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

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.]

If War Were To Doom Us All Tomorrow, The ICJ Would Still Plant A Tree

By Moises A Montiel M

Moisés Montiel is a Venezuelan lawyer advising individuals and governments in matters of International Law at Lotus Soluciones Legales. He holds an LLM from the Fletcher School of Law and Diplomacy at Tufts University and teaches IHL and Treaty Law at Universidad Panamericana and Universidad Iberoamericana in Mexico.

The ICJ is no stranger to the growing concern about the environment. In fact, the existence (albeit brief) of an Environmental Chamber credits the importance attributed by the Court to this global common good. Directly or indirectly, the bench has been faced with opportunities to deal with the subject and has done its share to advance the cause of environmental protection, even during armed conflict as exceptional situations.

Before any further comments are made, it should be recalled that article 59 of the Court’s Statute contains a prohibition to generate binding precedent. However, these are not any 15 Johns and Janes Doe issuing a sentence, the compliance pull emitted by any ruling of the ICJ (or its legitimacy, if the New Haven School is brought to bear) demands attention and even persuades into compliance.

In this intelligence, this piece aims to highlight relevant dicta of the ICJ in asserting that there exists, without need for juggling or licentious interpretation, international obligations protecting the environment (almost) completely applicable during armed conflicts. 

The ICJ has advanced the conversation to a point where it is not unreasonable to assert that environmental protections during armed conflict should not be a by-product of the respect owed to protected categories, but an end in and of itself.

The Nuclear Weapons Opinion

In parallel to the main goal of the opinion, the Court drew attention to the impact that nuclear weapons could have on the environment and how their use is brutally incompatible with the protections stemming from the principles of precaution, military necessity, and distinction not just towards people, but to the environment itself (see paras. 27-33).

The Court acknowledged that a number of States expressed their conviction that the use of nuclear weapons both in armed conflict and outside of violates existing regulations. It reasserted the existence of a general obligation (untouched in the context of IHL) of States to make sure that activities within their jurisdiction respect the environmental rights of other States and the environment itself. A conclusion later supported by the Paper Mills case ruling.

In the Nuclear Weapons Opinion, the Court took note of the objections of some States which claimed that, for instance, obligations arising out of the ENMOD Convention would become inapplicable during armed conflicts. The Court answered by rephrasing the question and assumed from the start that the obligations were binding during conflict and, instead, analyzed whether they were absolute restrictions.

It answered the new question by subordinating the absolute prohibition to the logic of military necessity and the balancing act it demands. It concluded that the environment is an element to be weighed in assessing if the principles of necessity and proportionality permit attack. In supporting this conclusion, the Court recalled principle 24 of the 1992 Rio Declaration which recalled the duty of States to comply with the seminal principles of IHL with due regard to the environment and the effect of hostilities on it. 

In its Opinion, the Court also recalled UNGA Resolution 47/37 concerning the protection of the environment during armed conflicts. This instrument reaffirms the duty to consider the impact of military operations on the environment. It could be assumed that the Court found an indication of opinio juris under customary IHL in this document.

Nuclear Weapons is the most important jurisprudential contribution towards the goal of demonstrating the existence of a solid normative regime protecting the environment during armed conflict and, also, the necessary starting point for any proposition grounded in blackletter law about responsibility for crimes against the environment during armed conflicts.

Gabcikovo-Nagymaros Project (Hungary/Slovakia)

In the ‘pocket guide for the casual conventional delinquent’, also dubbed by the Court as the Gabcikovo-Nagymaros Project case the bench held that the ‘ecological state of necessity’ would theoretically justify the failure to comply with conventional obligations, only that it was not satisfied that such a state of necessity existed in this case. Moreover, the Court entertained the notion that environmental concerns constitute an essential interest of the State, thus opening the door for it to give way to the invocation of rebus sic stantibus (the doctrine of the fundamental change of circumstances). Both of these substantially raise the entity of the environment as an object of special protection under general international law.

