A new study out says vulnerable countries could sue the United States and other industrialized nations for action on climate change.
The report, published by the Foundation for International Environmental Law and Development (FIELD), based in the United Kingdom, says small island nations and other threatened countries have the right and likely the procedural means to pursue an inter-state case before the United Nations' International Court of Justice.
"Some of these countries are getting increasingly desperate," Christoph Schwarte, the paper's lead author, said. With little movement toward a new global climate change treaty, he said, many leaders are looking for ways to make the United States and others understand the threats they face from rising sea levels, droughts and storm surges.
"They need to see some movement; otherwise, their existence is under threat," Schwarte said. "If nothing significant happens within the next two or three years, I really wouldn't be surprised if countries go to court. There's an increased realization that some form of legal action is actually possible."
Suing to force a country to reduce its greenhouse gas emissions is a tricky proposition. If a person is harmed or a livelihood threatened, he or she can take the offender to court for the damages incurred. But what if the victim is an entire country, and the damages -- thousands forced to relocate or the loss of tourism dollars because of coral bleaching -- are expected but not yet seen? More complicated still is is pinpointing the perpetrator. A smokestack in China? The 24/7 air conditioner blasting from a shopping mall in Iowa? Emissions-belching SUVs in Sydney, Australia?
"Which court? Which case? Under which law and against whom? Those are all extremely valuable questions," said Edward Cameron, former senior adviser to the Maldives. And beyond the impossibility of tracing a particular climate change impact to a molecule of CO2 emanating from a particular source, he said, are still more legal and political hurdles. Should a country bring a suit based on human rights law? Trade? Pollution? And what if the reaction to such a lawsuit was that industrialized countries threatened to withdraw foreign assistance?
"There's very much a political cost-benefit when thinking about this kind of action," Cameron said. But he also described legal action as a critical tool in vulnerable countries' limited arsenal. And, he argued, as important as any particular court ruling is the "court of public opinion" that could be moved by putting human faces on the often abstract global climate debate.
'A huge negative backlash'
The FIELD study does not advocate a particular avenue for legal action. Instead, it reviews the existing literature on inter-state lawsuits. It concludes that "a credible case for a legal wrong can be made" by vulnerable nations under the so-called "no harm rule." That is a principle in international environmental law that holds that countries are obligated not to cause or allow environmental harm outside their borders.
The study says that "in a limited number of possible scenarios there are also the procedural means to pursue an inter-State litigation before an international judicial forum."
The paper argues that litigation could help to create the political pressure needed to invigorate international negotiations toward a global climate change treaty within the U.N. Framework Convention on Climate Change (UNFCCC).
Carroll Muffett, president of the Center for International Environmental Law in Washington, D.C., agreed.
"Where politics breaks down, law can sometimes break through and often be really transformative," he said. Developing nations, he said, "are not giving up on the negotiations. The UNFCCC remains the place where these issues have to be addressed. But at the same time, you can use the law to move things forward in the near term as those political negotiations go on, and help change the dynamics."
Muffett also called the transboundary nature of greenhouse gas pollution a not-insurmountable legal problem. Not only are countries contemplating taking on other countries to rein in emissions, they also are looking for ways to hold individual emitters liable. Meanwhile, individuals and citizen groups also are exploring ways to sue both governments and private companies in other nations.
"I can tell you that lawyers are looking at all of these options," Muffett said. "I'm anticipating that in the next few years we're going to see some really groundbreaking litigation that is not from countries, but from citizens."
The U.S. State Department did not return a call seeking comment on the issue. But Mark Helmke, senior adviser to Sen. Richard Lugar (R-Ind.), called the strategy "counterproductive," and one that lawmakers considering climate change and energy legislation would likely resent.
"I think it would have a huge negative backlash in the U.S. Congress," Helmke said.
Activists, though, noted that countries haven't had much luck with the United States so far, and developing countries are getting tired of waiting. Climate legislation tanked in the Senate earlier this year, though President Obama vowed in a recent Rolling Stone interview to tackle rising emissions in possibly separate "chunks" of legislation in 2011.
Some called litigation a necessary backup plan.
"We are seeing climate change impact people's lives today," Cameron said. "The message to come across to people on the Hill is that climate action is inevitable. It's going to come one way or another. If you're frightened of regulation, you should be even more frightened of litigation."
Correction: An earlier version misspelled the name of Christoph Schwarte, the FIELD report's lead author.