Climate change action through the courts

October 4, 2010 12:00 am

, NAIROBI, Kenya, Oct 4 – Industrialised countries can now be compelled to hasten action on climate change through a court process according to the Foundation for International Environment Law and Development (FIELD).

In a new publication, the foundation said that climate-vulnerable developing nations could use international law to break the current deadlock in the intergovernmental negotiations on climate change by taking industrialised nations to court.

The journal came as government officials from around the world gathered in Tianjin, China for three days of negotiations under the United Nations Framework Convention on Climate Change (UNFCCC).

"A large part of the relevant legal literature suggests that the main polluting nations can be held responsible under international law for the harmful effects of their greenhouse-gas emissions," says the paper\’s author, lawyer Christoph Schwarte.

"As a result affected countries may have a substantive right to demand the cessation of a certain amount of emissions. In selected cases they also have the procedural means to pursue an inter-state litigation in an international judicial forum such as the International Court of Justice in The Hague," he said.

Mr Schwarte\’s paper outlined a possible legal argument for such a lawsuit and offered some observations on the potential impacts of bringing a case before an international court or tribunal.

While there were various substantive and procedural legal hurdles, under certain circumstances litigation under public international law would be possible and could become a bargaining chip in the negotiations.

"Today, a credible case for inter-state litigation on climate change can be made," the paper said.

"Developing country governments are understandably reluctant to challenge any of the big donor nations in an international court or tribunal. But this may change once the impacts of climate change become even more visible and an adequate agreement remains wanting."

FIELD analysed the current legal discourse and summarised its findings in a longer working paper, which it made available online as an open wiki document to allow legal academics and practitioners comment on, criticise or strengthen the arguments.

"While international judicial organs are unlikely to issue hard hitting judgments, climate change litigation may help to create the political pressure and third-party guidance required to re-invigorate the international negotiations, within or outside the UNFCCC," Mr Schwarte said.

Since the failed Copenhagen summit in 2009, there has been limited progress in the UNFCCC climate negotiations. At the current rate of progress, a new legal framework and ambitious emission reductions look unlikely in the near-term.

As a result billions of extra tons of carbon dioxide and other greenhouse gases would be released into the atmosphere, and many scientists warn that this meant global temperatures could rise by four degrees Celsius by the end of the century.

Joy Hyvarinen, Director of FIELD said, "Progress in the international climate change negotiations is nowhere near enough to reduce greenhouse gas emissions to a safe level. Something new is needed to push the negotiations forward. Perhaps an international court case could help bring new momentum to the negotiations."

FIELD is a group of public international lawyers based in London working towards a fair, effective and accessible system of international law that protects the global environment and promotes sustainable development.



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