Tackling the Climate Emergency:Economic and judicial instruments

[discovolante]

The ICJ has been asked to give an advisory opinion on the following:

(a)What are the obligations of States under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases for States and for present and future generations?

(b) What are the legal consequences under these obligations for States where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect to: (i) States, including, in particular, small island developing States, which due to their geographical circumstances and level of development, are injured or specially affected by or are particularly vulnerable to the adverse effects of climate change?(ii) Peoples and individuals of the present and future generations affected by the adverse effects of climate change?”

Full case details available here: https://www.icj-cij.org/case/187

There's also a podcast about it here: https://countersignisapodcast.com/ with a focus on Veraibari, a village/town in Papua New Guinea that keeps getting washed underwater due to sea level rises. One of the things that's stuck with me is that the people living there didn't know about climate change at first (although it sounds like it was explained to them with reference to the giant oil pipes running through the village...) and under their belief system some members of the village were thought to be able to communicate with the weather - and by the sounds of things this led to them starting to fall out in lumps because they thought certain individuals were responsible.

[IvanV]

The ICJ has been asked to give an advisory opinion on the following:

(a)What are the obligations of States under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases for States and for present and future generations?

(b) What are the legal consequences under these obligations for States where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect to: (i) States, including, in particular, small island developing States, which due to their geographical circumstances and level of development, are injured or specially affected by or are particularly vulnerable to the adverse effects of climate change?(ii) Peoples and individuals of the present and future generations affected by the adverse effects of climate change?”

Full case details available here: https://www.icj-cij.org/case/187

My suspicion would be that the only real legal obligations arise from the Paris Agreement. We all know how limited those obligations are. Any nation that gets fed up of those obligations can just withdraw, and best of luck trying to enforce anything on them then.

It is interesting that the judges have sent out a number of questions to various nation states, and we can read the answers from those who have answered. I had a quick flick through the UK's response for interest. On the Paris Agreement, the UK respondent writes that the only obligations under Paris are of conduct, not of result. In other words, you can't point to something that happened, nations have no specific obligation in relation to that. Their only obligation is what they specifically agreed to in terms of reducing gaseous outputs. That seems to me to be likely to be found legally true, though of course we shall see what the ICJ says about that.

As to any broader obligation not explicitly stated in treaty, the UK respondent wrote:

[T]here is no existing customary international law right to a clean, healthy and sustainable environment.

And I rather suspect that is a legal position that is quite hard to deny. But again, we shall see what the ICJ says.

[dyqik]

I'd guess that there are likely to be obligations to not knowingly pollute the environment though, particularly in terms of fisheries and food production and their economic value.

There are also plenty examples of treaties and accords that cover that area. The atmosphere nuclear test ban, Montreal Protocol, etc., but I guess those don't directly relate to legal obligations.

[IvanV]

I'd guess that there are likely to be obligations to not knowingly pollute the environment though, particularly in terms of fisheries and food production and their economic value.

There are also plenty examples of treaties and accords that cover that area. The atmosphere nuclear test ban, Montreal Protocol, etc., but I guess those don't directly relate to legal obligations.

Here is a List of international environmental agreements. Most of them aren't very helpful, beyond Kyoto and Paris which directly relate to the issue.

One which, as you note, is highly relevant is Montreal Protocol on Substances Which Deplete the Ozone Layer. But it gives specific obligations to countries to control those substances in particular ways, rather than being effects-based. It is often said it could do with upgrading because a lot of refrigerants are still being unnecessarily used and hence ultimately emitted, which is causing a lot of global warming.

Another one that seems highly relevant is the Convention on Long-Range Transboundary Air Pollution. It covers some climate-changing gases such as nitrogen oxides and sulphur compounds. But it doesn't cover CO2, and it signatories are rather limited, mainly USA, Canada, Europe, Former Soviet Union. Also it results in specific obligations to limit specific types of pollution. It's not going to protect low-lying island nations, as far as I can see.

The UN Convention to Combat Desertification mentions an effect rather than a pollution. Although it is desertification rather than sea-level rise, that is substantially driven by global warming. But it doesn't seem to give any specific obligations to countries to prevent those global forces that are causing desertification, but rather rather generally encourage them to be helpful in combating the desertification that is occurring.

Basically I think the legal issue is going to be that while countries might be willing to sign up to not doing specific things, they are going to be rather more careful about signing anything that means that they must not do things currently unspecified, on the basis of effects that might later be found and causes that might later be found. Because that gives them an unlimited liability. They'll get their lawyers to check they aren't signing anything like that. So I think you are going to struggle to find that kind of obligation in treaties.