State Responsibility for Climate Change after the Paris Agreement

By Maria-Konstantina (Mariadina) Lili-Kokkori, researcher of the unit «International & European Law»

Introduction

This paper attempts to show that international law is ill equipped when confronted with a complex situation, such as compensation for climate change damages. Vague primary rules, multiplicity of actors, different types of damages, withdrawal from treaties by state parties and non-linear causation all pose significant challenges to the traditional law on State responsibility for climate change damages.

1. The legal framework of climate change

The field of the international climate change law emerged and evolved rapidly.(1) Although international climate change law is based on the international environmental law, namely the international law of state responsibility,(2) the international treaties concerning transboundary air pollution,(3) and other principles under the international environmental and the customary law,(4) the international community identified the global problem and developed a framework treaty with its own identity, and then a Protocol and an Agreement to define and implement the aspects of the global response to the climate change problem. Additionally, each state party developed domestic laws and regulations to correspond to this response.

The first phase of the climate change regime ran from 1990-1995 and involved the negotiation, adoption, and entry into force of the United Nations Framework Convention on Climate Change (hereinafter referred to as UNFCCC).(5) It provides for stabilizations of greenhouse gas emissions in the atmosphere,(6) establishes a normative framework that supports ethical grounds for decision-making,(7) the principle of precaution(8) and the principle of the Rio Declaration.(9)

The second phase occupied the decade from 1995-2004, from the initiation of the Kyoto Protocol negotiations(10) and up to its entry into force. The Kyoto Protocol is a treaty that serves legally binding obligations for the developed countries regarding the emission reduction goals, provides mitigation tools and generally adds further contour in the legal framework under the UNFCCC.

Given that the Kyoto Protocol could not meet the ‘ultimate objective’ of stabilizing GHG concentrations ‘at a level that would prevent dangerous anthropogenic interference with the climate system’,(11) there was a need to establish soon a new, binding and comprehensive agreement. The Paris Agreement represents the culmination of the third phase of the United Nations climate change regime, which currently focuses on developing a more global approach, which limits the greenhouse gas emissions of all countries, not only the developed countries, but the developing as well.(12)

2. The engagement of state responsibility under the ILC articles

One of the fundamental principles of international law is that States must not harm or violate the rights of other States.(13),(14) Whenever one State commits an unlawful act towards another state, entails its international responsibility.(15),(16) According to the Art.2 of the ILC’s Articles on Responsibility of States for Internationally Wrongful Acts (hereinafter referred to as ILC Articles or ARSIWA),(17) the elements of suh responsibility are the attribution of an act or omission to the state and the failure of the latter to fulfil an international obligation.(18),(19)

A case in which the unlawful act of a State consisted of an omission is the Corfu Channel case(20) and the United States Diplomatic and Consular Staff in Tehran case,(21)  where the Islamic Republic of Iran, as previously mentioned, was held responsible for inaction consisting of the failure to take appropriate steps. States are responsible for breaches of their obligations and shall compensate affected states for any damage caused by their violation of international law. This rule forms the basis of the law of state responsibility, and has been made clear through a number of cases.(22),(23)

The first consequence regarding the state responsibility for a wrongful act is an obligation for the responsible state to cease this act.(24),(25) Secondly, is the obligation to make full reparation for the injury(26) caused by the internationally wrongful act, regarding the Article 31 of the ILC Articles.(27) According to Article 34 of the ILC Articles, full reparation can take the form of restitution, compensation and satisfaction, either separately or in combination.(28)

III. Applicability of state responsibility related to climate change damages

In the area of climate change we will first examine the primary obligations that arise from the Paris Agreement, and then we will continue with the obligations that arise from the general international environmental and customary law.(29)

1. Primary obligations to prevent harm under the climate change regime

1.1 Obligations under the Paris Agreement

In order to further study the primary obligations that arise from the Paris Agreement, we must first examine the legal character or this Agreement, and then the binding and non-binding obligations that arise from it. We then have to examine some issues separately;

