CLIMATE:

Island nation girds for legal battle against industrial emissions

The Republic of Palau requested last week that the International Court of Justice issue a legal opinion on climate change, a move which -- if successful -- could have a major impact on international law.

Palau, which would like the court to find that nations have a responsibility to ensure that their emissions do not have a negative impact on other states, faces a long road to achieve its goal.

First it must persuade the General Assembly of the United Nations -- which has the authority to request a legal opinion from the Netherlands-based court -- to approve its proposal.

Legal experts on climate change say an opinion, while it wouldn't have a direct effect on any individual nation, could help set the parameters for future climate negotiations and influence litigation both between nations and in domestic courts around the world, including in the United States.

In his statement to the General Assembly last week, Palau President Johnson Toribiong said it was essential that "we determine what the international rule of law means in the context of climate change."

Palau, a chain of more than 200 mostly low-lying islands in the Pacific Ocean, roughly 500 miles east of the Philippines, is among the group of nations most at threat from rising sea levels attributed to climate change (ClimateWire, May 25). The Marshall Islands, another Pacific Ocean state, has joined Palau in making the request.

Toribiong asked the General Assembly to "seek, on an urgent basis ... an advisory opinion from the International Court of Justice on the responsibilities of states under international law to ensure that activities carried out under their jurisdiction or control that emit greenhouse gases do not damage other states."

It is not yet clear if Palau's proposal will win the backing of the General Assembly. A spokesman for Nassir Abdulaziz Al-Nasser, the assembly's president, said Palau has not yet formally asked the assembly to take action.

Palau's most likely allies would be other island states, which are represented by the Alliance of Small Island States, known as AOSIS.

The group's chairwoman, Desima Williams, Grenada's ambassador to the United Nations, said the issue has not yet been discussed by members.

"However, AOSIS supports its member states in seeking positive responses to and outcomes for climate change," Williams added.

If the General Assembly supports Palau's request, lawyers say a legal opinion from the court could help shape international law on the impact of climate change.

"I think it would have considerable significance," said Michael Gerrard, director of the Center for Climate Change Law at Columbia Law School. "A decision such as requested would greatly help the bargaining position of the small island states."

'Building block'

Although it "would not have automatic or direct effect," an opinion -- if it came out the way Palau wanted -- would make it clear that developed countries "have a legal obligation to increase their mitigation measures," he added.

Attorney Matt Pawa, who has represented plaintiffs in climate cases, said an opinion could act as a "building block" for establishing legal principles.

He used the same term to refer to the U.S. Supreme Court's recent ruling in AEP. v. Connecticut, in which the court ruled that the Clean Air Act and the Obama administration's efforts to regulate emissions had displaced the argument made by several states and other plaintiffs that emissions should be regulated as a public nuisance under federal common law (Greenwire, June 20).

Pawa, who represented some private plaintiffs in that case, noted that the Supreme Court "not infrequently will look to principles of international law in resolving domestic law cases."

For Palau and other island states, an opinion from the international court also "raise the very real specter of state liability" over climate change, he added.

Even if the court is tasked with delivering an opinion, Carroll Muffett, president of the Center for International Environmental Law, said what it comes up with "depends heavily on how the question is asked."

That may determine, for example, whether the issue of state liability is even touched upon, he added.

If the judges did reach that point, it does not mean the international court would eventually rule that certain nations are liable for climate change because disputes can only be resolved if the countries involved agree to submit to the jurisdiction of the court.

Muffett conceded that fact but noted that an opinion could nevertheless have "far-reaching consequences" in other contexts, including international arbitration and trade negotiations under the umbrella of the World Trade Organization.

Reporter Nathanial Gronewold contributed.

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