Climate-vulnerable developing nations could use international law to break the current dead-lock in the inter-governmental negotiations on climate change by taking industrialized nations to court.
A large part of the relevant legal literature suggests that the main polluting nations can be held responsible under international law for the harmful effects of their greenhouse gas emissions. As a result, affected countries may have a substantive right to demand the cessation of a certain amount of emissions. In selected cases, they also have the procedural means to pursue an inter-state litigation in an international judicial forum such as the International Court of Justice in The Hague.
This paper by Christoph Schwarte, Staff Lawyer at FIELD (Foundation for International Environmental Law and Development), outlines a possible legal argument for such a lawsuit and offers some observations on the potential impacts of bringing a case before an international court or tribunal.
Here, ThinktoSustain is reproducing the Summary of the paper.
International Climate Change Litigation and the Negotiation Process [1]
Summary:
I. Negotiations and Litigation
Since 2008, a constant stream of international negotiations on climate change has taken place. The process temporarily peaked with the 15th Conference of the Parties (COP15) to the United Nations Framework Convention on Climate Change (UNFCCC) in Copenhagen in December 2009. To date, however, the negotiations have not resulted in a new global deal, and the prospect of reaching an agreement in time that provides for adequate measures to avoid dangerous climate change remains uncertain.
In the aftermath of the climate change summit in Copenhagen, many high ranking officials felt that it would take up to five years to finally come to a legally binding agreement [2]. At the Bonn Climate Change Talks in June 2010, the new and the outgoing executive secretaries of the UNFCCC were equally pessimistic about the possibility of achieving ambitious emission reductions and adopting a new legal framework in the short term [3].
In a domestic, private or business environment, there are often close links between negotiations and litigation. If individuals or corporate entities cannot settle disputes to their satisfaction through negotiation, relief may be sought from the courts or through other dispute settlement mechanisms. Regardless of whether such disputes concern wide ranging claims against the tobacco industry or an alleged case of unfair dismissal, negotiations are regularly accompanied by some form of contentious legal action or the threat thereof.
In the international context, under the umbrella of the World Trade Organization (WTO), litigation has similarly been strategically employed by governments to influence negotiations and clarify State obligations [4]. Such litigation can expedite the creation of new rules and obviate the need for further law suits. So could litigation under public international law help to address climate change and possibly facilitate a positive and timely outcome of the current negotiation process?
II. Litigation – A Credible Option?
Climate change litigation has been described as the next big target for lawyers after tobacco, asbestos and food [5]. Legal cases related to the effects of climate change have been filed against public and private entities in several jurisdictions, and legal scholars increasingly contemplate whether there could also be a basis in public international law for action on climate change between States. We have produced a longer paper which provides a list of the relevant literature and – based on the current discourse – ascertains if and to what extent inter-State litigation constitutes a viable option. The full paper is available through http://www.field.org.uk. In addition, we have created a wiki version on http://climate-change-litigation.wikispaces.com to allow others to input into the discussion and either strengthen or critique the arguments.
Writers generally agree that international law is ill-equipped to deal with a complex situation such as global warming. There is a multiplicity of actors involved in the failure to reduce greenhouse gases, the majority of harm is yet to occur and its causation non-linear [6]. While domestic law often provides a reasonably well defined body of law that governs a particular relationship, public international law is subject to a constant tension between established rules and the pressure to make changes within a system [7]. It largely overlaps with international politics and governments can fundamentally disagree about what constitutes the relevant law in a particular case. Nevertheless, while the details remain in dispute, a general line of argument in favour of a violation of substantive rights emerges.
1. The Substantive Legal Argument
In most cases, the basis for contentious litigation between States would be the alleged breach of an international obligation. The unjustified breach of such an obligation – usually described as the commission of a “wrongful act” – between the
States concerned results in “State responsibility” (or liability) under international law. In order to successfully raise an inter-State claim, the wrongful act must be attributable to the accused State and causally linked to any occurring damage.
The breach of an international obligation can be derived from international treaty or customary law, and may be committed through an act or omission [8]. Depending on the States involved in an international litigation on climate change, treaty law relevant in this connection may include the UNFCCC and the Kyoto Protocol, the United Nations Convention on the Law of the Sea (UNCLOS) or other multi- or bilateral agreements. The current literature, however, predominantly suggests that a violation of international law could be based on the so called “no-harm rule”.
a) The No Harm Rule
The no-harm rule is a widely recognized principle of customary international law whereby a State is duty-bound to prevent, reduce and control the risk of environmental harm to other States [9]. The legal precedent usually cited in this connection concerns a Canadian smelter whose sulphur dioxide emissions had caused air pollution damages across the border in the US [10]. The arbitral tribunal in that case determined that the government of Canada had to pay the United States compensation for damage that the smelter had caused primarily to land along the Columbia River valley in the US.
The no-harm rule has subsequently been confirmed by different decisions of international courts and tribunals [11]. It has also been incorporated in various international law and policy documents [12]. Principle 21 of the 1972 Stockholm Declaration provides that “States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction”.
