Clarifying the content of climate change mitigation obligations

 Posted by: Nedeski Nataša

On 27 September 2013, Dutch NGO Urgenda announced it will institute legal proceedings against the Dutch state in order to address its allegedly failing climate change policy. This announcement was made on the same day that Working Group I of the International Panel on Climate Change (IPCC) published its fifth report on climate change, concluding amongst others that scientists are 95 per cent certain that humans are the ‘dominant cause’ of global warming since the 1950s. Urgenda has published the draft court summons on its website (Dutch only), which may still be subject to revision. The final court summons will be presented to the Dutch state on 23 October 2013. Claimants will ask the Court:

1. To declare that the Netherlands would be acting wrongfully by not ensuring that Dutch greenhouse gas emissions are reduced by 25-40 per cent in 2020 compared to 1990 levels;
2. To order the Netherlands to ensure that Dutch greenhouse gas emissions are reduced by 25-4 per cent in 2020 compared to 1990 levels;
3. To order the Netherlands to inform its population about the risks of climate change.

Claimants do not argue that a wrongful act has already occurred as a result of the Dutch climate change policy, and do not (yet) claim compensation for harm arising from global climate change. Rather, they focus on the impending wrongful act under both Dutch law and international law that they believe is bound to ensue if the Netherlands does not alter its climate change policy in the near future. By taking a closer look at the arguments made by claimants, it will be illustrated that these legal proceedings may be seen as a call for the clarification of the content of climate change mitigation obligations, as well as a call for the fulfilment of said obligations.

Climate change mitigation is the archetype of a collective (in)action problem, requiring an aggregate effort of multiple actors. But as is the case with any collective action problem, it is the individual failure of individual actors that in the end facilitates a collective failure. Interestingly, in this case claimants focus specifically on the individual role of the Netherlands and the individual obligations incumbent upon it. By doing so they aim to preclude the Netherlands from hiding behind a potential collective failure.[1]

The existence of an (individual) obligation to contribute to preventing dangerous climate change

The main argument put forward by the claimants seems to be that the Netherlands is under an obligation to contribute to preventing dangerous climate change; the focus is placed on dangerous climate change only and not on the occurrence of climate change as such. Because states have generally endorsed the scientific view that the increase in average global temperature should not exceed 2°C in 2050 in order to prevent dangerous anthropogenic interference with the climate system (e.g. in the Copenhagen Accord and the Cancun Agreements), claimants define dangerous climate change as an increase in global temperature that exceeds 2°C.

Claimants argue that the Dutch contribution to dangerous climate change will constitute a wrongful act/tort under Dutch law as soon as such dangerous climate change materializes. They note that Dutch case-law has recognized that the emission of gases and substances can constitute a wrongful act/tort when adverse consequences arise for others as a result thereof. Claimants compare the Dutch contribution to global greenhouse gas emissions to the contribution of the French company Mines de Potasse d’Alsace (MDPA) to the overall salinity level of the river Rhine, which was the subject of the ‘Kalimijnen’ case before the Dutch Supreme Court (NJ 1989, 743). In this case, the Supreme Court considered that the MDPA was acting wrongfully towards Dutch cultivators that utilized the Rhine for the watering of their crops, despite the fact that the overall salinity level of the Rhine did not result solely from the company’s dumping of salts into the river but had additional (both natural and industrial) causes.[2] The question whether damage would have occurred also in the absence of dumping by the MDPA was deemed to be irrelevant, and the amount of compensation that it was ordered to pay was proportionate to its share in the total salinity of the river. By applying these considerations to the current case, claimants argue that the Netherlands will eventually be proportionately responsible for the harm arising from dangerous climate change and that it is therefore obliged to preventatively reduce its share in overall global emissions.

While claimants rely primarily on Dutch law, they refer to international law in order to further substantiate their claims. They refer to article 2 of the UN Framework Convention on Climate Change (UNFCC), which states that the ultimate objective of the UNFCC is to achieve ‘stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system’ and, in addition, argue that it follows from the no-harm rule in international law that states are obliged to take the necessary measures to prevent that emissions from their territory cause serious harm outside its territory (or in other words, contribute to dangerous climate change).[3]

Finally, claimants discuss the adverse effects of dangerous climate change on the enjoyment of human rights such as the right to life and the right to health, and argue that the Netherlands has the positive obligation to take the necessary measures to prevent violations of human rights law, by not contributing to dangerous climate change.[4]

In essence, all of these points come down to the argument that it follows from various obligations to prevent harm under both Dutch law and international law that the Netherlands is obliged to contribute to the prevention of serious harm arising from dangerous climate change.

