International climate change litigation – what lies ahead?

Posted on October 25, 2010 by

In the situations created by climate change, the stakes are high and the options for tackling future cross-border effects of actions  today or in the past are limited and twisted. The Kyoto Protocol commitments expire in 2012. The question arises – will the international climate change litigation be able to push governments towards any binding international agreement to reduce greenhouse gas (GHG) emissions?

To illustrate the point, Bangladesh is threatened with almost total submersion due to the impacts of sea level rise. Can it have a case under public international law against major emitters such as the United States or China? A working paper entitled “International Climate Change Litigation and the Negotiation Process”, recently released by the Foundation for International Environmental Law and Development, tries to address these questions.

The paper notes that by 2020, between 75 and 250 million people in Africa are expected to be exposed to increased water stress due to climate change. Some countries will face sea level rise, heat waves, droughts, floods, desertification, invigorated disease vectors.  The actions for reducing GHG emissions and concentrations cannot wait. Hadley Center at the UK’s Meteorological Office states that for every year that peak GHG emissions are delayed, the world is committed to another 0.5° C of warming.

While the environmental consequences of climate change may be clear, the legal and procedural issues are thorny. The authors of the working paper mentioned conclude that “international law is ill-equipped to deal with a complex situation such as global warming. The primary legal rules are vague and the majority of harm is yet to occur.”

Though simplified and non-delivering legal mechanisms may be available, developing country governments may be understandably reluctant to challenge the actions of donor nations. But the pace of of international climate change negotiations is glacial at its best and the stakes are enormous for certain countries. This issue can cause State vs. State disputes in the not-to-distant future.