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Ask the experts: Climate change and international law

This week’s show touches on a wide range of hotly-contested topics: climate change, geopolitics and legal precedence.

To help sift through these complex issues, we asked leading experts to weigh in on Palau’s ground-breaking attempt to hold other nations accountable for environmental damage.

See what they had to say below.

Our contributors:

David Biello is an award-winning journalist who focuses primarily on the environment and energy. He has written for Scientific American since November 2005 and is the host of the 60-Second Earth podcast, a contributor to the Instant Egghead video series and the author of a children’s book on bullet trains. Biello has written for publications such as Good and Yale e360. He has appeared on radio shows such as WNYC’s The Takeaway, NHPR’s Word of Mouth, PRI’s The World, and hosted the duPont-Columbia award-winning documentary “Beyond the Light Switch” for PBS.

Daniel Bodansky is an authority on the international climate change regime, whose teaching and research focuses on international environmental law and public international law. He has served as the climate change coordinator and attorney-advisor at the U.S. Department of State, in addition to consulting for the United Nations in the areas of climate change and tobacco control. Since 2001, Professor Bodansky has been a consultant and senior advisor on the “Beyond Kyoto” and “Pocantico Dialogue” projects at the Pew Center on Global Climate Change. He has served on the board of editors of the American Journal of International Law, is the U.S.-nominated arbitrator under the Antarctic Environment Protocol and is a member of the Council on Foreign Relations and the American Society of International Law.

Robert Esposito received his law degree from Wake Forest University School of Law and his LL.M., with highest honors, in International & Comparative Law from The George Washington University Law School. He was previously an attorney for the International Human Rights Clinic at The George Washington University Law School and is the author of the forthcoming article, Throwing Caution to the Wind: The Precautionary Principle in Latin America and Implications for the Case Concerning Aerial Herbicide Spraying.

David Hunter is a Professor of Law, Director of the International Legal Studies Program and Director of the Program on International and Comparative Environmental Law at American University’s Washington College of Law. He teaches U.S. Environmental Law, International Environmental Law, Comparative Environmental Law and the Law of Torts. Prof. Hunter was the former Executive Director of the Center for International Environmental Law, a non-governmental organization dedicated to protecting the global environment through the use of international law

Is Palau’s pursuance of the trans-boundary precedent an appropriate strategy for dealing with greenhouse gas emissions?

Robert Esposito: It appears Palau will ground its legal argument in the sic utere principle (“use your own property so as not to injure another’s”). The principle has been enshrined in many international environmental agreements since the landmark Trail Smelter arbitration, and most scholars agree that it is a customary norm of international environmental law. Despite this academic consensus, however, how this principle applies to greenhouse gas emissions and what legal obligations, if any, this imposes on states is still very much a grey area. Palau will likely frame the issue against this legal backdrop and argue that, in light of the sic utere principle and the obligation to conduct environmental impact assessments in a transboundary context means states should also be responsible for preventing harm caused by greenhouse gases.

Strategically speaking, Palau’s request for an Advisory Opinion stands in stark contrast to diplomatic climate change negotiations. In light of the recent failure of the Rio+20 Earth Summit to advance negotiations, Palau’s request for an Advisory Opinion is perhaps their best strategy. Moreover, where the filing of a contentious case against the world’s largest emitters of greenhouses gases would likely cause considerable international strife, (and be fraught with jurisdictional issues and problems of proof) the request for an Advisory Opinion will produce a non-binding result whose primary purpose is clarifying the legal implications of greenhouse gas emissions. It would thus not determine the fault of any one state or group of states.

David Biello: Since climate change is inherently a trans-boundary problem, it will require a trans-boundary solution. After all, a ton of CO2 emitted anywhere is a ton of CO2 in the atmosphere for the next century or more, trapping heat and causing climate change. That means U.S. emissions impact Palau… and Palau’s greenhouse gas emissions impact the U.S., though of course they are different in magnitude.

The real question, though, is whether the courts are an appropriate venue for finding a climate change solution. I’m no legal expert, but it is clear that international negotiations have failed to deliver a global strategy to reduce emissions. Given the existential threat Palau faces, I’d be surprised if they didn’t pursue all avenues.

