Abstract
This article analyses the principle of Common but Differentiated Responsibility (CBDR), one of the guiding principles regulating the international rules and standards related to climate change, enshrined in the legal framework of the United Nations Framework Convention on Climate Change (UNFCCC). CBDR establishes that all states are responsible for addressing global environmental destruction, but ‘developed countries’ are expected to ‘take the lead’ due to differences in contributions to the problem and capabilities to address it. Despite global efforts to reduce greenhouse gas emissions (GHG) and maintain global temperature level increases ‘well below 2°C’, the dire effects of climate change—including significant rises in sea levels and long-term droughts—are inevitable. This begs a number of questions as to both the effectiveness of the concept of CBDR, and its attempt to be an equitable doctrine. The author wishes to thank Professor Veerle Heyvaert for her careful review of this article.
Introduction
The principle of Common but Differentiated Responsibility (CBDR), enshrined in the legal framework of the United Nations Framework Convention on Climate Change (UNFCCC), is one of the guiding principles regulating international climate change law. The Conferences of the Parties (COPs) exemplify a series of attempts to operationalise the international legal principle and, as a result, CBDR has taken on different meanings at different stages in the life of negotiations. Overall, CBDR establishes that all states are responsible for addressing global environmental destruction, but not equally due to differences in contributions to the problem and capabilities to address it. Yet, despite global efforts to reduce greenhouse gas (GHG) emissions and maintain global temperature level increases ‘well below 2°C,1 as well as efforts to ‘limit the increase to 1.5°C,2 the dire effects of climate change including significant rises in sea levels and long-term droughts are inevitable. This begs several questions as to the effectiveness of the concept of CBDR, but also its aspiration to be an equitable doctrine.
Is CBDR a useful tool in the fight against climate change, in that it helps fulfil the objective of addressing climate mitigation, adaptation, loss and damages? Does CBDR cast too small a net of responsibility, or one too wide?
This article argues that while the earlier static and binary distinction between ‘Annex I’ and ‘non-Annex I’ countries in the Kyoto Protocol—where only ‘industrialised’ Annex I countries committed to emission reduction targets and all other (non-Annex I) countries had no such obligations—was too reductive to capture the wide-ranging interests in climate mitigation. The shift with the Paris Agreement towards re-assessing the obligations of certain ‘developing countries,3 such as China, still fails to capture the concerns of and absence of responsibility towards those states most vulnerable to the alarming consequences of climate change. A citizen of a small island state will be far more affected by the negative effects of climate change than a citizen of Paris. In fact, the terminology of CBDR is somewhat inaccurate; it refers to a ‘common concern’ for all states with ‘differentiated responsibilities,’ rather than to a ‘common responsibility,’ where all states are on the hook. However, even in light of a re-naming of CBDR to ‘Common Concern But Differentiated Responsibility,’ the very notion of ‘common concern’ stated in the preamble of the UNFCCC,4 and epitomised in the 2°C shared target, is still questionable; concerns over the effects of climate change are also differentiated. Overall, CBDR tacitly promotes an inequitable system of power and risk, by abstracting climate change from nested realities.
1. What is CBDR?
The principle of CBDR, formalised in 1992 at the Earth Summit in Rio de Janeiro, appears in the preamble, Article 3, and Article 4 of the UNFCCC, and guides international standard setting on climate change. In the context of climate change, CDBR is two-fold: first, it acknowledges that all states have shared obligation to address environmental destruction, because of ‘the global nature of climate change.5 The second limb, then, denies equal responsibility for all states with regard to environmental protection. Overall, CBDR recognises that ‘developed countries’ should bear primary responsibilities as they have contributed to the largest proportion of historical and current GHG emissions, and they have more resources to ‘take the lead’6 in climate change mitigation and adaptation. In fact, historic responsibility and capacity—to an extent—go hand in hand. This is because CBDR reflects a relationship between industrialisation and climate change,7 with the more industrialised countries being more likely to have contributed to climate change and, concurrently, to have the resources to address the matter.
