International Green Court: A solution to achieving climate justice?

Bangladesh is one of many countries to be affected by the
problem of climate-change-induced migration. Photo: AFP

By Sharaban Tahura Zaman
Jul 12 2019 (IPS-Partners)

(The Daily Star) – WE’RE running out of time on climate
change. The UN Intergovernmental Panel on Climate Change’s (IPCC)
report released in October 2018, revealed that there are only a
dozen years left for global warming to be kept to a maximum of 1.5
degrees Celsius (2.7 degrees Fahrenheit). Reaching temperatures
beyond that, even half a degree higher, will significantly worsen
the risks of droughts, floods, extreme heat and poverty for
hundreds of millions of people. Of course, we are already feeling
these symptoms as the five hottest years on record, globally, all
took place within the current decade. According to scientists at
National Oceanic and Atmospheric Administration, 2016 was the
hottest, 2015 the second hottest, and 2017 the third hottest—2018
is currently on track to be the fourth hottest. Urgent changes are
needed in order to keep global temperatures down.

However, the existing climate regulatory regime, built upon 27
years of negotiations, has already proven woefully inadequate to
help the world reduce greenhouse gas emissions that are
exacerbating climate change, and to remedy their consequences.

One of the key reasons behind such failure is that the existing,
legally binding climate change agreements are designed without a
mechanism of enforcement. Being non-punitive, non-adversarial and
flexible in nature, existing legal mechanisms are failing to cope
with the scale of the global issue and its wide-ranging impact on
individuals, leaving climate change justice issues unaddressed.

In this context, there is a growing demand for the establishment
of an international court which can address significant gaps in the
current international environmental legal order. That sounds like a
great idea! Though a number of challenges are rooted there. First,
if the existing climate regime is non-punitive, non-adversarial and
flexible in nature, how can we enforce it in an international
court? Among other things, it involves challenges in identifying
the “actionable rights” that will determine which climate
change transgressions lie within the scope of the court,
establishing appropriate standards for proving a legally cognisable
causal link between greenhouse emissions and the relief sought, and
developing methods for awarding remedies. Obstacles also lie with
global cooperation, different priorities for the developed and the
developing countries, the exercise of absolute sovereign power,
anarchic nature of the world order, and thus the perceived
unenforceability of international law.

Nevertheless, these obstacles should not be viewed as insoluble.
We should expand our understanding of what is possible by
reimagining the tools of international law. Establishing a new
specialist International Court can be an effective way forward,
depending on how we can design it.

First, the international court should not be structured in a
traditional form where prosecutors will look to persuade a judge to
punish polluters. That would be more in line with a criminal court
and will discourage states to be party to this process. The
international court should be a forum with a goal to elevate
behaviours/actions in line with mutually agreed standards, rather
than to punish.

Second, the judge of the court must be sufficiently specialised
so that the judiciary is able to weigh competing interpretations of
complex scientific evidence against salient geopolitical, and
international economic and social development priorities.

Third, both state and non-state actors should have standing (be
able to initiate cases) before the court.

Fourth, states should be bound by the decisions of the court
(what is called compulsory jurisdiction). States that allow
environmental degradation in contravention of mutually agreed
international standards should be held accountable.

Fifth, the court should rely on clear, precise, and enforceable
language, to be found in a new era of international environmental
laws. Aspirational treaty language is insufficient to protect the

So the overall purpose of the international court on the matter
related to environment would be: to build trust among the
international community; to clarify legal obligations; to harmonise
and complement existing climate regulatory regimes; to provide
access to justice to a broader range of actors; and to create
workable solutions for enforcement of international standard.

However, on the matter of “compulsory jurisdiction” of the
court, imagining an international court holding states accountable
might seem overly optimistic, particularly when only 66 countries
agree to the compulsory jurisdiction of the International Court of
Justice (ICJ). But then again, if we look to the effectiveness of
the Dispute Settlement Body at the World Trade Organization, and
arbitration under the international investment regime, we can
clearly learn the lesson that compulsory jurisdiction is possible
when the costs of non-compliance are deemed to be sufficiently
high. The European Court of Human Rights, similarly, has
demonstrated that compulsory jurisdiction can work for equitable
public interest. Moreover, in the European Court of Human Rights,
vast majority of cases are initiated by non-state actors which
empowered non-state actors in enforcing global standards to change
the politics of transnational adjudication.

An international court for the environment could be a better
forum to overcome climate inaction, global cooperation, economic
conflicts, and enforcement problems if we can construct it
adequately with the aim to vigorously enforce mutually agreed
obligations and standards. However, establishing an international
court will require more support. Therefore, let’s start
considering how to turn it into a reality in the interest of future

Sharaban Tahura Zaman is lecturer of Environment Law,
North South University and Senior Research Fellow, Centre for
Climate Justice, Bangladesh.

This story was
originally published
by The Daily Star, Bangladesh

The post
International Green Court: A solution to achieving climate
appeared first on Inter Press Service.

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International Green Court: A solution to achieving climate justice?