will have to bear. There are the people of

Africa who could perish by the hundreds of millions without the resources to make themselves

resilient. And there are the people of the Pacific region who may be the first to feel the harm of

climate change if a recent publication is correct in pointing out that “[i]t is clear that the effects of

climate change are expected to intensify across the Pacific region in the coming decades.”201

197 OECD, “Climate finance in 2013-14 and the USD 100 billion goal,” a report by the Organisation for Economic Co-

operation and Development in collaboration with Climate Policy Initiative (2015) accessed at

http://www.oecd.org/environment/cc/OECD-CPI-Climate-Finance-Report.htm (7 October 2015).

198 Williams, M., “TWN Climate Info: A Preliminary Review of the OECD/CPI Report, "Climate Finance in 2013-14

and the USD 100 Billion goal,” Third World Network: Malaysia (30 October 2015) accessed at

http://www.twn.my/title2/climate/info.service/2015/cc151004.htm (31 October 2015).

199 This figure is arrived at based on a review of GCF Doc. GCF/B.10/08 (26 June 2015), which states that “[t]he Fund

has secured US$ 10 billion equivalent in pledges from 33 countries so far,” but that of the pledging countries only 22

have signed contribution agreements or arrangements for a total of US$ 5.47 billion equivalent (p. 4). Although the

report is silent on the matter, it can be assumed that even less money has actually been paid into the Fund..

200 Pachamama is an indigenous god presiding over the fertility of the Earth in Inca Mythology.

201 Park, C.-Y., Raitzer, D.A., Samson, J.N.G., Halili, P.R.M., “Climate Change and Adaptation Challenges in the

Pacific,” at 205, 223 in Filho, W.L., (ed.), Climate Change in the Asia-Pacific Region, Springer: Cham, Switzerland

(2015).

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COULD VANUATU CLAIM REPARATIONS UNDER

INTERNATIONAL LAW FOR DAMAGES SUSTAINED FROM

CYCLONE PAM?

CALVY AONIMA AND SHIVANAL KUMAR*

INTRODUCTION

On the 13th of March 2015, a severe tropical cyclone, identified as “Cyclone Pam,” struck the

Republic of Vanuatu. It was an unprecedented tropical cyclone which left the Republic in total

devastation.1 It affected and claimed individual lives, destroyed local food sources, flattened

many buildings, stripped off trees, broke down communication, ruined infrastructure, and many

more destructions that to date are yet to be quantified. In an interview,2 the President of the

Republic of Vanuatu, Mr. Baldwin Lonsdale described Cyclone Pam and its impacts as:

This is a very devastating cyclone in Vanuatu. I term it as a monster, a monster. It’s a

setback for the government and for the people of Vanuatu. After all the development that

has taken place, all this development has been wiped out. So it means we will have to

start anew again.3

The President further stated that climate change contributed to the destruction in Vanuatu.4 The

extent of the damage, and the existence of a strong correlation between extreme weather events

#############################################################

* Calvy Aonima is the Legal Officer at the Ministry of Meteorology, Energy, Information, Disaster Management, Environment,

Climate Change and Communications (‘MEIDECC’) in the Kingdom of Tonga and a Master of Laws (LLM) Candidate at the

University of the South Pacific (USP) School of Law. Shivanal Kumar is a Project Officer at the Ministry of Fisheries in Fiji and

a Master of Environmental Law candidate, USP School of Law. This article reflects the view of the authors and does not

necessarily represent the views of the Government of the Kingdom of Tonga or the Government of Fiji. The authors wish to

thank two anonymous reviewers for their helpful comments and Dr. Margaretha Wewerinke for her supervision of the initial

paper. Both authors contributed equally to the writing of this article.

1 It was around 7:00 pm on Friday 13th of March, 2015, that Cyclone Pam landed on Vanuatu’s shores and struck the Republic of

Vanuatu. The 2006 happiest place on planet earth (see Nic Marks, Saamah Abdallah, Andrew Sims and Sam Thompson, ‘The

Happy Planet Index (HPI) Report’ New Economic Foundation (online), 2006

http://b.3cdn.net/nefoundation/54928c89090c07a78f_ywm6y59da.pdf (accessed 24 November 2015)) was devastated by this

enormous and gigantic super storm. It left an impact that will be recorded in Vanuatu’s history, and be remembered by many Ni-

Vanuatu people, as the most devastating cyclone to have ever struck their country. There were past cyclone experiences in

Vanuatu, such as cyclone ‘Uma back in 1987, but there was none with the intensity and the ferocity as Cyclone Pam. It was a

category 5 cyclone - the last of all cyclone categories - and is the strongest tropical cyclone on record in the South Pacific region,

with wind speeds of up to 170 miles per hour and gusts exceeding 200 miles per hour.

