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Resources & Env™t 24, 26 (2000).
In 2006, China™s greenhouse gas emissions surpassed those of the United States, Netherlands Envi-
7

ronmental Assessment Agency, Chinese CO2 in Perspective, Press Release, 22 June 2007, <http://
www.mnp.nl/en/service/pressreleases/2007/20070622ChineseCO2emissionsinperspective.html>, site
visited on June 24, 2007. However, the United States is still responsible for approximately a quarter of
the world™s cumulative greenhouse gas emissions over the past century. Kevin A. Baumert & Nancy
Kete, Climate Issue Brief, World Resources Institute (2001), at 1. Additionally, U.S. per capita emissions
are approximately 10 times those of China. Id. at 2.
Note, Fisheries: United States Rati¬es Agreement on Highly Migratory and Straddling Stocks, 1996
8

Colo. J. Int™l Envtl. L. & Pol™y 78, 80 (1996).
David A. Balton & Holly R. Koehler, Reviewing the United Nations Fish Stocks Treaty, Sustain-
9

able Dev. L. & Pol™y 5, 5“6 (2006), <http://www.wcl.american.edu/org/sustainabledevelopment/
2006/06fall.pdf?rd=1>, site visited on Dec. 29, 2006.
See Sec. 3.2, infra. By contrast, under the American Convention on the Rights of Man, which is invoked
10

in the Inuit™s petition to the Inter-American Commission on Human Rights, the Inter-American
Commission™s only recourse should it ¬nd the United States to have violated the human rights of the
Inuit is to issue a report outlining conclusions and nonbinding recommendations. Because the United
States is not a member of the Inter-American Court of Human Rights, the Commission cannot refer
the case to the Court for a binding decision. Inter-American Commission on Human Rights, What
Is the IACHR?, <http://www.cidh.org/what.htm>, site visited on Dec. 28, 2006. Similarly, even if the
World Heritage Convention were to list World Heritage sites threatened by climate change on its “in
danger” list in the future, this would trigger little more than the potential for ¬nancial assistance to
address the threats under the Convention. World Heritage Convention, Convention Concerning the
Protection of the World Cultural and Natural Heritage, Nov. 16, 1972, 27 U.S.T. 37, 1037 U.N.T.S.
151, (entered into force Dec. 17, 1975), at art. 11(4).
William C. G. Burns
316


1. THE POTENTIAL IMPACTS OF CLIMATE CHANGE ON FISH SPECIES

As Hannesson recently concluded: “The ¬sheries are even more dependent than
agriculture on climatic conditions. While agriculture does up to a point compensate
for the shortcomings of nature . . . the ¬sheries, which essentially are an advanced
form of hunting, are totally dependent on what nature will or will not provide.”11
Fish species are ectothermic (cold blooded); thus, water temperature is the pri-
mary source of environmental impact on ¬sh, including growth and maturity rates,
distribution and migration patterns, and incidence of disease.12 Substantially rising
oceanic temperatures throughout this century will likely have negative impacts on
highly migratory and straddling stocks species in many regions, especially those near
the edge of their temperature tolerance range.13 For example, the range of colder-
water ¬sh species, such as capelin, polar cod, and Greenland halibut, is likely to
shrink, resulting in a decline in abundance.14 A decline in nutrient upwelling as a
consequence of increased strati¬cation between warmer surface waters and colder
deep water in warming oceans could also result in a decline in bigeye and yellow¬n
tuna in the central and western Paci¬c.15 Tuna species are a particularly important,
and dependable, source of revenue for Paci¬c small island States.16
Warming oceans could also radically change the distribution of some straddling
stock and high migratory species. For example, rising ocean temperatures could
result in a shift of the distribution of herring northward, upsetting a delicate agree-
ment in the Northeast between coastal States who harvest herring within their EEZs
and distant water ¬shing nations (DWFNs)17 that ¬sh on the high seas.18 Similarly,
shifts in the distribution of cod and haddock in the Barents Sea may necessitate


Rognvaldur Hannesson, Introduction, 31, 1, 1 (2007).
¨
11

William E. Schrank, The ACIA, Climate Change and Fisheries, 31 Marine Pol™y 5, 12 (2007); G.A.
12

Rose, On Distributional Responses of North Atlantic Fish to Climate Change, 62 ICES J. Marine Sci.
1360, 1360 (2005).
See generally European Science Foundation, Impacts of Climate Change on the European Marine
13

and Coastal Environment (2007), <http://www.vliz.be/docs/Events/JCD/MB Climate Change
VLIZ 05031.pdf>, site visited on Apr. 19, 2007.
Id. at 12; Robin A. Clark, et al., North Sea Cod and Climate Change “ Modelling the Effects of
14

Temperature on Population Dynamics, 9 Global Change Biology 1669, 1677 (2003).
World Bank, Cites, Seas and Storms 27 (2004), <http://siteresources.worldbank.org/INTPACIFICISL-
15