2. Why Differentiate Between Countries?
The rationale for differentiation lies somewhere between the polluter-pays-principle and the ability-to-pay-principle.8 Responsibilities vary with the pressure each country places on the environment, and with different capabilities (wealth and technology). This seems to render CBDR, prima facie, both equitable and efficient in the fight against climate change—equitable as those who should pay, pay, and efficient as those who can pay, pay.
In the Rio Declaration, agreed upon at the ‘Earth Summit’ in 1992 together with the UNFCCC, Principle 7 calls for the assignment of heavier contributions to global environmental protection from ‘developed countries,9 as they ‘acknowledge the responsibility that they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment’.10 ‘Developed’ countries should be confronted with the social cost of their emissions.11 Yet, Principle 7 says nothing about past harms. It is written in the present tense (‘their societies place’), rather than the past tense (‘their societies placed’), and avoids counting historically accumulated emissions which are politically contentious.12 Thus, while the polluter-pays-principle is a founding concept behind CBDR, the role of historical emissions remains (disappointingly) absent from successive agreements. Nonetheless, Principle 7 of the Rio Declaration does not stop there. The sentence continues: ‘in view of the pressures their societies place on the global environment _and of the technologies and financial resources they command’ (emphasis added). Hence, Principle 7 also emphasises the importance of the ability-to-pay-principle. The burden should effectively be slanted toward those parties with greater resources because it is more effective in mitigating climate change.
Borrowing directly from the polluter-pays-principle and the ability-to-pay-principle, countries under the Kyoto Protocol were divided between Annex I (‘developed countries’, mainly including OECD states) with obligations to reduce their collective greenhouse gas emissions and non-Annex I states (‘developing countries’) under no such obligations. The decision to hold a binary division was controversial. The United States, the largest emitter per capita,13 was particularly vocal about rejecting differentiation when emerging economies found themselves exempt from climate change mitigation obligations.14
The US was certainly correct to point out that the development stages of states and factual circumstances differ considerably.15 Countries in categories such as ‘developed’ and ‘developing’ states are not homogeneous, and both groups marked by stark internal differences, as well as dynamic changes.16 For instance, the BRICS (Brazil, Russia, India, China and South Africa)—five major emerging economies—sit in the same category of ‘developing’ economies as Sierra Leone or Haiti. Furthermore, as a growing number of ‘developing countries’ industrialise and increase their pressure on the global environment along with their capabilities, such as China, the expectation that they should assume greater responsibilities in international environmental law grows.18 Hence, the Paris Agreement produced a design that strives to reflect the different situations of states in a ‘dynamic’ fashion.19
All in all, differentiation strives to bridge the gap between the formal equality of states under international law and the deep inequalities in wealth, power and responsibility that divide them,20 which renders CBDR theoretically reasonable—until we delve deeper into the semantics.
3. What is ‘Common’ in CDBR?
The notion of ‘common’ in CBDR is imprecise and ambiguous. It evolved from the language of ‘common heritage of mankind’ in international law—which initially emerged for concerns regarding the loss of natural resources belonging to all (such as maritime resources including whales and tuna).21 Common heritage—crucially—points to the ‘common interest for the benefit of all mankind’.22 However, a common interest, or common concern, does not necessarily equate to a common responsibility.
Under the UNFCCC, all countries seem to bear some responsibility for climate change (some bearing substantially more than others). Voigt and Ferreira, for instance, understand climate change as a ‘global commons’ problem, because climate change results from the stock of accumulated concentrations of GHGs in the atmosphere: ‘Emissions by any state contribute to the problem and can affect all other states.23 Voigt continues that, as with any commons problem, the solution lies in collective action.24 But, the issue with understanding climate change as a collective action problem, and considering that no individual state has any incentives to act unless other states also take action, is that the scenario negates the real interests and stakes of many countries. Voigt refers to a ‘Prisoner’s Dilemma’ involving 197 prisoners, where the participation of all states is necessary for effective and fair cooperation.25 It is, however, a mistake to see climate change as a classic Prisoner’s Dilemma, resting on the threat of non-cooperation of other players. Instead, some countries have no choice but to cooperate for their continued existence, yet their cooperation has little—if any—impact on the rise of global temperatures.
