Month: April 2021

Crimes against Humanity: A pragmatic approach to widespread or systematic environmental destruction

Posted in International Environmental Law1 Comment

By Manoëlle Koninckx

Manoëlle Koninckx, Master of Laws, graduated from the University of Antwerpen having as main subject of interest International Criminal Law, Human Rights and Environmental Challenges. 

The environmental situation on Earth is extremely alarming. In this turmoil, a clear consensus has emerged as to the fact that action must be taken internationally to alleviate human’s destructive frenzy; the question however remains as to the means required. While it has been largely argued in literature that a new crime ‘ecocide’ should be added to the list of International Criminal Law (ICL)’s core crimes, in this post, I take the stand that international instability and the time required to amend an instrument like the Rome Statute on the International Criminal Court (ICC) renders such approach inefficient and unfitted to the environmental emergency. Rather, relying on the umbrella provision of Article 7(1)(k) of the Rome Statute, I argue that, even if limited to some extent, a more pragmatic solution may be found in the prosecution before the ICC of attacks on humans, directly perpetrated by means of harms to their environment.

  1. How does the Crimes Against Humanity provision of the Rome Statute provide protection against Environmental destruction? 

Until now, Crimes Against Humanity (CAH) provisions find application in contexts of state repression or predation by armed groups. Environmental harm, on the other hand, is only explicitly prohibited under ICL in war contexts under Article 8 of the Rome Statute. This post nonetheless suggests a contemporary application of the Rome Statute provisions on CAH is possible based on a teleological interpretation of CAH’s definition.

Such interpretation finds its roots in the publication of the 2016 Office of the ICC Prosecutor Policy Paper on Case Selection and Prioritization, which insisted on giving particular attention to the ‘means employed to execute the crime (…) [focusing inter alia on] crimes committed by means of, or resulting in, the destruction of the environment or of protected objects (…) illegal exploitation of natural resources or the illegal dispossession of land’. Since the publication of this document, the interpretation of CAH as encompassing crimes against the environment was rendered foreseeable. 

Still, not any environmental harm may be interpreted as a CAH. It should fulfill the conditions required by Article 7 of the ICC Statute; hence 1. Be a prohibited act enlisted in the Statute; 2. Constitute an attack against a civilian population; 3. Be widespread or systematic; 4. Derive from a state or organizational policy; and 5. Be done with intent. 

Prohibited act:  Article 7(1) of the ICC Statute requires the commission of one of the acts it enlists. In this regard, the category of ‘other inhumane acts’ (Article 7(1)(k)) retains all our attention.  This umbrella provision creates an openness to the concept of CAH. As such, it acknowledges that no explicit provision can ever rival the imagination of criminals and opens the floor for environmental destruction as a means to perpetrate CAH. The destruction should be inherently grave as being the source of ‘great suffering, or serious injury to body or mental or physical health’ of the victims (Article 7 (1)(k)) and be of a ‘character similar to any other act’ referred to in Article 7(1)(a-j) of the Statute. Authors such as Amissi Melchiade Manirabona have in this matter argued that toxic waste poisoning could in some cases qualify as a CAH when causing a significant amount of direct harm.

Attack against a civilian population:  Established jurisprudence shows that the term ‘attack’ should be distinguished from the context of an armed conflict and is not limited to the use of armed force. Rather, it encompasses ‘any mistreatment of the civilian population’ (ICTY, Kunarac case, para. 86) or any ‘campaign or operation carried out against the civilian population’ (ICC, Bemba case, para. 149). Accordingly, attacks are conceptualized broadly by the ICC. They hence hold the potential to encompass massive environmental destruction because of its value for earthlings’ survival.

Widespread or systematic: Under the Rome Statute, any natural person, be a state official, a member of an armed group, or a civilian, may be prosecuted for CAH where his or her action is sufficiently connected to a widespread or systematic attack against a civilian population with the knowledge of the attack. The ‘widespread’ criterion mostly refers to a quantitative threshold, referring to the scale of the attack or, equivalently, to the substantial number of victims. In the context of environmental destruction, one could consider ‘widespread’ the act of dropping a considerable amount of hazardous waste on a residential area. The ‘systematic’ requirement, on the other hand, refers to the nature of an act of violence. As such it should imply a certain degree of organization and planning. The violation of individual rights should follow a pattern and involve the repetition of similar criminal conduct on a regular basis. This provision could, for example, encompass the constant dropping of untreated and unfiltered petroleum waste in the natural environment surrounding oil exploitations, considering their dramatic effects on human health.