The content of the individual obligation to contribute to preventing dangerous climate change

Generally, obligations to prevent harm from arising are considered to be obligations of conduct (or ‘due diligence obligations’) in the sense that it is not necessarily required for the fulfilment of such an obligation that the harm is in fact averted. Rather, it is required that all necessary measures within the duty-bearer’s power are taken to prevent that harm from occurring. Surely the Netherlands is not in the position to ensure that dangerous climate change will not occur by its individual conduct only. But then what is it that the Netherlands must do exactly in order to fulfil its individual obligation? Are current Dutch efforts at greenhouse gas emission reduction sufficient, or is the Netherlands legally obliged to do more? In other words, what should the Dutch share be in the reduction of global emissions?

The Netherlands has committed itself to reduce its emissions with 16 per cent by 2020 compared to levels in 1990. This target is derived from the European Union’s pledge to reduce its overall emissions with 20 per cent by 2020. However, according to the IPCC a reduction of 25-40 per cent by 2020 would be required of all developed states (classified as such by Annex I to the UNFCC) in order to have a 50 per cent chance at limiting global temperature rise to 2°C in 2050, and thus to have a real chance at preventing dangerous climate change. These calculations take into account the principle of common but differentiated responsibilities (CBDR), placing a heavier burden upon the shoulders of developed states. The claimants subscribe to the IPCC’s findings and use them to argue that the obligation to contribute to preventing dangerous climate change in both Dutch law and international law effectively entails that the Netherlands, as a developed state, is bound to ensure that its emissions are reduced with 25-40 per cent by 2020.[5] Whereas obligations to prevent harm are generally considered to be obligations of conduct, this specific obligation might better be qualified as an obligation of result. Even though the prevention of climate change as such is not required for the fulfilment of this obligation, it does require the achievement of a very clear result: an emission reduction of 25-40 per cent by 2020.

It is generally accepted that there exists an obligation to prevent serious environmental (transboundary) harm in international law and that climate change can indeed cause such harm. As collective action is required in order to have a real chance at preventing dangerous climate change, it seems that individual states can do no more than contribute to this prevention. Even if we accept that these individual obligations constitute obligations of result the key question remains: which state is bound to achieve what (individual) result? While some indeed argue that an answer to this question must be informed by the CBDR principle, others have expressed doubts as to the extent in which this principle should guide the distribution of climate change mitigation obligations (the latter doubts may be supported by a recent report published in Climate Change, which reveals that developed states may not bear the overwhelming responsibility for climate change). In this regard, one might agree with the claimants at the very least on the point that uncertainties with regard to the content of individual obligations may eventually allow states to hide behind a collective failure.

It is for this reason that the question key to Palau’s campaign to secure an advisory opinion from the International Court of Justice (ICJ) on climate change focuses on clarifying the content of individual climate change mitigation obligations:

What are the obligations under international law of a State for ensuring that activities under its jurisdiction or control that emit greenhouse gases do not cause, or substantially contribute to, serious damage to another State or States?

In the face of the imminent risks posed by climate change, an answer to this question by the ICJ would be a more than welcome step. Unfortunately, two years after Palau announced its plans to seek an advisory opinion, the issue has not been put to the vote before the General Assembly and it seems that Palau’s campaign has not (yet) garnered sufficient support amongst states. Interestingly, it now seems that domestic courts might have a role to play in contributing to the clarification of the content of climate change mitigation obligations.

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[1] See para. 119 and para. 162 of the draft court summons.

[2] See paras. 165-171.

[3] See paras. 203-214.

[4] See paras. 215-236.

[5] See paras. 130-141.

Sharing Risks, Sharing Liability: Environmental and Health Risks of the Destruction of Syrian Chemical Weapons

 Posted by: Nollkaemper André

On 11 October 2013, the UN Security Council authorised the establishment of a Joint Mission of the Organisation for the Prohibition of Chemical Weapons (OPCW) and the United Nations (UN) to oversee the destruction of Syria’s chemical weapons. The Council endorsed the proposal formulated by Ban Ki-moon in a letter to the Council of 7 October (S/2013/591), pursuant to a request by the Security Council in Resolution 2118 (2013).

While all attention now focusses on the completion of the Joint Mission’s goal (the elimination of Syrian chemical weapons), it is not too early to plan for contingencies. The destruction of the chemical weapons will entail significant risks for the environment and human health. These risks will arise in particular in the third phase of the Mission. As outlined in Ban Ki-moon’s letter of 7 October, from 1 November 2013 to 30 June 2014, the Joint Mission is envisaged to support, monitor and verify the destruction of a complex chemical weapons programme involving multiple sites spread over Syria which by then is likely to be still engulfed in violent conflict. This involves approximately 1,000 metric tons of chemical weapons, agents and precursors that are dangerous to handle, transport and to destroy.

