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Overview

“The climate change fight is a fight for all of us. It’s a deeply personal fight to save every place that we love and live in.”
– Abigail Dillen, President of Earthjustice

Climate change does not respect borders. As average temperatures rise across the globe, different countries will inevitably face different consequences. In fact, studies show that the countries least responsible for climate change will increasingly face the most severe consequences. Look to small island nations and the damage already being done to them as a result of sea level rise if you have any doubts.

Over the past decade, some of the most ambitious climate policies have been formed at the international level. International protocols, treaties, and conventions, all of which are backed by annual COP (Conference of the Parties) meetings, provide a space for the global community to come together. In such spaces, smaller and poorer countries stand on equal footing with other countries, giving them a significant platform upon which they can voice their concerns and support for progressive environmental policies. At COP26, the Alliance of Small Island States (AOSIS) used the Glasgow stage to assert the urgency for meaningful legislation; “1.5 degrees is not just a target, but a necessary precondition to our continued existence.” Without a coordinated international effort to stave off the most harmful consequences of climate change, it’s less likely that meaningful climate legislation will pass domestically.

Yet, despite all of the international environmental policies currently in place, it can be difficult to discern what impact any of it has had or will have on climate change mitigation. Last year’s COP26 received a lot of negative attention as a result of Joe Biden and other political leaders providing “nothing but words on paper,” in the words of Varshini Prakash, the Sunrise Movement’s executive director. Similarly, Greta Thunberg called COP26 a “failure,” pointing at the lack of hard emission reduction deadlines and significant contributions from some of the most environmentally negligent countries. With the United States just recently added back into the Paris Agreement, and major polluting countries like China and India refusing to set progressive emission reduction targets, it’s not a surprise that activists are skeptical of the impact that international environmental policy has made.

We must continue to hold politicians accountable and hold rallies to push governments to do more about climate change, but we should also examine the ways in which we can wield existing international policies to create meaningful change. Recent studies examining international environmental law have found that in recent years, instances of environmental litigants citing international environmental treaties in their lawsuits is increasing. This is big news for climate change advocates looking to enshrine environmental laws and legislation domestically! Environmental law might create an avenue for real enforcement of international provisions.

The best examples of environmental lawsuits holding governments accountable emphasize the annual Nationally Determined Contributions (NDCs) that members of the Paris Agreement are beholden to submit to the United Nations Framework Convention on Climate Change (UNFCCC). Environmental cases from New Zealand, Australia, and South Africa filed in 2021 showcase environmental litigants citing their government’s membership in the Paris Agreement and their binding obligation to provide meaningful NDCs. Cases like these, if successful, hold the potential to set a legal precedent both domestically and internationally for NGOs and environmental law firms to bring a suit against governments that fail to live up to their obligations under the Paris Agreement.

In addition to international agreements on climate change, environmental treaties are being cited in cases pertaining to inaction on climate change. Because climate change is proven to impact the natural world in many ways, litigants are looking towards environmental agreements to strengthen arguments to uphold climate agreements. The case from South Africa cited above makes reference to the Convention on Biodiversity, the International Whaling Convention, and the Convention on Migratory Species all to make the point that the government of South Africa is failing to meet the international climate provisions it had signed on to.

Another promising innovation that international environmental law is currently spearheading is the use of non-environmental agreements in court filings. Take small island nations for example. If sea levels continue to rise and small island nations continue to rapidly lose land to catastrophic weather events, this could lead to a massive climate refugee crisis. If this scenario plays out as predicted, then signatories of the Refugee Convention of 1951 (145 countries) would have to consider revising the Refugee Convention to include climate refugees. In this way, the side effects of climate change are predicted to spill over into other realms of international policy, allowing for international litigants to attack climate change inaction from multiple angles.

The use of non-environmental international treaties in environmental lawsuits is already taking place. In the New Zealand case cited above, lawyers for Climate Action NZ make references to the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights in relation to the failure of the government to provide impactful legislation for their NDCs.

What we can take from the complicated world of international environmental law and policy is that we’re allowed to be cautiously optimistic about the future! It’s true that we should never feel complacent about environmental law and policy. Our governments are still far from equipped to handle the climate struggles that the near future will hold. Yet, meaningful and innovative law and policy implementation strategies are already underway! We must support politicians that campaign on the promises of our existing international climate commitments, and we must search for hope in these international frameworks.

No battle has ever been won without the hope of victory. As you move forward with environmental work, stay motivated, be a force for international change, and never under any circumstance lose hope.