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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
Loss and Damage from Climate Change
Concepts, Methods and Policy Options
- Title
- Loss and Damage from Climate Change
- Subtitle
- Concepts, Methods and Policy Options
- Authors
- Reinhard Mechler
- Laurens M. Bouwer
- Thomas Schinko
- Swenja Surminski
- JoAnne Linnerooth-Bayer
- Publisher
- Springer Open
- Date
- 2019
- Language
- English
- License
- CC BY 4.0
- ISBN
- 978-3-319-72026-5
- Size
- 16.0 x 24.0 cm
- Pages
- 580
- Keywords
- Environment, Climate change, Environmental law, Environmental policy, Risk management
- Categories
- International
- Naturwissenschaften Umwelt und Klima