Desperate Times May Call for Desperate Measures

A new Working Paper published by the UK-based Foundation for International Environmental Law and Development (FIELD) analyzes whether states vulnerable to climate change harms could seek legal redress in an international tribunal for another state’s contribution to the phenomena.   Reviewing recent literature on the topic, the report finds that many vulnerable states are growing increasingly frustrated in the wake of the recent Climate Change Summit in Copenhagen, which has thus far failed to result in any legally-binding agreement.  In light of the fact that negotiations have at this point largely broken down among the world’s largest emitters, vulnerable states are looking to both public international laws as well as customary international norms under which they could bring a claim to force heavy emitter states to implement climate change mitigation and prevention measures.  The report points to the “no harm” principle of customary international law as the most promising pathway to redress.

However, bringing such a claim could be an uphill battle, not only because of possible political backlash of doing so (heavy emitters also are generally large donors to the most vulnerable, largely third-world nations), but also because proving the elements of the claim could be tricky.  The nature of the problem here doesn’t necessarily lend itself to a straightforward causation analysis, and international courts have typically shied away from adjudicating scientific disagreements.

While it may be difficult to determine the likelihood of success on these claims, the report notes that vulnerable countries could find it worthwhile to file them regardless.  That’s because, if nothing else, these cases could help revive international negotiations by creating additional awareness and applying public pressure on the leadership of heavy-emitting countries.


Posted by: Anne Hanson, GIELR Executive Editor for Development