LIABILITY FOR TRANSBOUNDARY ENVIRONMENTAL HARM UNDER INTERNATIONAL ENVIRONMENTAL LAW: A ROBUST RESPONSE TO CLIMATE CHANGE

The seriousness of climate change and its adverse impacts continues to increase despite cooperative and preventive efforts under international law. This dissertation aims to advance a robust legal response to climate change by determining whether and how the concept of liability under international environmental law can be applied, implemented, and developed to redress climate change-induced environmental harm. To answer these research questions, this dissertation begins by thoroughly exploring the concept of liability for transboundary environmental harm. By analyzing and comparing various legal sources and practices, it clarifies the characteristics, normativity, content, and justification of liability for transboundary environmental harm. This dissertation then examines several human rights-based and tort-based climate change case law precedents to demonstrate the necessity and feasibility of invoking climate change liability claims and suggests several strategies for implementing and developing it in this context.

The term “liability,” as used in this dissertation, refers to situations where states have a duty to take reparatory measures to victims for significant transboundary environmental harm that can arise from hazardous activities carried out under their jurisdiction, irrespective of the unlawfulness of those activities under international law, with the ability to channel and allocate that duty to operators, other persons, or entities through their national laws. Even though the normative status of liability remains aspirational, its application is necessary and feasible to complement existing international legal responses to climate change. This is due to its strict liability standard, the limited scope of environmental harm it addresses, and its role in ensuring and protecting human rights, and its ability to support international environmental law principles and concepts. Focusing on a civil liability approach, which can be imposed on companies contributing to anthropogenic greenhouse gas emissions through their activities, this dissertation therefore suggests several strategies for establishing the liability norm as a legal rule within the climate change regime, reflecting its potential to become a norm of global environmental law. A civil liability treaty directly addressing climate change-induced environmental harm should find a place on the international agenda, or civil liability elements should be incorporated into existing or new treaties related to regulating the causes of climate change to harmonize national liability laws across various jurisdictions. States should consider enacting or amending domestic laws on liability for such harm to build good practices and elevate the liability norm to the international level. The Loss and Damage Fund should be operated as a common pool of funds.