In addition, the term ‘responsibility’ itself is problematic, in that it has multiple definitions. Responsibility, in legal terms, indicates a duty to take care of something, often involving control and authority. However, responsibility can also be defined as being the cause of a particular action or situation, especially a harmful and unpleasant one, and in this context alludes to the idea of blame. However, it is not clear whether ‘responsibility’ in the concept of CBDR refers to the former or the latter definition, and as a result, CBDR does not distinguish between obligation and blameworthiness per se. In addition, obligations are, to an extent, always intertwined with notions of blame; the breach of an obligation carries a degree of fault with the legal consequences that might flow from it.
‘Common responsibility’ shies away from the real question: Who is doing the damage and who can/should solve the damage? While cooperation and a ‘spirit of global partnership’26 are certainly requirements to reduce mutual risks, there is nothing ‘common’ about solving the matter. The main driver of climate change is the greenhouse effect.27 The United States, China and the countries making up the European Union are the three largest emitters on an absolute basis, and accounting for cumulative emissions since 1850.28 In comparison, many other countries do not have any control over the outcome, such as flooding or severe draught, and are not blameworthy for dangerous anthropogenic interference.29 ‘Common’ in CBDR clearly indicates a ‘common concern,’ but it cannot be understood as a traditional ‘commons’ problem.
4. Why is a Common Temperature Target Problematic?
The ‘common concern’ for climate change translates into shared goals and targets. With time, 2°C has become the politically accepted threshold—culminating in the Paris Agreement stating the aim of holding ‘the increase in the global average temperature to well below 2°C’.30 Yet, the main issue with a common target is that climate change is also a very differentiated concern.
The Rio Declaration acknowledges that climate change may be a ‘common concern,’ but simultaneously considers that different countries bear different risks and needs. Principle 6 concedes that some countries are more environmentally vulnerable than others: ‘The special situation and needs of developing countries, particularly the least developed and those most environmentally vulnerable, shall be given special priority. International actions in the field of environment and development should also address the interests and needs of all countries.31 A consequence of climate change, for example, includes flooding of low-lying coastal areas, such as the Alliance of Small Island States. Others fear the melting of Andean glaciers, a crucial source of freshwater for Bolivia and Peru.32
Thus, climate change may be a ‘global’ concern, but it is very much a differentiated one too. The ‘common concern’ perspective hardly survives scrutiny, and the threshold of dangerous anthropogenic climate change at 2°C is not actually ‘demanded by science’33. Poor communities living in hazardous environments, with some building their homes on river floodplains in major cities, will find their difficulties compounded by the consequences of climate change.34 It is common in the large cities of ‘developing’ countries for low-income populations to live in areas at risk from flooding.35These populations will likely be most affected by factors related to climate change. Thus, on a per capita basis, poor communities in Asia or Africa are far more victims, than contributors, to global warming.
Climate change is far from a ‘we’re all in the same boat’ situation. In fact, it is not even clear whether we are all in the same storm. Low-lying island states face existential threats from rising sea levels.36 So, whether ‘common responsibility’ or ‘common concern,’ the terminology either appears mis-chosen, or difficult to reconcile with the reality of climate risks. CBDR ignores the unequal distribution of the costs of climate change. As mentioned in the introduction, a citizen of an island will be far more vulnerable to the consequences of climate change than a citizen of Paris.
