Time for an International Court for the Environment

Anne McMillan

Hindu women worship the sun god in the polluted waters of the Yamuna river during the Hindu religious festival of Chhath Puja in New Delhi, India, 3 November 2019. REUTERS/Adnan Abidi

As the climate crisis deepens, there remains a troubling lack of international consensus on practical and legal responses. Global Insight highlights the pressing need for international law to stand up for the planet.

Statements by scientists drawing attention to the urgent nature of the climate crisis are becoming ever more frequent, and alarming. Reports by the United Nations and other international bodies contain dire warnings about the acceleration of species extinction. They emphasise the need for drastic changes to the use of land and energy globally if we’re to decrease damaging greenhouse gas (GHG) emissions. Some go so far as to say that damage to the environment is already irreversible in several areas.

So, how should we deal with the climate crisis, practically and legally? Some governments encourage plans to enhance the international legal regime protecting the planet, but others obstruct proposals that suggest greater liability. Part of the problem, as the IBA pointed out in its 2014 report Achieving Justice and Human Rights in an Era of Climate Disruption, is that ‘existing international law is not designed as it stands to limit greenhouse gas emissions or achieve climate change justice’.

As a remedy, the IBA report supported the idea of working towards the creation of an International Court for the Environment, or ICE, while cautioning that this is likely to be a ‘longer-term goal’. ‘The 2015 Paris Agreement has, to some extent, distracted focus from creating an ICE,’ says Conor Linehan, a member of the IBA Climate Change Justice and Human Rights Task Force. ‘Though a welcome step in the international climate response, the Paris Agreement’s dispute resolution language is generally weak and, like the UN Framework Convention on Climate Change, it lacks a strong compliance mechanism’.

Catastrophic crisis, crippling impasse

In the five years since the IBA’s report the scientific predictions of the impact of climate change have become more alarming and the public more aware. Yet, the idea of an ICE still does not seem to have garnered much support from states.

In September 2019, world leaders were invited to bring their most ambitious ideas to reduce global warming to a UN Climate Change Summit.

The results were disappointing. Two of the top three GHG-emitting countries, China and India, failed to make significant commitments to further limit their carbon emission reduction targets under the Paris Agreement. The third, the United States, made no statement at all. As UN Secretary-General António Guterres said, ‘we don’t make judgments about countries... we are not a court’. Perhaps that’s what’s needed to cut through the potentially catastrophic impasse.

Certainly other UN efforts, in the absence of a dedicated environmental court, have thus far yielded little. In 2013 the UN’s flagship international law body, the International Law Commission (ILC), appointed a Special Rapporteur on the protection of the atmosphere. Immediately Member States tied his hands with a restrictive mandate, requiring that he not ‘interfere with relevant political negotiations, including on climate change, ozone depletion and long-range transboundary air pollution’.

The mandate also specifically excluded the Rapporteur from dealing with issues, including the crucial ‘liability of States and their nationals, the polluter-pays-principle, the precautionary principle’. Such restrictions prompted the Argentinian ILC member to call the mandate a ‘disgrace’, while the Tanzanian member queried whether it was ‘purposely designed to bog down the work on the topic’. If the UN cannot even agree on what aspects of the climate crisis should be reported on, what chance is there that existing international environmental law can help save the planet, especially given its short history?

If nothing else, these examples highlight the global tension surrounding climate change when trying to strengthen accountability under international law.

Still, the news has not been all bad. The 1992 Rio Conference, heralding the UN Framework Convention, did set environmental law on a new path. Over the subsequent decades it led to a proliferation of mainly issue-specific multilateral environmental agreements to protect the global habitat. But, if these agreements demonstrate that law is becoming more prolific, why is the state of the environment getting worse?

Ironically, the number of such agreements is part of the problem. An often confusing and sometimes overlapping web of hundreds of treaties has been created, for which the term ‘treaty congestion’ was coined. In addition, many of the treaties are soft law, creating no legally enforceable obligations or rights, leaving negotiation between states as the main path to solving problems. If that approach appears to be failing, perhaps we need tougher legal options, such as an ICE.

