Climate change and international human rights litigation: a critical appraisal.

AuthorPosner, Eric A.

What is the appropriate legal and political strategy for limiting the emission of greenhouse gases? A number of scholars have advocated litigation, a subset of which would be international human rights litigation in which victims of the climatic effects of greenhouse gas emissions would obtain damages from corporations, and possibly states, that are responsible for the emissions. In this Commentary, I will argue that there is little reason to believe that international human rights litigation would lead to a desirable outcome.

Litigation seems attractive to many people mainly because the more conventional means for addressing global warming--the development of treaties and other international conventions, such as the Kyoto Accord--have been resisted by governments. A rational treaty system would require states to reduce greenhouse gas emitting activities on their territory or, under other proposals, to purchase the privilege to conduct such activities from other states that operate below a threshold emission level. The treaty approach has obvious appeal: it would permit states to design a system that creates the most efficient incentives for reducing greenhouse gases, while taking account of differences in local capacity and economic development, international equity, and other relevant factors. Nearly everyone agrees that a treaty system would be preferable to litigation. But treaty negotiations have stalled, and there are numerous reasons for pessimism about international cooperation in the face of global warming, (1) so lawyers concerned about global climate change have been searching for other approaches.

These approaches all involve the creative use of litigation on the basis of existing domestic and international law. For example, one could pursue purely domestic litigation options in the United States based on American law. The State of Massachusetts has sued the EPA, arguing that, in the context of motor vehicle regulation, the EPA has an obligation under the Clean Air Act to regulate carbon dioxide emissions. (2) In principle, individuals could also sue corporations for emitting greenhouse gases under existing tort law if causation and harm can be shown. (3) One could also try to take advantage of international law. A handful of treaties and, possibly, norms of customary international law imply that states can be held responsible for emitting pollution that injures people living in other states, and one could argue that, if these rules do in fact prohibit such pollution, they apply to greenhouse gases as well. (4) These legal claims could potentially be pursued before domestic courts or international tribunals.

All of these approaches have serious problems. In the EPA case, regardless of whether the EPA is ultimately required to regulate, the impact on climate change by 2100 will be roughly zero. (5) Domestic tort litigation involving American plaintiffs and defendants seems questionable because of causation problems: how can a particular victim of, say, flooding show that the flooding was caused, in the legally relevant sense, by the greenhouse gas emissions of an American corporation? More important, such litigation cannot address a global problem. Most greenhouse gas emissions take place in foreign countries, and most of the victims live, or will live, in foreign countries. Liability based on American activities alone would have only a marginal effect on the climate, especially if, as seems likely given the potential magnitude of damage awards, it would mainly cause industry to migrate overseas. Congress would not permit this to happen, and would modify tort law that placed American industry at such a profound global disadvantage.

Litigation targeting the U.S. government for failing to regulate greenhouse gas emissions is even less likely to succeed because of sovereign immunity. Litigation against foreign states based on international law is equally likely to fare poorly in domestic courts because of foreign sovereign immunity and other doctrines that limit the liability of foreign states and individuals. This barrier is compounded by the weakness of international environmental treaties and customary law. The weakness of the law also makes litigation before international tribunals largely pointless, except, perhaps, as a way of attracting attention; further, international tribunals have no power to coerce states to comply with their judgments.

But if international environmental law is weak, international human rights law is, by comparison, robust. Scholars have therefore argued that international environmental law claims are more likely to succeed if they can be reconceptualized as international human rights claims. (6) Most states belong to human rights treaties, and many of the obligations embodied in these treaties have become norms of customary international law. Human rights treaties potentially give individuals (as opposed to foreign governments) claims against states both the state of which the individual is a citizen and any given foreign state implicated in an alleged rights violation. In theory, individuals or groups could bring human rights claims against their own state and foreign states in certain international tribunals, and prevail if they could show that failure to regulate greenhouse gas emissions has resulted in a violation of their human rights. (7) Because international tribunals generally have very limited powers, the most promising avenue lies with domestic litigation in the United States. The Alien Tort Statute (ATS) (8) allows non-Americans to bring claims in American courts based on torts that violate treaties and customary international law. Litigants can bring these claims against American and foreign corporations and government officials, even if sovereign immunity bans claims against most states. ATS litigation has been distinctive because it has produced awards and even payment of damages (in settlements), so today it is the most prominent and effective means for litigating international human rights claims. If a plausible claim can be made that the emission of greenhouse gases violates human rights, and that these human rights are embodied in a treaty or customary international law, then American courts may award damages to victims. (9)

Whether victims of global warming pursue human rights claims in American courts on the basis of the ATS or instead find another forum that provides better legal options or greater political visibility, we should distinguish the legal basis for their claims from the normative basis of this type of litigation. For if the legal basis is weak (10) but the normative basis is strong, governments should be encouraged to strengthen the law; if the legal basis is strong but the normative basis is weak, governments should be encouraged to weaken the law. In this Commentary, I will focus on normative issues and address the legal questions only to the extent that doing so is unavoidable. My argument is that the claim that individuals have an international human right of some sort that is violated by the emission of greenhouse gases, and that such a right should be vindicated in human rights litigation, is not normatively attractive. To keep the discussion simple, I will use ATS litigation as my running example. (11)

  1. THE INTERNATIONAL HUMAN RIGHTS APPROACH

    The ATS provides that "[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." (12) To use this statute against global warmers, human rights advocates would need to find a plaintiff and a defendant, and be able to show that emitting greenhouse gases is a tort that violates international law.

    1. The Plaintiff

      To win a tort case, one needs an injury, and so the plaintiff would have to be someone who has been injured by global warming. It is hard to claim that a higher temperature causes an "injury," as that term is conventionally understood in tort cases. But if one could show that one's life, health, or property was damaged or destroyed by flooding, disease, or some other hazardous phenomenon connected to global warming, then one could be a plaintiff in an ATS suit. Of course, the problems of proving causation are immense, but I will put these aside for now.

    2. The Defendant

      Here, we have an embarrassment of riches. Virtually everyone in the world engages in activities that emit greenhouse gases and thus contribute, however minimally, to global warming and its ill effects. Plaintiffs may pick and choose, of course, and so they are likely to choose either wealthy corporations or states. International law contains a bit of a Catch-22, however: international law generally creates obligations for states, not for corporations or individuals; but states are usually protected by sovereign immunity, so they cannot be sued in U.S. courts. Plaintiffs have managed to escape this Catch-22 in two ways: by suing foreign officials rather than foreign states and by suing corporations that have acted in complicity with states. (13) The latter is more promising in terms of generating damages, and so I will generally assume for purposes of discussion that the defendant is a corporation.

    3. The Tort

      The plaintiff must show that the defendant has committed a tort. This is relatively straightforward: because emitting pollution that harms third parties is a standard tort, plaintiffs should have no trouble persuading courts that greenhouse gas emitters are potential tortfeasors. difficult questions about the scope of liability will have to be addressed, however, as I discuss below.

    4. Violation of International Law

      Does emission of greenhouse gases by a state or corporation violate international law? International legal restrictions on pollution are weak or nonexistent, or apply only in limited domains. Various international declarations and agreements refer to the importance of...

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