Policy of a State or a Corporation: the attack should be committed ‘pursuant to or in furtherance of a State or organizational policy to commit such attack’; a consensus seems to emerge from literature and ICC’s jurisprudence (ICTY, Tadic case, para. 131) that under this formulation, any organized group of people with a particular purpose, such as a government department or even a corporation could qualify, hence recognizing that the purpose and motivation of such actors for capital and profit may be of a corruptive and tempting influence. When such deviance occurs, corporations contain a structure of authority, legitimized by the law, to facilitate the perpetration of crimes. For this matter, some authors have suggested that it might be possible to prosecute the corporation’s CEO or other high-ranking officers for their decision(s) in the management of the firm (the ongoing investigations on Colombia could be interesting in that matter as the file includes examinations of the corporate Chiquita for CAH alleges). Others have theorized that corporate officers could be held as accomplices in some form, be by the ‘aiding and abetting’ provision of Article 25(3)(c) of the ICC Statute; joint criminal enterprise or co-perpetration of Article 25(3)(d); or superior responsibility for crimes committed by their subordinates of Article 28(b). Those options all hold the potential to overcome the ‘corporation excuse’, according to which the fact that the corporate nature of the author could prevent any prosecution before the ICC. 

Intent: The final contextual element relates to the intention of the author. Some may argue that most of the time, environmental destruction is not committed for the purpose of harm and is rather profit-driven. Nonetheless, these motives do not prevent compliance with the mental requirement enshrined in Articles 30 and 7 of the ICC Statute. Indeed, it has been long established that the motives that inspired the perpetrator to take part in the attack are of little significance. The perpetrator’s knowledge that its actions amount to CAH does not matter either. However, the awareness that its act will, in the ordinary course of events, have as a consequence massive destruction of the environment and thereby a disastrous impact on the local population, is crucial. Therefore, ‘it is enough that the accused was aware of the environmental destruction’ to consider the intent requirement to be fulfilled. 

  1. Limitations

Antropocentrism: The Rome Statute approach only evaluates environmental damages for their impact on humans, as such, it provides for an anthropocentric and somehow limited approach to environmental destruction. Yet, it does not mean that non-human environmental entities (i.e. ‘natural objects’ such as rivers, mountains oceans, or what comes under the definition of fauna and flora) may not be defended. Nonetheless, they will never be for their intrinsic value. Ecocentric considerations are non-receivable before the ICC. Which means that, for example, the destruction of the Amazon forest in Brazil may never be considered as a CAH as such, rather, it may be for its instrumental or utilitarian value for mankind (shelter, source of food, medicine, clean air, …). 

Foreseeability: The mandate of the current ICC prosecutor (and author of the 2016 Policy Paper), Fatou Bensouda, will end on 15 June 2021. As of March 2021, no investigations or prosecutions in which environmental damage or illegal natural resources were regarded to be aggravating circumstances in the case selection and investigation criterion. It remains to be seen whether the new prosecutor, Karim Khan, will pursue similar policy guidance on case selection and prioritization.

  1. A call for pragmatism 

While limited to some extent, protecting earthlings from mass environmental destruction under Article 7(1)(k) of the Rome Statute is feasible and should not be overlooked. CAH, as known for their grave character of their prosecution tend to shine the spotlight on events that otherwise would be undermined or ignored before national courts. As such, the prosecution of few but massive environmental destructions may set an example and contribute to the fight against impunity. 

Considering the urgency of the present situation, no means of defense of the environment should be neglected. Especially those whose symbolism is likely to inspire the international community to more sustainable practices. To paraphrase the Irish author and philosopher Edmund Burke, more than ever, nobody will make a greater mistake than he who does nothing because he can only do a little.