The Court also found that the deviation of the waters of the Danube by Slovakia was in breach of international obligations, a conclusion which warrants no further explanation if extrapolated to the realm of IHL, especially if understood in line with protections of basic essential goods for human populations.

While it is true that this case did not directly touch upon environmental protection during armed conflict, it is no less valuable a contribution since it highlights the importance of the environment and furthers the notion that it constitutes a global common good, both protected by general international law and (consequentially) by IHL.

This ruling also serves as a reminder that the control and enjoyment of natural resources is a direct function of the right to self-determination under both the ICCPR and the ICESCR. The conclusion being that no attempt against it is legal if not warranted by strict military necessity.

Pulp Mills on the River Uruguay Case (Argentina v. Uruguay)

The fundamental holding of this case is that environmental damage is equivalent to patrimonial damage under the law of international responsibility, and in acknowledging it the Court confirms an expansion of the jus standi (judicial standing) of States to demand reparation for environmental damages. 

The takeaway for IHL, even if the Court did not point it out explicitly, is that in assessing damages derived from armed conflict, environmental damage can and should be taken into account when not strictly justified by necessity and proportionality, otherwise, the delinquent State or party will incur in responsibility and subsequent duty to repair.

This case is also relevant because it advanced and consolidated the notion that there is an international obligation to abstain from carrying out activities that may have an adverse impact on the environment. This obligation, naturally, cannot be held as extraneous to IHL because it does not forcibly, automatically, or singlehandedly hinder the legal conduct of hostilities. 

The arguments on sustainable economic development considered in this case also have major implications for environmental protection during armed conflict. The Court noted that there can be no development without environmental protection. Consequentially, it would not elicit any blushing to consider that the obligation to respect the environment/development duo would still hold during armed conflict, even if terms and conditions do apply. 

This rings even truer when the ILC Draft Articles on State Responsibility are brought in the mix, since -as codified by the articles- the existence of a state of war between States does not suspend duties owed, except when directly affected by hostilities. Since environmental protection in this context is mostly a duty of abstention, it stands to reason that unwarranted environmental damage not allowed by strict military necessity would suddenly become permissible without the need to prove that compliance with the obligation is directly affected by the state of hostilities.

Whaling in the Antarctic case (Australia v. Japan)

In this case, the Court availed itself of both the CITES and the Convention on Biological Diversity, among other treaties, in assessing the legality of Japanese whaling activities. Even if it is not directly concerned with IHL, some conclusions are worth noting.

The foremost takeaway is that both of these conventions entail duties of the State to be observed mainly within its territory. If the duty to honour obligations is not disrupted by a state of war, it seems plausible to suggest that the environmental duties incumbent upon the State in its own territory should not be suspended in the context of armed conflict not of an international character.

Most revealing in this particular case are – as they tend to be – the separate and dissenting opinions. Judge Yusuf’s dissent points toward the need to consider the shift in attitudes and societal values towards the interpretation of duties of preservation of environmental goods  (paras. 25-26). Could the same necessity be derived from the increasing societal concern about the protection of the environment? And more so in contexts of armed conflict? There seems to be nothing barring an answer in the affirmative. Also enlightening – and in abundant detail, as is his custom- is judge Cançado Trindade’s opinion, in it, he insists in the need to understand the increasing multilateralization of environmental protection regimes as a function of a desire for more robust protections for the environment (paras. 7, 12, 22-24). This would come to support the notion of the environment as a global common good.

As hinted at the beginning of this piece, the Court is no stranger to the concern for the protection of the environment (during hostilities or outside of them) and it has time after time reaffirmed its place of honour among internationally protected common goods. Therefore, to say that environmental protection becomes secondary when the clash of swords is heard is to make the effet utile (effectiveness) of environmental protection treaties the first casualty of war, and the Court’s jurisprudence certainly seems to support this conclusion.

[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.]