Something moved in the machineries of international law earlier this month. A turn in the lock, a small latch releasing a door. How big, how wide, remains to be seen. But nonetheless a landmark in progress towards meaningful protection of the environment.
On 7 February 2018, an international court in Costa Rica – the Inter-American court of human rights – released an advisory opinion on environment and human rights. It not only recognises the right to a healthy environment as fundamental to the existence of humanity, but also has the potential to unlock real cross-border remedies for the victims of environmental degradation.
In 2016, Colombia posed three big questions to the Inter-American court, which has jurisdiction over much of the Americas, roughly equivalent to the European court of human rights (ECHR) to which the UK belongs. If, Colombia asked, an individual living in Country A suffers a human rights violation caused by ecological damage emanating from Country B, can she hold Country B responsible under the American convention? Would Country B have breached the convention? And what are countries legally obliged to do in order to reduce such harms?
These are pressing concerns, not least in Colombia. At the hearing, Colombian Raizales delegates – English/Creole-speaking descendents of white British and enslaved Africans – spoke compellingly about the threats to the reefs on which their island culture depends. One looming concern appeared to be Nicaragua’s plan to build a Chinese-funded rival to the Panama Canal: scientists fear it would literally muddy Caribbean waters, killing marine life, creating chemical pollution and introducing invasive species from shipping lane bottlenecks. Colombia (already quarrelling with Nicaragua over maritime boundaries) sought answers from the court that would discourage unrestrained development of infrastructure mega-projects. But a sign that the ecological crisis transcends any one bilateral dispute is that other Latin American countries (Guatemala, Honduras, Bolivia, Argentina) also supported cross-border obligations.
The conundrum of “extraterritorial” obligations bedevils human rights law. The crux of the problem is that the main conventions oblige states to ensure the human rights of people within their “jurisdiction”, without specifying what that means. Does “jurisdiction” mean the same as a state’s territory? If so, how should human rights law respond when states act abroad, or act so as to cause effects abroad? The ECHR in Strasbourg, in a 2001 decision on Nato’s bombing of a broadcast station in Belgrade during the Kosovo conflict, decided that states’ “jurisdiction” goes no wider than territories over which they have “effective control”. In later cases, it quietly loosened the test and found jurisdiction based on a state’s assertion of authority over the individual victim. Similarly, the Inter-American system had already found claims admissible where one state’s military had killed or detained individuals outside its borders.
Even so, the advisory opinion represents a quantum leap in the breadth of “jurisdiction”. Here too, the concept of “effective control” is key. The court decided that, for transboundary damage, “the exercise of jurisdiction arises when the state of origin exercises effective control over the activities carried out that caused the harm and consequent violation of human rights”. This marks a subtle but important shift: “effective control” is no longer something that has to be exercised over territory, nor even over individual victims, but only over the activities responsible for harm. This is crucial, because states do exercise control over those activities likely to destroy fragile ecosystems in their near abroad: a country which decided to build a transnational canal, or license drilling in an offshore oil field, could not credibly claim that such activities were outside its effective control. Although the court cautioned that extraterritorial obligations are “exceptional”, its reshaping of “effective control” opens the door to cross-border human rights claims.
More immediately, it may first have to be applied to the very problems it was designed to discourage: mega-projects lacking any sincere environmental due diligence, dying reefs, the vulnerable Raizales people, and millions more like them. This ruling brings meaningful redress a major step closer.
• Monica Feria-Tinta is a barrister at 20 Essex Street chambers, practising in public international law, human rights and international dispute settlement. Simon Milnes is a barrister at 20 Essex Street specialising in international environmental law and the business/human rights nexus
International law stays silent on the responsibility for climate change: Climate change affects everything from public health to migration patterns. So why has the legal response to a global problem been so weak?
Climate change hurts innocent people. It puts ordinary people, who for the most part have not contributed in any way to global warming, at extraordinary risk.
The IPPC’s Climate Change 2014 Synthesis report makes for sobering reading when they write about the consequences of climate change: “injury and death due to more intense heat waves and fires”; floods and droughts, and a rise in “foodborne and waterborne diseases”.
