The Positive Obligation to Prevent Climate Harm Under the Law of State Responsibility

• Author: Agnes Chong
• Position: PhD, LLM, BA. Assistant Professor, The Chinese University of Hong Kong
• Pages: 275-302

The Positive Obligation to Prevent Climate Harm

Under the Law of State Responsibility

AGNES CHONG*

ABSTRACT

This Article analyses the positive obligation under the law of state responsi-

bility to mitigate climate change harm and the evolving regime of environment-

based human rights cases in progressing the overall climate regime. State

responsibility can be a powerful means for states to hold other states accounta-

ble for causing transboundary environmental harm. Where a violation of the

obligations can be established, states bear liability for their wrongdoing. The

idea that wrongdoing should be met with reparation or some other recourse is

an important attribute of the legal order with the potential to affect climate

behaviour. The challenges in establishing a primary obligation to mitigate cli-

mate change damage due to the soft, open-ended and flexible nature of the cli-

mate regime imply that there are limits in international law as a means of

recourse for climate change damage. However, the content of these soft and

hard provisions within the climate regime informs the requisite standard of due

diligence, which entails the taking of all appropriate measures to prevent the

risk of damage where there are reasonable indications of potential risks of climate

damage. A growing number of environment-based human rights cases in regional

and domestic fora are representing emerging norms on how climate change pre-

vention rules and principles are applied. The developing international jurispru-

dence informs the parameters of the obligation and the trend of climate change

affecting human rights, which may further inform the content of the obligation.

There has yet to be a climate-related case decided under international law. This

Article argues that, in light of the burgeoning trend of domestic and regional cli-

mate litigation cases reflecting international norms and standards, climate cases

can be litigated in an international court or tribunal.

TABLE OF CONTENTS

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 276

I. The Primary Obligation Under State Responsibility . . . . . . . . . . . . . . . . 276

II. State Responsibility for Climate Change Damage . . . . . . . . . . . . . . . . . 280

* PhD, LLM, BA. Assistant Professor, The Chinese University of Hong Kong. © 2022, Agnes

Chong.

275

A. Customary Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282

B. Due Diligence and Precaution: Standard of Precaution. . . . . . . . . . 285

III. Limits of The State Responsibility Regime . . . . . . . . . . . . . . . . . . . . . . 287

A. Pollution Control and Prevention . . . . . . . . . . . . . . . . . . . . . . . . . 288

B. Due Diligence Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 289

C. Significant Harm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290

D. Climate Change is a Global Issue . . . . . . . . . . . . . . . . . . . . . . . . . 292

IV. The Climate Problem and Interaction Between Human Rights and Climate

Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 294

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300

INTRODUCTION

This Article examines the growing body of international jurisprudence illus-

trating the evolved nature of the positive obligation to mitigate climate damage

as a result of developed customary rules, principles and norms of general interna-

tional law outside of climate treaties. Following this introduction, there are four

Parts: (i) a discussion on the primary obligation under state responsibility that

provides a theoretical discussion of the framework of the primary obligation and

highlights the features of the responsibility regime that permit and reflect devel-

opments in the law; (ii) an overview of the regime of state responsibility on cli-

mate change damage highlighting the limitations of climate treaties used as a

basis of litigation but noting that climate treaties inform the standards within the

positive obligation that complement the evolved obligation within customary

international law; (iii) a discussion on the limits of the state responsibility on cli-

mate change damage in preventing actual harm; and (iv) a discussion on how the

climate change problem’s effect on human rights highlights the interaction

between human rights and climate change regimes and their respective relation-

ships with one another in affecting the progressive development of the climate

regime.

I. THE PRIMARY OBLIGATION UNDER STATE RESPONSIBILITY

The law of state responsibility reflects the workings of the international legal

system, which is centred on states making international law and states being held

accountable for complying with their international obligations.

1

The law of state

responsibility addresses the legal consequences of internationally wrongful acts.

2

As a fundamental principle of international law, state responsibility is concerned

with the liability for conduct that is in breach of an obligation imposed by the

1. Edith Brown Weiss, Invoking State Responsibility in the Twenty-First Century, 96 AM. J. INT’L L.

798, 798–99 (2002); Report of the International Law Commission on the Work of Its Fifty-third Session,

56 UN GAOR, Supp. No. 10, at 2, UN Doc. A/56/10 (2001), corrected in UN Doc. A/56/49 (2005), Int.

Law Comm.

2. Report of the International Law Commission on the Work of Its Fifty-third Session, supra note 1.

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