(5) Beyond the UNFCCC — Climate change and other international legal regimes
In the previous class, we discussed the UNFCCC regime on climate change. However, we also already encountered another international legal regime of relevance from a perspective of climate change, namely the Montreal Protocol on the protection of the ozone layer. We have seen that it provides an alternative framework for the pursuit of (certain) climate change-related objectives. In this class, we look at a number of other international legal regimes and map out how climate change plays out there; retaining our transnational legal approach, we will pay particular attention to how different actors can mobilize these different regimes, and how they in turn shape what is going on in other jurisdictions. In particular, we will look at public international law and international investment law. Other relevant international regimes include international trade law as well as the international regulation of international aviation and shipping.
Public international law
The UNFCCC constitutes a specific international legal regime. It is embedded within the broader framework of public international law. From a transnational legal perspective we can ask whether — and if yes, how — public international law can be mobilized in regard to climate change, and by whom.
Review: sources of international law
As you will (hopefully) remember from your international law course, there are different sources of international law (and which can potentially be mobilized for climate change-related issues). These sources are listed in Article 38.1 of the Statute of the International Court of Justice (ICJ) as follows:
The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
(a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
(b) international custom, as evidence of a general practice accepted as law;
(c ) the general principles of law recognized by civilized nations;
(d) […] judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
First, we may mobilize international conventions, such as the UNFCCC or the Paris Agreement. However, we can also look into conventions that have a subject other than climate change, such as the UN Convention on the Law of the Seas, or the GATT. Second, we can also find something “useful” in international custom (i.e., general state practice) and judicial decisions, as well as in the general principles of international law (which can be found in international conventions, judicial decisions or in academic texts). In this blogpost, we will look at different international conventions and judgments by a number of international courts and tribunals in order to understand how they can be mobilized in relation to climate change.
A “transnational” perspective on international law
→ Students are asked to prepare the following text for this class; it guides this section of the blogpost: Philippe Sands, Climate Change and the Rule of Law: Adjudicating the Future in International Law (2016)
Generally speaking, you can see that Sands approaches his analysis of climate change and public international law in a very “transnational” way:
- The analysis is problem-based, and does not limit itself to one single jurisdiction: rather, Sands scrutinizes various legal regimes as to whether climate change-related claims can be made.
- Sands suggests that the question whether mobilizing an international court will have beneficial effects is very much open. For Sands, it is a strategic question: bringing a lawsuit at the wrong moment may have negative effects. For example, his view on the International Court of Justice (ICJ) from a view years ago was very cautious: “There was a serious risk that the Court might offer an opinion that was unhelpful: it could, for example, decline to give an Opinion at all (a path implying that international law had nothing to say), or it could give an opinion that was unhelpful on the science, or unhelpful on the law.” (p 19) However, there are also potential gains: “the international courtroom may be a place to forge international legitimacy” (p 26). And: “A clear statement by a body such as the ICJ — as to what is or is not what required by the law, or as to what the scientific evidence does or does not require — may itself contribute to change in attitudes and behaviour.”
- Sands perceives courts as political actors, rather than neutral arbitrators. For example, he refers to a number of cases where the ICJ “skirted around the difficult issues that really mattered, in the face of political divisions” (p 20).
- He includes the (non-legal) context in his evaluation: not only does he refer to the development of scientific insights (science), and to an encyclical letter by the Pope (religion, morals), but more generally to the political dynamics (e.g. state interests) that shape international law.
- Finally, he refers to the Dutch Urgenda case, which is an illustration of how developments in one jurisdiction may shape developments in another.
Which forum?
The first question Sands addresses is which international court or tribunal could be or has already been concerned with a climate change-related issue. These include a number of courts/tribunals with specialized or limited jurisdiction (they apply a specific treaty): human rights bodies like the Inter-American Commission on Human Rights or the European Court of Human Rights (we will discuss human rights in a later class) or international trade and investment law tribunals (which we address a bit later). Beyond that, there are courts of general jurisdiction (which apply treaties as well as general international law), most notably the International Court of Justice (ICJ) and the International Tribunal for the Law of the Sea (ITLOS). Both courts could be called upon to clarify the obligations of states under international law (or, in the case of the ITLOS, obligations under the United National Convention on the Law of the Sea — UNCLOS).
