Climate change litigation in international law

Climate change litigation in international law: a doctrinal research project examining the prospects for small island states to leverage the development of law and policy, and ultimately international commitment to standard setting for global greenhouse gas (GHG) emissions reduction, by including major coal exporting states in litigation in international fora over harm caused by climate change.”

This research will be situated at the intersection of climate change law with international law of state responsibility. International environmental law discourse is presently dominated by the concerns over global warming.1 The scientific community has published projections about the harmful effects of anthropocentric climate change.2 There is international consensus about the need to take action, but the actions so far have been criticised as being sporadic and insufficient,3 and hampered by political considerations and self-interest.4

The international community has so far acquired knowledge and created roadmaps for mitigation, set goals and targets for GHG emissions, agreed upon a convention to reduce GHG emissions, and created market based incentives to maintain and increase carbon sinks.5 The focus is now shifting to climate resilience and adaptation, particularly for the most vulnerable communities.

While the doctrine of equality of states means that all states are equal in terms of standing in international law, there is nevertheless a large disparity in terms of economic, political and military power and influence on the world stage. The international response to anthropocentric climate change has been disproportionately influenced by powerful states, largely through treaty negotiation processes and emissions target setting. These measures have been criticised as delivering too little too late.6

Meanwhile, some small island states have a disproportionally high exposure to the risk of harmful effects of global warming, and a relatively lower economic and political capacity to either influence the results of treaty negotiations among the more developed global actors, or to safeguard themselves against the impacts through adaptation measures. In our own region we have Vanuatu and Tuvalu impacted by increased cyclone intensity and progressive sea-level rise respectively.

In 2012 Yale Law School prepared a report setting out a case for an advisory opinion from the International Court of Justice, dealing with international responsibility for trans-boundary harm associated with climate change.7 Others have pointed to significant unresolved problems, such as mechanisms for establishing responsibility and proving the causal connection.8 Posner, among others, has considered whether human rights litigation is a viable approach for litigating climate change impacts, and concluded that a desirable outcome may be elusive.9

Discussion on state responsibility for trans-boundary harm, in this context, has largely been about the responsibility of the big emitters. But there are other state and non-state actions to consider that raise questions about accessorial liability, in a sense analogous to the doctrine in criminal and tort law of aiding, abetting, counselling, procuring, soliciting or inciting.

Responsibility under this head in international law is directly addressed in the Draft Articles on Responsibility of States in terms of aiding or assisting in the commission of an internationally wrongful act.10 It also has other manifestations in international wrongs, such as seen in United States law under the Alien Tort Claims Act.11

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