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See you in court: the rising tide of international climate litigation

What is Australia’s responsibility for low-lying neighbours like Palau? CasaDeQueso

The Pacific Island State of Palau recently announced it will seek an Advisory Opinion from the International Court of Justice (ICJ), asking whether countries have a responsibility to avoid their emissions causing climate change damage elsewhere.

This will be the world’s first international climate change case and it has been a long time coming.

Many Pacific Islands are extremely vulnerable to the impacts of climate change and sea level rise is predicted to eventually make some islands uninhabitable. For instance, the highest point on the island nation of Tuvalu is just 4.6 metres above sea level.

In 2002, Tuvalu threatened to sue Australia and the United States over the impacts of climate change. To date Tuvalu has not brought the threatened litigation.

Instead, Tuvalu, Palau and other Pacific Islands have focused their efforts on the international climate negotiations because the Kyoto Protocol runs out in 2012.

But their attempts (and those of other States) to secure a new international agreement with strong cuts to greenhouse gas emissions have been unsuccessful.

Tuvaluans have plenty of reasons to call for action on climate change.

The rising tide

Palau’s announcement reveals that it intends to ask the ICJ to provide guidance on how the “no harm rule” (more on this below) and the United Nations’ Law of the Sea Convention (LOSC) apply to climate change damage.

International law is an undeveloped field and courts are generally very cautious in dealing with controversial issues.

But an Advisory Opinion (non-binding advice from a court or judge) will provide critical guidance in the emerging problem of climate change damage and how international law should be applied.

Climate change is not the result of a deliberate act to cause damage, but rather the cumulative effect of routine social and economic activities such as burning coal, driving cars and grazing livestock. None of these acts are crimes at either national or international law.

So how could Palau have a claim?

Breaching the golden (environmental) rule

The “no harm rule” is a rule of customary international law that declares a State has a duty to prevent, reduce and control the risk of environmental harm to other States.

The rule was developed and applied in the famous 1941 Trail Smelter decision about air pollution from a copper smelter in Canada that was polluting US air and causing damage to farmland and crops. The arbitral tribunal ordered Canada to pay compensation to the US.

This isn’t a great time to be a low-lying island. Jason Nemecek

The “no harm rule” has since been applied in many other cases and is included in international agreements, including the Declaration of the United Nations Conference on the Human Environment.

It is not necessary to show actual harm in order to demonstrate a breach of this rule. An increase in risk of harm is sufficient although the increase needs to be significant. Thus, the no harm rule is particularly well suited to the problem of climate change damage.

It could be argued that Australia has breached the “no harm rule” on the basis that:

1) Australia has had an opportunity to reduce greenhouse gas emissions

2) climate change damage was foreseeable, at least since 1992 when Australia signed the United Nations Framework Convention on Climate Change (UNFCCC)

3) Australia has not taken proportionate measures to mitigate its emissions.

From the air to the sea

On another front, article 194(2) of the LOSC declares that States are obliged to take all measures necessary to ensure activities under their jurisdiction or control do not cause “damage by pollution” to the marine environment of other States.

The LOSC contains a wide definition of pollution, and greenhouse gases from human sources could fit within it.

Australia may also be breaching the LOSC through failing to cut emissions and failing to prevent pollution to the marine environment. But the LOSC lacks specificity, potentially providing Australia with enough wiggle room to evade responsibility.

The causation hurdle

The 2007 Fourth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC) found “warming of the climate system is unequivocal” and most of the observed warming since the mid 20th century is due to human activity.

The Maldives is worried about being swamped, and held an underwater Cabinet meeting to protest. AAP

But can one State’s emissions be linked to another’s climate change damage? The “but-for test” asks “but for the defendant’s act, would the harm have occurred?” Admittedly, this test is poorly suited to climate change, where the process is cumulative.

The but for test would require proof that without the defendant State’s emissions, the damage would not have occurred. But no one State is responsible for climate change and climate change science is fraught with uncertainties.

That said, the fact multiple States have contributed to climate change does not necessarily limit application of international law to the problem.

The Nuclear Tests Cases concerned alleged damage caused to Australia and New Zealand by France’s testing of nuclear weapons in the Pacific. In this case, Australia argued that any additional exposure to radioactive contamination, no matter how small, substantially contributed to the risk of radiation-related injuries.

The ICJ did not decide on this point in the Nuclear Tests Case, yet Australia’s argument is clearly relevant to Palau’s predicament.

Therefore, the appropriate test may be whether a State’s contribution has caused additional exposure to climate change damage.

Turning the tide

An Advisory Opinion from the ICJ may help Pacific Island States such as Palau turn the tide in the international climate negotiations. Arguably, a credible case can be made.

A ruling by the ICJ could help provide a new impetus for Australia and the world community to find an international solution to climate change.

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