5. Is CBDR an Effective Strategy?
Even if the terminology is inappropriate, CBDR could still serve as an effective tool to combat climate change. Is this the case? The literature is nuanced on whether CBDR is effective for climate change mitigation and adaptation. Bortscheller, in 2010, responded in the negative, on the basis of concerns that CBDR excludes the largest absolute emitter: China.37However, the situation has since evolved under the Paris Agreement, and our assessment should be updated accordingly.
In 2016, the Paris Agreement introduced a shift from the ‘top-down’ approach in the Kyoto Protocol, with legally binding standards and state targets set at the international level, to a ‘bottom-up’ approach that emphasises consensus-building.38 The Paris Agreement allows for ‘nationally determined contributions’ (NDCs), submitted at regular intervals of five years.39 Overall, the agreement expects new pledges to exceed the ambition of existing ones.
The need for progression in climate policy ambition is clear from the 160 ‘intended’ NDCs that were submitted as part of the effort to create political momentum behind the Paris negotiations. It is this reliance on countries’ self-determined climate policy ambition that marks the most significant departure from the Kyoto Protocol’s approach. Specific climate goals are politically encouraged, rather than legally binding, and the binary static division between ‘Annex I’ countries and non-Annex I countries is softened as a result. Essentially, the Paris Agreement creates a framework for making voluntary pledges that can be compared and reviewed internationally, in the hope that global ambition can be increased through a process of ‘naming and shaming.’40
However, although the Paris Agreement includes all countries in its mitigation effort, inclusiveness alone is not sufficient to consider a principle ‘effective’. The Paris Agreement certainly side-steps earlier distributional conflicts and pushes for stronger international cooperation. Yet, contrary to Falkner’s assertions, an assessment of the effectiveness of CBDR should not rest on political realism alone, but also its ability to genuinely address climate change.
In fact, Falkner demonstrates a certain optimism that all national pledge will be fully implemented, by focusing on the ‘global warming gridlock’41 and the establishment of a ‘robust yet adaptable framework for developing and sustaining long-term political commitment to an effective global response.’42 Although Falkner concedes that ‘the Paris Agreement cannot be expected to ‘fix’ the climate problem; it can only provide a supportive framework within which states and other actors can achieve the required emissions cuts,’43 a framework that falls short of bringing global GHG emissions under control cannot be considered effective.
As noted by Falkner himself:
‘The Paris negotiations managed to produce a high level of political mobilization and support on the part of civil society and business, which in itself is a major achievement. But it would take only a small number of large emitters to derail global efforts to stay within the temperature target of below 2°C. Given that the world is currently on course for a global warming trend of 3°C or more, the margin of error for the new climate regime is worryingly small.’44
Indeed, according to Climate Action Tracker estimates, these pledges are projected to lead to a global warming of 2.7°C or more.45
In a similar vein, Voigt and Ferreira perceive the more diversified way of differential treatment among parties—‘dynamic differentiation’—as the Paris Agreement’s main achievement46. In Voigt and Ferreira’s words: ‘Highest possible ambition is responsive to states’ differing responsibilities, capabilities and circumstances, while at the same time striving to match ambition with the overall aim. It thereby combines effectiveness and fairness.’47 In essence, the scholars consider the bottom-up approach to CBDR in the Paris agreement a ‘potent and powerful tool,’48 rather than unassuming and reliant on parties to deploy their meaningless ‘best efforts’ (which is hardly a given). While the Paris Agreement is indeed more flexible, this article argues that it hardly addresses the needs of those most vulnerable—despite Voigt’s rather optimistic account.
Voigt continues that ‘Differentiation under the Paris Agreement has the potential to function as a catalyst for a race to the top on climate action, rather than merely a burden-sharing concept.’49 In fact, it is quite the opposite. With such a small margin for error, a state failing to fulfil their NDCs threatens a race to the bottom: faltering cooperation and the issue of coordination only being temporarily addressed. The concept of ‘highest possible ambition’ is thus naive given that it doesn’t have a ‘bite’.
