Page - 197 - in Loss and Damage from Climate Change - Concepts, Methods and Policy Options

7 LegalResponses toClimateChange… 197 7.6 DiscussionandConclusions This chapter has given an overview over the potential remedies in law to L&D. National lawshavestarted toaddress this issue, includingpublic lawlitigationforc- ing governments to address L&D inmitigation and adaptation efforts and private law litigation trying to hold private actors responsible for excessive greenhouse gas emissions.Whilemost legal systems could theoretically be applied to exces- sive greenhouse gas emissions, their potential has not yet been fully recognisedby national courts.Themaincaveat is the reluctanceof courts todecideon something theyperceive as apolitical decision:whether these emissions are fallingwithin the competence of the court to decide. Human rights on the other hand do recognise their importance to thediscourserelatingtoL&D.However,conceptualweaknesses regardingtheirapplicationandenforcementmakethemanunlikelyforumtoaddress L&D. The enforcement of even these vague obligations is often reliant on their implementation innational lawsand, on the international level, of thepoliticalwill toexercisepressureonhighemittingstates. Wehavealso reviewed theapplicabilityof thecustomaryobligationnot tocause serious environmental harm to other states and the viability of the climate change treaties to address L&D.While the no-harm rule is generally accepted as binding in international law, it remains unclearwhether and, evenmore, how it applies to climate change. In the case of litigationbefore an international court or tribunal, it wouldbefacedwithamyriadof technicaldifficulties,not least the issueofcausality and the required diligence to prevent orminimise harm.Certainly, the obligations under theUNFCCC, theKyotoProtocoland theParisAgreementdonot replace the obligations under customary international law, but theymay shape the understand- ingofwhat is tobe considered as “best possible efforts” requiredunder customary internationallaw.Evenwhereaninternationalwrongfulactisconsidered,difficulties remain to determine the quantumof remedies. The breach of an obligation entails the obligation to cease thewrongful act, if it is continuing, and tomake good for damages it caused.However, how todisentangle the injury caused throughclimate change and the harm caused due to other socio-economic factors in the state con- cernedwill remain difficult. In any event, it is unlikely that such a casewould go beforeaninternationalcourtor tribunal,asstateswouldbereluctant toagreeto their jurisdiction. Treaties, on the other hand,mostly provide for the jurisdiction of an internationalcourtor tribunal.However, ithasbecomeclear in theirnegotiationhis- tory that statesare reluctant toaccept legal responsibility.They thus fail toestablish clear rulescanbebreachedbyparties. Table 7.1 summarises the common legal approaches to climate change induced losses anddamagesandshortlyhighlights themainchallenges to their efficacyand potential remedies to those challenges. The table is only supposed to serve as a potential startingpoint for further researchand innoway intends tobecompleteor perfect inanyway. While the previous analysis of the availablemeans to addressL&Dthrough the legalframeworkdoesnotseempromisingforrealchange,itisimportanttonoticethat