Even in normal situations, destruction of chemical weapons is a high-risk undertaking. The OPCW is mindful of environmental and health risks of such destruction, see for instance here. In Syria the risks surely are higher than normal. The time period is shorter than what otherwise would be allowed under the Convention, and the context will be incomparably less secure than any other instance in which chemical weapons have been destroyed. As Ban Ki-moon wrote in his letter of 7 October, ‘During phase III, the OPCW/United Nations Joint Mission will seek to conduct an operation the likes of which, quite simply, has never been tried before.’ He recognised that ‘In the extant circumstances, the pressures associated with the destruction timelines will not only enhance operational and security risks, but also potential public health and environmental risks.’

In this situation, it has to be considered what will be the legal consequences when things do not go according to plan, and harm to human health or the environment results. In particular, who would be liable (a term more appropriate here than responsibility, in view of the fact that major harm could be caused even if no wrongful act may be committed under international law) for such harm?

The Chemical Weapons Convention does not include a provision on liability for harm resulting from the destruction of chemical weapons. But it seems clear that if a state destroys its chemicals weapons and harm to public health or the environment occurs, it is exclusively that state (and not, for instance, the OPCW) that would be confronted with any legal consequences of such harm. Depending on the circumstances, the state may then be responsible towards other state parties (for instance if it failed to set or enforce proper standards as required by the Convention), or towards injured individuals (possibly under human rights law, if no proper precautions were taken). It also may be liable for environmental harm – though it is not obvious that such liability will arise under international law, unless transboundary effects occur.

In the case of Syria, a different outcome seems justified. While much will depend on the circumstances in which harm may occur, it is a compelling proposition that it should not necessarily be only Syria that has to face the legal consequences of such harm.

This proposition can be grounded on the fact that the OPCW Executive Council and the Security Council have pushed Syria (respectively in a decision of the OPCW Executive Council of 27 September, and in Security Council Resolution 2118 which endorses this decision) to engage in the destruction of chemical weapons in a time-frame that is shorter than what is prescribed by the Convention, and that would have to occur in a volatile situation in which no other state would ever think of engaging in such high risk activities.

In the published documents there is nothing to suggest that the OPCW and/or the UN would assume (co-)liability if things would go wrong. The proposal by the UN Secretary-General that is now endorsed by the Security Council maintains that ‘all destruction of chemical weapons facilities, stocks and associated material is the responsibility of the Government of the Syrian Arab Republic. Neither OPCW nor the United Nations is mandated to conduct actual destruction activities’. The suggestion appears to be that, as in normal times of peace, only the state actually carrying out the destruction will be liable if things go wrong.

In view of the role of the OPCW Executive Council and the UN Security Council in the process that Syria is now embarking on, as a general proposition this outcome seems unreasonable. Pushing a state into actions that in all other situations would be considered unsuitable, even if the aim is a noble one, should come with some responsibility if things go wrong.

Such a potential (co-)liability does not obviously flow from existing rules of international law. In the case of environmental harm it may be doubtful whether an obligation binding on the OPCW or the UN can be identified that would allow for a construction of a wrongful act. Moreover, the conditions of the principles on responsibility of international organisations adopted by the International Law Commission, in particular those pertaining to aid or assistance, direction and control, coercion, and circumvention (Articles 14-17) appear to be set too high to be relevant here. In any case they are unhelpful in situations where the problem appears more one of engaging in high-risk activities than of wilful commission of wrongs.

In fact, the proper ground of liability for environmental harm or harm to human health may not so much lie in the law of international responsibility for wrongful acts, but rather in the notion of liability for harm arising out of hazardous activities. The principles that the ILC drafted on this topic only apply to states, and surely there is insufficient practice to warrant the development of similar rules for international organisations. But in particular situations, the principle that an actor that creates a risk of harm by engaging in a hazardous activity should bear (part of) the loss is a sound starting point. Other than with states, for international organisations there is no reason to limit such a principle to transboundary situations. Nor is there any ground to shift liability to private operators. Liability is to be taken by those who contribute significantly to the risk – in this case a combination of Syria, the UN and the OPCW.