Court proceedings can be contentious (state against state) or advisory (at the request of eg. the UN’s General Assembly or a UN agency). → while non-state actors cannot bring a lawsuit, they could put pressure on a government to do so, or provide support to one of the particularly threatened countries in their lawsuit.
Sands identifies two potential benefits of bringing a case at the ICJ or the ITLOS:
- First, the courts could settle the facts as part of the proceedings; e.g., it could find that sea levels indeed rise, that emission cuts are needed, or that the scientific evidence for climate change as presented by the IPCC is clear enough. Such finding could shape the political and legal debate, and in turn influence states or non-state actors.
- Second, the courts could rule that international law defines certain obligations that relate to climate change, for example that there is an obligation for states under international law to act in a way that conforms to the goal of mitigating climate change, or even that the 1.5C or 2C target is legally binding.
Sands argues that various legal claims could be imagined. One that appears particularly relevant to him is the so-called “state responsibility.” Under international law, states are responsible for “wrongful acts”. These are defined, e.g. by the International Law Commission, as
“conduct consisting of an action or omission: (a) is attributable to the State under international law; and (b) constitutes a breach of an international obligation of the State”
For this to apply, a court would first have to establish that a certain climate-change related behavior (e.g. cutting emissions) constitutes an obligation under international law. We will take a brief look at this issue now.
Is there an obligation under international law to mitigate climate change?
It is likely that a court would draw from different sources to establish whether such an obligation exists. This would likely include, first of all, international agreements such as the UNFCCC, the Kyoto Protocol and the Paris Agreement. Remember that Article 2(1)(a) of the Paris Agreement held that it aims at
“(a) Holding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change;”
Beyond that, various international agreements, as well as the case law of the ICJ and other international judicial bodies, lay down significant obligations that support the claim that such obligation in fact exists. This includes, most notably, the “no harm” principle. In the Trail Smelter case (US v Canada, 1941), the concerned arbitration tribunal held that
“no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties of persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.”
The “no harm” principle prohibits “significant damage to the environment of another State”, as the ICJ explicitly held in Pulp Mills (Argentina v Uruguay, 2010).
Moreover, the states are also subject to obligation of preventing future harm (the “principle of prevention”). This can be found in various international agreements, as well as ICJ case law:
- The UNCLOS holds: “States have the sovereign right to exploit their natural resources pursuant to their environmental policies and in accordance with their duty to protect and preserve the marine environment.” (Art 193). The right to exploit natural resources is thereby connected to a duty to protect and preserve the environment.
- And the ICJ held in its Nuclear Weapons advisory opinion (1996): “the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment”
Other relevant principles of international law include the following (some of them we already encountered in our analysis of the UNFCCC):
- principle of precaution
- “polluter pays” principle
- “common but differentiated responsibilities”
- principle of inter-generational equity
→ what do you say? Is there an international obligation to mitigate climate change?
International investment law
International investment law is a term used for international agreements that aim to protect foreign investors against abusive practices of the country where they invest.
- Most of these agreements are concluded bilaterally (i.e., between two countries), and are called “Bilateral Investment Treaties” (BITs). More than 3000 BITs are currently in place.
- Since the 1990s, investment protection provisions have also been included in both bi- and multilateral agreements that regulate economic relations more broadly (e.g. NAFTA, the North Atlantic Free Trade Agreement between Canada, the US and Mexico). Most recently, such investment provisions were included in the TPP, TTIP and CETA agreements, and have become a main point of criticism.
While each agreement is different, most investment agreements share a number of common elements:
- They grant certain rights to investors from country A who invest in country B (we will refer to Chapter 11 of NAFTA as an example). They usually include a right to be treated equally to domestic investors (=“national treatment” — Article 1102 NAFTA), “fair and equitable treatment” (Article 1105 NAFTA) and the right not to be expropriated, unless it is done for a public purpose, on a non-discriminatory basis, applying due process (as well as “fair and equitable treatment” of Article 1105) and is compensated (Article 1110 NAFTA).
