Symposium Introductory Blog
Climate Change in an Unequal World:
Does International Law Matter?
by Dr Nilüfer Oral (NUS Centre for International Law) and Dr Ntina Tzouvala (ANU College of Law)
Published on 12 September 2022
The adverse impacts of anthropogenic climate change, while global, have disproportionate consequences for many states and peoples that have contributed the least historically. There is a scientifically established correlation between the systematic rising global temperatures caused by greenhouse gas emissions from human activities and the unequal process of industrialization that contributed to the division between the developed, developing and least developed countries. Imperialism and colonialism—often aided and legitimised by international law—contributed decisively to these patterns of unequal development. These categories are codified in the 1992 United Nations Framework Convention on Climate Change (UNFCCC) and the 1997 Kyoto Protocol with the creation of Annex I countries (industrialized countries and economies in transition) and Annex II countries (developed countries which pay for costs of developing countries). While the 2015 Paris Agreement removed references to the Annexes, the distinction between the developed, developing and least developed countries remains.
As this year 2022 marks the 30th anniversary of the adoption of the UNFCCC, this symposium provides an opportune moment to reflect upon the role of international law in relation to climate change impacts in an economically divided and profoundly unequal world. This inequality among states underlying climate change is reflected in the UNFCCC. For example, the preamble notes “that the largest share of historical and current global emissions of greenhouse gases has originated in developed countries, that per capita emissions in developing countries are still relatively low and that the share of global emissions originating in developing countries will grow to meet their social and development needs”. At the same time, international law has been less able to conceptualise and address the differential responsibilities and entitlements of sub-national and trans-national actors, including fossil fuel corporations. Not only are corporations largely ‘invisible’ in international law when it comes to legal obligations, but also certain fields, such as international investment law, grant them with extensive legal rights and privileges that are already used to obstruct efforts for a ‘green transition’. At the same time, the promise that international human rights law will offer protection to the most vulnerable groups, incorporated in the preamble of the Paris Agreement (….) does not always materialise. In the first contribution of this symposium, Mr Dylan Asafo offers a comprehensive critique of UN Human Rights Committee’s 2020 decision in Ioane Teitiota v. New Zealand, in which the Committee affirmed the decision of New Zealand authorities that a man from Kiribati was not entitled to obtain protection from climate-related displacement and that no rights protected by the ICCPR were violated when his asylum petition was rejected. Asafo uses this case as an example of the broader marginalisation of Pacific Islanders within the international legal order. While he sees value in legal activism, including the potential of a request for an Advisory Opinion by the ICJ, he locates this value in the potential of law to act as catalyst for radical political action.
In any event, since the adoption of the Paris Agreement a growing trend of domestic litigation for climate change has emerged. In her contribution, Dr Margaretha Wewerinke-Singh takes stock of this growing trend of domestic climate change litigation. In particular, she cautions against an overly celebratory assessments of domestic case-law in the Global North, where courts have generally abstained from laying out obligations toward small island developing states (SIDS) due to real or perceived jurisdictional limitations. The intervention of Dr Jolene Lin nevertheless reminds us that climate-related litigation is not limited to Global North courts. Centring courts of ASEAN states, the third contribution of this symposium examines lawsuits and petitions filed in Thailand, Indonesia and the Philippines. Dr Lin draws our attention to a recently decided petition in front of the Commission on Human Rights of the Philippines, which successfully established that major emitters have human rights obligations and also that the state’s human rights obligation entail a duty to regulate private actors. Dr Lin’s contribution shows that when it comes to climate change litigation (and beyond) it is a mistake to only, or even primarily, focus on legal strategies in the Global North, since Global South’s legal actors manifest creativity and a sense of urgency that is often lacking in the developed world.
Mr Juan Auz maintains this focus on regionalism beyond the Global North. His contribution highlights the role of Latin American states as advocates for more ambitious international solutions to climate change. At the same time, his intervention highlights important divisions between Latin American states, where political orientation leads to different attitudes toward market-based solutions to climate change. Going even further, Mr Auz draws attention to the fact that even states that reject market-based mechanisms when it comes to international law, remain committed to extractivism domestically. This is a contribution that highlights the importance of regionalism all the while cautioning against overgeneralisation.
Regionalism is nevertheless central to climate change, especially seen from the perspective of regions that are particularly threatened. It is, then, no surprise that Pacific states lead the two unfolding initiatives that seek to engage international courts to the fight against climate change. First, Vanuatu is leading a campaign to have a UNGA resolution requesting an advisory opinion from the International Court of Justice; and the second is the Agreement for the Establishment of the Commission on Small Island States for Climate Change and International Law, with the mandate to request advisory opinions from the International Tribunal for the Law of the Sea. In her intervention, Dr Wewerinke-Singh points out that the parallel jurisdiction of the ICJ and ITLOS was beneficial in the case of Mauritius seeking legal redress for the unlawful occupation of Mauritius by the UK, a fact that may raise hopes in regards to climate change to and the ability of weaker states to successfully utilise international law. That said, we cannot expect this to be an uncontroversial process. Formulating questions that will elicit the desired opinion is notoriously difficult, and certain questions, such as historic responsibility or loss and damage, can be expected to cause heightened controversy. In the final post of this symposium, Dr Julia Dehm tackles precisely the question of loss and damage in international law. She does so by highlighting that the current forms of operationalisation of relevant obligations involves mechanisms of financialisation and risk management, rather than genuine reparations for harm caused by major emitters, be it states or corporations. Drawing from ongoing debates about reparations, say for the transatlantic slave trade, this important contribution centres notions of justice and of ‘climate debt’ and argues that it is them that should underlie any effort to address ‘loss and damage’.
All in all, this short symposium has only scratched the surface of the intersection between international law, global inequality, and climate change. What is clear is that the existential threat posed by climate change is not felt equally across the globe. International law’s purported universalism will be tested based on its ability to respond to this existential challenge and to do so from the perspective of those who are impacted the most while having contributed the least to the problem. As one of us has argued, international law can be seen itself as an adaptation mechanism, but for this to happen, it will need itself to adapt and it will need to do so quickly.
Climate Justice Demands a World Beyond International Law
by Dylan Asafo
Climate Change in an Unequal World: Do International Courts and Tribunals Matter?
by Margaretha Wewerinke-Singh
Climate Change Litigation: A View from ASEAN
by Jolene Lin
The Configurations of Latin American Climate Law
by Juan Auz
Addressing Loss and Damage: The Unanswered Call for Climate Reparations
by Julia Dehm