2 The interview was conducted when President Baldwin Lonsdale attended the United Nations Conference on Disaster Risk

Reduction held on 16 March 2015 in Sendai, Japan.

3 ‘AP Interview: Vanuatu president rues cyclone devastation’, The Associated Press (online) 16 March 2015

http://news.yahoo.com/vanuatu-president-speaks-devastation-cyclone-pam-022602313.html (accessed 22 November 2015).

4 Peter Walker and Paul Farrell, ‘Cyclone Pam: 24 confirmed dead as Vanuatu president blames climate change’, The Guardian

(online) 16 March 2015 http://www.theguardian.com/world/2015/mar/16/vanuatus-president-blames-climate-change-for-

extreme-weather (accessed 13 November 2015); See also Umberto Bacchi, ‘Vanuatu cyclone Pam: President blames climate

change for ‘monster’ storm’, International Business Times (online) 16 March 2015, http://www.ibtimes.co.uk/vanuatu-cyclone-

pam-president-blames-climate-change-monster-storm-1492073.

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and human-induced climate change,5 triggers the question of whether Vanuatu could claim

reparation under international law6 for the damages sustained as a result of Cyclone Pam. This

paper aims to weigh the possibility of pursuing a claim of this nature and how it could be framed

under the general law of State responsibility with the objective of achieving reparations for the

damage sustained. It should be noted that Cyclone Pam had also caused significant damage to

other Pacific Island countries, namely: Tuvalu, Kiribati, and the Solomon Islands. However, for

the purposes of this paper, the scope of this discussion will be confined to Vanuatu.

This paper is divided into four (4) parts. The first part provides a brief overview on the impacts

of Cyclone Pam on Vanuatu, including how those impacts have affected the enjoyment of

specific human rights, and how those impacts can be linked to climate change. The second part

attempts to discuss how to frame a State responsibility claim under international law, so as to

hold a State liable under international law for the damages sustained from Cyclone Pam. The

third part discusses the legal consequences of State responsibility. It elaborates on the various

forms that reparation may take, and addresses which forms may be available to Vanuatu in the

event a State is held responsible. The fourth part answers the question: could Vanuatu go to

court--for example, to the International Court of Justice (‘ICJ’)--to claim reparations under

international law for the damages sustained from Cyclone Pam. This is then followed up by the

conclusion and recommendations.

How the impacts of Cyclone Pam affect the enjoyment of specific human rights

Apart from general impact and destruction, this section looks on how the impact of Cyclone Pam

has interfered with the enjoyment of basic human rights of the people of Vanuatu. To start with,

it is important to consider the relationship between climate change and human rights. The UN

Human Rights Council in Resolution 10/4 of 2009 explicitly recognised the relationship between

climate change and violation of human rights worldwide. Resolution 10/4 states:

Noting that climate change related impacts have a range of implications, both direct and

indirect, for the effective enjoyment of human rights including, inter alia, the right to life,

the right to adequate food, the right to the highest attainable standard of health, the right

to self- determination [and] recognizing that while these implications affect individuals

and communities around the world, the effects of climate change will be felt most acutely

by those segments of the population that are already in vulnerable situations owing to

factors such as geography, poverty, gender, age, indigenous or minority status and

disability.7

The Cyclone Pam case study is a classic reflection of Resolution 10/4. The effects of climate

change are being felt globally, but affect mostly the world’s poorest nations which have

#############################################################

5 Christopher B. Field, et al (eds) Managing the Risks of Extreme Events and Disasters to Advance Climate Change Adaptation.

A Special Report of the Intergovernmental Panel on Climate Change (Cambridge University Press, 2012) 160

https://www.ipcc.ch/pdf/special-reports/srex/SREX_Full_Report.pdf (accessed 25 November 2015).

6 In this paper, references to international law refer to public international law (as opposed to private international law).

7 The United Nations Human Rights Council, Human Rights and Climate Change, HRC Res 10/4, 10th sess, 41st meeting,

A/HRC/RES/10/4, (25 March 2009) Recital 8 http://ap.ohchr.org/documents/E/HRC/resolutions/A_HRC_RES_10_4.pdf

(accessed 20 November 2015).