This risk is not just a matter of extreme weather events, such as the heatwave in Russia that took an estimated 55,000 lives in 2010 or last year’s typhoon Haiyan, recording the fastest wind speeds on record. It is also the intensifying effect climate change has on other intractable global problems such as war, famine, and economic migration. Repeated hot summers contributed to a spike in droughts across Syria, for example, triggering hardship and riots that culminated in the vicious civil war now underway.
In 1992 the nations of the world entered a binding agreement to stop “dangerous anthropogenic interference” with the earth’s atmosphere. In the two decades since, that obligation has failed to reduce greenhouse gas emissions; quite the contrary, as levels have since soared to rates unthinkable in 1992. The United Nations Framework on Climate Change (UNFCCC), as the 1992 agreement is known, has sent a yearly caravan of politicians, activists and lawyers to some of the world’s finest resorts to thrash out a binding agreement – but so far with little effect. (Hopes are still pinned on finding common ground at the UN Climate Change Conference in Paris next year).
Elsewhere, the law has had nothing to say on this important issue. The global economy is underpinned by law, but you would think it had nothing to do with climate change. 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 US, they do not progress far.
The weak legal response to climate change means that big polluters are getting off lightly. It is clear that 60% 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.
Investment law
A significant case was decided recently by a panel of international arbitrators in The Hague. Yukos versus Russia involved the compensation of five named shareholders in Mikhail Khodorkhovsky’s former oil company, Yukos, which was driven to bankruptcy – allegedly by Russian tax policy. The case is noteworthy as it involves probably the largest arbitration award in history, at $50bn (£31.8bn).
The case is a reminder of just how much power a three-person international panel can wield over national tax policy, allowing them to take vast quantities of money from Russian taxpayers and put it into the hands of private shareholders. It is also notable for the methods by which the panel arrived at this extraordinary sum. The number represents a portion of the money the shareholders were held to have lost through sales of oil that would have been extracted between 2004 and 2011, had Yukos not been bankrupted first.
In other words, the panel ruled that between 2004 and 2011, with greenhouse gas emissions rising at record rates worldwide, those who had played a part in environmental destruction (and profited from it) should nevertheless be compensated to the tune for not having been free to produce more greenhouse gasses.
Put like this the ruling seems bizarre, but as any lawyer will tell you the panel was only ruling on the issues as presented. Both Yukos and Russia recommended the panel follow the indexed market price for oil and gas in Russia over the period, which generally rose. The overwhelming public interest in stemming climate change was absent from the proceedings and from the court’s calculations. The human, social, environmental costs were irrelevant or, as economists like to say, “externalised”.
International trade law
Unfortunately, the same problem also afflicts other areas of international law. One obvious policy for any state serious about addressing climate change would be to impose low carbon standards on the production of ordinary everyday goods such as meat, mobile phones, and plastics. But if you impose standards on goods at home, you must also impose them on imports or domestic industry will become uncompetitive and suffer.
Does international trade law allow states to impose low-carbon standards on imported goods? The answer is yes and no. 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 $600bn (£382bn) in annual subsidies to fossil fuels never been challenged, while paltry subsidies to support renewable energy technologies have been stopped?
Human rights law
Given the self-evident harms inflicted by climate change on internationally protected human rights to health, food, water, shelter and to life itself, one might expect human rights law to provide a viable route to mount a challenge. But this has proved complicated. Many of the principal victims of climate change do not live in the countries where emissions are highest, a key feature of climate injustice. This makes it difficult or impossible to sue.
Where people directly affected by the changing climate already live in high-emitting countries such as the US, Canada, Australia or the European nations, human rights may yet provide some effective relief. Litigation is beginning to happen in some of these places, but there are still significant hurdles.
As regards harm to the climate, courts are faced with lengthy and complicated causal chains that appear at first sight quite unlike the existing case law. Courts need imagination in these cases, but so far they have rarely displayed it.
An International Bar Association report Achieving Justice and Human Rights in an Era of Climate Disruption (pdf) looked at each of these areas in some detail, and at several others: international migration law, environmental law, the law of state responsibility. In each case, the report found that progress in internalising the urgent demands of climate change remained weak or non-existent. Fortunately the report has some solid suggestions for moving us forward.
Stephen Humphreys is associate professor of international law at the London School of Economics and academic advisor to the International Bar Association Presidential Task Force on Climate Change Justice and Human Rights. He was formerly research director at the Geneva-based International Council on Human Rights Policy.
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