Climate change is believed to be one of the greatest threats facing humanity. In an attempt to address this threat, the international community came together in Paris last December to reach the ‘Paris Agreement’. Negotiators from 195 countries made a series of commitments to cut their carbon emissions. However, there are no sanctions for a state’s failure to adhere to its commitments. There is no specific forum for the settlement of disputes arising from the Paris Agreement. Also, vulnerable individuals who are already affected by climate change events have no effective means of seeking redress. Hence the idea of setting up an International Court for the Environment (ICE) has recently garnered attention.
The eco-justice story so far
In 2014 the International Bar Association published a report titled ‘Achieving Justice and Human Rights in the Era of Climate Disruption’ which recommended the use of arbitration as a way of settling disputes arising from climate change. Litigation may not be a viable means of resolving such disputes involving parties from multiple jurisdictions, because a state may not recognise judgments handed down by another state’s courts.
The Permanent Court of Arbitration (PCA) has developed significant experience in arbitrating environmental disputes. In 2001, the PCA released its ‘Optional Rules for Arbitration of Disputes relating to Natural Resources and/or the Environment’.
The IBA report recommended the PCA as the preferred institution to handle international environmental disputes.
The Arctic Sunrise arbitration is an example of a case handled by the PCA. It was brought by the Netherlands against Russia after Russia had detained Greenpeace activists protesting against oil drilling in the Arctic. The Russian authorities confiscated the Dutch-flagged Arctic Sunrise, which had 30 people on board. The PCA held that the Netherlands was entitled to compensation for damage to the Arctic Sunrise and that Russia had breached its obligations under the UN Convention on the Law of the Sea (UNCLOS).
Other than disputes between states, the PCA handles cases brought by investors against states. It is administering a case brought by a Canadian investor, Peter Allard, against Barbados under the Canada-Barbados bilateral investment treaty. Allard alleges that Barbados failed to implement its domestic environmental laws which spoilt the environment, leading to a loss of revenue from his eco-tourist facility.
Gap in the system for individuals
Despite the PCA’s successes in handling environmental disputes there remains a gap where individuals such as climate-vulnerable populations who are non-parties – ie. not party to an arbitration agreement – may not be able to hold state and non-state actors accountable for environmental harm. International forums such as the International Court of Justice and the International Tribunal for the Law of the Sea also fail to address this problem.
Therefore, an ICE may be able to provide an effective remedy for victims of climate change. The idea of a dedicated court with specific jurisdiction for hearing environmental claims has been proposed in recent decades.
An ICE could also assist in enforcing obligations under the Paris Agreement and any subsequent environmental treaties.
The Paris Agreement is built on the hope that countries will abide by their commitments because of international peer pressure, but critics have expressed doubts about such a non-punitive approach. There is also nothing to stop any nation from withdrawing from the Paris Agreement in the same way the US pulled out of the 1997 Kyoto Protocol. Surely, an ICE with teeth would put such criticism to bed if it is armed with the means to impose sanctions for states’ failure to adhere to their environmental obligations.
The international community has shown its willingness by reaching an agreement to address climate change. Another agreement is now required to provide an enforcement regime, such as an ICE. This may well be the next stage in the international community’s fight to deal with climate change.
First published in The Lawyer