As a result, ‘naming and shaming’ hardly seems sufficient with the loom of climate disaster becoming perceptible. Changes in the water cycle may be experienced by half of the world’s population at a warming of 2°C. Furthermore, the 1.5°C limit called for by vulnerable countries is not remotely in sight of being followed. Therefore, the perceived ‘effectiveness’ of CBDR is too Western-centric, in that those vulnerable to the most severe consequences of climate change are not located in North America or Europe.
6. CBDR in the Courts: Using the Principle to Bite?
Although CBDR shows important limits in terms of fairness and effectiveness to commit countries to emissions reduction, it has the potential of becoming a useful tool in the courts. If CBDR can become a ‘bite,’ rather than a simple bark, ‘developed countries’ could be held directly responsible for failing to ‘take the lead’ in addressing the consequences of dangerous anthropogenic climate change. Via the courts, those blameworthy for the rising sea-levels and severe drought could be held responsible for the damage and human suffering that ensues.
In fact, in the landmark case of Urgenda, the Dutch Court expressly evoked CBDR and the leadership role of developed countries in climate action.50 Ferreira highlights that the Court pushed the boundaries of legal thinking by using CBDR as an interpretive aid to overcome barriers to liability related to the ‘multi-scalar’ nature of the climate change problem, such as the difficulty of proving ‘but for’ causation.51
The existence of multiple tortfeasors represents a challenge to traditional conceptions of causation.52 In determining liability, courts usually assess specific causation, which refers to the extent to which the conduct of the specific defendant, or group of defendants, is responsible for the harm or risk.53 For proximate causation, the general test in tort law is the ‘but for’ test, ‘which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant.’54 Courts in many jurisdictions have refused to apply the ‘but for’ test in cases of cumulative environmental harm, since it is practically impossible for the plaintiff to prove that the injury would not have occurred but for the conduct of the particular defendant.55
Overall, establishing specific causation is especially difficult to establish in climate change cases because of the multitude of sources of GHG emissions responsible for climate change across space and time56. Yet, Urgenda symbolises the first occasion in which a national court engaged with CBDR—more specifically the leadership role of developed countries in parallel with other international environmental law and EU law principles—and used it as an interpretative tool to establish the scope of a country’s environmental obligations.57
However, it is important to note that the Dutch court uses CBDR to determine the scope of the Dutch government’s duty of care to protect its own citizens against climate-related risks58 —which limits application to the national level. But, coupled with the approach of the German court in RWE,59 where a Peruvian farmer sued an energy giant for contributing to climate change threatening his Andean home, ‘developed’ countries could be properly held to account for their obligations under CBDR. Indeed, in the same way that in RWE, a farmer living on the other side of the world could sue a private European energy corporation for its 0.47 percent contribution to global CO2 emissions, an ambitious use of CBDR in the courts could allow citizens from other countries to hold ‘developed countries’ accountable for their obligations to mitigate climate change under CBDR. Finally, while this development should be seen in a positive light, other courts may show less willingness to exert such flexibility and consider CBDR as an interpretative tool to give substance to the duty of care under domestic law (which would be legally binding and enforceable). Urgenda could remain the exception; illustrative of a progressive court engaging with CBDR and highlighting the lead role of ‘developed countries’. Until further litigation follows, Urgenda symbolises a glimmer of hope for CBDR.
Conclusion
While the former UN Secretary-General Ban Ki-moon described the Paris Agreement as ‘a monumental triumph for people and our planet,’60 the principle of CBDR falls short of being equitable and effective. It does not protect the most vulnerable populations and casts too wide a net of responsibility and blameworthiness. Although the principle that, ‘developed countries’ should ‘take the lead’ is sound, the idea of ‘common responsibility’ or ‘common concern’ fails to seriously account for the differentiated concerns of countries who face existential risks. A citizen of an island will be far more vulnerable to the consequences of climate change, such as rising sea levels.
