Climate change liability and beyond

Climate change and its adverse impacts on nature and human society are clearly felt. Who should bear the responsibility? Should anyone be held liable for grave losses and damages related to climate change? In what way and to what extent can these issues be addressed in legal mechanisms both globally and locally? Will an international liability regime an ultimate solution? Are courts ready for and capable of resolving these disputes that find intricacy of law, policy and science?

To shed light on these issues, this book is structured with four main themes on the discussions of climate change liability and related mechanisms. They are: 1) state liability and responsibility, 2) climate change litigation, 3) climate change liability and alternatives, and 4) dispute resolution and remedies. Reflections on the concepts of liability/responsibly/accountability have provided for nuanced understandings of their functional dynamics in climate change governance. Our findings also suggest that International and domestic courts have become a vital player in attribution or distribution of climate change liability. In addition to formalistic rights discourse and rigid liability regime, a few alternatives such as carbon market, insurance, mediation or soft law are also finding their ways to ensuring sustainability of climate change governance.

Anne-Sophie Tabau is Professor in public law at the University of Reunion Island (France). Her research focuses primarily on the climate change regime at the international, European and local levels. She also teaches general international, European and administrative law.

Bin-Hui Wang is Professor at Hunan Normal University College of Law. Her teaching and research focuses are primarily on environmental law and legislative science.

Chun-Yuan Lin is Assistant Professor of Chung Yuan Christian University School of Law. His academic research mainly focuses on constitutional law, environmental law, climate change law, and administrative law.

Hsin-Chun Wang is Professor at National Taiwan University College of Law. His research interests are insurance law and regulation, insurance and competition law, regulation of financial market, alternative risk transfer and insurance regulation, and compulsory liability insurance.

Jian Ke is Professor and Doctorate Supervisor at Wuhan University Research Institute of Environmental Law. He also serves as Vice Secretary-General in Chinese Society of Environmental Law. His teaching and research focuses are primarily on foreign and comparative environmental law and Chinese environmental law.

Jiunn-rong Yeh is University Chair Professor at National Taiwan University College of Law. Beginning in May 2016, he also serves as Minister of the Interior in the government. He has taught in many overseas universities such as Harvard University, Duke University, University of Toronto, and University of Melbourne. His teaching and research focuses are primarily on comparative constitutions, environmental law, and administrative law.

Kai Wu is joint Ph.D. Candidate at University of California, Berkeley, School of Law and Peking University Law School. He also serves as a research assistant at the Resource, Energy and Environmental Law Institute and the Fiscal and Tax Law Center of Peking University. His research focuses are primarily on environmental law, tax law, and administrative law.

Li Luo is Professor at Beijing Institute of Technology School of Law. She also serves as a legislative expert of National People’s Congress Environmental and Resources Protection Committee, and Ministry of Environmental Protection of “Law of the People’s Republic of China on the Prevention and Control of soil Pollution (Draft).” Her teaching and research focuses are environmental law, energy law, and civil law.

Marion Lemoine received her Ph.D. in public law (2013 Aix-Marseille University) and is Researcher at the French National Centre for Scientific Research—CNRS (2015) in the Western Institute of Europe and Law (IODE - UMR 6262) at Rennes 1 University in France. Her researches address the evolutions of international law in the framework of the UNFCCC negotiations on climate change. She also works on normative dimensions of global law, and has taught environmental law, international law, and European Union Law.

Sandrine Maljean-Dubois is Researcher at the CNRS. She teaches international environmental law at the Faculty of Law and Political Sciences of Aix-Marseille University. She has authored/edited several books and a large number of articles in this field, focusing in particular on biodiversity, non-compliance mechanisms, and climate change negotiations.

Vanessa Richard is a tenure CNRS researcher at the Faculty of Law of Aix-Marseille University (France) and the Principal Investigator of the International Grievance Mechanisms and International Law & Governance (IGMs) project, ERC Grant No. 312514. Her researches mainly focus on international legal accountability, international environmental law, and international freshwater law.

Wen-Chen Chang is Professor at National Taiwan University College of Law and Director of the Policy and Law Center for Environmental Sustainability in National Taiwan University College of Law. She focuses her researches on comparative constitutions, international human rights, environmental law, public law and regulation, and law and society.

Wen-Chen Shih is Professor of Law at the Department of International Business, National Chengchi University. Her teaching and research focuses are international economic and trade law, and international environmental law. She serves as legal consultant to many governmental agencies on trade and environment related issues.

