BY EDMUND SMITH-ASANTE
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, says a paper published today October 4, 2010 by the Foundation for International Environmental Law and Development (FIELD).
According to lawyer Christoph Schwarte, the paper’s author, “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.”
He adds that “As a result, affected countries may have a substantive right to demand the cessation of a certain amount of emissions,” and that “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.”
The publication comes as government officials from around the world gather in Tianjin , China for three days of negotiations under the United Nations Framework Convention on Climate Change (UNFCCC), a press release issued by the International Institute for Environment and Development (IIED) has said.
It notes that while there are 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,” says Schwarte, although he envisages that developing countries may be hesitant in view of the assistance they receive from donors or their development partners.
“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,” he says.
Meanwhile, FIELD has analysed the current legal discourse and has summarised its findings in a longer working paper, which it has made available online as an open wiki document to allow legal academics and practitioners to comment on, criticise or strengthen the arguments.
But Schwarte opines that “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.”
Supporting Swarte’s view, Joy Hyvarinen, Director of FIELD says ‘Progress in the international climate change negotiations is nowhere near enough to reduce greenhouse gas emissions to a safe level.’ In her view, something new is needed to push the negotiations forward, which may well be an international court case, which could help bring new momentum to the negotiations.’
Indications are that since the failed Copenhagen summit in 2009, there has been limited progress in the UNFCCC climate negotiations, which means, at the current rate of progress, a new legal framework and ambitious emission reductions look unlikely in the near-term.
As a result it is feared billions of extra tons of carbon dioxide and other greenhouse gases will be released into the atmosphere, and many scientists warn that this means global temperatures could rise by 4 degrees Celsius by the end of the century.