In fact, the terminology is wrongly chosen from the get-go; it refers to a ‘common concern’ and ‘differentiated responsibilities,’ rather than ‘common responsibility’. But, even in light of a re-naming of CBDR to ‘common concern but differentiated responsibility,’ the vast spectrum of concerns is unaccounted for. The very notion of ‘common concern,’ stated in the preamble of the UNFCCC (‘change in the Earth’s climate and its adverse effects are a common concern of humankind’), and exemplified in the 2°C threshold, is problematic as concerns for climate damages are very unequally distributed.
Ultimately, the attempt of the Paris Agreement to remove the static binary distinction between ‘developed’ and ‘developing’ to better reflect the reality of countries, such as China, is still not satisfactory. It ignores another key category of countries: those neither responsible for large emissions that cause ‘dangerous anthropogenic climate change,’ and simultaneously, those most vulnerable to the effects of climate change. A principle can be deemed neither equitable, nor effective, if it ignores vulnerable and blameless populations altogether. CBDR abstracts inequality, tacitly promoting it. However, should domestic courts start using the principle more ambitiously to hold ‘developed countries’ accountable for GHG emissions, the principle of CBDR could become more effective with a ‘bite’.
1 Paris Agreement to the United Nations Framework Convention on Climate Change (adopted 12 December 2015, entered into force 4 November 2016) UNTC I-54113 (Paris Agreement) art 2.
2 ibid.
3 This is the language of the United Nations Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) 1771 UNTS 107 (UNFCCC), art 3.1.
4 ibid, Preamble: ‘Acknowledging that change in the Earth’s climate and its adverse effects are a common concern of humankind’.
5 ibid.
6 Paris Agreement, (n 1), art 9.
7 Philippe Cullet, ‘Differential Treatment in International Law: Towards a New Paradigm of Inter-state Relations’ (1999) 10 European Journal of International Law 549, 578.
8 Christopher D Stone, ‘Common But Differentiated Responsibilities in international law’ (2004) 98 American Journal of International Law 276.
9 Christina Voigt and Felipe Ferreira, ‘Dynamic differentiation: The Principles of CBDR-RC, Progression and Highest Possible Ambition in the Paris Agreement’ (2016) 5 Transnational Environmental Law 285.
10 ‘Rio Declaration on Environment and Development’ (12 August 1992) UN Doc A/COF.151/26 (Rio Declaration), Principle 7.
11 Lavanya Rajamani, ‘The Principle of Common but Differentiated Responsibility and the Balance of Commitments under the Climate Regime’ (2000) 9 Review of European Community & International Environmental Law 120.
12 Stone (n 8).
13 Duncan Clark and Robin Houston, Carbon Map (The Carbon Map, 2021) <http://www.carbonmap.org/#Emissions> accessed on 26 September 2021.
14 Kathryn Hochstetler and Manjana Milkoreit, ‘Responsibilities in Transition: Emerging Powers in the Climate Change Negotiations’ (2015) 21 Global Governance: A Review of Multilateralism and International Organizations 205.
15 Voigt and Ferreira (n 9).
16 ibid.
17 Stone (n 8).
18 Voigt and Ferreira (n 9).
19 ibid.
20 ibid.
21 Convention between the United States of America and the Republic of Costa Rica for the Establishment of an Inter-American Tropical Tuna Commission (adopted 31 May 1949, entered into force 3 March 1950) 80 UNTS 3; United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3.
22 Stone (n 8).
23 Voigt and Ferreira (n 9).
24 ibid.
25 ibid.
26 Rio Declaration (n 10).
27 European Commission, ‘Causes of Climate Change’ (European Commission, 2014) <https://ec.europa.eu/clima/change/causes_en> accessed on 26 September 2021.
28 Mengpin Ge, Johannes Friedrich and Thomas Damassa ‘6 Graphs Explain the World’s Top 10 Emitters’ (World Resources Institute, 25 November 2014) <https://www.wri.org/insights/6-graphs-explain-worlds-top-10-emitters> accessed on 26 September 2021.
