Multi-Forum Strategies to Tackle Climate Change and Other Complex Problems: A Note from Practitioners

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Introduction 

Recently, EJIL and EJIL Talk! featured a spirited debate between Corina Heri and Alexander Zahar on the role of human rights law and human rights litigation in addressing climate change (here, here, and here).  To Heri, leveraging human rights law and human rights litigation to address issues related to climate change “is not only possible, but also normatively desirable”.  To Zahar, using human rights law to address climate change is an undesirable attempt to “commandeer an existing body of law to address a new problem type”. 

This fascinating debate explored the theoretical possibility, value and implications of using (or not) existing legal rules and processes of international human rights law to address climate change. 

As practitioners of international law, we think about these same questions through the prism of the particular problems that our clients, and potential clients, face.  Confronted with these problems, we look for pragmatic solutions within existing bodies of law – solutions that work both theoretically and practically.

We look for these solutions in all areas of international law, seeking to align potential substantive claims with available procedural avenues to pursue the claims under international dispute settlement.  In developing substantive claims, we also look across all areas of international law to develop a coherent set of interpretive arguments.  We, therefore, seek to tackle our client’s problems with a different approach to Zahar.  Instead of compartmentalising international law, we seek to integrate it; and, instead of looking for new bodies of law to solve new problems, we seek to leverage existing law.

When it comes to climate change, this difference has implications.  Zahar’s position may suggest that stakeholders should hold off seeking adjudicated solutions to climate change until a new body of law emerges that is specifically designed to address climate change.  Instead, we advocate leveraging existing rules and fora of international law to the fullest to address climate change.  While existing rules may not have been developed with the facts of the climate crisis in mind, legal rules are intended to be applied to a wide diversity of facts and are frequently applied to new factual situations.

To be clear, we would like to see the emergence of a comprehensive dedicated body of international law specifically designed to address all facets of climate change. However, unlike Zahar, we think that litigation under existing rules is a worthwhile exercise; such litigation not only contributes to solving the most immediate problems, but can also facilitate the emergence of new rules.

A scattered set of tools

In practice, we hardly ever encounter a client who says “I have a problem under the Agreement on Trade Related Aspects of Intellectual Property Rights” (TRIPS Agreement), or “We have a problem under the A-B Investment Treaty”, or “X has violated its obligations under the Chicago Convention on Civil Aviation”.  Most clients describe a problem that they face.  As lawyers, our job is to listen, work to understand the problem, and then reach for the right tools of international law.  Sometimes, the tools are neatly arranged within a single, definable part of international law (for example, in different provisions of the same treaty).  Sometimes, though, the tools are scattered throughout the international law tool box; the solution to the client’s problem may lie partly in the TRIPS Agreement, partly in an investment treaty, partly in the UN Convention on the Law of the Sea, and partly in the Convention on Elimination of Racial Discrimination (CERD).  The more complex the problem, the more likely that the solution is found in different areas of international law, with different dispute settlement fora.

Climate change is a particularly complex problem, affecting peoples, cultures, nations, territories, and economies across the entire planet in a wide diversity of asymmetrical ways; and it is also prompting considerable governmental activity at regional, national and international level to mitigate and adapt.  Although there are international instruments specifically addressing climate change, and negotiations continue on more, there is currently no comprehensive, dedicated body of international law specifically designed to address climate change in all its complexity.

Until such a dedicated body of law is established, those most affected will need to reach for as many tools as are available to them.  Existing tools of international law may be used to address the impact of the failures to mitigate the effects of climate change, and to adapt to its impacts, and of the disparate effects of governmental climate actions.  For example:

  • Existing (but rarely litigated) legal concepts of traditional international environmental law and good neighbourliness may need to be pressed into service to address transboundary harm from climate change.
  • The impact of climate change on the quality of human life may need to be addressed through the tools of human rights law.
  • Certain States may take unilateral trade or investment measures either to reduce their own emissions or to compel other States to do the same, and in doing so, they will be subject, simultaneously, to their obligations under trade and investment agreements, and their obligations under international environmental law, like the Paris Agreement.

