Volume 8, Issue 2

The authors examine the intricate questions of liability for climate change-related damage. They take a comparative approach and after informing about the developments in the mother country of climate change litigation – the United States of America – turn to an in-depth analysis of liability for tort.

The release of Greenhouse Gases (GHGs) by the activities of humans is a major contributor to current global climate change. A major environmental catastrophe caused by this climate change will be averted only if the emission of GHGs are drastically reduced. Attempts have been made to reach international agreements among nations to achieve this, but these attempts, of which the Paris Agreement is the most recent, appear to be inadequate and ineffective. A group of scholars, the Oslo group, therefore asked the question whether more comprehensive obligations that bind states and enterprises could be deduced from other sources of law. The attempts to answer these questions have culminated in the Oslo Principles on Global Climate Change Obligations. The basic methodology that was followed in drafting the Oslo Principles is described. The Oslo group concluded that several concrete obligations to mitigate climate change could be stated by reference to international and domestic law. Particular attention is given in this contribution to tort law as a basis for mitigation obligations in the Oslo Principles but some attention is also given to other areas of law. The central pillar of the Oslo Principles is the primary mitigation obligation, which according to the Principles, is imposed on states. The ambit and nature of this obligation are described. Finally, it is acknowledged that the Oslo Principles only describe rudimentary obligations on enterprises and that it is both difficult and necessary to set out mitigation obligations that can be imposed on enterprises. The contribution finally proposes that the ideas behind the Oslo Principles and United Nations Guiding Principles on Business and Human Rights can be utilised in devising basic mitigation obligations for enterprises.

It is almost commonly accepted that we must keep the increase of global temperature below 2 degrees C and preferably below 1.5 degree C. This begs the question: do states and enterprises have concrete reduction and other obligations to stem the tide? The Oslo Principles, adopted on March 2015, tried to discern the legal obligations of states and to a lesser extent enterprises. The Enterprises Principles will map the legal obligations of enterprises, financiers and long term investors such as pension funds. Both set of principles are based on an interpretation of the law as it stands or will likely develop. This article and Philip Sutherland’s contribution to this volume focus on the core obligations of both the Oslo and the Enterprises Principles. Since the adoption of the Oslo Principles a lot has happened. This contribution also discusses a few key features of the Oslo Principles in light of these developments.

The most recent efforts under the UN Framework Convention on Climate Change (UNFCCC) to seek redress for loss and damage associated with climate change impacts has triggered the interest in tort law remedies for climate change damage. This article analyses the relevance of tort law for climate change damage from a civil liability perspective. It indicates the positive features of tort law for the protection from climate change (generally available instrument for compensation of losses with considerable preventive effects), but it shows also that civil actions against the emitters of greenhouse gases for the remediation of climate change damage encounter major legal difficulties: choice of jurisdiction, enforcement of claims and some basic shortcomings of substantive tort law (narrow concept of damage, establishment of causation and fault). In order to make tort law an effective instrument for climate protection it must be adjusted to the characteristics of climate change damage. This concerns the attribution of legal standing, especially with respect to pure economic loss, a considerable extension of the right to bring collective action and, in order to solve the problem of the establishment of causation, the comprehensive recognition of proportional liability by national tort laws.The article also shows that tort liability already plays an important role for the remediation of climate change damage. This concerns liability claims against persons or institutions who are legally obliged to protect individuals or objects from harm caused by climate change (public authorities, providers of building services) and against sellers of products or providers of services who do not meet mandatory emission or energy consumption standards. Liability claims against such defendants do not encounter any of the specific problems associated with climate change damage and can serve to prevent climate change related harm.