The Getty Fire burns near the Getty Center along Interstate 405 north of Los Angeles, California, US, 28 October 2019. REUTERS/ Gene Blevins

Time for the ICE

International law is many things, but nimble is not one of them. Typically it’s taken many years of negotiations for states to set up international courts, which, even then, are often based on unsatisfactory compromises. As environmental lawyer Stephen Hockman QC has observed, ‘historically at least, the creation of international institutions and the development of international law have occurred, generally, at somewhat glacial speed’.

In the meantime, pending the creation of a dedicated international court or tribunal for the environment, could the current system deal more effectively with the problem given its urgency?

The most obvious existing legal venues for dealing with such global problems remain the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS) or the Permanent Court of Arbitration (PCA).

From 1996 to 2014 the ICJ has made a limited number of significant pronouncements on environmental issues, ranging from the legality of nuclear weapons to whaling in Japan. In particular, it declared that a ‘general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment’. But are such pronouncements enough?

As the IBA report notes, ‘this approach to applying international environmental law suggests the ICJ is unlikely to break new ground on climate change litigation. The ICJ has in the past elected to take a narrow approach to questions presented’. A further dispiriting fact is that states do not use existing mechanisms.

A specialist Chamber for Environmental Matters created by the ICJ in 1993 did not have one environmental dispute referred to it before it was disbanded in 2006. As Linehan notes, ‘“state responsibility” and the “no harm” principles have been important ideas in general international law for decades, yet the ICJ has had a very limited opportunity to consider them in the context of states’ climate change obligations’.

Another challenge is that both the ICJ and ITLOS deal only with disputes between states, thus individuals or non-state actors cannot be plaintiffs, nor can companies be defendants. The PCA is at least open to use by private parties but only by consent. These limitations are hobbling considering that GHG emissions from the ‘Carbon Majors’ – the largest fossil fuel-producing companies in the world – rival those of nation states.

Yet it’s hard to see how reluctant companies could be made to face international law within the existing international legal framework. As the IBA report points out, ‘Pollution and environmental degradation principally result from transboundary, corporate, non-state activities... difficult to regulate directly by international law through treaties’. Linehan underscores this issue: ‘There is no such thing as an environmental issue divorced from big problems like development, trade, investment, assets and manufacturing,’ he says. ‘This will make states slow to sign up to an ICE because they will regard any such judicial power as undermining their national economic and policy freedoms’.

Then there’s the added complication that GHG emissions affect areas of the planet, known as the global commons, over which noone has sole sovereignty: the High Seas, Antarctica, the atmosphere and outer space. As Philippe Sands QC, Professor of Law at University College London, noted in his public lecture at the UK Supreme Court in 2015, ‘climate change... transcends the classical structure of an international legal order that divides our planet into territorially defined areas over which States are said to have sovereignty’.

There’s general agreement that legal standing needs to be expanded beyond states, which an ICE could potentially provide. But, given the time required to establish such a court, several experts agree with the IBA position that a bridging mechanism will be needed. Suggestions for an interim solution range from an expert group giving advisory opinions to a more formal ‘ad hoc arbitral tribunal’. There is hope that this approach could lead to the creation of a voluntary tribunal, with or without an international treaty, which could perhaps rule in the absence of unwilling defendants. However, Professor Michael Gerrard, Director of the Sabin Center for Climate Change Law, fears that although a ‘voluntary tribunal would be much more achievable than one with enforcement power... it would have very limited impact’.

Nevertheless, these attempts to envisage how an ICE, or its precursor, might be constituted, funded and its decisions enforced, particularly how it could deal with recalcitrant polluting states, are speculative and concrete answers remain elusive. The earliest impacts of climate change are being felt by the least developed countries, which are also typically far lower emitters of GHGs, but there appears to be limited support among developed countries for the creation of an ICE.

‘The small island states and others that are the major victims of climate change might well support a treaty-based ICE,’ says Gerrard. ‘But it’s difficult to imagine the major emitting states agreeing to one. The Paris Climate Agreement is a good indication of how far states are willing to go in signing climate treaties, and it’s mostly aspirational.’

