Enforcing International Climate Change Law in Domestic Courts: A New Trend of Cases for Boosting Principle 10 of the Rio Declaration?

• Author: Colombo, Esmeralda

1. INTRODUCTION II. AN ENFORCEMENT APPROACH TO CLIMATE CHANGE LAW A. Enforcement at International Law, From Kyoto to Paris B. Enforcement in Domestic Courts, From The Hague to Lahore C. The International Linchpin for Domestic Adjudication: Principle 10 of the Rio Declaration III. A PROPOSAL A. The Urgenda Case 1. The case 2. Assessing the Impact of Urgenda B. The Leghari Case 1. The case 2. Assessing the Impact of Leghari C. Urgenda, Leghari, and the International Climate Policy IV. TAKING STOCK I. INTRODUCTION

   As the world was sonorously applauding the unexpected consensus over the Paris Agreement, the warmest year on record was about to come to an end and, possibly, be succeeded by an even warmer year. (1) Such a convergence of events might be more telling than it appears and is arguably apt to raise decisive questions on the effectiveness of the tools so far deployed to tackle climate change.

   Quite interestingly, concerted efforts to abate greenhouse gas (GHG) emissions materialized relatively early if one considers the average low timeliness of international law. (2) It may be safe to identify such efforts firstly in the initial implication of a concept, namely sustainability as newly coined in the Brundtland Report, (3) and then in the molded appearance of a fully-fledged convention, which is the united Nations Framework convention on climate Change. (4) In some thirty years from then and after a number of further agreements, however, we still do not possess the wherewithal to effectively implement international law norms and prevent the further deterioration of the climate, as year 2015 temperatures stand to demonstrate.

   Lacking a centralized enforcement system, international law norms are constantly susceptible to being breached. (5) Although international law scholars have historically deemed compliance rates with international agreements--let alone customs (6)--very high, (7) enforcement is still a major challenge. (8) All the more so when international law aspires to address apparently intractable global challenges, such as climate change, which are inherently spurred by the current system of production and consumption.

   More effective strategies for addressing climate issues might arise from refined law-making and wider enforcement tools. On law-making, one of the most contended issues of the pre-Paris regulatory framework has been identified in the lack of emission-reduction obligations on developing countries, (9) which might have doomed it to failure. On enforcement, the Kyoto Protocol to the UNFCCC has even been hailed as the first Multilateral Environmental Agreement (MEA) taking enforcement seriously, (10) yet issues of implementation were not consistently brought before its compliance committee. (11)

   Squaring the circle of environmental protection, equity and economic advancement is not an easy task, but it may fall short of becoming a quixotic project if specific underused features of the current climate change legal framework are to be analyzed and further deployed.

   One of the possible enforcement tools to apply is the domestic implementation of international climate change law in domestic courts. If 2015 is remembered for being the warmest year on record, as well as the propitious time for the international community to consent to the Paris Agreement, it is also to be cherished for harboring the first instances worldwide where international law has been implemented in domestic courts for the adjudication of climate claims, in the Netherlands and Pakistan, respectively. Here lies a decisive question: should such instances be cursorily overviewed as sporadic examples of judicial activism, or can they rather be assessed as patterns for boosting alike decisions and possibly impacting international climate policy?

   The second option appears preferable in light of the Rio Declaration, and precisely Principle 10, by which effective access to judicial and administrative proceedings, including redress and remedy, in environmental issues shall be provided at the State level.

