International Court of Justice, photo: Karen Rustad/Creative Commons.
The issue of international legal liability for damages caused by climate change has come up a number of times recently, especially as scientists have become more adept at attributing natural disasters to global warming. Now, a new briefing by the Foundation for International Environmental Law & Development shows how there are existing laws and principles available for states to sue one another for damage caused by climate change, and how this could pressure nations into stronger international action. No-Harm Rule Applies Directly to Climate Change
FIELD's International climate change litigation and the negotiation process shows how the the no-harm rule (a widely recognized principle of customary international law) is directly applicable to climate change. Under the principle nations are bound to prevent, reduce and control the risk of environmental harm to other nations.
The classic example of this is litigation over transboundary air pollution between Canada and the United States, where Canada was forced to compensate the US for damage caused by sulphur dioxide emissions.
The no-harm rule is also included in the 1972 UN Stockholm Declaration, which states that nations have the right to exploit resources within their borders, but only if in doing so they don't cause damage "to the environment of other States or of areas beyond the limits of national jurisdiction."
Harm Does Not Have to Already Have Occurred
Interestingly, harm does not have to already have occurred. FIELD states, "It is sufficient to show that a State's conduct will cause significant damage for its responsibility to be engaged. Thus the no-harm rule is not only a general obligation to prevent transboundary harm, but also to minimize the risk of such harm."
Failing to Curb Greenhouse Gas Emissions Enough to Create Liability
As for actual liability here, nations which fail to prevent such transboundary harm could be held liable, even though the actual entities producing the pollution (in this case the greenhouse gases) are private entities.
By approving activities that result in GHG emissions, or by failing to put restrictions into place that prevent harm to other countries, governments are responsible for the resulting transboundary pollution and non-compliance with the no-harm rule.
The other part of determining liability here is determining causality. In the case of climate change, the link between human activity and climate change has been sufficiently demonstrated. Liability of a specific nation is not reduced simply because other nations are also responsible for the same wrongful act.
Which is all sounds great--and in many ways is--but when it comes to actually bringing such an action to court, it begins to fall apart under current systems.
Best Use Not To Win Damages, But Force International Action
The paper goes through a whole slew of obstacles that such litigation would have to negotiate, clear, avoid, etc etc, meaning that right now that, though inter-State litigation isn't impossible, perhaps the best use isn't to actually force one nation to pay damages to another on any wide scale, but to create political pressure to reinvigorate the international negotiating process.
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. 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.
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