The obligations under each of these substantive areas are, of course, interpreted and applied before a variety of different fora – ICJ, inter-State arbitral tribunals, law of the sea adjudicators, trade and investment adjudicators, human rights courts, regional and national courts, and perhaps even commercial arbitrators.

To us, these are all legitimate ways for States to tackle a complex problem from multiple angles.  The use of these tools could be supplemented by advisory proceedings before the ICJ and ITLOS, which could serve to clarify the state of existing international law, to send coordinating signals to all other adjudicators and to stakeholders on how the existing tools must be wielded, and offer clarity to negotiations as to where the existing tools may be lacking.

If and when these different areas of international law are engaged to climate ends, State (and other) actors and adjudicators operating within these areas of law must strive to ensure coherence between different parts of international law addressed before different fora.  The different systems at play should operate on principles of mutual supportiveness and cannot be closed to each other.  The tools should pull in the same direction.  

These efforts at coherence are already underway.  Some recent free trade agreements incorporate specific climate-related obligations, and there are important ongoing conversations at the World Trade Organization on aligning trade rules and climate rules in pursuit of such coherence.  In 2021, the Office of the High Commissioner for Human Rights appointed a special rapporteur “on the promotion and protection of human rights in the context of climate change”.  These, along with the ongoing efforts to secure advisory opinions from the ICJ and ITLOS, are efforts by States to achieve substantive integration and coherence among the various areas of international law relevant to addressing the challenges of climate change.

Multi-forum litigation to address complex problems – Some Case Studies 

The fishing rights dispute between the Faroe Islands and the European Union provides a good example of the use of different areas of international law, and a multi-forum strategy, to address a complex international problem.  In 2013, after the failure of negotiations regarding allocation of the Atlanto-Scandian herring stock, the Faroes asserted a right to a larger share of the annual herring catch due to changes in the stock’s migration pattern.  In response, the European Union unilaterally imposed economic sanctions against the Faroe Islands, including import restrictions and a denial of access to European ports.  Denmark, acting on behalf of the Faroe Islands, brought a WTO dispute against the European Union, challenging these measures as a violation of the trade rules.  In parallel, Denmark, acting on behalf of the Faroe Islands, initiated arbitration under the UN Convention on the Law of the Sea, alleging a failure to cooperate in the management of shared stocks, contrary to law of the sea obligations.  Against the background of the Faroes’ multipronged litigation strategy, the parties returned to the negotiating table. The Faroes achieved a considerably larger share of the herring stock. The European Union lifted its coercive economic measures.  This was an instance where a litigant reached for tools from different parts of international law, wielding them before different fora, using them effectively to secure its desired outcome.

Another example relates to the 2017 Gulf diplomatic crisis.  Saudi Arabia, the United Arab Emirates, Egypt, and Bahrain moved to cut off Qatar through border closures, travel restrictions, trade restrictions, severing diplomatic relations and a number of other measures targeting Qatar and Qatari nationals.  Qatar considered these actions to be unlawful.  No single substantive area of international law could comprehensively adjudicate the dispute between the parties.  Nor did any single international court or tribunal have the jurisdiction to do so.

Faced with this situation, Qatar turned to different parts of international law.  It initiated multiple legal proceedings before different courts and tribunals, invoking obligations under different treaties.  The impact of the border closures on individuals of Qatari nationality residing in the boycotting countries became the basis of Qatar’s cases under the CERD, before the ICJ and the CERD Committee.  The closure of borders to the movement of goods, services and service providers, and the failure to enforce intellectual property rights belonging to Qatari nationals, became the subject of WTO challenges (here, here, here, and here).  The closure of airspaces was challenged in WTO proceedings and before the Council of the International Civil Aviation Organization.  The closure of borders to postage was challenged in an arbitration within the framework of the Universal Postal Union.  Qatari investors brought investment treaty arbitrations against the boycotting countries, claiming compensation for economic losses caused by various elements of the boycott, including expulsion of Qatari companies from the boycotting States and the refusal to enforce their intellectual property rights.