First, the Paris Agreement is a treaty within the meaning of the Vienna Convention on the Law of the Treaties (hereinafter referred to as VCLT). This is expressing by the provisions of the consent to be bound,(30) the minimum requirements for entry into force,(31) the reservations, the withdrawal, and who will serve as depositary.(32) Second, the binding character of the provisions depends on the wording,(33) namely the use of shall or should.(34) Third, it is correct that a norm has to be precise, in order to constrain behaviour. But legally binding norms can be very vague, while non-legal ones can be quite precise and therefore the constraining force of precision is different from the constraining force of law. Fourth, the legal status of the Agreement does not depend on whether there is any court or tribunal with jurisdiction to apply it.(35) The Paris Agreement can be applied by domestic courts but this may vary from country to country, depending on the country’s doctrines regarding judicial application of treaties. Fifth, the legal form is different from that of enforcement which consists of measures and sanctions to induce compliance.(36) Enforcement does not depend on the legal form, since non-legal norms can also be enforced through the application of sanctions. Sixth, to promote accountability, there is also the system of transparency and review: on the one hand, the provisions need not be included in legal instruments or apply to legally binding norms; on the other hand, they can be included in non-legal instruments or apply to non-legal norms. Finally, in domestic legal systems, the elements of legal form, judicial application and enforcement often go together. This is common the same internationally. Many international legal agreements provide no mechanisms for judicial application and little enforcement.

The Paris Agreement contains binding and non-binding provisions regarding the mitigation commitments of the parties, and the commitments of adaptation and finance. However, the legally binding character of the Paris Agreement and its provisions does not really matters. It is true that it can provide a better signal of commitment and greater assurance of compliance. But transparency, accountability and precision can also make a significant difference, and legal bindingness can be a double-edged sword, if it leads States not to participate or to make less ambitious commitments. Thus, the issue of legal character, though important, is only one factor in assessing the significance of the Paris outcome.

The Paris Agreement’s architecture is based on defining its overarching purpose,  then creating a general obligation on parties to make efforts towards this purpose,  and elaborating this general obligation in specific thematic provisions. This general obligation establishes a link between the Agreement’s purpose in Article 2 and specific obligations in other articles. It serves core obligations for all parties.

Few provisions of the Paris Agreement are prescriptive and create precise legal obligations, and these are primarily procedural and focused on ‘nationally determined contributions-NDCs’ (on mitigation) and a core transparency framework, plus collective obligations regarding finance. The Paris Agreement uses a broad range of wordings and qualifiers, which give parties more or less flexibility or discretion regarding whether and how to implement its provisions.  The provisions tend towards ‘obligations of conduct’, which are qualified in a number of ways. The obligations relating to finance are generally more strongly bifurcated between developed and developing countries than the other sections.

Finally, most of the provisions provide recommendations and expectations for the state parties.(37) On the contrary, in the Paris Agreement there are mandatory provisions but they do not have a collective or individual subject.(38)

1.2 Obligations under the international environmental and customary law

The primary obligations of interest are Arts. 4.2 and 4.4 of the UNFCCC, the emission reduction targets set under the Kyoto Protocol and the customary law obligation of no-harm. The central commitments under the UNFCCC are established in Article 4 and differ in extent among the Parties. Most importantly, developed countries are obliged to assist the vulnerable developing countries,(39)  and UNFCCC also commits developed countries to limit their anthropogenic emissions of greenhouse gases in article 4.2(a) UNFCCC.(40)

1.3 Climate change damages

Both state practice and legal scholars agree that not all types of damage must be prevented, only significant(41) or even serious damage.(42)  Significant can be defined as “something more than detectable but not at the level of serious or substantial”.(43)  In this understanding the duty to prevent transboundary harm must entail a de minimis threshold. These thresholds are seen to be able to trigger the rule as a prevention duty.(44) Without any quality standards, it is difficult to determine the tolerable level.(45)  However, there is no established international standard that specifies what kind of environmental damage can entail responsibility.(46) Most types of damages have to be tolerated to a certain extent; other damages will have a lower threshold. At the same time there is support for the view that radiation should not have to be tolerated at any level, since there are no safe levels of radiation.(47)

With respect to the application of the rule to risk, it seems that, in cases where the likelihood of concrete risk turning into damage is small, the expected damage must be massive to trigger the prevention duty. This would apply mostly to accidental pollution. If the risk of damage occurring is high, the expected damage can be smaller.(48) This situation applies to the impacts of climate change. As the projections of the IPCC show, it is almost certain that damage will occur on the territory of various States. The IPCC Fourth Assessment Report shows that the impacts of climate change entail significant damages to the environment, caused by landslides, droughts, floods, storms, sea level rise, etc., and to human health and property. It is, therefore, submitted that almost all injury expected from and already resulting from climate change is more than de minimis or insignificant.

