International Climate Change Adjudication
Guest Editor, Legal Assistant to Prof. Dire Tladi at the UN International Law Commission
Traditionally, the UN Climate change regime has been premised on an intergovernmental negotiations paradigm where political actors play the dominant role in the development of norms. In this post, I argue for using international adjudication as a supplementary tool to complement international negotiations. Adjudication, which entails the participation of impartial, third-party decision makers, might help us overcome blind spots of negotiations by redistributing argumentative burdens and providing an expressive function to change norms. However, international adjudication is unlikely to solve all challenges in the climate change regime there are certain obstacles to a successful action since it is difficult to demonstrate a causal link between specific tangible harms with actions of a state. Moreover, international adjudication lacks compulsory jurisdiction and enforcement authority. Finally, states are likely to feel a stronger sense of responsibility to norms that they have agreed to as opposed to norms imposed on them from outside. For the purpose of this post, I make two assumptions: First that climate change is a real and pressing challenge. Second, countries of the Global South deserve compensation for damages caused by climate change since they have contributed the least to the problem and have limited resources to respond. Moreover, climate change adjudication exposes several fault lines such as who has the standing to sue considering that every state contributes to and is affected by climate change, what constitutes damage and what constitutes causation. There is substantial scholarship that deals with these questions. On the other hand, I will limit this post to look at the possibility of international adjudication more generally. The current negotiation paradigm privileges state sovereignty over international prescriptions. Contentious issues are resolved through indeterminate formulations that allow everyone to maintain their positions. This is because climate change law implicates almost every facet of a states’ domestic policy- urban planning, agriculture, transportation, etc with enormous economic stakes. Resultantly, in many countries, climate change law is entangled in domestic politics. In the United States which is the largest historical emitter and the second-largest current emitter of greenhouse gases, for example, it has become a starkly partisan issue with some members of a major party openly questioning the science of climate change. The theory of Sovereignty says that states should be allowed to govern themselves. States should be allowed to decide how to trade off different values such as climate protection and economic growth. But the theory does not entitle states to make decisions that affect people in other states. It is difficult to find a justification for according such deference to state sovereignty in the context of global externalities. Moreover, negotiations do not take into account whether the initial allotment of property rights is unjust, thereby disproportionately impacting countries of the Global South. This ambivalence in climate negotiations can be evidenced by the fact that despite the efforts of Global South states to establish a compensation regime from the outset of the negotiations, it took them twenty years to get a “loss and damages” article included in the Paris Agreement which incidentally still does not provide a basis for a liability or compensation. Even an unsuccessful ICJ decision in this regard could help in raising awareness and norm creation in the long run. In the Pulp Mills case, the ICJ clarified that the no harm rule includes an obligation of the states to prevent harm to the environment of other states or to the global commons. The court further clarified that states would have a duty, under the due diligence standard, to prevent harm. But this standard is still very vague. The elaboration of more specific criteria of due diligence by an international tribunal could be helpful in providing a common basis for evaluation of claims. Moreover, it is not only an injured state which can invoke the responsibility of another state. Since the obiter dictum of the ICJ in the Barcelona Traction case, international law understands that certain “obligations of the States are owed to the international community as a whole.” The ICJ has not explicitly ruled that environmental obligations have an erga omnes character but the Court has consistently held that the no-harm rule and related procedural obligations will apply beyond national territory and even in the global commons. Several commentators have expanded on how the right of each state to invoke state responsibility is inherent in the concept of erga omnes. There is no ICJ ruling on this point, and neither is there clear state practice. In Nuclear Tests (Australia v France) some judges noted that “the idea of actio popularis may be considered capable of rational legal argument and a proper subject of litigation.”  While a few states have considered legal action for climate change related damages to their territories, so far none have done so with regard to the global commons. An Advisory Opinion by the ICJ might offer clarity on the legal implications of the no harm principle in the context of climate change beyond state territory, leaving the specifics to be worked out during negotiations as opposed to a contentious decision which might have negative spillovers for negotiations. Since all states could have their voices heard, such litigation would help raise public awareness on issues which have been sidestepped in negotiations and establish a common language for discussing these issues. Moreover, the ICJ’s jurisdiction to give an Advisory Opinion would not require consent of individual states, but it would have to be requested in accordance with the UN Charter. This procedure does not exclude other means of addressing the problem nor does international law require exhaustion of negotiations to get to litigation. In fact, most multilateral environmental agreements including the United Nations Framework Convention on Climate Change explicitly considers adjudication as a method of dispute settlement, contingent on obtaining state consent. Thus, the criticism that was levelled against the ICJ in Legal Consequences of Construction of Wall in Occupied Territories that the Advisory Opinion infringed on the jurisdiction of another institute will be inapplicable.  Notwithstanding the forgoing, it is uncertain how much an adversarial model of law would help promote the collective action that cooperation that is needed to truly tackle climate change. States are likely to feel a stronger sense of responsibility to norms that they have agreed to as opposed to norms imposed on them from outside. Thus, negotiation might be our best shot at achieving our goals but international adjudication might be a useful tool to consider as a supplement to negotiations.
 Intergovernmental Panel on Climate Change (IPCC), Climate Change 2014: Synthesis Report (2014) Summary for Policymakers (SPM), 4–5.  FCCC, ‘Climate Change: Impacts, Vulnerabilities and Adaptation in Developing Countries’ (Bonn: UNFCCC, 2007) accessed 22nd September 2019.  Daniel Bodansky, Jutta Brunee & Lavanya Rajamani, International Climate Change Law (2017).  Samantha Besson, Sovereignty, Max Planck Encyclopedias of International Law (2016)  Paris Agreement, Dec. 12, 2015, 55 I.L.M. 743.  Philippe Sands, Climate Change and the Rule of Law: Adjudicating the Future in International Law, 28 Journal of Environmental Law 19, 23 (2016).  Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment, 2010 I.C.J. Rep. 14 (Apr. 20).  Case Concerning Barcelona Traction, Light, and Power Company, Ltd  ICJ.  Philippe Sands, Climate Change and the Rule of Law: Adjudicating the Future in International Law, 28 Journal of Environmental Law 19, 23 (2016). See also Int’l Law Comm’n, Rep. on the Work of Its Fifty-Third Session, at 394, U.N. Doc. A/56/10 (2001), http://www.un.org/documents/ga/docs/56/a5610.pdf.  Nuclear Tests (Australia v. France), Judgrnent, I.C.J. Reports 1974.  U.N. Charter art. 92.  United Nations Framework Convention on Climate Change, May 9, 1992, 1771 U.N.T.S.  Legal Consequences of the Construction of a Wall in the Occupied Territories, Advisory Opinion, 2004 I.C.J. Rep. 136 (July 9)  Daniel Bodansky, Jutta Brunee & Lavanya Rajamani, International Climate Change Law (2017). The views expressed in this post represent the views of the post’s author only.