Of course, it’s not just Palau. The Alaskan village of Kivalina for example, as well as many others face an existential threat from the Arctic thaw caused by climate change. These nations have been pursuing a lawsuit against major corporate emitters, such as ExxonMobil. There are many more such examples, and the will be even more as the impacts of climate change begin to be felt around the globe.

David Hunter: Palau has few options available to it. Climate change quite literally threatens their continued existence. At the same time, international climate negotiations are painstakingly slow, fail to reflect the urgency of the threat and though countries such as Palau actively participate in these negotiations, their positions are largely ignored. Compounding the international gridlock, major emitting nations (other than the EU) and especially the U.S. have failed to adopt an adequate national level plan to address climate change. Palau and other island states understandably view this lack of political ambition as a threat to their national security.

Under these circumstances, Palau’s move for an Advisory Opinion from the ICJ is an exciting and important strategy for raising awareness and building political will to address climate change. Of course a judicial court case, no matter its outcome, cannot replace the need for the comprehensive management of GHG emissions through international negotiations nor can it compel the United States or any other country to act. But calling for an Advisory Opinion does bring attention to the plight of the Island States and reminds all policymakers of the serious ramifications of climate change.

Additionally, this strategy particularly strengthens Palau’s claims for compensation for damages from climate change. In this regard, the action may put Palau and other Island States in a stronger position to receive funding from the United States and other major emitting countries for the damages caused by climate change and the costs of adapting to climate change.

Daniel Bodansky: It’s understandable that low-lying states are considering this strategy, given the slow pace of the negotiations, but I think the strategy is ill-advised. ICJ advisory opinions have limited efficacy, so even if the low-lying states were successful in getting an ICJ opinion that states have a responsibility to limit their emissions, this would most likely have little effect on emission levels. On balance, the potential benefits of an advisory opinion do not justify the risks of a ruling that complicates efforts to reach a political solution. Such a ruling could distract from international negotiations, make them more difficult, or lessen pressure on states to change their behavior by letting them off the hook legally.

If the ICJ issued a finding that the industrialized world is responsible for the damage its emissions are causing, would a ruling have any teeth, or would it be purely symbolic?

Robert Esposito: ICJ Advisory Opinions are non-binding and technically have no legal teeth. One could not, for instance, use the Advisory Opinion as the basis for a lawsuit against greenhouse gas emitters. This does not mean, however, that the ruling would be purely symbolic. In fact, ICJ Advisory Opinions are held in the highest regard in the international community and have, on more than one occasion, sown the seeds of development in international law. More importantly, the goal of Palau’s request is not to obtain an enforceable judgment, but rather, it is to provide the ICJ an opportunity to clarify the international legal landscape with respect to greenhouse gas emissions. The Rio+20 Earth Summit has proven, once again, that states are unwilling to reach a consensus on the legal implications of greenhouse gas emissions, and Palau’s hope is that a favorable Advisory Opinion will reset negotiations by clarifying the legal status of heretofore vague and ambiguous principles of international environmental law.

David Hunter: The ruling will not be directly enforceable in the way that we in the United States normally think of judicial decisions being enforced. The Court will not directly be able to compel state action either to pay damages or to reduce emissions. But the finding will be more than symbolic, because such a finding would reverberate in many different forums. For example, industrialized countries have long resisted recognition of legal responsibilities, but such a ruling has the potential to change the underlying theoretical basis of global climate negotiations, particularly with respect to adaptation funding.

I believe such a finding and the publicity and politics around it would make industrialized countries more inclined to provide greater adaptation funding. In addition, the ICJ has decided relatively few cases relating to international environmental law and a decision in this case could help clarify the responsibilities of states for environmental damage that they cause to other states or the global commons.

In this way, a ruling by the ICJ that clarifies the legal responsibilities of emitting states could influence litigation at other international and national courts. Climate-related cases have been and will be brought before human rights tribunals, the Law of the Sea Tribunal, the World Bank Inspection panel and other international institutions. An ICJ opinion that supports legal responsibilities of emitting countries would strengthen many of these cases—some of which could lead to binding decisions.