2. Attribution of conduct – Failing to act with due diligence

To establish State responsibility for climate change damages, it is necessary to assess a State’s behaviour of a private actors’ behaviour which is attributable to the state. In this regard, the concept of due diligence – or standard of care – needs to be evoked as a test to evaluate the conduct that is required.(49)

The significant question, though, is how to determine due diligence giving that case law, state practice and scholars do not give specific answers. The term “due diligence” gives a legal meaning to states’ activities and risks. ILC also provides that a state must take measures to prevent transboundary harm and to eliminate it. In terms of preventing climate change damages, acting with due diligence requires that climate policies and respective regulations are in place, which aim at reversing the trend of ever increasing GHG emissions. The elements that define the standard of care are: (i) opportunity to act or prevent, which requires a State to do the best it can in reducing the risks that result from climate change,(50) and requires each State to substantially reduce its emissions of greenhouse gases, and this gives the opportunity to each state to act;(51) (ii) foreseeability of harm, given that a proper link between the omitted activity and the injurious consequences can be established if the State “actually knew or foresaw or ought to have known or foreseen that (its) individual conduct was or would be part of a composite cause bringing about inadmissible harm(52) and (iii) proportionality of the choice of measures to prevent harm or to minimize risk, which depends on the specific facts of a case. However, the damage likely to be caused by climate change could result in the loss of land, damage to peoples, health and property and potential casualties. Not all States have the same abilities and capacities to reduce the amount of their GHG emissions.(53)

3. Challenges in allocating state responsibility

The law on State responsibility is well developed in general, but it is ill equipped to address environmental damage.  There are certain characteristics of environmental damage, such as the complex causal mechanisms behind it, and it often involving multiple and cumulative causation, which make environmental damage ill-suited to traditional regime. The most obvious challenges are to examine the multiplicity of actors responsible for the climate change damages,(54) the determination of causality(55) and the withdrawal from treaties by state parties.(56)

4. The legal consequences

The legal consequence when a state is responsible for the breach is that the primary obligation not to cause harm persists.(57)  Also, the state is obliged to cease the harm,(58) i.e by regulating effective reduction gas emissions, and to make full reparation for the injury that it has caused.(59) There are challenges regarding the climate change damages, due to the impossibility to restore the situation ex ante. The particular challenges are: (a) assessment of environmental harm, (b) contribution to the injury and (c) apportioning of damages.

Environmental harm means damage, moral or material. In climate change damage, material damage will be easier to define and compensate than any other ecological damage, which is more difficult to measure and restored.(60)  The second challenge is the contribution to the injury. In the climate change damages, the claimant state will have contributed to the injury as well, so the extent of reparation has to be adjusted accordingly.(61) This contribution may limit the legal consequences arising from the injury.

Finally, the third challenge is the uncertainty as to the allocation of costs. Climate change damages are the result of a multitude of emitters, emitting activities and emitted gases. It is, thus, evident that the question of how to divide responsibility needs to be addressed. The challenge arising here is that Article 47 is not applied to instances where several States independently commit acts that contribute to an indivisible harm, as in the instance of climate change damage. In common and civil law the principle of joint and several liability is recognized in these instances. In international law, however, the application of this principle by analogy is difficult.(62)

Conclusion

To conclude, it should be mentioned that the law of State responsibility could provide important guidance for the development of the international regime on climate change. The failure of many States, the developed ones in particular, to prevent excessive per capita emissions causing harm to global atmospheric commons constitutes arguably a breach of an obligation arising from the no-harm principle.

