How may the liability of individual high emitters be affected (or not) by an international loss and damage mechanism? Do Parties need to be aware of language that limits/establishes liability and excludes/includes the possibility of holding private entities to account (in an international context)?
Are there international agreements that a) explicitly exclude the liability of private entities (corporations) and limit liability solely to the State; and b) explicitly include the liability of private entities (corporations) as distinct from State liability?
Summary: There are international agreements, including international environmental agreements, that explicitly provide for liability of private entities, and there are international agreements that specify contracting states as the only targets for liability. Although liability standards may be set forth in international agreements, mechanisms for imposing liability on private parties for violation of international environmental standards invariably involve domestic law and domestic institutions. In contrast, there is precedent for direct liability of private entities, and direct enforcement through international bodies, of certain violations of international criminal law.
Parties do need to be aware of language that limits or establishes liability and excludes or includes the possibility of holding private entities to account for violations of treaty norms.
Examples of treaties that provide for damages and include the possibility of holding private entities liable include: Vienna Convention on Civil Liability for Nuclear Damage (1963), International Convention on Civil Liability for Oil Pollution Damage (1969), Convention on Liability of Operators of Nuclear Ships (1962), International Convention for the Prevention of Pollution from Ships (MARPOL) (1973), Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and Their Disposal (not in force).
In all cases, however, these treaties provide for the actual assessment and award of damages to be accomplished pursuant to domestic law using domestic institutions (e.g., courts). States parties have an obligation to implement their international obligations by adopting appropriate legal rules and making their domestic courts available to adjudicate claims for compensation.
Examples of treaties that provide for compensation and do not include the possibility of holding private entities liable include: Convention on International Liability for Damage Caused by Space Objects (1972), Algiers Accords (1981).
Unlike treaties that provide for private entity liability, those that provide for state liability typically do so through the establishment of an international procedure rather than operating through domestic institutions. Some treaties, including environmental treaties, defer consideration of liability to future protocols, recognizing that it may be difficult to reach agreement on a liability regime—including its existence and its contours.
As a general matter under public international law, liability flows from state to state, as described in the International Law Commission’s Draft Articles on the Responsibility of States for Internationally Wrongful Acts. However, as illustrated above, that general rule is subject to agreements to the contrary, as sovereign states may provide for private party liability by treaty.
Outside the context of international criminal law and war crimes, however, it is hard to find examples of such private party liability being committed to the jurisdiction of international adjudicatory bodies, as distinguished from domestic bodies operating under the authority of a particular state. Establishing a truly international loss and damage mechanism to assign private liability for violation of a climate change regime would represent an innovation in public international law.