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contributed least to the problem and can do little to respond.8 Vanuatu is among those countries

that have least contributed to the problem of anthropogenic climate change, but are most

vulnerable and susceptible to its effects. A few examples of the specific human rights that were

implicated as a result of Cyclone Pam are briefly summarized as follows:#

! The right to life9 - This right is basic to all human rights and is the ‘supreme right to

which no derogation is permitted even in times of public emergency’.10 This right

provides that every human being is entitled to life to which they shall be protected

under the rule of law and not to be arbitrarily deprived of it. 11 The fact that 11 people

lost their lives as a result of Cyclone Pam has affected this supreme right and had

deprived those people of their basic enjoyment of this human right.

! The right to self-determination12 - This is a very important right13 because its

realization ‘is an essential condition for the effective guarantee and observance of

individual human rights and for the promotion and strengthening of those [other]

rights.’14 Cyclone Pam had implications on this right when it left the affected people

of Vanuatu in a state where they were not free to determine for themselves but to

solely rely on aid supply for support.15 Also the affected people were denied their

freedom to freely dispose of their natural wealth and resources as it was wiped out or

destroyed by Cyclone Pam.16

! The right to water17 - This right is premised on the idea that women and children shall

enjoy adequate living conditions particularly in relation to housing, sanitation, and

clean drinking water supply. The impacts of Cyclone Pam had detrimentally affected

this right when 110,000 people did not have access to safe drinking water,18 and no

proper sanitation and hygiene as water sources were destroyed and/or contaminated.19

#############################################################

8 International Bar Association, Achieving Justice and Human Rights in an Era of Climate Change Disruption. Climate Change

Justice and Human Rights Task Force Report (2014) 34.

9 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force

3 January 1976) art 6(1) (‘ICCPR’); See also UNDR, UN Doc A/810, art 3; See also Constitution of the Republic of Vanuatu art

5(1)(a).

10 Human Rights Committee, CCPR General Comment No.14 – Article 6 (Right to life) Nuclear Weapons and the Right to Life

Twenty-third sess, UN Doc INT/CCPR/GEC/4723 (9 November 1984).

11 ICCPR art 6(1).

12 ICCPR art 1; See also International Covenant on Economic, Social and Cultural Rights opened for signature 16 December

1966, 993 UNTS 3 (entered into force 3 January 1976) art 1 (‘ICESCR’).

13 According to The United Nations Human Rights Committee, General Comment No.12: Article 1 (Right to self-determination),

the right to self-determination is a very important right, as a result, it was placed as Article 1 of both the ICCPR and the ICESCR

before all other Articles.

14 United Nations Human Rights Committee, CCPR General Comment No.12: Article 1 (Right to self-determination), Twenty-

first sess, UN Doc INT/CCPR/GEC/6626 (13 March 1984).

15 Anthony Funnel, ‘After Pam: Vanuatu struggles to rebuild in cyclone aftermath’ ABC News (Online) 11 August 2015

http://www.abc.net.au/radionational/programs/futuretense/after-pam:-vanuatu-struggles-to-rebuild/6686574 (accessed 24

November 2015).

16 Joshua Robertson, ‘Vanuatu disaster: the island hit by an earthquake, a volcano then cyclone Pam’ The Guardian (Online) 17

March 2015 http://www.theguardian.com/world/2015/mar/17/vanuatu-disaster-the-island-hit-by-an-earthquake-a-volcano-then-

cyclone-pam (accessed 12 November 2015).

17 Convention on the Elimination of All Forms of Discrimination against Women opened for signature 1 March 1980, 1249 UNTS

13, art 14(2)(h); See also Convention on the Rights of the Child opened for signature 20 November 1989, 1577 UNTS 3 art

24(2)(c) art 24(2)(c) (‘CRC’).

18 Health Cluster, ‘Cyclone Pam, Vanuatu’ (Media Release, 28 March 2015)

http://www.wpro.who.int/southpacific/programmes/health_sector/emergencies/health-cluster-28mar2015.pdf?ua=1 (accessed 12

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! The right to education20 - This right ensures that education is available and accessible

to every child. This right was affected when 70% of education facilities were

destroyed, affecting around 57,000 children across three (3) provinces namely:

Malampa, Shefa, and Tafea,21 and around 80% of schools affected to some degree22

throughout the whole of Vanuatu.

