With Kyoto Protocol commitments expiring in 2012, will international climate change litigation be used to push governments towards a binding international agreement to reduce greenhouse gas (GHG) emissions? Does a country like Bangladesh, threatened with almost total submersion due to the impacts of sea level rise, have a case under public international law against major emitters such as the United States or China? These are some of the questions addressed in a working paper entitled International Climate Change Litigation and the Negotiation Process, recently released by the Foundation for International Environmental Law and Development.

Certainly, the stakes are high. For example, 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. Other countries will face sea level rise, heat waves, droughts, floods, desertification, invigorated disease vectors. Moreover, actions to reduce GHGs cannot wait. According to the Hadley Center at the UK’s Meteorological Office, 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. After reviewing the literature on international climate change litigation, the authors concluded 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."

Some of the questions discussed in the paper are listed below. (To followers of the nuisance based claims being litigated in the U.S. courts, this list may sound awfully familiar.)

  • What level of harm must be demonstrated? Is it sufficient to show a risk of significant harm?
  • How would a claimant State demonstrate that the environmental harm caused by climate change is attributable to the accused State? Is each State actor responsible only for its share of the damage caused or are all States jointly and severally liable?
  • What is the standard of proof for causation, and what is the role of the precautionary principle in lowering the standard of proof?
  • The primary legal consequence when an international obligation has been breached is the discontinuation of the wrongful act. In the context of climate change, what quantity of GHG emissions must be reduced? Whose emissions? Under what time frame? What is the likelihood that an international organ such as the International Court of Justice would prescribe a remedy that would answer these questions?
  • Does the UN Climate Convention represent a comprehensive scheme that precludes State vs. State litigation under principles of general international law?  

Developing country governments may be understandably reluctant to challenge the actions of donor nations, but given the glacial pace of international climate change negotiations, the enormous stakes for certain countries, and the urgency of the issue, the paper suggests that we may see a State vs. State dispute in the not-to-distant future.