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References

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2. Trail Smelter Arbitral Tribunal Decision (United States v. Canada), 11 March 1941, Ad Hoc International Arbitral Tribunal, 3 UN Rep. Int. Awards 1911, 1938 (1941)).
3. Eg. Convention on Long Term Transboundary Air Pollution (Geneva, 13 November 1979), UKTS 57, (1983), Cmd. 9034, TIAS No 10521, 18 ILM 1442 (1979).
4. The polluter pays principle, common but differentiated responsibility, no harm principle etc. All these principles are reflected in the UNFCCC, the Kyoto Protocol and the Paris Agreement.
5. UN General Assembly, United Nations Framework Convention on Climate Change: resolution/adopted by the General Assembly, 20 January 1994, A/RES/48/189, available here. [last accessed 5 November 2018].
6. UN General Assembly, United Nations Framework Convention on Climate Change: resolution / adopted by the General Assembly, 20 January 1994, A/RES/48/189, available here. [last accessed 5 November 2018]., Art. 2.
7. The UNFCCC sets out the principle of Common But Differentiated Responsibilities (CBDR). See UNFCCC, Art. 3(1).
8. UN General Assembly, United Nations Framework Convention on Climate Change: resolution / adopted by the General Assembly, 20 January 1994, A/RES/48/189, available here. [last accessed 5 November 2018]., Art. 3(3).
9. Rio Declaration on Environment and Development, (1992) 31 ILM 876. See UNFCCC, Preamble.
10. Kyoto Protocol, UN General Assembly, United Nations Framework Convention on Climate Change: resolution / adopted by the General Assembly, 20 January 1994, A/RES/48/189, available here. [last accessed 8 November 2018].
11. UNFCCC, Art.2. See also, Oppenheimer Michael and Petsnok Annie, Article 2 of the UNFCCC: Historical Origins, Recent Interpretations, Climate Change, Vol 73, 2005, p. 2.
12. Paris Agreement, (Paris, 12 December 2015), Art. 2.2.
13. Tol Richard S. J. & Verheyen Roda, State responsibility and compensation for climate change damages – a legal and economic assessment, Energy Policy (32, 2004) p. 1110.
14. See generally J. Crawford, State Responsibility: The General Part, Cambridge, 2013; The Law of International Responsibility (eds. J. Crawford, A. Pellet and S. Olleson), Oxford, 2010.
15. Shaw Malcolm, International Law, Cambridge University Press, 2017, p. 589.
16. The International Law Commission (ILC), has developed a clear model as to the origin for the responsibility of the internationally wrongful act.
17. International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, Supplement No. 10 (A/56/10), chp.IV.E.1, available here. [last accessed 30 October 2018]. & 17. Shaw Malcolm, International Law, Cambridge University Press, 2017, p. 591.
18. Yearbook., ILC, 1970, vol. II, p. 187; Phosphates in Morocco, Judgment, 1938, PCIJ, Series A/B No. 74, p. 28.
19. See the Corfu Channel case (United Kingdom v. Albania), Judgment of April 9th, 1949, I.C.J. Reports 1949, p.4, in which Albania was held responsible for the damage caused to two British destroyers when they struck mines in Albanian territorial waters, despite the mines not having been placed there by Albania. The ICJ concluded that it was sufficient that Albania knew, or must have known, of the existence of the mines without alerting third States.
20. See the United States Diplomatic and Consular Staff in Tehran case (USA v. Iran), Judgment, I.C.J. Reports 1980, p. 3. The Court held the Islamic Republic of Iran responsible for failure to take appropriate steps to protect the United States Embassy and its diplomatic and consular staff from the actions of the militant revolutionaries, not for the actual occupation of the Embassy and the taking of hostages itself.
21. See the Factory Chorzow case, PCIJ, Series A, No.17, 1928, p.29, where the Permanent Court of International Justice (PCIJ) said that “it is a principle of international law and even a greater conception of law, that any breach of an engagement involves an obligation to make reparation”.
22. The elements of attribution and breach of obligation were clearly expressed by the PCIJ. See the Phosphates in Morocco case, Judgment, 1938, PCIJ, Series A/B No. 74, in which the Court linked the determining of international responsibility with the existence of an “act being attributable to the State and described as contrary to the treaty right of another State.
23. Shaw Malcolm, International Law, Cambridge University Press, 2017, p. 606. See also ILC, 2001, Article 30 (Cessation and non-repetition) of Draft Articles on State Responsibility: “The State responsible for the internationally wrongful act is under an obligation: (a) to cease that act, if it is continuing; (b) to offer appropriate assurances and guarantees of non-repetition, if circumstances so require.’’
24. See also Corten O, “The obligation of cessation”, in Law of International Responsibility, YEAR, p. 545, and Crawford, State Responsibility, YEAR, p.464.
