By Prof. Shirley Scott| email@example.com
As evidence mounts that diplomacy will likely prove inadequate for achieving the necessary mitigation – or adaptation for that matter, there is increasing preparedness to explore alternative governance mechanisms. Indeed, those people already most significantly threatened by climate change, such as the inhabitants of the Small Island Developing States in the Pacific, are already prepared to supplement, if not replace, the UNFCCC diplomatic process with decisive action by the UN Security Council.
The Council would not be starting with a blank slate. The Council first held a debate on energy, climate, and security in 2007. At that time there was considerable opposition to the Council potentially usurping the role of the General Assembly, but UNGA Resolution 63/281(2009) removed this impediment, inviting the ‘relevant organs of the UN, as appropriate and within their respective mandates, to intensify their efforts in considering and addressing climate change, including its possible security implications’.
A UNSC presidential statement two years later expressed concern ‘that possible adverse effects of climate change may, in the long run, aggravate certain existing threats to international peace and security’. Since then there has been a series of informal Arria-formula meetings: in 2013, 2015, 2016 and 2017 (twice).
Significantly, in 2017 the Council recognized in a substantive provision of resolution 2349 and in a presidential statement the adverse effects of climate change on regional stability in the Lake Chad Basin and the need for adequate risk assessment and risk management. Additional debates have been held in 2018 and 2019. The Council seems to be laying the groundwork for assuming some form of climate security role.
It has arguably already assumed such a role. In a paper I published in International Affairs in 2015, I referred to the prospects of the dominant Council response being a ‘non-response’. By this I meant the Council responding to situations that had almost certainly been made worse by climate change, as it did in respect of the Ebola crisis in 2014, without referring to climate per se.
Thinking as to just what the Council could most usefully contribute to climate governance is still at a relatively early stage. It may be that the Council will need to develop new tools, but it is also possible that some of its existing tools might be adapted to the task.
One tool worth considering is the establishment of a court or tribunal, as per the ad hoc international criminal tribunals for the Former Yugoslavia and for Rwanda. These were established using the Chapter VII powers of the Council, a prerequisite for which would be identifying climate change as a threat to the peace as per article 39.
Despite a growing literature on climate change crimes, there would, however, be complications in applying international criminal law, including identifying the crime/s and their definition; the question as to whether intent would be required; and whether it would matter that the action had (not) been a crime when the act was committed. Politically, it is unlikely that the world is ready to embrace the functioning of a climate crimes tribunal as yet.
The Council could, however, draft a statute for a court applying a different body or bodies of law. Most obvious is probably international climate change law and the UNFCCC regime in particular. But international environmental law is being increasingly linked with international human rights law. The European Convention on Human Rights was applied in the Dutch Urgenda Case, for example, and last year the Inter-American Court of Human Rights issued an advisory opinion on environmental protection, again bringing together the environmental and human rights regimes.
An important consideration would be that as to the legal questions to be heard by the Court. The implementation of the Paris Agreement is set to raise an increasing number of legal questions, or it could be questions pertaining to the resettlement of those displaced by rising sea levels. Perhaps the most useful court or tribunal might be a claims commission for those who have suffered as a result of inadequate adaptation, with compensation claims being funded through a special fund.
A considerable amount of climate litigation is already taking place at a domestic level. Whether at a domestic or an international level, climate litigation can serve multiple functions, including clarifying questions of responsibility, reducing coal use through reducing the share price; encouraging governments to take mitigation commitments seriously; and establishing liability for failure to adapt.
The most likely stumbling block to the Council establishing a climate change court or tribunal is the need for acceptance by all of the permanent Council members. Even if we do not yet have the answers, however, careful consideration of legal options open to the Council is long overdue.
Professor Shirley Scott is Head of the School of Humanities and Social Sciences, UNSW Canberra. She is author of several publications on the Council and climate security, including ‘The creation of a climate change court or tribunal’ in Shirley V. Scott and Charlotte Ku, eds. Climate Change and the UN Security Council (Edward Elgar, 2018).