Doctor of Philosophy
Faculty of Law
Boom, Keely, Exposure to legal risk for climate change damage under the UNFCCC, Kyoto Protocol and LOSC: a case study of Tuvalu and Australia, Doctor of Philosophy thesis, Faculty of Law, University of Wollongong, 2012. http://ro.uow.edu.au/theses/3919
In 2002, the Pacific Island State of Tuvalu made international news when its Prime Minister announced that Tuvalu intended to sue Australia and the United States in the International Court of Justice. To date, Tuvalu has never brought the threatened litigation. Tuvalu is one of a number of small island developing States that could eventually become uninhabitable due to the effects of climate change. This thesis aims to test to what extent legal responsibility for climate change damage may arise under international law. It also seeks to determine what level of exposure to legal risk Australia may face for such damage. The study finds that there is a low level of exposure under the United Nations Framework Convention on Climate Change (UNFCCC) which contains vague commitments that would be difficult to enforce. The specific targets for mitigation of greenhouse gas emissions under the Kyoto Protocol provide potentially high exposure to legal risk for States that fail to meet their targets. Australia does not face such risk because it is on track to meet its target. Application of the United Nations Law of the Sea Convention (LOSC) offers a creative avenue for litigation. However, it presents limited exposure due to difficulties around extending its provisions to climate change and problems with establishing jurisdiction. Furthermore, the rules of State responsibility are poorly suited to a problem as complex as climate change damage. However, there are some opportunities for creative application of these rules to respond to the problem of climate change damage. The thesis recommends the seeking of an advisory opinion from the International Court of Justice to clarify the rules of State responsibility, particularly in regard to attribution, causation and apportionment of responsibility. Finally, additional instruments concluded through the international climate negotiations could provide new opportunities for international litigation.