3. Provisional Measures
Contentious cases brought before the ICJ can take several years from the filing of the case to the reading of the judgment on the merits. Consequently, the Court can order provisional measures if it considers that circumstances so require [29]. The objective of provisional measures is to preserve the respective rights of the parties, pending a decision of the Court on the merits. A link must, therefore, be established between the provisional measures requested and the rights which are the subject of the proceedings before the Court as to the merits [30].
Provisional measures will only be granted if the majority of judges believe that there are good grounds for the underlying application, and the content and effect of these measures does not prejudice the case’s final outcome. Provisional measures are only justified if there is a sense of urgency such as an imminent risk that irreparable damages may be caused to the subject matter of the dispute [31]. It is disputed whether provisional measures ordered by the ICJ are binding, and in practice, the record of compliance with provisional measures is not always encouraging [32].
III. Nexus between Litigation and Negotiations
In the case of a lawsuit, lawyers representing the respondent State would be able to raise a multitude of objections. But setting to one side the complex legal wrangling that forms part of any dispute resolution effort before an international court or tribunal: How useful can litigation between States be where the overall objective remains to combat climate change and find globally acceptable solutions?
A judicial decision on State responsibilities related to climate change may provide guidance to the negotiation process. Clear and authoritative findings in relation to the applicable principles reached as a result of argument and analysis could be useful in creating parameters for future negotiation and highlighting gaps in the existing framework [33]. Litigation, or the threat thereof, would emphasize the urgency of the need to agree binding commitments on climate change and put additional pressure on the negotiations process. Negotiators may feel more of a responsibility vis-à-vis the international community and have an additional lever in relation to their national governments. A high-profile court case would also engage a variety of actors in the debate and provide new momentum to find consensual solutions inside and outside the UNFCCC talks [34].
Traditionally, however, international courts and tribunals have been very cautious in interpreting international obligations, forcing a specific performance upon States and interfering in their domestic affairs [35]. They are often perceived as just another forum for international diplomacy and rarely issue hard-hitting judgments. It is, therefore, unlikely that an international judicial organ would prescribe concrete measures such as the closing down of coal-fired power stations, a ban on gas flaring, or the installation of offshore wind turbines; or order Annex I countries to, for example, peak emissions by around 2012, achieve at least 60% reduction in emissions from energy by 2020 and fully decarbonize their energy systems by 2030 at the latest.
International courts and tribunals also rarely decide on complex scientific questions that are disputed between parties. Hence, unless a defendant country accepts its responsibility for the climate change impacts in question – their causation, avoidability, etc. – litigation might fail. This could deflect from the urgency of finding solutions and be counter-productive for the negotiation process.
If, however, a sufficiently strong case supported by expert opinions and evidence is presented, an international court or tribunal may be willing to creatively engage with the process of settling the dispute in question. To the extent it has jurisdiction to entertain the case, it would probably at least encourage the parties to find solutions and underline the importance of further serious negotiations and other collaborative activities [36]. In this connection, it could determine specific procedural measures such as time-lines or the establishment of an expert commission to facilitate the success of further negotiations between the parties [37].
In relation to provisional measures, international courts and tribunals have claimed a wide discretion and the right to prescribe measures that are in whole or in part different from those requested [38]. Their orders often provide an interpretation of the existing international obligations and general policy advice inspired by the judges’ assumption of what would practically work. In this connection, the application of a precautionary approach (putting the burden of proof that an activity is harmless to some extent on the party wishing to carry out that activity) could help to prevent environmental degradation on the backdrop of scientific uncertainty [39].
A judicial decision would only apply in relation to the parties to the proceedings. This could involve a significant number of countries but realistically exclude several of the main players. However, depending on the content of such a decision, the parties bound by it could be compelled to take leadership within or outside the current negotiation process. The definition of necessary measures to reach a climate change deal before it is too late from the perspective of an independent third party would also send a strong signal to the entire international community. A complete refusal by countries not directly affected by a judicial decision to engage in new meaningful attempts to bridge the rift between parties to the UNFCCC may be politically difficult to justify.
IV. Conclusion
The current literature suggests that, in relation to climate change, a credible case for a legal wrong can be made. Affected countries may have a substantive right to demand the cessation of a certain amount of CO2 emissions in order to limit further harm (and in some cases, secure their survival). In a limited number of possible scenarios, there are also procedural means to pursue an inter-State litigation before an international judicial forum – in particular, the ICJ.
Inter-State climate change litigation may help to create the political pressure and third-party guidance required to re-invigorate the international negotiations, within or outside the UNFCCC. The understandable reluctance of developing country governments to challenge any of the big donor nations in court may change once the impacts of climate change become even more visible and an adequate agreement remains wanting.
An independent judicial forum that represents the legal systems of the world is in a good position to determine some of the cornerstones necessary to reach a global deal in time. While political leaders depend on their national electorate, corporate interests and party machinery, an international court or tribunal may be able to take decisions that primarily reflect the need to protect the world’s ecosystem and its 7 billion inhabitants as a whole.
Original Work:
Title of the Paper: “International Climate Change Litigation and the Negotiation Process”
Author: Christoph Schwarte
Click here to read the Full Paper:
http://www.field.org.uk/files/FIELD_cclit_long_Oct.pdf
