On my way to Amsterdam today for a SHARES Seminar on Shared Responsibility in International Law. The conference announcement is here. And the preliminary program is here. I'll be talking about problems of "state responsibility" under international climate law.
A number of prominent international legal scholars have been promoting the idea that countries harmed by climate change, particularly those suffering from sea-level rise, might sue major emitting countries such as the US and EU. My paper raises a number of issues relating to such potential claims, including: (1) causation-proof problems given continuing disagreements over climate-sensitivity models, and the difficulty of allocating responsibility among anthropogenic and natural drivers of climate change; (2) the arguable unforeseeability of harm from emissions before the IPCC's "unequivocal" determination that anthropogenic emissions of greenhouse gases were driving climate change; (3) the absence of liability provisions in the climate treaties; (4) the chilling effect on "framework conventions" that would result from applying the United Nations Framework Convention on Climate Change against ratifying parties, such as the US; (5) the fact that the US is not a ratifying party of the Kyoto Protocol; (6) the dearth of precedents, and consequent lack of development of the "no-harm" principle of customary international law; (7) questions as to whether the climate treaties preempt the "no-harm" principle under the principle of lex specialis; and (8) the extreme unlikelihood that major emitting countries would accede to the jurisdiction of the International Court of Justice or an arbitral tribunal (unless they strongly believed they could establish a strong negative precedent).
Of course, I'm in no way an international law expert (thought studying climate law forces me to dabble in it). I have some trepidation about how real international lawyers will receive my paper. On the other hand, I tend to find that they, like other lawyers, tend to overestimate the value of courts and litigation for social problem-solving.