While thus neither the principles on responsibility for wrongdoing nor those on liability for creation of risks would easily support a (co)liability of international organisations, the question is whether the UN and the OPCW should profit from gaps in international law, so as to enable them to leaving it to Syria alone to face the consequences of risks that the UN and the OPCW, jointly with Syria, have created. A lesson from the fate of recent liability claims against the UN, for instance in the case of Haiti or Srebrenica, is that it is not necessarily a recommendable strategy for the UN (and the same would hold for the OPCW) to exploit all legal avenues so as to secure that others have to deal with the legal consequences of events in which the UN had a decisive role. While we have to come to accept that for states it is normal to seek gaps in the law to prevent claims, from the UN something more is to be expected.

Three additional points should be noted. First, the question can be asked whether there also may be a potential co-liability of the UN and the OPCW as a result of the acts of the Joint Mission itself. This appears unlikely. While the Joint Mission will play a critical role in guiding and overseeing the destruction, it is not easy to envisage a situation where environmental harm or harm to human health results from the acts of the Joint Mission itself. Theoretically interesting questions about the relationship between the jointness of the mission, and the shared nature of liability between the OPCW and the UN for conduct or omissions of the mission, are unlikely to become practically relevant (though it is not excluded that they arise).

Second, it may be said that the OPCW Council (and the Security Council afterwards) only have rubber stamped what the United States and the Russian Federation had agreed beforehand, and that any liability for high risks should be borne (also) by those states, rather than by the OPCW and the UN alone. As a matter of international law that argument is not an easy one, however. It certainly is not supported by the ILC Articles on the responsibility of international organisations. Again, the standards of the relevant Articles here (Articles 58-61) are high and not really applicable to what in essence is a situation of the creation of risks. It also can be said that the role of the United States and Russia was overtaken by later collective decisions in the Executive Council and the Security Council.

Third, it may be argued that any liability for the UN and the OPCW would not be appropriate should be rejected since it was Syria itself that has created the problem in the first place. The argument that for this reason is would be only for Syria to face the consequences is not compelling, however. The mere possession of chemical weapons by Syria was not a wrong. Its accession to the Convention would normally have given Syria a more flexible time period for destruction, were it not for the intervention by the OPCW Executive Council and the Security Council. The illegality of the use of the gas does not affect any questions of liability for destruction of the weapons.

In conclusion, then, it would seem a sound position that in the event that human health or environmental harm would occur, the UN and the OPCW should not leave all questions of liability to Syria. Given that the rules of international law as laid down in the ILC Articles on the responsibility of international organisations are unlikely to be of much help in construing a shared responsibility in the event that harm would occur, and in view of the absence of established principle on liability of international organisations, the sensible thing to do it to make proper arrangements in advance. One option may be to include this in the tripartite status-of-mission agreement between the UN, the OPCW and the Government of the Syrian Arab Republic, but there will be other options. It is not too late to make arrangements for a shared responsibility in the case of harm that reflects the unique shared nature of this operation.

The Charles Taylor Judgment: Disconnecting the Responsibilities of Presidents and States

 Posted by: Nollkaemper André

Initial comments on the judgment of the Special Court for Sierra Leone (SCSL) Appeals Chamber in the Charles Taylor case have focused on the rejection of the ‘specific direction’ standard in relation to complicity, and on the somewhat peculiar method for determining customary law (see Kevin Heller at Opinio Juris and Marko Milanovic at EJIL Talk). But there is more in the judgment that deserves our attention. Notably, the judgment exposes the disconnection of individual responsibility from state responsibility.

The relationship between these two forms of responsibility continues to bewilder courts and scholars alike. The judgment in the Taylor case adds to the complexity and confusion. For instance, both the judgments of the Trial Chamber and the Appeals Chamber include a rather peculiar discussion of the question whether the involvement of the state in extraterritorial crimes is an aggravating factor for individual responsibility, see Dov Jacobs’ comment on the judgment of the Trial Chamber and para. 683 of the judgment, where the Appeals Chamber answers this question in the negative.

Here I leave this particular question aside, and focus on two other issues: first, whether a determination of individual responsibility necessarily will trigger state responsibility, and second, whether individual responsibility can be established in isolation from state responsibility.

As to the first question, it is a fair assumption that when a president is individually responsible under international law, also the state, to which his or her acts can be attributed, can be held responsible. In principle the involvement of Charles Taylor with the atrocities in Sierra Leone indeed would seem to allow for a shared responsibility between Taylor and Liberia. Taylor’s individual responsibility may be complemented by responsibility of Liberia, based, for instance, on breach of the principle of non-intervention, or breach of obligations of international humanitarian law.