25. Injury includes any damage, whether material or moral, caused by the internationally wrongful act. 26. Shaw Malcolm, The International Law, Cambridge University Press, Eighth Edition, 2017, p. 607. The obligation to make compensation is, however, limited to financially assessable damage. Report of the ILC, UN doc. A/56/10, 2001, p. 99.
26. ARSIWA, Article 31 (reparation).
27. See the Pulp Mills case (Argentina v. Uruguay), ICJ Reports, 2010, pp. 14, 103-104; See the Gabčíkovo-Nagymaros Project case (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, para. 152; See the I’m Alone case, 3 RIAA, p. 1609 (1935).
28. Kysar Douglas adds that “a primary obligation refers to the positive law that is being breached, or the substantive obligations of States in the subject areas of international law: for instance, a failure to comply with the provisions of the UNFCCC by a signatory state; or a breach of the transboundary harm principle.” See Kysar Douglas, Douglas A., Climate Change and the International Court of Justice: Seeking an Advisory Opinion on Transboundary Harm from the Court (August 14, 2013). Yale Law School, Public Law Research Paper No. 31 (Kysar) and Press Conference on Request for International Court of Justice Advisory Opinion on Climate Change (3 February 2012) available here. [last accessed 6 November 2018], See also here. [last accessed 6 November 2018]
29. Through ratification, accession, acceptance, or approval, Paris Agreement, Art. 20.
30. This is acceptance by 55 States representing 55% of global greenhouse gas emissions, Paris Agreement, Art. 21.1.
31. Τhis will be the United Nations, Paris Agreement, Art. 26.
32. Bodansky Daniel, The Paris Climate Change Agreement: A new Hope?, American Journal of International Law, vol. 110(2), 2016., p.288-319.
33. The legal character of a provision depends on a range of factors including location (where the provision occurs), subjects (who the provision addresses), normative content (what requirements, obligations or standards the provision contains), language (whether the provision uses mandatory or recommendatory language), precision (whether the provision uses contextual, qualifying or discretionary clauses), and oversight (what institutional mechanisms exist for transparency, accountability, and compliance). See generally, Rajamani Lavanya, The 2015 Paris Agreement: Interplay between Hard, Soft and Nonobligations, Journal of Environmental Law, 2016 p. 342. See also Werksman Jake, Legal Symmetry and Legal Differentiation Under a Future Deal on Climate, 2010, 10(6) Climate Policy 672; Werksman Jake, The Legal Character of International Environmental Obligations in the Wake of the Paris Climate Change Agreement, Brodies Environmental Law Lecture Series, 2016; Bodansky Daniel, The Legal Character of the Paris Agreement, 2016, 25(2) Review of European, Comparative and International Law 142; and Kenneth W Abbott, Robert O Keohane, Andrew Moravcsik, Anne- Marie Slaughter, and Duncan Snidal, The Concept of Legalization, 2000, 54(3) International Organization 401.
34. Falk Richard, Voluntary International Law and the Paris Agreement, 16 January 2016, found here. [last> accessed 10 November 2018] Along similar lines, Falk says that the Paris Agreement raises ‘serious questions as to whether anything at all had even been agreed’ and ‘went to great lengths to avoid obligating the parties’.
35. Abbott Kenneth and Snidal Duncan, Hard and Soft Law in International Governance, 54:3 International Organization, 2002, p. 421.
36. See e.g. Paris Agreement, (Paris, 12 December 2015), Arts. 7.2, 7.4, 7.5, 7.7, 7.10, 8.3, 9.2, 9.3, 10.5, 11.3, 13.10.
37. Paris Agreement, (Paris, 12 December 2015), Arts. 4.5, 7.13, 4.12, 7.12, 6.2, 6.5.
38. UNFCCC, Article 4.4, in accordance to which the developed country Parties and other Parties listed in Annex II are obliged to “assist the developing country Parties that are particularly vulnerable to the adverse effects of climate change in meeting costs of adaptation to those adverse effects”.
39. UNFCCC, Article 4.2, states that the developed country Parties and other Parties included in Annex I commit themselves to: “adopt national policies and take corresponding measures on the mitigation of climate change, by limiting its anthropogenic emissions of greenhouse gases and protecting and enhancing its greenhouse gas sinks and reservoirs”.
40. See 1978 UN General Assembly Resolution 2995 which prohibits “significant harmful effects” on other states when states utilize their natural resources. The ILC defined the term ‘significant damage’ by stating that this should mean something more than detectable or appreciable, but not necessarily serious or substantial.
41. Lac Lanoux Arbitration (France v. Spain) 24 ILR 101 (1957). Trail Smelter Arbitration (United States v. Canada) 16 April 1938, 11 March 1941, 3 RIAA 1907 (1941). In this dispute, a smelter located in Canada caused substantial pollution to US territory with black carbon and other aerosols. See Kuhn, the Trail Smelter Arbitration, 32 AJIL (1938) 785 and 35 AJIL (1941), 665; Read, The Trail Smelter Dispute, 1 CYIL (1963) 213.
42. The damage has been determined as significant which means that has a special meaning. The determination is set up In the Oxford Dictionary 2nd edition 1989.
