Pleas to set up an international climate court were frequently voiced at this week’s climate talks in Durban. A climate court would enable victims of climate change to call the perpetrators to account. There is little chance of a court like this actually being realised, says Professor of International and European Environmental Law Jonathan Verschuuren, but in future more climate cases will end up in court.

By Jonathan Verschuuren

An NGO from Bangladesh is the latest in a long list of organisations, lawyers, professors and others to propose setting up a climate court. The reason for these proposals is that international environmental law has proved inadequate. It is nearly impossible to get the whole world to agree on legally binding obligations on global environmental issues such as climate change.

No far-reaching agreements will be made in Durban. And a climate court will certainly not materialise. The world’s industrialised countries have more sense than that.

But this doesn’t mean victims of climate change have no one to turn to. Already there are examples of legal proceedings against companies with high CO2 emissions and even against states. Such cases can be taken to two types of organisations: international human rights courts or national courts.

Traditional way of life
A well-known example is a case brought by the Inuit people of North Alaska, Canada, Greenland and Russia against the United States at the Inter-American Commission on Human Rights. They claimed that by being responsible for the world’s highest level of CO2 emissions and by not participating in the Kyoto Protocol, the United States was to blame for the losses the Inuit suffer due to climate change.

Their traditional way of life is changing completely due to extreme global warming in this region. Its effects mean the animals living on the ice – the Inuit’s main food source – are disappearing along with the ice. Their claim was rejected, but it did open up the discussion on this and related issues.

Katrina
Cases have also been brought before national courts. Especially in the United States, the number of cases is on the rise. One high-profile example concerns the victims of Hurricane Katrina in New Orleans.

They took nine oil companies, 31 coal companies and four chemical companies to court for contributing to climate change. This climate change causes sea levels to rise, increasing the intensity of hurricanes. According to the complainants, this was why the exceptionally powerful hurricane Katrina caused so much damage.
When the complainants appealed, they had unexpected success: the judge determined there was enough reason to assume a relationship between the actions of the companies and the damages suffered by the victims.

More court cases
Outside of the US, legal action has only been threatened, for example by the Polynesian island nation of Tuvalu which is in danger of disappearing into the sea. But foreign victims of climate change are expected to be arguing their cases in US courts before long.

There haven’t been any great breakthroughs yet, but it is clear that climate change will lead to more court cases. Major legal firms have already prepared themselves for this development. It is widely expected that, as in the legal battle against the tobacco industry, damages will be awarded at some point.

But does this mean there should be a special climate court dedicated to hearing such cases? It’s something the international community is very wary of. States are not keen to take each other to court over environmental disputes. Some time ago, the International Court of Justice in The Hague had a department for environmental disputes. But within ten years, it was closed down: number of cases - zero. Nation states are afraid they will be taken to court themselves. All developed countries are potential defendants.

The Netherlands
Take the Netherlands for example, busy building new coal-fired power plants without making use of the latest clean technology. Subsidies for clean energy have been cancelled. The quality of the air, water and soil is one of the worst in Europe. And the European Environment Agency recently estimated that the annual costs for healthcare caused by pollution amounts to 3,939 million euros -and that’s a conservative estimate.

It’s clear that the Netherlands and other developed countries will do everything to avoid footing the bill for these expenses. Let alone the bill for 40 million people living along the coast of Bangladesh now that rising sea levels are forcing them to go in search of new places to live.

(hs/dd)