National law hefting for international

In the absence of urgent and effective international legal action, national law may provide impetus towards establishing an ICE. There have been dramatic failures and some notable successes in national environmental courts, but the body of case law is building. Win or lose, such litigation is potentially influential in raising the public profile of environmental issues, sending warning signals to corporations (and their insurers and investors) and ultimately putting pressure on politicians.

A recent example is a 2018 decision in Australia known as the Rocky Hill case. In the New South Wales Land and Environment Court, Justice Brian Preston rejected the siting of an open cut coal mine, saying it ‘would be in the wrong place at the wrong time’. He did not shrink from making a judgement about the potential damage of the mining project: ‘The Project will be a major source of GHG emissions and contribute to climate change... [it] would cause substantial environmental and social harm.’ But such a decision does not necessarily indicate that a consistent view can be found within one country, let alone between them.

For instance, in the US a nuisance claim by the cities of Oakland and San Francisco against five major oil companies, based on the contribution of their emissions to sea level rise, was rejected by the US District Court of Northern California. The court argued that climate change issues should not be dealt with by judges because ‘many foreign governments actively support the very activities targeted by the plaintiffs’ claims... this relief would effectively allow plaintiffs to govern conduct and control energy policy on foreign soil’.

A man runs next to huge waves breaking on the waterfront as the Typhoon Kong-rey approaches in Taizhou, Zhejiang province, China, 4 October 2018. REUTERS/Stringer CHINA OUT

In a similar case brought by New York City against British Petroleum and others, the defendant argued that the city’s use of oil, in police cars for example, meant it did not have the ‘clean hands’ necessary to sue. This blurring of responsibility between states and big companies (including the fact that many ‘Carbon Majors’ are state-owned) highlights the constraints of existing international law when trying to deal with damage caused by climate change.

Elsewhere, a German court threw off the shackles of international law and allowed an individual claim by a foreign national, a Peruvian farmer, against German fossil fuel giant RWE. The basis of the claim, which could have far-reaching ramifications, is that RWE’s GHG emissions 11,000km distant from the farmer’s property are contributing to glacier melting, which may flood his city in the Andes (see box: A claim with far-reaching ramifications).

That national decisions on environmental issues, which frequently have an international dimension, differ so wildly reinforces the need for an international legal body to deal with the climate change effects. Such a body would look at the interconnected environmental rights and obligations of states, companies, groups and individuals in an innovative way. Hockman thinks the creation of an ICE has to be the ultimate aim: ‘the very existence of an ICE would lead to the handing down of seminal judgments on a range of relevant issues, which I think would quickly start to command acceptance’.

As the repercussions of climate change are increasingly felt, affecting economies and lifestyles, both in the developed and developing world, public, and hence political, attitudes are evolving. International law needs both to drive and reflect this evolution. The question is: how?

‘The increase in climate litigation strengthens the argument for the creation of an ICE,’ says Gerrard. ‘Public opinion and awareness are shifting. However, this does not change the underlying power dynamic. No international tribunal can be created and given teeth without the consent of the governments that would be subject to its jurisdiction, and governments are loathe to have courts, especially internal courts, telling them what they can and cannot do’.

Hockman, however, is more optimistic, despite the fact that ‘internationally, the nation state is in legal terms still far and away the most significant entity, and that nation states will not readily act against what they perceive to be their own interests. But, I think there is an increasing awareness of the importance of law and regulation as a necessary precondition for the survival of mankind, and therefore as being ultimately in the interests of nation states themselves’.

Many hope that legal innovation can be achieved, even as time is running out. Nevertheless, the appetite and the need for effective global enforcement mechanisms are likely to be far greater in future. ‘Changes that will give real effect to international environmental dispute settlement structures are unlikely to come before the next ten or 15 years, when the carrying capacity of the atmosphere for additional GHGs will reach absolutely critical levels and extreme weather events will become more common,’ says Linehan. ‘Then, like-minded progressive states will exert serious economic pressure, including strong environment-based trading sanctions, on errant economies.’

But this may not be soon enough, and, if legal responses to climate change continue to lag so far behind events, future generations will find the law guilty of acting far too late.

Anne McMillan is a freelance writer. She can be contacted at mcmillan.ae@gmail.com