- They allow the investor to sue the host state at an arbitration tribunal for breach of these rights, in circumvention of the national judicial system (Article 1121 NAFTA). This system is called Investor-State Dispute Settlement (ISDS). Such tribunals are often composed of three members, one nominated by the company and one by the state that is being sued. These two arbitrators then nominate the third (Article 1123 NAFTA).
ISDS has come under intense criticism over the past decades for the following reasons:
- The ISDS system is structurally biased in favor of large companies. While investors can sue states for breach of their obligations, this is not true the other way around, e.g. in situations when investors engage in corruption or tax evasion, damage the environment or breach social, labor or human rights. Similarly, consumers, small- and medium-sized companies, workers, indigenous groups or other individuals adversely affected by the activities of an investor have no recourse to ISDS. Multinational companies can file lawsuits even against their own home state by employing a subsidiary established in another country (see e.g. Lone Pine v Canada, discussed below).
- Investor rights under investment treaties are notoriously broad and ambiguous (what is “fair and equitable treatment”? If a state changes a law in order to prescribe or prohibit a certain behavior e.g. on grounds of environmental protection, does this constitute “expropriation”?) These rights have increasingly been interpreted as being violated already when a national regulation lowers the return to investment. Moreover, damages sought and awarded in arbitration are often punitively high. Even though states can, in principle, successfully defend their measures at an arbitration tribunal, they potential costs of losing a case might force a prudent government (especially those of poorer countries) to abandon their regulatory objectives before they implement them (this is often described as the “chilling effect” on regulation). Moreover, states may be incentivized to settle with the plaintiff or to water down the challenged regulation in order to prevent a potentially highly costly arbitration.
- Arbitrators are a small circle of individuals, often lawyers, who benefit from the system as they earn income when cases that are lodged. Moreover, they are not accountable as judges are. There is no requirement of independence, they are subject only to a limited extent to standards of procedural fairness, the proceedings are intransparent because they take place under strict confidentiality, and arbitration awards are only partly published. Finally, no appeal against an arbitration award is possible.
International investment law has been mobilized by large companies against climate change-related measures. Two recent examples illustrate this threat (more can be found in this report):
- TransCanada v US. The KeystoneXL pipeline was planned by the Canadian company TransCanada to deliver oil from Canadian tar sands — the most polluting source of petroleum — across the US to the refineries in Texas. This would have greatly facilitated the exploitation of Canadian tar sands — in itself an environmentally highly damaging practice — , with predictably catastrophic consequences for the climate. For this reason, and because pipelines are prone to spills, the pipeline was rejected by a massive protest movement, consisting of indigenous groups and environmentalists alike. Ultimately, President Obama rejected the pipeline. In response, TransCanada filed for arbitration, seeking 15 billion US dollars in damages in June 2016 (the case is ongoing).
- Lone Pine v Canada. The Canadian region Quebec revoked permits for fracking (a technique of gas exploration liable to cause earthquakes) over concerns over water pollution. Lone Pine, a Canadian fracking company, filed arbitration against Canada, seeking 110 million US dollars in damages. While the company is Canadian, it used its subsidiary established in the US for the lawsuit.
However, governments can also successfully defend their sustainable policies under international investment law. A recent example is Mesa Energy v Canada, where the complaints against Ontario’s Feed-In Tariff Program, which supported renewable energy, were dismissed earlier this year. In substantive terms, international investment law is open to different interpretations (i.e., either as benefitting fossil fuel companies, or protecting the environmental objectives of states). However, as it operates today, the system appears to be heavily tilted in favor of the interests of fossil fuel companies.
International investment law is a prime example for transnational law: multinational companies can choose to mobilize investment protection rules against national and regional regulation. While non-state actors — such as NGOs or individuals — do not have access to this legal regime, a transnational law perspective suggests that their role should not be ignored. Over the past years, resistance against the new generation of trade and investment agreements — TPP, TTIP and CETA — particularly targeted ISDS, and had a certain impact. Most notably, the ISDS regime in CETA was modified, and would — if ratified — replace arbitration boards with a new investment court system. Moreover, the protesters have achieved that this proposed regime will be scrutinized by the CJEU, which is notoriously critical of international courts.