! The right to means of subsistence23 - What it means to have this right is that in no

case may a person be deprived of his or her own means of subsistence. This right was

affected by the damage that occurred to the food security and the agriculture sector

(livestock, fishery, and forestry),24 and the 96% of crops that were destroyed25 which

left people in certain areas with no alternative food stocks, and in need of immediate

food, agriculture and likelihood assistance.26

! The right to property27 - This right ensures that everyone has the right to own

property alone or with others, and shall not be deprived of it.28 As a result of Cyclone

Pam, the right to property had also been affected by the destruction of household

goods and properties.29

! The right to a healthy environment30 - This right aims at ensuring that everyone

enjoys the highest attainable standard of physical and mental health.31 This right

entails improved environmental hygiene32 and the prevention and treatment of

diseases.33 The enjoyment of this basic human right was implicated when many

sustained substantial injuries34 and many contracted other sicknesses and diseases as a

result of Cyclone Pam.

####################################################################################################################################################################################################

November 2015). See also Flash Appeal, ‘Emergency Response Plan For Vanuatu Tropical Cyclone Pam March-June

2015’(Media Release 24 March 2015) http://reliefweb.int/sites/reliefweb.int/files/resources/Vanuatu-

TCPam_flash_appeal_final%2024MAR2015.pdf (accessed 15 November 2015).

19 ICESCR art 12(2)(d).

20 ICESCR art 13; See also CRC art 28(1).

21 Flash Appeal, above n 18.

22 UNICEF, ‘Cyclone Pam Humanitarian Situation Report 9’ (Media Release 23 March 2015)

http://www.unicef.org/pacificislands/UNICEF_Pacific_Cyclone_Pam_SitRep_No_9_23-24_March_2015.pdf (accessed 11

November 2015).

23 ICCPR art 1(2); See also ICESCR art 1(2).

24 Flash Appeal, above n 18.

25 Ibid.

26 World Food Programme, ‘Vanuatu Tropical Cyclone Pam - Vanuatu Situation Report #5’ (Media Release 23 March 2015)

http://documents.wfp.org/stellent/groups/public/documents/ep/wfp273075.pdf (accessed 23 November 2015).

27 Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183 plen mtg, UN Doc A/810 (10 December

1948) art 17 (‘UDHR’); see also Constitution of the Republic of Vanuatu art 5(1)(j).

28 UDHR art 17.

29 Flash Appeal, above n 18.

30 ICESCR art 12.

31 ICESCR art 12(1).

32 ICESCR art 12(2)(b).

33 ICESCR art 12(2)(c).

34 Health Cluster, above n 18.

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! The right to adequate and secure housing35 - This right ensures that everyone has the

adequate standard of living, adequate food, and housing.36 This right was affected

when 75,000 people were in need of shelter37 as 15,000 houses were either destroyed

or severely damaged, including the destruction of food, household goods and

properties.38

This non-exhaustive list above shows not only how the impacts of Cyclone Pam have affected

the enjoyment of specific human rights in Vanuatu, but reflects how Cyclone Pam had impacted

Vanuatu as a whole. This may trigger the specific question whether international human rights

law could serve as, or consolidate, the legal basis of a reparations claim related to Cyclone Pam

under international law. This claim would similarly involve evidential questions related to the

link between Cyclone Pam and climate change. However, this paper does not intend to go down

the human rights path and does not attempt to explicitly examine whether or not human-induced

climate change is a violation of human rights from an international law perspective, though the

authors believe it is. Instead, this paper will focus on international climate change law serving as,

or consolidating, the legal basis of a claim for reparations under international law.

Link between Cyclone Pam and climate change

This section aims to demonstrate that a link can be established between Cyclone Pam and

climate change. In the abovementioned interview, President Lonsdale, blamed climate change for

the destruction that occurred in his country. In his exact words, he was quoted as saying:

w]e see the level of sea rise … the cyclone seasons, the warm, the rain, all this is

affected … [t]his year we have more than in any year … yes, climate change is

contributing to this [destruction].39

Precisely because this statement has triggered much debate, it is a helpful starting point in

exploring the possible link between Cyclone Pam and climate change. To claim reparations for

Cyclone Pam damage based on climate change-related obligations necessarily involves some

kind of causation test. In other words, there must be a link between the damage on the one hand

and climate change on the other. However, it remains unclear what test is contained in

international law, as there is a lack of international jurisprudence on climate change. For the

purposes of this paper, the Authors will assume that a moderately stringent causation test will

need to be met: that climate change materially contributed to the damage. This is an appropriate

test, as it puts the burden of proving causation on the claimants while the test is not so stringent

as to make any claim for climate change-related damages impossible.