Painting Red Streets With Orange: Non-Lethal Assistance and its Theoretical Implications in International Customary Law

Posted in Editorial, Public International LawLeave a comment

By Emma Schulte

Emma Schulte is a research assistant at the University of Groningen. She’s the founding editor of the Groningen Journal of European Law and a blog editor at Jus Cogens: The International Law Blog. Twitter: https://twitter.com/EmmaSchulteEU LinkedIn: www.linkedin.com/in/emmajschulte

Introduction

On the 18th of September the Dutch Minister of Foreign Affairs, Stef Blok, announced that the Netherlands is invoking Syria’s responsibility for violating the Convention Against Torture (CAT). This development has already been extensively discussed in the blogosphere (see the Opinio Juris blog, specifically Priya Pillai’s post and the post by Yasmine Nahlawi and Sanna Sekkarie). As mentioned by Nahlawi and Sekkarie, the Syrian Ministry of Foreign Affairs fired back with a heavy accusation that the Dutch have supported terrorist organisations in Syria. While no proof has been given in support of this imputation, it makes it worth revisiting the circumstances under which the accusation came to exist: namely, the Dutch Non Lethal Assistance (NLA) programme and its supposed infringement of the principle of non-intervention.

Between 2015 and 2018, the Dutch government assisted armed opposition groups in Syria by means of an NLA programme, which entailed the provision of vehicles, electronics, and prefab containers. The Syrian government did not consent to this assistance, making the fact that it was an illegal intervention even more apparent. The Dutch response only added salt to the wound when the report commissioned by the Tweede Kamer (published in June of this year by the Dutch CAVV) refused to address the legality of NLA citing it was not “equipped” to do so (page 14).  

But: is the concept of NLA actually an infringement of non-intervention?

Under the well-known gospel of Nicaragua, it would not take a lawyer to see that NLA is not compatible with the principle of non-intervention. However, I argue that there is an inherent conflict between the ICJ’s understanding of international customary law and the reality of international customary law, and that this incorrect translation, which I will specify below, impacts the ability to provide an authoritative answer on the legality of NLA. 

Bridging the Gap Between Normative Constellations

The existence of indirect non-forcible means of intervention was confirmed in Nicaragua, where the ICJ also recognised non-intervention as a customary norm, defining it as ‘the right of every sovereign State to conduct its affairs without outside interference’. Subsequently it laid out the following rules, which will be helpful to us to examine the particular situation of the Netherlands in the following section:

  • the Court introduced the criterion of coercion as a condition for an unlawful intervention;
  • the Court further touched upon the type of assistance which would constitute an unlawful intervention. Although there is no mention of NLA, the Court does analyse assistance in the form of arming, training and funding, concluding that all types are unlawful interventions; and,
  • lastly, the Court accepts a derogation in the form of humanitarian assistance, strictly defining its scope as non-discriminatory, with a purpose of protecting human lives and ‘alleviating suffering’. The Court also notes that the content of such assistance ‘does not include the provision of weapons, weapons systems, ammunition, or other equipment, vehicles, or material which can be used to inflict serious bodily harm or death’.

While the Court correctly identifies the existence of non-intervention as a customary norm, it does not particularly clarify its meaning and its content, which remains unsettled. Historically, intervention and the use of force were interchangeable concepts, indicating that the underlying element of intervention encompassed only coercion by forcible means. This is a much narrower definition than proposed in Nicaragua, and indicates a disconnect. I am of course not the only one who sees that disconnect. For example, ad hoc judges have criticised the Court for not providing enough evidence for state practise in its judgement. (See Meron at pg. 820). While it is true that there is strong evidence of opinio juris suggesting that even indirect non-forcible means of intervention is unlawful, state practice has not been sufficiently consistent in order to determine the precise content of the norm.  

Analysing the Legality of NLA

As mentioned above, the Dutch government provided a myriad of aid to Syrian opposition groups. In total, a very comfortable 25 million euros was spent on the provision of armoured vehicles and other non-lethal, but nevertheless militaristic equipment. This equipment was solely granted to opposition groups. It therefore quickly becomes apparent that the actions by the Dutch government under the Nicaragua-framework were contrary to international law. However, this is not the end of the story. The underlying theme in my analysis is the presence of contested customary norms, including intervention based on humanitarian grounds and self-determination. I build my argument upon a peculiar notion introduced by Akehurst, that conflicting customary norms can exist simultaneously. The legal value of such a grey area would entail that the situation in question is one that is lawful. To demonstrate this, let’s first consider the applicability of these norms, before considering their status in customary law. 

