Legal Pluralism, Climate Change & International Environmental Precedents

Pluralism is a scenario in a democratic society that retains its diversity by encouraging and facilitating the co-existence of the different societal, religious, legal, governmental systems and no group of persons or system exert dominance over the other. A good example of this on the societal side is the major metropolitan cities like London & New York that are subject to global immigration and have specific neighborhoods like Little Italy & Chinatown where different cultures live, trade, and grow together with the original population. On the legal side, as per its preamble, India is a secular that does not have a state religion and is subject to their domestic laws, allows Hindus, Muslims, Parsi, etc. to be regulated under their own personal laws for marriage, divorce, and succession.

“Legal Pluralism” may be defined as the existence of multiple sources of law (both state and non‐state) within the same geographical area [1]. This has been explained through the above example of the Indian personal law example. Implementing this legal pluralism at an international level is where things can get tricky as even though the Rule of Law is followed in most countries, as given their diverse nature, economy, and people, they have different legal systems and approach towards dispute resolution mechanisms like arbitration, mediation, international courts, etc. along with the possibility of the international agreement of this dispute to have a multiple-tiered dispute resolution clause that a version and/or combination of the above avenues. Such diversity coupled with the nature of the dispute can make it very difficult to settle amicably or at all. International organizations including but not limited to the ICJ, WTO, UN, ICC, etc. were established with a legal framework to settle disputes precisely for this reason.

This intent of global cooperation to clarify the mechanism and settle international disputes especially in climate change can be seen from the decades of numerous nations’ participation, sponsoring, cosigning, and voting for various environmental conventions, agreements, and treaties like the Montreal Protocol of 1987, UNFCCC in 1992, the Kyoto Protocol of 2007, lesser-known Cancun Agreements in 2010, the Paris Agreement in 2015, etc. All of which had a legal framework to aid in the situation of an international incident that would lead to a dispute. The problems only arise when these conventions, treaties, and agreements are not translated into domestic law or a dispute arises in connection to them. The issue always lies with nations not following through on their promises leading to international law enforcement and protection concerns.

Most nations have their domestic environmental protection laws, but the enactment and volume of such laws passed is not a definite indicator of environmental protection in a nation, especially when it comes to shared environments like rivers, land, etc. Litigation and legislation are complementary to each other and court decisions when it comes to climate-related disputes are binding on its parties. These decisions, domestic and international may be:

Favorable: Effective for further climate regulation and protection like the Supreme Court of Canada ruling against a carbon pricing scheme [2]; and

Unfavorable: Decision leading to a higher production of greenhouse gases like the Environmental Court of Valdivia [3] ruling against the Chilean government who failed to consider the environmental impacts of giving approvals of a coal blasting project.

The decision of these courts also establishes landmark interpretations of existing law, creates new private and public obligations. As per Art. 1 of the Stockholm Declaration of 1972, every person has a fundamental right to adequate conditions of life and an environment of a quality that permits their well-being. Domestic climate litigation consists of grievances having a locus standi under that nation’s constitutional and human rights of life and clean environment, the state’s directive principles to protect the environment, and its domestic environmental regulations.

The above human rights pleas and climate arguments apply to international law since climate change has chain reaction effects on other nations. For example:

1. Deep-sea drilling for oil/shale gas by one nation can have a material adverse impact on the marine ecology and resources of the neighboring nations;

2. Excessive fishing of shellfish and salmon dwindles their population and disrupts the marine ecosystem leading to an international shortage; and

3. Accidents by inefficient radioactive waste disposal practices may cause grave and permanent environmental harm to another nation.

Since 1980, climate-based international litigation has been on the rise with a total up to 1587 in 2020 alone [4]. We will look at three of them:

Inter-American Court of Human Rights [5]: Even though the ACHR [6] explicitly recognizes the right to a healthy environment under Article 11 of the San Salvador Protocol [7]. At the request of the Republic of Columbia, the IACHR released an advisory opinion reaffirming that the full enjoyment of human rights depends on a favorable environment. The court stated that the signatories of the ACHR convention are under an obligation to prevent transboundary damage affecting individual rights. In doing so, the nations must apply the Precautionary Principle to prevent irreversible damage to the other nation’s environment.

People’s Climate Case [8]: Persons across the EU plead to this general court to compel the European Parliament to create more stringent limits for greenhouse gas emissions as their current targets when projected are not going to be sufficient to prevent environmental harm and adverse effects on the lives and jobs of these plaintiffs. Plaintiffs argue that these emission rates violate the fundamental rights of health, occupation, and environment of these citizens. The case was dismissed on procedural grounds but on appeal to the European Court of Justice, their claim was allowed to be admitted and injunction against such emissions is currently under review.

Tuvalu v. USA & Commonwealth of Australia: In 2002, the island of Tuvalu filed a claim against these two countries alleging their violation of the UNFCCC by their failure to stabilize greenhouse gases leading to climate change causing the rise in sea levels due to the melting of the ice caps which endangered Tuvalu as it was only two meters above sea level. Even though the USA & Australia submitted to ICJ’s jurisdiction under Art. 14 of the UNFCCC and the claim was not filed due to a change in their government, this case highlighted the lack of international law that has no mechanism which allows states that suffer at the hands of climate change to seek redress from those states deemed responsible for causing climate change.

In summation of the above, the process of international dispute resolution is by itself a complicated act to carry out amongst parties to the dispute. This becomes even more challenging if the dynamic nature, technical science, and cross-border effects of climate change are the reason for the dispute. With reference to the due process of law, dispute settlement is a human process that requires communication and collaboration based on the willingness and intent of each party towards the settlement of this dispute with cooperation [9]. Climate change will affect each nation differently but this difference shall have nothing but ill-effects on the nation and its population. Time is of the essence and it is in the best interest of the global community as users and abusers of the environment to keep their independent interests aside and work together for:

1. Continued participation in global climate and dispute conventions;

2. If a party to ongoing international climate dispute, cooperation for its settlement;

3. Setting up and updating more streamlined mechanism for environmental dispute settlement; and

4. To the best extent possible, incorporate international climate conventions into domestic law for their enforcement.

We can conclude this topic with the following quote from Chancellor Merkel: “Climate change knows no borders. It will not stop before the Pacific Islands and the whole of the international community here has to shoulder a responsibility to bring about sustainable development” [10].

[1] Merry, Legal Pluralism, Law & Society Review, No. 5 of Vol 22, (1998).

[2] Saskatchewan v. Canada de Greenhouse Gas Pollution Pricing Act, Bill C-74, Part 5 (2018).

[3] Grez et al. v. Environmental Evaluation Service of Chile, R-77 (2018).

[4] Joana Setzer & Rebecca Byrnes, Global Trends in Climate Change Litigation, CCEP (2020).

[5] Advisory Opinion on ACHR, OC-23/17 (2016).

[6]1969.

[7] Additional Protocol to the ACHR (1988).

[8] Armando Carvalho v. The European Parliament & Council, Case No. T-330/18 (2018).

[9] UNFCCC (1992).

[10] Chancellor Angela Merkel, Federal Republic of Germany, Lowy Lecture (2014).

Art: "The Lower Grindelwald Glacier with Lütschine and the Mettenberg" by Caspar Wolf.