In the lead-up to exploring this link, it is important to first recall the overwhelming body of

scientific evidence which establishes that the emission of anthropogenic greenhouse gases

(‘GHGs’) is the main cause of climate change. Indeed, by ratifying the United Nations

#############################################################

35 ICESCR art 11.

36 ICESCR art 11(1).

37 Health Cluster, above n 18; See also Flash Appeal, above n 18.

38 Flash Appeal, above n 18.

39 Peter Walker and Paul Farrell, above n 4; see also Umberto Bacchi, above n 4.

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Framework on Climate Change Convention (‘UNFCCC’), States have acknowledged that

climate change is a result of man-made activities. Article 1 of the UNFCCC stipulates:

“Climate change” means a change of climate which is attributed directly or indirectly to

human activity that alters the composition of the global atmosphere and which is in

addition to natural climate variability observed over comparable time periods.40

With near global ratification of the UNFCCC, virtually all States agree with this notion. This

notion has been confirmed repeatedly since 1992 by the Intergovernmental Panel on Climate

Change (‘IPCC’),41 including its most recent Fifth Assessment Report (‘AR5’) – which is the

most comprehensive up-to-date scientific assessment of climate change that represents the

consensus view of the world’s leading climate scientists. Specifically, AR5 established with a

95% degree of probability that human activity is the dominant cause of global warming.42 The

AR5 also stated that warming of the climate is “unequivocal” and evidenced by a range of

observed events, including higher atmosphere and ocean temperatures; diminished snow and ice

caps; and rising sea levels.43 This indicates that the scientific evidence on anthropogenic climate

change is stronger than ever and it is indeed virtually certain that human activity is the primary

cause of anthropogenic climate change.

This leads us to the question how anthropogenic climate change relates to cyclones in general, or

to Cyclone Pam in particular. A first point to note is that cyclones have long occurred in the

Pacific Region, and cyclone activity predates the industrialization period. The claim that climate

change is the direct cause of a particular cyclone is therefore not plausible. Instead, the evidence

points at a more indirect relationship. Inferences may be drawn from scientists’ observations44

that unusually mild sea surface temperatures and added water vapor helped the storm intensify

before hitting Vanuatu.45 Indeed, in the area where Cyclone Pam intensified, the ocean

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40 United Nations Framework Convention on Climate Change, opened for signature 4 June 1992, 1771 UNTS 107 (entered into

force 21 March 1994) art 1 (‘UNFCCC’).

41 IPCC is the international body for assessing the science related to climate change. The IPCC was set up in 1988 by the World

Meteorological Organization (WMO) and United Nations Environment Programme (UNEP) to provide policymakers with

regular assessments of the scientific basis of climate change, its impacts and future risks, and options for adaptation and

mitigation. See IPCC – Intergovernmental Panel on Climate Change Official Website http://www.ipcc.ch/.

42 The Climate Development Knowledge Network (CDKN), The IPCC’s Fifth Assessment Reports: What in it for Small Island

Developing States? (2014) 2 available at https://www.ipcc.ch/report/ar5/ (accessed 20 November 2015).

43 The Intergovernmental Panel on Climate Change, Summary for Policymakers,(Cambridge University Press, 2013) 2.

44 See, for example, Christopher B. Field, et al (eds) above n 5 (noting that ‘[a] changing climate leads to changes in th frequency,

intensity, spatial extent, duration and timing of extreme weather and climate events, and result in unprecedented extreme weather

duration and timing of extreme weather and climate events’) and Kerry Emmanuel, ‘Severe Tropical Cyclone Pam and Climate

Change’ Real Climate (online) 2 May 2015, http://www.realclimate.org/index.php/archives/2015/03/severe-tropical-cyclone-

pam-and-climate-change ((suggesting that ‘the number of tropical cyclones worldwide could exceed 100 per year by about 2070,

compared to an average of 90 per year at the moment.’ See further Thomas Knutson et al., Tropical Cyclones and Climate

