WE’RE running out of time on climate change. The UN Intergovernmental Panel on Climate Change’s (IPCC) report released in October 2018, revealed that there are only a dozen years left for global warming to be kept to a maximum of 1.5 degrees Celsius (2.7 degrees Fahrenheit). Reaching temperatures beyond that, even half a degree higher, will significantly worsen the risks of droughts, floods, extreme heat and poverty for hundreds of millions of people. Of course, we are already feeling these symptoms as the five hottest years on record, globally, all took place within the current decade. According to scientists at National Oceanic and Atmospheric Administration, 2016 was the hottest, 2015 the second hottest, and 2017 the third hottest—2018 is currently on track to be the fourth hottest. Urgent changes are needed in order to keep global temperatures down.
However, the existing climate regulatory regime, built upon 27 years of negotiations, has already proven woefully inadequate to help the world reduce greenhouse gas emissions that are exacerbating climate change, and to remedy their consequences.
One of the key reasons behind such failure is that the existing, legally binding climate change agreements are designed without a mechanism of enforcement. Being non-punitive, non-adversarial and flexible in nature, existing legal mechanisms are failing to cope with the scale of the global issue and its wide-ranging impact on individuals, leaving climate change justice issues unaddressed.
In this context, there is a growing demand for the establishment of an international court which can address significant gaps in the current international environmental legal order. That sounds like a great idea! Though a number of challenges are rooted there. First, if the existing climate regime is non-punitive, non-adversarial and flexible in nature, how can we enforce it in an international court? Among other things, it involves challenges in identifying the “actionable rights” that will determine which climate change transgressions lie within the scope of the court, establishing appropriate standards for proving a legally cognisable causal link between greenhouse emissions and the relief sought, and developing methods for awarding remedies. Obstacles also lie with global cooperation, different priorities for the developed and the developing countries, the exercise of absolute sovereign power, anarchic nature of the world order, and thus the perceived unenforceability of international law.
Nevertheless, these obstacles should not be viewed as insoluble. We should expand our understanding of what is possible by reimagining the tools of international law. Establishing a new specialist International Court can be an effective way forward, depending on how we can design it.
First, the international court should not be structured in a traditional form where prosecutors will look to persuade a judge to punish polluters. That would be more in line with a criminal court and will discourage states to be party to this process. The international court should be a forum with a goal to elevate behaviours/actions in line with mutually agreed standards, rather than to punish.
Second, the judge of the court must be sufficiently specialised so that the judiciary is able to weigh competing interpretations of complex scientific evidence against salient geopolitical, and international economic and social development priorities.
Third, both state and non-state actors should have standing (be able to initiate cases) before the court.
Fourth, states should be bound by the decisions of the court (what is called compulsory jurisdiction). States that allow environmental degradation in contravention of mutually agreed international standards should be held accountable.
Fifth, the court should rely on clear, precise, and enforceable language, to be found in a new era of international environmental laws. Aspirational treaty language is insufficient to protect the environment.
So the overall purpose of the international court on the matter related to environment would be: to build trust among the international community; to clarify legal obligations; to harmonise and complement existing climate regulatory regimes; to provide access to justice to a broader range of actors; and to create workable solutions for enforcement of international standard.
However, on the matter of “compulsory jurisdiction” of the court, imagining an international court holding states accountable might seem overly optimistic, particularly when only 66 countries agree to the compulsory jurisdiction of the International Court of Justice (ICJ). But then again, if we look to the effectiveness of the Dispute Settlement Body at the World Trade Organization, and arbitration under the international investment regime, we can clearly learn the lesson that compulsory jurisdiction is possible when the costs of non-compliance are deemed to be sufficiently high. The European Court of Human Rights, similarly, has demonstrated that compulsory jurisdiction can work for equitable public interest. Moreover, in the European Court of Human Rights, vast majority of cases are initiated by non-state actors which empowered non-state actors in enforcing global standards to change the politics of transnational adjudication.
An international court for the environment could be a better forum to overcome climate inaction, global cooperation, economic conflicts, and enforcement problems if we can construct it adequately with the aim to vigorously enforce mutually agreed obligations and standards. However, establishing an international court will require more support. Therefore, let’s start considering how to turn it into a reality in the interest of future generations.
Sharaban Tahura Zaman is lecturer of Environment Law, North South University and Senior Research Fellow, Centre for Climate Justice, Bangladesh.