The evidence of the widespread brutality of al-Assad’s regime, while arguably not as severe as the genocidal policy that triggered NATO’s interference in Kosovo, provides strong grounds to justify NLA on the basis of humanitarian intervention, a contested customary norm. This is especially so since, contrary to Syria’s allegations, the assistance has only been proven to have been provided to moderate groups rather than belligerents. Furthermore, the violent suppression of opposition to al-Assad’s regime and the acknowledgement of the opposition’s legitimacy by multiple states prompt justifications based on self-determination and recognition of the opposition. These are also contested customary norms and entail a supposed legality for intervention when it is based on protecting the right for self-determination for opposition when it is recognised as the de facto government of a state.

Despite the appropriateness of these arguments, the Dutch government will not be able to validly rely on the above derogations without providing sufficient evidence for their normative status in customary law. Opponents to these derogations base their argument on one of two factors. The first is the fact that these derogations, specifically humanitarian intervention, are interpreted as constituting an intervention by direct forcible means, as in the past we’ve mostly seen this argument used in situations where troops have been deployed (see Henderson and Rodley); the second is the argument that there is a lack of opinio juris for the legality of these derogations, especially intervention that is meant to support a people’s self-determination. These are valid arguments that suggest these derogations are not customary norms. However, it is equally valid to argue the opposite, that they are customary norms:

  1. The hesitance in permitting intervention is based on the belief that it cannot be reconciled with the prohibition on the use of force. The fact that NLA is not forcible means that there is no hurdle to accepting the above derogations as customary norms. While NLA is a fairly new concept, one for which it can at most be argued to be an emerging norm, the increase in this type of assistance illustrates state practice is aligning itself with this norm (see Nowak’s comment that ‘[t]he corresponding absence of unequivocal approval or plain protest by the international community and the absence of any doctrinal elaboration gives rise to the question of whether this behaviour is indicative of a new rule or creates nothing but the illusion of legality). While it is true that there is an absence of expressed approval and protest by states, it would also be wrong not to note a very important indicator of emerging opinio juris, which is the acceptance of NLA by supranational organisations such as the European Union and the Arab League.
  2. This supposed lack of opinio juris is a difficult hurdle to overcome in arguing for the existence of customary norms such as humanitarian intervention. However, the two-element theory adopted by the ICJ (the need for opinio juris and state practice) is not the only approach to identifying rules of a customary nature. Theoretical alternatives have also been explored in the Feminist school of thought. For example, the approach adopted by Nowak and other Feminist scholars views customary law as a ‘systemisation of practice’. Nowak uses this notion as a means to explain the situation of the seeming legality NLA. She bases the idea, in part, on the work of Orford, who uses the idea of ‘systemisation of practice’ to explain the acceptance of the executive rule of the UN, she states that the ‘[e]xecutive rule thus developed through the systematisation of practice rather than through the development of detailed doctrines or norms’ (See: Orford at pg. 6). The remarks by these scholars indicate that it is not unusual for norms, whether as an abstract concept or in relation to the formation of customary law, to always need the support of opinio juris to become an accepted norm. Deviating from the two-element theory that the ICJ adopts, may therefore not entirely be considered sacrilege.
  3. Lastly, Nicaragua contains a modification clause, which states that derogations may be acceptable if substantiated by sufficient consensus amongst states and justified by a legal norm. This is evidence that derogations may be permissible under the UN framework – and therefore also becomes a very important clause. It indicates the ICJ’s willingness to adapt its translation of customary law if needed, and because of that acts as a mechanism which will ensure compatibility between both the UN framework and international customary law.

While both those arguments in favour and those against derogations for the principle of non-interference are convincing. It is not pragmatic to view these arguments as opposing, because it disconnects reality from the legal framework. Instead of searching for the dividing line, it is more efficient to accept that opposing customary norms are existing simultaneously. This way, legal discussion can become more grounded in reality, which will allow for  the legal grey area to be more effectively resolved. 

Conclusion

It is evident that by applying strictly the norms circumscribed by Nicaragua, the actions of the Dutch government would constitute an unlawful intervention. However, this approach does not effectively translate the reality of international law and the complexity of prescribing legal value to contested norms. It is in this notion that I conclude that the actions of the Dutch government were inherently not unlawful. The lack of consensus on the various existing justifications and their corresponding customary norms indicates the presence of the phenomenon where two customary norms exist simultaneously. While this is conceptually paradoxical, it is the theoretical basis for what constitutes a legal grey area. With that being said, due to the constant evolution of customary norms it is highly likely that the continuation of state practice and expressions of opinio juris with respect to NLA will eventually cause the coin to drop on its side. Now that the Netherlands has officially invoked Syria’s responsibility for its widespread human rights violations, the legal basis for why the NLA programme was carried out was only strengthened.