Change (2010) 3 Nature Geoscience 157-163) (suggesting that ‘sea surface temperatures in most tropical cyclone formation

regions have increased by several tenths of a degree Celsius during the past several decades’ and predicting that ‘GHG emissions

will cause cyclones to shift towards much stronger storms, with intensity increases of 2 to 11% by 2100’) and James P. Kossin

and Timothy L. Olander and Kenneth R. Knapp, ‘Trend Analysis with a New Global Record of Tropical Cyclone Intensity’

(2013) 26 Journal of Climate 9960-9976 (concluding that ‘the intensity of cyclones of all strengths in the South Pacific has

increased by 2.5 [meters] per second per decade, with the strongest 20% increasing by as much as 5 [meters] per second per

decade’). Finally, see Yosuke Adachi, ‘Human Lives at Risk Due to Eustatic Sea-Level Rise and Extreme Coastal Flooding in the

21st Century’ (2015) 7 Weather, Climate, and Society 118-132) (suggesting that ‘sea level rise could cause at least 84 to 139

extra deaths per year from cyclone-related coastal flooding in the United States by 2100’).

45 Andrew Freedman, ‘Vanuatu’s president makes a leap in tying Cyclone Pam to Climate Change’ Mashable (Online), 17 March

2015, http://mashable.com/2015/03/16/vanuatu-cyclone-pam-global-warming/ (accessed 2 November 2015).

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temperature was up to 2 degrees Celsius higher than average for that time of the year (3.6

degrees Fahrenheit)—which is likely to be attributable at least in part to global warming.46 And

as a result of sea level rise, the impact of super-Cyclone Pam became even more damaging.47

We may conclude that irrespective of the effects of climate change on the frequency of cyclone

occurrence, the best available science indicates that climate change-induced increases of sea

temperatures intensify tropical storms. This means that there is a link between the intensity of

Cyclone Pam on the one hand and climate change-induced increases of sea surface temperatures

on the other. In addition, a link can be established between sea level rise and the damage brought

about by Cyclone Pam in Vanuatu. In sum, Cyclone Pam would not have been as intense and

damaging as it was if there would not have been climate change.

FRAMING A STATE RESPONSIBILITY CLAIM

General law of State responsibility

This part discusses the general law on State responsibility and its relevance to Vanuatu’s

potential reparations claim for the damages sustained from Cyclone Pam. The general law of

State responsibility was codified by the International Law Commission’s (‘ILC’) in its Articles

on Responsibility of States for Internationally Wrongful Acts (‘ARS’), which are the product of

more than 40 years of work by ILC on the topic.48 This law is important because the existing

climate change regime does not address the questions of when, how and by whom climate

change damage sustained by a State should be compensated. Due to this gap, the “particularly

vulnerable”49 States have typically asserted that they are justified in seeking compensation from

States who have emitted most GHGs in the atmosphere; a view which is shared by some

academic writers who have opined that under international law, ‘States are obliged to

compensate the directly or indirectly affected States for the damage caused.’50

There exists ‘in any legal system liability for failure to observe obligations imposed by its rules –

known as responsibility in international law.’51 This is derived from one of the fundamental

principles of international law that States must not harm or violate the rights of other States.52

Grounds for claims of responsibility will be created once States fail to observe obligations –

usually through the breach of one or more of the customary international law obligation(s) or

because of a breach of a treaty obligation.53 As a result, firstly, States can be held responsible for

violations of international law; and secondly, States will be obliged to make full reparation for

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46 Ibid.

47 Ibid.

48 James Crawford and Simon Olleson, ‘The Nature and Forms of International Responsibility’ in Malcolm D. Evans

(ed), International Law (Oxford University Press, 2012) 441, 447.

49 This term refers to States that are mostly developing, and are especially vulnerable to the adverse effects of climate change due

to poor economies, geographical location, and low-lying nature.

50 Roda Verheyen, ‘‘Establishing State Responsibility for Climate Change Damage’ Climate Change Damage and International

Law: Prevention Duties and State Responsibility (Martinus Nijhoff Publishers, 2005) 52.

51 DJ Harris, Cases and Materials on International Law (Sweet & Maxwell Ltd, 6th ed, 2004).

52 Richard S.J. Tol and Roda Verheyen, ‘State responsibility and compensation for climate change damages—a legal and

economic assessment’ (2004) 32 Energy Policy 1109 https://www.mi.uni-hamburg.de/fileadmin/fnu-

files/publication/tol/enpolliability.pdf (accessed 17 November 2015) .

