Can international law break the deadlock in climate talks?

An international lawsuit on greenhouse gas emissions could help create the political pressure and third-party guidance needed to revive global climate negotiations.

06 December 2010

International climate talks are not exactly going well — there is little hope of negotiators reaching a global deal this week at the 16th Conference of Parties to the UN Framework Convention on Climate Change in Cancun, Mexico.

A major sticking point is getting agreement — particularly between developed and developing countries — on what a post-Kyoto climate regime, including emissions targets beyond 2012, should look like. A major concern for the developing world is that the agreed deal be just and equitable — that it be fair.

Repaying a climate debt

Climate change is a global problem. From US and Caribbean urban populations facing the impacts of more intense hurricanes to small-scale farmers in sub-Saharan Africa dealing with more frequent droughts, people the world over are feeling the pinch of climate change.

But the problem has not been equally caused by all. Developed countries may represent less than 15 per cent of the world’s population but they have contributed nearly half (around 45 per cent) of the increase in atmospheric carbon since 1850. In comparison, people living in developing countries have ‘under-used’ what would have been their fair share of the ‘available carbon space’. As a result — many developing countries argue — they are owed a climate debt.

The UNFCCC recognises that most historical and current greenhouse gas emissions come from industrialised countries. But these nations (‘Annex I’ parties to the Kyoto Protocol) have been careful not to accept legal responsibility for their past actions.

Can international law hold the main polluting nations to account for the harmful effects of their greenhouse gas emissions? A large part of today’s relevant legal literature suggests that it can — through what is known as the “no harm rule”. This is a widely recognised principle of customary law whereby a State must prevent and reduce the risk of significant environmental harm to other States.

Through the no harm rule, countries significantly affected by climate change may have a substantive right to demand a stop to emissions or compensation for damages.

Power to decide?

The problem is that there are very limited practical ways of pursuing such action under public international law. An international court — such as the International Court of Justice (ICJ) in The Hague, The Netherlands — can only hear contentious disputes about an alleged breach of an international obligation if the countries involved have accepted its jurisdiction, that is, its right and power to interpret and apply the law.

To date only 66 countries accept the authority of the ICJ. This may sound like a significant number, but the list excludes several of the key players in the climate change debate, most notably the United States and China. There is a risk that any decision made by the ICJ would fall flat because it would not apply to these countries.

But, depending on what the decision contains, those countries that were bound by it could be compelled to take leadership within or outside the current negotiation process. A definition of the measures needed 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.

International courts and tribunals rarely decide on disagreements around complex scientific questions or force countries to take specific actions on them. But if a sufficiently strong case is presented, an international court might be willing to creatively engage in settling the dispute over post-Kyoto emissions targets. It could help determine specific procedures for a post-Kyoto regime such as timelines or the establishment of an expert commission.

A climate change lawsuit — or even simply the threat of one — could help create the political pressure and third-party guidance needed to re-invigorate international negotiations.

For more information on international law and climate talks, see International climate change litigation and the negotiations process, published by the Foundation for International Environmental Law and Development (FIELD).