Time for an International Court for the Environment By Anne McMillan*
This article was first published in Global Insight, Vol 73 No 6, December 2019, and is reproduced by kind permission of the International Bar Association, London, UK. © International Bar Association. As the climate crisis deepens, there remains a troubling lack of international consensus on practical and legal responses. Global Insight highlights the pressing need for international law to stand up for the planet. Statements by scientists drawing attention to the urgent nature of the climate crisis are becoming ever more frequent, and alarming. Reports by the United Nations and other international bodies contain dire warnings about the acceleration of species extinction. They emphasise the need for drastic changes to the use of land and energy globally if we’re to decrease damaging greenhouse gas (GHG) emissions. Some go so far as to say that damage to the environment is already irreversible in several areas. So, how should we deal with the climate crisis, practically and legally? Some governments encourage plans to enhance the international legal regime protecting the planet, but others obstruct proposals that suggest greater liability. Part of the problem, as the IBA pointed out in its 2014 report Achieving Justice and Human Rights in an Era of Climate Disruption, is that ‘existing international law is not designed as it stands to limit greenhouse gas emissions or achieve climate change justice’. As a remedy, the IBA report supported the idea of working towards the creation of an International
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Court for the Environment, or ICE, while cautioning that this is likely to be a ‘longer-term goal’. ‘The 2015 Paris Agreement has, to some extent, distracted focus from creating an ICE,’ says Conor Linehan, a member of the IBA Climate Change Justice and Human Rights Task Force. ‘Though a welcome step in the international climate response, the Paris Agreement’s dispute resolution language is generally weak and, like the UN Framework Convention on Climate Change, it lacks a strong compliance mechanism’. Catastrophic crisis, crippling impasse In the five years since the IBA’s report the scientific predictions of the impact of climate change have become more alarming and the public more aware. Yet, the idea of an ICE still does not seem to have garnered much support from states. In September 2019, world leaders were invited to bring their most ambitious ideas to reduce global warming to a UN Climate Change Summit. The results were disappointing. Two of the top three GHG-emitting countries, China and India, failed to make significant commitments to further limit their carbon emission reduction targets under the Paris Agreement. The third, the United States, made no statement at all. As UN SecretaryGeneral António Guterres said, ‘we don’t make judgments about countries... we are not a court’. Perhaps that’s what’s needed to cut through the potentially catastrophic impasse.
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