Environmental Rights And The Corporations: A Very Latin-American Scandal

Posted in International Environmental Law1 Comment

By Lydia Kriki

Lydia Kriki (LL.B., LL.M. Athens; LL.M. Université Paris 2 Panthéon-Assas) is an Athens-based lawyer currently working on projects aiming at the integration of various fields of European Union law. LinkedIn

In one of the most remarkable evolutions in the field of environmental litigation, the IACtHR recently recognized the existence of a right to environment in a clear and unequivocal way. Since then, Latin America has been actively developing case-law pointing towards this direction, based on Article 26 of the American Convention on Human Rights. This effort cannot be characterized as incidental: through it, the Latin-American countries attempt to entrench their peoples’ cultural and national integrity. Building jurisprudence which acknowledges the right to a healthy environment is also a critical move for enhancing a State’s sovereignty: establishing human rights has always been a decisive component of a State’s self-determination. According to the traditional theory founded in the dawn of 19th century by Georg Jellinek, fundamental rights are the product of an act of self-limitation of the state, which placed boundaries on itself, making a space of freedom for the citizens. Under this prism, individual rights were created and safeguarded according to Fabbrini, because of the existence of the State as the “personified sovereign”.

However, this sovereigntist vision, well-embedded as it is in the contemporary legal thought, fails to provide a convincing explanation for many of the changes spotted nowadays: the State-centered approach is often unable to offer a satisfying explanation for the complex dynamics unfolding in a multi-layered regime. Lately, the State’s dominance over human rights and their role is trembling over the shift in sovereignty our world sees during the recent decades. Another pole is emerging as the State’s main antagonist: Corporations. It is no novelty for the legal thought the conception of the corporations acting as private sovereign powers. Moreover, as the corporations can have a tremendous impact on the environmental management, they also influence the enjoyment of the environment by individuals. 

Consequently, sovereigntism seems to run out of explanations as to the emerging “corporation pluralism”: in the framework of the neoliberal markets, corporations not only develop economic activity, but they also interfere directly with the peoples’ rights (including environmental). Especially for the Latin-American region, it is partially explained by the fact that the neoliberal philosophies still actively pervade the whole continent, shaping perspectives on the State’s role, the directions of public policies, and the relationship between citizens and the state. As it has been previously stated by David Harvey: “Neoliberalism […] has become incorporated into the common-sense way many of us interpret, live in, and understand the world.” 

However, this so-called “common-sense” way of looking into the world and apprehending it, has been contested by the indigenous communities, based on ethnological perspectives we, the westerners, are unable to keep up with. Consequently, as it has been thoroughly exposed, indigenous peoples disputed the neoliberal policies and the structural reforms deriving from the latter, calling for recognition of their collective rights (including the right to be consulted about projects that may impact them).

That was very much depicted in the case of Total E&P, the Bolivian subsidiary firm of the French company Total, operating in Bolivia’s Chaco ecoregion, which has been threatened by a decrease of water availability. Since many projects in the Chaco overlap indigenous Guaraní territories, the Guaraní have participated in many prior consultation and environmental licensing processes. However, the representative Guaraní organization Assembly of Guaraní Peoples accused Total E&P for pressuring and bribing indigenous representatives during consultation processes and the indigenous communities argued that Total’s activities would violate their rights to fair compensation, employment, and water. In some cases, the indigenous organizations accused Total E&P that it even had already carried out new activities in Guaraní territories without any prior consultation.

This arrogant behavior calls back in Total’s statements for its gravity and significance not only as an economic factor, but also as a statal one. The energy giant had been, not long ago, claiming the role of France’s formal representative. Total’s CEO made a bold declaration, indicating the level of the independence the conglomerate considers it has, by stating: “Even if Total is a private company […] in a way, it represents the country itself”. The statement aptly illustrates the tug-of-war between the public and the private sector taking place currently, calling into question even the traditional institutions representing the State: lately, it is the companies, the enterprise branch, the funds and the banking industry that substitute the consular representations and the permanent delegations.  