Qatar enjoyed some significant initial wins in these disputes. The ICJ indicated provisional measures in the proceedings initiated by Qatar under CERD (although it ultimately declined jurisdiction under CERD).  Before a WTO panel against Saudi Arabia, Qatar became the first ever complainant to beat, in respect of one of its claims, a respondent’s invocation of the WTO’s broad national security exception.  That WTO panel decision, finding that Saudi Arabia violated its TRIPS obligations in respect of sports broadcast piracy, had a significant reputational impact on Saudi Arabia and complicated Saudi efforts at international sports-washing.  The ICAO Council held that it had jurisdiction over Qatar’s claims, and the ICJ upheld that decision on appeal.

Qatar’s neighbours eventually lifted their measures, and Qatar’s various legal proceedings have been suspended or terminated.  We think it likely that the opportunity afforded by international legal proceedings for the parties to voice their views in a structured manner, and Qatar’s initial wins, ultimately facilitated settlement, and influenced its terms.

Having represented the Faroe Islands, Qatar, and Qatari investors in some of the proceedings discussed here, our key takeaways are: (1) we live in a world in which the responsibility to adjudicate cases is parsed among different international courts and tribunals, which have limited but often complementary jurisdiction; (2) in that world, a single existing area of substantive international law often cannot provide a comprehensive solution to complex problems; (3) faced with complex problems it is productive for parties to develop an integrated strategy that uses different parts of international law considered holistically to tackle different parts of a problem; (4) leveraging the full range of existing tools of international law allows a party to attack a problem from multiple angles, optimising the chances of a successful adjudicated or negotiated outcome; and, in so doing, (5) shines a spotlight on the strengths and weaknesses of existing law and its application to new situations, thereby helping to focus the efforts of States as develop the law.

The merits of such a multi-forum strategy are more pronounced when dealing with a collective human problem like climate change.  Unlike in bilateral disputes, the concern that pursuing legal claims before one forum may have an opportunity cost in terms of the ability to deploy resources for legal proceedings before other fora or for negotiations does not arise in these collective interest contexts. On issues like climate change, where every State is a potential litigant and there are a multitude of affected stakeholders, we see many more opportunities to pool resources and source pro bono legal services, to alleviate such concerns, and pursue all available avenues to the fullest. 

Towards a Theory of Everything

Physicists have long been searching for a “unified field theory” or a “Theory of Everything”.  While that laudable effort continues, falling apples continue to be explained, coffee continues to be brewed, cars continue to be driven, and humans continue to travel in space, leveraging the existing laws of physics. 

As we noted at the beginning of this piece, the ideal outcome in climate change is the successful negotiation of a specially designed set of rules addressing all aspects of climate change comprehensively.  However, in the meantime, it is constructive to leverage the existing rules in all areas of international law before all available adjudicators.  Not only can that exercise yield quick (even if necessarily incomplete) solutions to the urgent problems, it can also facilitate negotiated settlements by clarifying and highlighting the scope and limitations of the existing rules.

The authors are all members of the Global Arbitration, Trade and Advocacy team of Sidley Austin LLP, based out of the Geneva, Brussels, London and Singapore offices.  The views expressed in this article are exclusively those of the authors and do not necessarily reflect those of Sidley Austin LLP. This article has been prepared for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this without seeking advice from professional advisers.

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Comments

Benoit Mayer says

November 1, 2022

Existing law can surely be applied to new situations. That does not mean that any existing law should be applied to any "new" situation.

In the debate at issue there are a number of important objections that Heri simply did not address. Her argument about the "possibility" for the ECtHR to order states to reduce their greenhouse gas emissions relies on the assertion that "many of the hurdles facing these cases can be overcome". Yet, she also notes that "the hurdles facing climate cases in Strasbourg are so numerous and complex that the present contribution cannot cover them all in detail". One cannot convincingly argue that something is possible without engaging with the literature that suggests that it is not possible.