43. See Rao, note 36, 30 and Report of the ILC, Official Records of the General Assembly. 51st session, Supp. 10 (UN Doc. /51/10), 259 f. as well as Rao (Special Rapporteur), 1st Report on the legal regime for allocation of loss in case of transboundary harm arising out of hazardous activities, ILC Doc. A/CN.4/531, August 2003 (55th ILC Session), 15. See also for further reference the commentary to Article 48 of the IUCN Draft International Covenant on Environment and Development, available here. [last accessed 14 November 2018]. This document is the product of an international consultation and codification effort of the International Law Centre, involving numerous international authorities on international environmental law.
44. Okowa Phoebe N, State Responsibility for Transboundary Air Pollution in International Law, Oxford, 2000, p. 88.
45. Sands Philippe, Principles of International Environmental Law, Cambridge, 2nd edition, 2003, p. 878.
46. Okowa Phoebe N, State Responsibility for Transboundary Air Pollution in International Law, Oxford, 2000, p. 88.
47. See Epiney Astrid, Das Verboterheblicher Grenzüberschreitender Umweltbeeinträchtigung: Relikt oder konkretisierungswürdige Grundnorm? 33 AVR (1995) 309 p.321.
48. This principle was applied in the Nauru case. The 1919 Nauru Agreement between Australia, New Zealand and the UK resulted in the destruction of land on Nauru due to the extraction of phosphate. The Agreement stated explicitly that the phosphate extraction by private business should be conducted without governmental intervention. This was conceived by the Court as an omission of using regulatory powers to prevent environmental degradation. Therefore, state responsibility (for Australia) would arise. Certain Phosphate Lands in Nauru ( Nauru v. Australia ) ICJ Reports 1992 p. 240.
49. This is in particular important with respect to cumulative pollution or environmental degradation based on the accumulation of certain behavior. It has been noted “If the application of the no-harm rule would depend on proof of the effectiveness of hypothetical measures taken by states, the norm could not be applied at all to complex environmental phenomena – yet, this is clearly not the position of international law.” Roda Verheyen, Climate Change Damage and International Law, Prevention duties and state responsibility, Martinus Nijhoff Publishers, 2005, p. 177.
50. Voigt Christina, State Responsibility for Climate Change Damages, 77 NORDIC J. INT’L LAW 1 (2008), p. 3.
51. ILA Report of the 64th conference (1990). See also the Portuguese Colonies case, the tribunal held that the test of foreseeability excludes losses that are “unconnected with the initial act … which could only have occurred with the help of causes that are independent of the author of the act”. Portuguese Colonies case (Portugal v. Germany) Award of 1928, II RIAA (1949) para. 1031.
52. See R. Lefeber, Transboundary Environmental Interference and the Origin of State Liability, (The Hague, Kluwer 1999) p. 65.
53. The multitude of actors and the multitude of injured are therefore no hindrance from claiming State responsibility from one, or several States within this aspect. See generally Report of the ILC, UN doc. A/56/10, 2001, p. 34, and Voigt Christina, State Responsibility for Climate Change Damages, 77 NORDIC J. INT’L LAW 1, 2008, p. 19.
54. Causation could be established on the sole basis of contribution to the problem of climate change by a specific actor. But this cannot be proven in cases where the damage is due to multiple emitters or the single emitter cannot be clear identified. For this reason, it has been established the ‘’but for test’’ or condition sine qua non mechanism, which is usually applied to establish causation but it is now of limited use in these conditions.
55. Ac critical moment under the Paris Agreement was the President Donald Trump’s announcement of withdrawal from the Agreement itself. While domestic law may freely empower the President to withdraw from treaties at will, under international law the President may be legally obligated to remain part of international environmental agreements. Regarding that, there is a conflict between the ability of the United States to withdraw from the Paris Agreement or UNFCCC under domestic versus international law. The impact of the Paris Agreement will undeniably change by President Trump’s withdrawal of U.S. involvement, but as an achievement of international law, it remains unshaken. See generally Daniel Boffey et al., EU to Bypass Trump Administration After Paris Climate Agreement Pullout, Guardian, June 2, 2017, available here. [last accessed 14 November 2018].
56. ARSIWA, Art. 29.
57. ARSIWA, Art. 30.
58. ARSIWA, Art. 31.
59. See generally M. Bowman and A. E. Boyle (eds.), Environmental Damage in International and
60. Comparative Law, Oxford University Press, 2002.
61. ARSIWA, Art. 39.
62. Ian Brownlie finds that the absence of State practice and ignorance in international law literature on this issue do not allow the consideration of joint and several liability as a principle of international law.