The Total case is just one of the hundreds similar ones, putting in risk the populace rights and bleeding the region’s resources dry. Texaco (and its successor, Chevron) had found itself in the middle of a series of legal battles, when local tribes turned to the legal system to compel it to clean up the Ecuadorian Amazon rainforest and care for the people who have been sickened by the oil operations there. Frontera Energy caused serious oil spills at sites under its responsibility and Pluspetrol has caused more contamination from oil spills than any other company: almost 95% of the oil that has spilled in the Amazon during the past two decades (2000 to 2019) came from only two oil blocks managed by it. Repsol, the Spanish fossil fuels giant, left social and environmental destruction on its pursuit for new gas and oil reserves in Perú, a country which has suffered much from the powerful multinationals. The Swiss-based Glencore-Xstrata, also developing activities in Perú, achieved through political manipulation to expand its copper mining operations in the region, contaminating the scarce water resources.  At the same time, the company has attained through systematic and pressing lobbying to benefit from corporate-friendly policies.

As many northern corporations saw their profits decreasing due to the 2011 recession, they turned to ‘invading’ every single country in Latin America. Since these corporations aggressively develop numerous and ambitious projects in the area, a critical Report on the subject called them the “corporate conquistadors”, invoking the practices of the Spanish centuries ago – a new form of colonialism, much more modern, much more effective. The Report claimed that the high-powered multinational corporations manage to overcome resistance to their harmful environmental practices by infiltrating a country’s political process, making promises that are never met, or by simply ignoring local opposition.

After all these being said, it is easily understood that all these mega-corporations should not be treated as merely powerful trans-national corporations (TNCs), imposing global market patterns and influencing the world economic landscape. On the contrary, since they affect the human rights system and crucial concepts like peoples’ development and independence, they shall be handled as they are private, multinational sovereign powers, drawing their potency by the consent (or tolerance) of the political, social and economic forces. Taking into consideration the fact that these organizations must serve the interests of a wide (and sometimes heterogeneous) shareholder base, it is easily deduced that, in fact, corporations may have even bigger power than States as for intervening in the human rights area.      

Domestic Courts as ‘Norm Sustainers’ of International Climate Change Law

Posted in International Environmental Law2 Comments

By Anmol Gulecha

Anmol Gulecha is a PhD candidate at Tilburg University, researching the judicial lawmaking in a global legal order. Before joining Tilburg University, she graduated from Leiden University with an Advanced Masters in Public International law. Twitter: @GulechaAnmol LinkedIn: /AnmolGulecha

The recent Nationally Determined Contributions Synthesis Report from the Intergovernmental Panel on Climate Change (IPCC) indicates that the current state specific climate mitigation ambitions are not on track to meet the goals of the Paris Agreement. Additionally the Special report of the IPCC supports this finding with scientific evidence which goes on to state that the world is set to miss the Paris Agreement target of capping temperatures to 2 degrees Celsius. Even after reduced emissions in 2020 due to the COVID-19 pandemic, the United Nations Environment Programme (UNEP) in its Emissions Gap Report 2020 predicts that, world temperature will be in excess of 3 degrees in this century. 

Along with this grim prediction, there are positive steps, such as the increase in domestic and regional climate change litigation, which aim to fight increasing global temperature. As per the latest UNEP report Global Climate Litigation Report: 2020 Status Review  on page 4, it states that multiple actors have turned to ‘courts to seek relief through the enforcement of existing climate laws’. As on 1 July 2020, around 1550 climate litigation cases were filed in 38 countries.

Climate Change Litigation

After the cold war, agreements negotiated at the international level seem to affect domestic law; one such example is the United Nations Framework Convention on Climate Change (UNFCCC). The UNFCCC specifically aims to stabilize the greenhouse gas concentrations in the atmosphere. However, it is primarily the domestic law in the different UN member states that regulate GHG emissions. However, such international agreements, rules and laws, according to Antonios Tzanakopoulos are inward looking, which  mean that domestic courts have the potential to make a greater contribution to the development of international climate change law than national legislatures. Currently we are witnessing this litigation proliferation mainly due to the lack of climate action at the executive and legislative levels.

As seen from the introduction, the exponential increase in climate change litigation raises one question; what is the contribution of domestic courts in the field of international climate change law? 