53 Matthew Craven, ‘Statehood, Self-determination, and Recognition’ in Malcolm D. Evans (ed), International Law (Oxford

University Press, 2012) 214.

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the damages caused. Thus, in the absence of a specialised regime governing responsibility and

liability, the law of State responsibility is ‘applicable to treaty-based and other rules of

international law to the extent it reflects international customary law.’54

It is important to note that although the ARS are as such not binding on States, most of the

articles indeed reflect customary international law.55 Therefore, to establish State responsibility,

Vanuatu will need to venture into detail the relevant articles of the ARS. To start with, the basic

principle of State responsibility is provided in Article 1 of the ARS which states that ‘[e]very

internationally wrongful act of a state entails the international responsibility of that state.’56

Article 1 of the ARS has been given wide recognition in practice. For example, the Permanent

Court of International Justice (PCIJ) ‘affirmed in the Phosphates in Morocco Case that

international responsibility is established immediately if a [S]tate has committed an

internationally wrongful act against another [S]tate.’57 Article 2 of the ARS stipulates that:

There is an internationally wrongful act of a State when conduct consisting of an action

or omission:

(a) Is attributable to the State under international law; and

(b) Constitutes a breach of an international obligation of the State.58

Crawford and Olleson hold that ‘the fulfillment of these conditions is a sufficient basis for

international responsibility, as has been consistently affirmed by international courts and

tribunals.’59 The implication of this basic principle is that Vanuatu needs to show that a State has

committed an internationally wrongful act (i.e. action or omission) by breaching an international

obligation attributable to that State in order to make a successful State responsibility claim. Of

course, this involves identifying a State that could be held responsible.

Which State could be held responsible?

Determining who to sue is one of the greatest challenges involved in a State responsibility claim

related to a climate change- phenomenon. One could argue that in practice, almost every State is

responsible for at least some GHG emitting activities and therefore selecting one State over

another is almost impossible. And as it currently stands, there is no international law on how to

apportion damages between multiple wrongdoers or causes of climate change.60 However, it

should be noted that Vanuatu could likely bring a State responsibility claim against a State or

States, without being able to identify one GHG emitter who is responsible for the specific

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54 Ann-Charlotte Rosenblom, Claiming State Responsibility for Climate Change Damages (Masters Thesis, University of Lund,

2009) 38, available at http://lup.lub.lu.se/luur/download?func=downloadFile&recordOId=1561576&fileOId=1565681 (accessed

18 November 2015).

55 Even before their adoption, the articles were cited in decisions made by the International Court of Justice (‘ICJ’). The United

Nations General Assembly has commended in resolution 56/83 that States give attention to the ARS, and annexed the articles to

the resolution.

56 International Law Commission, Articles on the Responsibility of States for Internationally Wrongful Acts, with commentaries

2001, GA Res 56/83 (‘Commentaries on ILC ARS’).

57 Ann-Charlotte Rosenblom, above n 54, 31; See also Phosphates in Morocco Case (1938) P.C.I.J., Ser. A/B, No. 74.

58 International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts art 2 (‘ILC ARS’).

59 James Crawford and Simon Olleson, above n 48, 451.

60 Roda Verheyen, above n 50, 297.

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damages caused by Cyclone Pam. Indeed, international jurisprudence suggests that Vanuatu

could make a claim against any one wrongdoing State or against several States, as long as the

judgment does not affect the interests of a third State not party to the proceedings.61 The

implication is that Vanuatu could claim against States in breach of their obligations under the

UNFCCC or their reduction obligations under the Kyoto Protocol to the UNFCCC (‘Kyoto

Protocol’), where ‘[t]he breach of the obligation would itself constitute the required fault and no

further negligence needs to be shown.62 This makes it unnecessary to ‘apportion’ responsibility –

Vanuatu could just pick one obvious culprit and let that State sue others if it is found responsible,

or Vanuatu could claim against all States that appear to be in breach of their obligations.

Attributing activities to a State

After identifying the State to sue, the next step is for Vanuatu to attribute activities to the State.

Chapter II of the ARS (Articles 4 – 11) provides the circumstances in which activities can be

attributed to a State.63 In relation to cases concerning climate change damage being mostly the

acts of those of private corporations and individuals, Article 8 of ASR provides that ‘the conduct

of a person or group of persons shall be considered an act of a State…if the person or group of

persons is in fact acting on the instructions of, or under the

Human Rights and Climate Change Law: Added Value to Pacific Island States

Abstract