International Law Silent on Climate Change Responsibility

As global climate change increasingly affects everything from public health and species extinction to infrastructure and property destruction to migration patterns, well, who do you sue?

No one apparently. If you think the international response on what to do about climate change is pretty much a fragmented, inadequate mess, then international law on the subject is even messier. And weaker.

A recent article in the Guardian notes that international law “stays silent on the responsibility for climate change.” This might be important because if there were serious legal ramifications regarding climate change, faster action to mitigate its effects might occur. Or not.

“The global economy is underpinned by law, but you would think it had nothing to do with climate change,” the article by Stephen Humphreys says. “Climate-related cases have been absent from international courts – even from disputes involving human rights, investment or the environment. While there have been cases heard in some national courts, particularly in the U.S., they do not progress far.”

This weak legal response means that “big polluters are getting off lightly.”

The article continues: “It is clear that 60 percent of proven oil reserves must be left in the ground if we are to have even a remote chance of limiting global warming to two degrees. Yet oil companies and exporters continue to drill and explore, to enjoy their assets and hedge against future losses, as though climate change were a mere financial risk rather than an existential threat to peoples’ lives and livelihoods.

“The world of international law is behaving as though the problem of climate change does not exist."

Look at one aspect: international trade law. An obvious policy for a country that’s serious about dealing with climate change would be to impose low carbon standards on the production of various everyday goods such as meat, mobile phones and plastics. “Does international trade law allow states to impose low-carbon standards on imported goods? The answer is yes and no,” Humphreys writes. “A low or zero-carbon import policy is almost certain to violate World Trade Organization (WTO) law. There may be viable policies but they will be time consuming and expensive to design, and there is no guarantee the WTO’s principal court won’t slap down any such policy on a technicality. No country has yet tried.

Why has the WTO not taken more proactive steps to tackle climate change? And why has the estimated $600 billion (£382 billion) in annual subsidies to fossil fuels never been challenged, while paltry subsidies to support renewable energy technologies have been stopped?”

These are unanswerable questions; and the questions become just as complex with respect to other international regimes, such as investment law and human rights law.

A 2008 paper, "Global Climate Change and the Fragmentation of International Law," addressed this issue in academic terms, highlighting the challenges for international lawyers and policymakers “in navigating the relationship between the climate regime and the biodiversity regime, and the relationship between the climate regime and the multilateral trading system.” The authors concluded that a “narrow focus on conflicts misrepresents the multifaceted nature of climate change and precludes an adequate jurisprudential understanding of the relationship between the climate regime and other regimes.” They call for “improved understanding” and a “broadening of the debate.”

Seven years later, the needle has barely moved on this subject, but there is some realization that it might be wise for international agreements to recognize national laws. Countries around the world are taking actions domestically to help cope with climate change. Columbia Law School’s Sabin Center for Climate Change Law has collected the relevant laws and policies of various countries into a database.

It’s probably too much to ask that an international agreement on climate change should include legally-binding enforcement mechanisms with teeth. Check that, it’s too impossible.

Image credit: From the Sabin Center for Climate Change Law website.