Daniel Bodansky: The ruling would be only advisory, so states would not have an obligation under Article 94 of the UN Charter to comply with the ruling, nor would the Security Council be authorized under that article to take action to give effect to the ruling. It’s unrealistic to think that international law could compel industrialized states to reduce their emissions. The real question is whether a legal ruling could contribute to a political solution, for example, by influencing public opinion in key states such as the United States, China, or India. This seems to me unlikely, at least in the short term, so I think an advisory opinion would be largely symbolic.

The United States has come out strongly in opposition to Palau’s effort, saying it would complicate current ongoing international climate change negotiations. Is this an understandable position?

Robert Esposito: The U.S. may oppose Palau’s strategy for several reasons. First, the Aerial Herbicide Spraying Case, pending before the ICJ, may prove to be a watershed moment in the development of international environmental law. This case is contentious so it is binding on the parties and has the potential to make a greater impact on the development of international law than a non-binding Advisory Opinion. I argued this in a 2010 article. The U.S. may prefer to give the ICJ the opportunity to rule on this case and allow this body of law to develop organically instead of inserting the issue of greenhouse gas emissions directly before the Court.

More likely, however, is that the U.S. fears losing control over the development of international environmental principles. A request for an Advisory Opinion from the ICJ is the international legal equivalent of a knuckleball – no one can predict what the final outcome will be. Such uncertainty regarding a pervasive issue like greenhouse gas emissions is a legitimate cause for concern for the U.S., the world’s second-largest emitter of greenhouse gases. Unsurprisingly, the U.S. would likely prefer to address this problem through bilateral or multilateral negotiations with other states and international organizations where the U.S. can exercise its considerable leverage to propose draft language and steer negotiations along predetermined paths.

David Hunter: Yes, it will certainly complicate international climate change negotiations from the US perspective. But those negotiations are failing to meet the threat of climate change generally and certainly for the island states. Of course it would be less complicated if island states were not faced with such severe and relatively imminent threats to their national security. It would be less complicated if we could ignore the urgency of the threat. It would be less complicated if we could ignore the voices of the politically-marginalized victims of climate change (such as Palau). It would be less complicated if we just negotiated with China in a closed room. But it would not be fair nor just, nor would it lead to adequate action to address climate change.

In fact, one of the values of this litigation strategy is that it does complicate the negotiations, reminding negotiators of the very real impacts of climate change and the need for urgent action—and strengthening the voices of those countries and people who have the most to lose in the near term to climate change.

Daniel Bodansky: I’m not familiar in detail with the U.S. position, but agree that a ruling could complicate the negotiations. “Getting to yes” is easier when actors focus on their interests rather than their rights. For that reason, a ruling about legal rights might make states less willing to make the compromises necessary to achieve an outcome that furthers everyone’s interests.

Low-lying nations argue they’re feeling the brunt of climate change now, and say that international agreements have thus far done very little to address their concerns. What other avenues might they have to pursue their complaints?

David Hunter: Bringing climate change-related litigation to the World Court has been considered by island states for nearly two decades now. They have been very slow in choosing this option, precisely because they hoped other, less contentious, approaches — most notably negotiations — would be able to address climate change effectively. The island states have been active and constructive participants in international climate negotiations since the beginning, but their confidence in such processes has not been rewarded with significant progress and they remain threatened.

Recourse to the ICJ is a legitimate part of what should be a multi-prong effort to continue to build political support for stronger action on climate change. This could range from pushing climate change as a national security issue in the Security Council to raising climate change as a human rights issue to bringing cases against private emitters in domestic courts. As noted above, the ICJ case could provide important legal precedent that strengthens many of these other strategies.

Daniel Bodansky: Low-lying and least developed states were successful at last year’s Durban conference in getting a decision to negotiate a new agreement that will be applicable to all countries. They also succeeded in starting a process to consider ways of raising the ambition of what countries have already pledged to do under the Copenhagen Accord. In addition to the UN climate change regimes, there are initiatives in other international organizations to address particular parts of the climate change problem, such as emissions from maritime transport and civil aviation and short-lived climate forcers such as black carbon. These initiatives are less splashy than an ICJ advisory opinion, but in practice are likely to have a bigger effect on emissions.