29 UNFCCC (n 3), art 2.
30 Paris Agreement (n 1).
31 Rio Declaration (n 10), Principle 6.
32 UNESCO, ‘Launch of an Atlas on the Retreat of Andean Glaciers and the Reduction of Glacial Waters’ (UNESCO, 4 December 2018) https://en.unesco.org/news/launch-atlas-retreat-andean-glaciers-and-reduction-glacial-waters accessed on 26 September 2021
33 Mike Hulme, Why We Disagree about Climate Change: Understanding Controversy, Inaction and Opportunity (Cambridge University Press 2009_)_; David G Victor and Charles F Kennel ‘Climate Policy: Ditch the 2 °C Warming Goal’ (2014) 514 Nature 30.
34 David Demeritt, ‘The Construction of Global Warming and the Politics of Science’ (2001) 91 Annals of the Association of American Geographers 307.
35 Ian Douglas and others, ‘Unjust Waters: Climate Change, Flooding and the Urban Poor in Africa’ (2008) 20 Environment and Urbanization 187.
36 Robert Falkner, ‘The Paris Agreement and the New Logic of International Climate Politics’ (2016) 92 International Affairs 1107.
37 Mary Bortscheller, ‘Equitable but Ineffective: How the Principle of Common but Differentiated Responsibilities Hobbles the Global Fight Against Climate Change’ (2010) 10 Sustainable Development Law & Policy 49.
38 Douglas (n 36).
39 Paris Agreement (n 1), art 4.
40 Emilie M Hafner-Burton ‘Sticks and Stones: Naming and Shaming the Human Rights Enforcement Problem’ (2008) 62 International Organization 689.
41 David G Victor, Global Warming Gridlock: Creating More Effective Strategies for Protecting the Planet (Cambridge University Press 2011).
42 Falkner (n 36).
43 ibid.
44 ibid.
45 United Nations Environment Programme (UNEP), The Emissions Gap Report 2014: A UNEP Synthesis Report (UNEP 2014) xv.
46 Voigt and Ferreira (n 9).
47 ibid.
48 ibid.
49 ibid.
50 Stichting Urgenda v. Government of the Netherlands (Ministry of Infrastructure and the Environment), Rechtbank Den Haag, C/09/456689/HA ZA 13-1396 (Urgenda), p. i, Summary.
51 Patrícia Galvão Ferreira, ‘Common but Differentiated Responsibilities in the National Courts: Lessons from Urgenda v. The Netherlands’ (2016) 5 Transnational Environmental Law 329.
52 Douglas A. Kysar, ‘What Climate Change Can do About Tort Law’ (2011) 41 Environmental Law 1.
53 Ferreira (n 51).
54 Athey v. Leonati (1996) 140 DLR (4th) 235, para. 32; 1996 3 SCR 458; 1997 1 WWR 97; cited in Hillel David, W. Paul McCague., and Peter F. Yaniszewski, ‘Proving Causation Where the But For Test is Unworkable’ (2005) 30 The Advocates’ Quarterly 216, 218.
55 Ferreira (n 51).
56 Brian Preston, ‘Climate Change Litigation (Parts 1 and 2)’ (2010) 5 Carbon & Climate Law Review 3; (2011) 5 Carbon & Climate Law Review 244.
57 Kysar (n 52).
58 Ferreira (n 51).
59 Luciano Lliuya v. RWE AG (2015) Case No. 2 O 285/15 (Essen Regional Court).
60 UN News ‘COP21: UN Chief Hails New Climate Change Agreement as “Monumental Triumph”’ (United Nations, 12 December 2015) <http://www.un.org/apps/news/story.asp?NewsID=52802#.Vx3cdKv87ww> accessed 26 September 2021.
Eponine Howarth
BSc Politics and IR (LSE), LLB (LSE) and Public International Law Notes Editor of the LSE Law Review Summer Board 2021