However, there is no perfect match between grounds of individual responsibility and grounds of state responsibility. One problem is that crimes against humanity do not always easily translate into grounds for state responsibility. The Taylor judgment exposes another potential gap. The Appeals Chamber affirmed that the actus reus of aiding and abetting liability under Article 6(1) of the SCSL Statute and customary international law is ‘that an accused’s acts and conduct of assistance, encouragement and/or moral support had a substantial effect on the commission of the crimes charged for which he is to be held responsible’ (para. 482). While the acts of Charles Taylor as president of Liberia are of course attributable to the state, the mere encouragement and/or moral support would not necessarily be wrongful for Liberia. While it is possible that a prohibition of encouragement or moral support can be construed as part of particular substantive obligations, general international law knows no responsibility for encouragement (or incitement), see e.g. the Commentary to what was then Article 27 (now Article 16 of the ILC Articles on State Responsibility. Something more – actual assistance – is required.

If I leave aside the possibility that particular substantive obligations encompass a prohibition of encouragement or moral support by states, it follows that a president can be individually responsible under international law, while that act under the standard of a ‘civil claim’ need not be wrongful for the state. A state then may encourage other states or non-state actors to engage in acts that result, for instance, in violations of human rights, without the responsibility of that state being engaged. This inference does not seem entirely baseless. Indeed, there appears to be substantial practice were such support has actually has been given, without this having led to claims of responsibility.

There may be grounds for reconsidering the rejection of incitement as a ground for responsibility in general international law. One (perhaps the main) reason why the ILC did not consider incitement as a ground for state responsibility was that in criminal law incitement ‘has its origin and justification in the psychological motives determining individual conduct, to which the motives of State conduct in international relations cannot be assimilated’ (para. 6 of the ILC Commentary to Article 27). That may be true for one state encouraging another state. But the argument does not hold when a state would encourage an individual. The law of state responsibility remains primarily focused on interstate responsibility and still needs to be adjusted if it is to apply to situations where states aid, assist or encourage individuals.

The second and more fundamental question raised by the judgments is whether, as suggested by the Appeals Chamber, individual responsibility can be established in isolation from state responsibility. Taylor’s Defence team argued that the fact that international law would not recognise state responsibility for the alleged crimes pleaded for a narrow construction of individual responsibility. It argued that the standard applied by the Trial Chamber (and upheld by the Appeals Chamber) was ‘so broad that it would in fact encompass actions that are today carried out by a great many States in relation to their assistance to rebel groups or to governments that are well known to be engaging in crimes of varying degrees of frequency…’. Such assistance, the Defense argued, ‘is going on in many other countries that are supported in some cases by the very sponsors of this Court’ (Defence Oral Argument on Appeal, Appeal transcript, p. 49896).

The Appeals Chamber in principle was right to reject this argument, leaving it to ‘those bodies and tribunals which properly have authority over States to interpret the law on state responsibility’ (para. 436). The development of a customary principle of individual responsibility is based on its own practice, and in principle is not affected by the practice pertaining to state responsibility – even when that practice condones encouragement. In this respect, the brief discussion by the Chamber on the question whether or not the factual assertions by the Defence on the practice of states were correct (para. 462) was not really relevant. Conversely, a very broad construction of individual responsibility for encouragement and moral support does not in itself mean that such encouragement or support is wrongful for the state. The statement by the Defence that ‘the law articulated by the Trial Chamber would in practice overturn the limits of State responsibility as established by the International Court of Justice’ (Taylor Appeal, paras. 388-393) therefore was beside the point.

Yet, the judgment raises a fundamental point. It calls into question one of the traditional justifications of individual responsibility of state officials. It has been said that criminal responsibility of individual state officials can be construed as a legal response to wrongful acts of states.[1] The argument then is that the denial of immunity of a president (a right that pertains to the state, not to the president himself) is justified by the fact that the state committed a (serious) wrongful act. Once it is accepted that a president can be individually responsible for acts that are not per se wrongful for the state, this argument collapses.

An alternative (and probably dominant) construction is that individual responsibility (and the accompanying lack of immunity) is the result of an autonomous development of principles of individual criminal responsibility, and does not need to be derived from responsibility of the state. It would seem that this was the approach of the SCSL. Yet, it remains conceptually problematic to disconnect the responsibility of a leader of a state, whose acts can only be explained by the fact that he acted for the state, entirely from the responsibility of the state itself, From a more practical perspective, one wonders how much support states will give to principles that will allow prosecution of presidents for acts that are perfectly normal (or at least lawful) for the state.

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[1] E.g. Pierre-Marie Dupuy, International Criminal Responsibility of the Individual and International Responsibility of the State, in Antonio Cassese, Paola Gaeta and John R.W.D. Jones (eds.), 2 The Rome Statute of the International Criminal Court: A Commentary (OUP, 2002) 1085, 1091.