   In the present paper, I will take international climate change law norms as a given, and will instead turn to their implementation in domestic courts as one of the possible enforcement strategies for advancing the protection of the climate. After this Introduction (Part I), the enforcement of climate change law will be overviewed at the international law level (Part II, subpart A) and portrayed in the context of domestic courts (Part II, subpart B). In order to flesh out such a proposal as the latter, the viability of procedural rights, as embodied in Principle 10 of the Rio Declaration, will be assessed and compared with substantive rights as a possible leverage of enforcement in the sphere of climate change law (Part II, subpart C). Such leverage will be pictured out in Part III within the first two judicial decisions applying international law for the protection of the climate in domestic courts, namely the Urgendadecision from the Netherlands (Part III, subpart A), (12) and the Leghari decision from Pakistan (Part III, subpart B). (13) The legacy of each of those will be evaluated under the prong of judicial globalization (14) and international climate policy (Part III, subpart C). By taking stock of the preceding parts (Part IV), I will argue that the interpretive techniques deployed in this strand of cases are poised to further advance international climate change law, not only on a substantive plane, but also on a procedural plane, especially with regard to the standing of individuals and NGOs. Indeed, I hold such a judicial turn to be a viable enforcement mechanism in the field of climate change law and policy, especially in the aftermath of the 2015 Paris Agreement.

   The foregoing analysis is based on a number of assumptions and limitations. The implementation of international law in domestic courts is only one of the available tools for meeting the goals set forth in international climate legislation and implied in international environmental principles. (15) Moreover, the type of climate change litigation that I will address in this paper covers claims brought by non-State parties on both mitigation and adaptation measures, (16) and is limited to the adjudication of disputes by a domestic court with specific reference to the direct or indirect application of international law, rather than solely national law. (17)

2. AN ENFORCEMENT APPROACH TO CLIMATE CHANGE LAW

   The enforcement imperative in climate change law appears especially urgent while considering that, even if concerted efforts were to be effectively taken now, the warming is already locked in for the next 25 years due to historical emissions. (18)

   In this section, I briefly consider the classically construed notion of enforcement of international law as it has played out in climate issues. In light of emerging difficulties inherent in the international legal order and climate regulatory framework, I will propose a complementary strategy of enforcement as embodied in the judicial domestication of climate claims by either direct or indirect application of international law. I will argue that the implementation of international law in domestic courts not only advances the protection of the climate, but can also signal the legitimacy of international law norms and contribute to the ultimate adherence to them.

   1. Enforcement at International Law, From Kyoto to Paris

      In order to highlight the reasons why enforcement in domestic courts can supplement enforcement applied at the international law level, the latter will be discussed selectively, with no intent to provide an exhaustive explanation of the hurdles it has thus far encountered in climate matters.

      The need for implementing the climate regulatory framework was first met by fleshing out a compliance system in the 1997 Kyoto Protocol, whose entry into force was delayed until 2005. The Kyoto Protocol will be in effect until 2020, when the Second Commitment Period ends and the Paris Agreement is expected to enter into force.

      The Kyoto compliance system is built around binding emission-reduction commitments, (19) and is composed of a facilitative branch, enforcement branches, a plenary, and a bureau. (20) The compliance system was operational as late as in 2006, only two years before the start of the First Commitment Period. (21) While the facilitative branch was meant to facilitate compliance, (22) it had been summoned in only one circumstance up to 2012. (23) On the other hand, the enforcing branch firstly appeared to be thoroughly consistent with the top-down approach adopted in the Protocol, yet implementation issues have not been promptly brought before it. (24) As a third authority within the structure, the COP/MOP is the ultimate overseer of the process but has not had much direct involvement. (25) The broad powers preventing information from becoming public have widely undermined the credibility of the system, (26) and its triggering in case of violations has not proved effective. (27)

      All in all, experience suggests the Kyoto compliance system has been underutilized since a number of issues, spanning delays in reporting to Canada's withdrawal, have not been presented before the branches either on time or at all. (28)

      Broadly speaking, the bottom-line on the Kyoto Protocol's top-down approach is not particularly impressive: (29) many countries have not met the 2012 targets they agreed to, Canada withdrew, some States--such as Japan and Russia--declared that they would not sign for a Second Commitment Period, and the Protocol now covers only around 15 percent of global emissions worldwide. (30) Furthermore, States in Copenhagen did not fulfill the expectation to effectively replace the Kyoto Protocol with binding obligations. (31)

      The classical top-down approach entrenched in the Kyoto Protocol was further implemented in the 2012 Doha Amendment, which has bound Annex I countries, namely developed...