Yann Kerbrat is Professor of International Law at the Sorbonne Law School (Université Paris 1, Panthéon-Sorbonne). He is Director of the Sorbonne Research Institute for International and European Law. He was previously Professor of International Law at the Aix-Marseille University. His teaching and research focuses are primarily on public international Law and international environmental law.

Preface

Climate change challenges are upon all of us living in this global village. Prompt actions must be undertaken. This book represents one such effort of us as law scholars to contemplate about climate change and its adverse impacts from the perspective of liability and related mechanisms. In November 2012, we held two workshops—one in Shanghai and the other in Taipei—with four collaborating academic institutions including National Taiwan University College of Law, National Cheng-chi University College of Law, Shanghai Academy of Social Science, and Aix-Marseille University Faculty of Law. Most chapters of this book grew out from these two workshops and underwent substantial revisions afterwards.

The process of publication, however, took longer than we had expected. Although not all of the chapters are updated with new developments, quite a few do include discussions of most recent progresses in global or local climate change governance, for example, the 2015 Paris Agreement. Three chapters of this book are published or translated elsewhere: Hsin-Chun Wang (2014), Adaptation to Climate Change and Insurance Mechanism: A Feasible Proposal Based on a Catastrophe Insurance Model for Taiwan, National Taiwan University Law Review, 9(2), 317-343; Wen-Chen Shih (2015), A Complaint System Under the Climate Change Financial Mechanism: Using the GEF and the CDM as Examples, Carbon & Climate Law Review, 9(1), 55-67; Sandrine Maljean-Dubois (2017), International Litigation and State Liability for Environmental Damages: Recent Evolutions and Perspectives, Kankyoho Kenkyu, Vol. 7, Shinzansha Publisher Co. (In Japanese).

Last but not the least, we are very grateful to those who made their efforts and shared their time in making this book a reality. Our most sincere thanks must be extended to our dear colleague, Professor Yao-Ming Hsu at National Cheng-chi University College of Law, who generously helped us connect and communicate with our colleagues in France. Special thanks also go to our assistants and students at National Taiwan University College of Law, who helped tremendously along the way. They are Yen-Lun Tseng, In-Lon Lei, Szu-Chen Kuo, Pei-Jung Li, Ju-Ching Huang, Jo-Tzu Ma, Yi-Lu Ko, Wen-Hao Zheng, Tzu-Ying Kuo, Yu-Hsiu Cheng, Yan-Ting Lin and Fan-I Chia.

Contributors
Preface

Introduction
Climate Change: From Mitigation, to Adaptation, and to Liability and Beyond / Jiunn-rong Yeh

Part I　State Liability and Responsibility
International Litigation and State Liability for Environmental Damages: Recent Evolutions and Perspectives / Sandrine Maljean-Dubois
State Responsibility and Liability for Climate Change Induced Environmental Damages / Yann Kerbrat
Climate Change and Reconfiguration of Environmental Liability Regime: Towards a Global Regulatory Approach / Jiunn-rong Yeh
Mind the (Justiciability) Gap: Non-judicial Remedies and International Legal Accountability for Environmental Damages / Vanessa Richard

Part II　Climate Change Litigation
Institutional Leverage of International Human Rights: Discourse in the Age of Climate Change / Wen-Chen Chang
Climate Change Adaptation Through Administrative Litigation? The Experience of Taiwan / Chun-Yuan Lin
Reflection and Reconstruction on the Civil Liability System of Environmental Tort in China / Li Luo
On the Construction of Environmental Public Interest Litigation System in China: Review on the New Fifty-fifth in Chinese Law of Civil Procedures / Bin-Hui Wang

Part III　Climate Change Liability and Alternatives
Adaption to Climate Change and Insurance Mechanism: A Feasible Proposal Based on a Catastrophe Insurance Model / Hsin-Chun Wang
Opportunities & Challenges: Creating a Carbon Emission Reduction Trade Market in China / Jian Ke & Kai Wu

Part IV　Dispute Resolution and Remedies
A Complaint System Under the Climate Change Financial Mechanism: Using the GEF and CDM as Examples / Wen-Chen Shih
The Dispute Settlement Within the Kyoto Protocol CDM / Marion Lemoine
The Role of Experts Within the Control of the Climate Change Regime Implementation / Anne-Sophie Tabau