We appreciate comments received from Marcel Behringer, Lars Brückner, Jon Hovi, Niels Reinhard, Roda Verheyen, Johannes Urpelainen, and three anonymous reviewers of the journal on earlier drafts of this paper. The raw data reported in Fig.1 were kindly provided by Tom Damassa. The usual caveats apply.
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For a successful claim, the effects of climate change on the sea would have to qualify as pollution in the sense of Article 1.4 UNFCCC—which is not obvious. Furthermore in contrast to the UNFCCC and the Kyoto Protocol, the obligations of the UNCLOS are subject to due diligence, see Tol and Verheyen (2004), citing general opinion as expressed in United Nations Secretary-General (1989).
At the eighth Conference of the Parties to the Kyoto Protocol it was confirmed that the second commitment period begins in January 2013 (United Nations Framework Convention on Climate Change 2012c).
Our suggestions for the architecture partially overlap with Verheyen and Roderick (2008), yet originate from independent considerations. In particular, we suggest specific choices for the compensation fund (rather than offer a larger menu of choice) and justify our choices within a broader social choice perspective. In addition, we innovate by adding a range of novel aspects.
Alternative operationalizations are conceivable (e.g., 1.5°C or 2.5°C above preindustrial levels).
Based on the statutes of the International Court of Justice (United Nations, 1945a), it is possible to refer such decisions to the International Court of Justice, yet the UN Charter clearly states that the sheer existence of the International Court of Justice shall not prevent states to set up other tribunals (United Nations, 1945b). The landmark case for transboundary environmental harm, the Trail Smelter Arbitration, was decided by a tribunal formed by Canada and the United States.
Additionally, proportional compensation is one approach to alleviate the legal issue of multiple causation. See Faure and Nollkaemper (2007). From an economic perspective, Faure and Nollkaemper (2007, p. 163) suggest that this approach could be the most efficient option.
This is in line with the doctrine of “shared but individual responsibility” whereby every state is separately responsible for the conduct attributed to it, regardless of whether other states are also responsible for the same act (United Nations General Assembly 2012). Following this doctrine, it is possible to assign relative responsibility to individual parties in respect of their contribution to climate change (United Nations Framework Convention on Climate Change Ad Hoc Group on the Berlin Mandate 2012).
See the “Brazilian Proposal” (International Institute for Sustainable Development 2012).
This requires counterfactual reasoning.
Much of the scholarly literature speaks about frontrunners—which is largely congruent with our notion of a founder who initially creates the compensation fund.
In this article, we implicitly assume that all climate impacts are negative. This assumption is likely to hold for many regions of the world, but not necessarily for all regions.