This blog post follows the definition of climate change litigation by David Markell and J.B. Ruhl who state that climate change litigation are those cases  which ‘raise material issues of law or fact relating to climate change mitigation, adaptation, or the science of climate change.’ Cases, which mention or rely on climate change indirectly, are beyond the scope of this blog post. Additionally, the blog post will concentrate on litigation where the defendant is a specific state government. 

The government as the defendant enables the plaintiff to challenge specific state policies or executive actions. For example, in the Urgenda Foundation vs. State of the Netherlands (Urgenda case), the plaintiff argued that the Dutch governments’ failure to reduce GHG infringed with Articles 2 and 8 of the European Convention on Human Rights. The Supreme Court of the Netherlands on page 3 and 6 of its judgment directed the ‘State to reduce greenhouse gases by the end of 2020 by at least 25% compared to 1990.’ This case is a classic example of how the plaintiff directly challenged the state’s action as opposed to challenging a specific private project.

Along similar lines the Supreme Court of Ireland, the Switzerland Supreme Court, the Supreme Court of Norway, the Conseil d’Etat in France and the Tribunal Administratif de Paris, the Lahore High Court in Pakistan, The Brazilian Supreme Court, the European Court of Human Rights and the Court of Justice of the European Union dealt or are dealing with climate change litigation. Cases brought before these courts rely on climate change obligations stemming from constitutional law and international commitments, such as, the Paris Agreement or the European Convention of Human Rights (ECHR). All these cases have a significant impact on domestic governance and international climate change obligations. The next section will demonstrate how the above-mentioned courts through climate change litigations are ‘norm sustainers’ of international climate change law. 

Domestic Courts as Norm Sustainers

Sharmila L Murthy, from a United States of America perspective, has identified certain non-state actors and even cities within a federal State as ‘norm sustainers’.  She writes, a country, by agreeing to a new international treaty/agreement/norm on climate change and incorporating the exact treaty language, the country\countries become the ‘norm sponsors’. However, even as ‘norm sponsors’, countries may not fulfill the treaty/agreement targets (such as in the case of Urgenda). In such cases, this blog post claims that litigation and access to court become a medium of norm sustenance.

Most governments derive their domestic climate change obligations from international agreements such the UNFCCC or the ECHR. When these international commitments form part of the domestic law through either incorporation or transformation by an act of the respective country (as ‘norm sponsors’), failure to abide by them will lead to litigation at the domestic level. Sometimes litigation aims to bring the domestic legislation/policy in line with international obligations, for example in the case before the Tribunal Administratif de Paris, the plaintiff urged the court to recognize the breach of legal obligations, amongst others, in the Paris Agreement. Therefore, the international climate change obligations under the UNFCCC read with the Paris Agreement become a threshold for domestic climate mitigation measure(s) at the national level. Given the impact of these domestic cases, one would believe that it is an old concept; however, the importance of domestic cases is of recent interest.

In 2005, domestic litigation was not a topic of interest for furthering climate change efforts. This changed after the Preamble to 2015 Paris Agreement recognized ‘the importance of the engagements of all levels of government and various actors.’ Additionally, Jacqueline Peel and Hari M Osofsky building the on the findings of Joana Setzer and Lisa Vanhala state that there is increasing scholarly interest in climate change litigation and its impact after few high profile judgments such as the one in Urgenda. 

Further analyzing the role of ‘norm sustainer’, here again Peel and Osofsky conclude that climate change litigation aligns the ‘energy market’ and the national laws to Paris Agreement targets. This way, the domestic courts, through their judgments, contribute as ‘norm sustainers’ in the field of international climate change law. As ‘norm sustainers’, the domestic court, through judicial review, aim to make sure that countries take credible steps to meet the right objective. Finally, according to Peel and Osofsky, domestic litigation enjoys a sense of credibility, which results in systemic changes in governance. This means that domestic litigation can shift governmental policy shifts, thereby aligning the latter to international mitigation targets.

Conclusion

Scott L. Cummings and Deborah L. Rhode state, ‘litigation is an imperfect but indispensable strategy of social change.’ Due to the ‘inward looking’ nature of the international climate change law, domestic litigation ensures that the State does not violate international climate change law. This means that domestic courts become ‘norm sustainers’ of international law, but at the national level. Domestic court, as norm sustainers may well be the next institutions to lead the world towards faster climate mitigation measures.

[None of the views and opinions represented in this article are necessarily representative of the official views and opinions of Jus Cogens Blog, or any institutes the author may be affiliated with.]