ANDS/Resources/4-Chapter+5.pdf>, site visited on Dec. 31, 2006.
Emily E. Larocque, The Convention on the Conservation and Management of Highly Migratory Fish
16

Stocks in the Western and Central Paci¬c Ocean: Can Tuna Promote Development of Paci¬c Island
Nations?, 4 Asian-Pac. L. & Pol™y J. 82, 87 (2003).
“DWFNs are landlocked states and states that have the ¬‚eet capacity to ¬sh distant regions.” Julie
17

R. Mack, International Fisheries Management: How the U.N. Conference on Straddling and Highly
Migratory Fish Stocks Changes the Law of Fishing on the High Seas, 26 Cal. W. Int™l L.J. 313, 316
(1996). “Japan, Russia, South Korea, Spain, Taiwan, and Poland account for almost ninety percent of
the world™s high seas ¬sh catch.” Note, supra note 8, at 81.
Elin H. Sissener & Trond Bjørndal, Climate Change and the Migratory Pattern for Norwegian Spring-
18

Spawning Herring “ Implications for Management, 29 Marine Pol™y 299, 305 (2005); Francis Neat &
David Righton, Warm Water Occupancy by North Sea Cod, 274 Proc. Royal Soc™y, Biology 789,
789 (2007).
Potential Causes of Action for Climate Change 317


renegotiation of existing ¬sheries agreements between Russia and Norway.19 Should
cooperative management agreements of this nature collapse, it might lead to “strate-
gic over¬shing” of stocks that are currently recovering from a historical decline.20
Warming in the Paci¬c could similarly result in a redistribution of tuna resources
to higher latitudes, such as Japan and the western equatorial Paci¬c.21
Temperature increases will also adversely affect prey species of many straddling
stocks and highly migratory species. For example, in the North Atlantic, strong bio-
geographical shifts in copepod and plankton assemblages associated with warming
trends22 could substantially reduce the abundance of ¬sh in the North Sea and
ultimately result in the collapse of the stocks of cod, an important straddling stock
species.23 There are already disturbing portents of this, with warming in the North
Sea over the past few decades resulting in key changes in planktonic assemblages,
which has resulted in a poor food environment for cod larvae, adversely affecting
recruitment success.24 The decline of stocks has also increased their sensitivity to
regional climate warming because of shrinkages in age distribution and geographical
range.25
There will also be direct biological effects from rising levels of carbon dioxide
entering the oceans. Atmospheric carbon dioxide levels increase at a rate of only
approximately 50% of human carbon dioxide emissions because of the existence of
large ocean and terrestrial sinks.26 Over the past two centuries, the world™s oceans
have absorbed 525 billion tons of carbon dioxide, constituting nearly half of carbon
emissions over this period.27 Over the next millennium, it is estimated that the
world™s oceans will absorb 90% of anthropogenic carbon dioxide currently being
released into the atmosphere.28

European Science Foundation, supra note 13, at 23.
19

Id. at 304.
20

World Bank, supra note 15, at 28.
21

Russell B. Wynn et al., Climate-Driven Range Expansion of a Critically Endangered Top Predator in
22

Northeast Atlantic Waters, 3 Biology Letters 529, 530“31 (2007); G. Beaugrand & P.C. Redi, Long-
Term Changes in Phytoplankton, Zooplankton and Salmon Related to Climate, 9 Global Change
Biology 801“817 (2003).
Gr´ gory Beaugrand et al., Reorganization of North Atlantic Marine Copepod Biodiversity and Climate,
e
23

296 Sci. 1692, 1693 (2002). See also Anthony J. Richardson & David S. Schoeman, Climate Impact on
Plankton Ecosystems in the Northeast Atlantic, 305 Sci. 1609“1612 (2004).
Institute for Environment & Sustainability, European Commission Directorate General Joint
24

Research Centre, Marine and Coastal Dimension of Climate Change in Europe (2006), at 24,
<http://ies.jrc.cec.eu.int/¬leadmin/Documentation/Reports/Varie/cc marine report optimized2.pdf>,
site visited on Feb. 19, 2007.
Id.
25

Corinnne Le Qu´ r´ et al., Saturation of the Southern Ocean CO2 Sink Due to Recent Climate
ee
26

Change, ScienceXpress, May 17, 2007, at 1, <http://www.scienceexpress.org>, site visited on May 27,
2007.
Richard A. Feely, Christopher L. Sabine & Victoria J. Fabry, Carbon Dioxide and Our Ocean
27

Legacy, NOAA, Paci¬c Marine Environmental Laboratory (Apr. 2006), at 1, <http://www.pmel.
noaa.gov/pubs/PDF/feel2899/feel2899.pdf>, site visited on Apr. 22, 2007.
J.A. Kleypas et al., Impacts of Ocean Acidi¬cation on Coral Reefs and Other Marine Calci¬ers, Report
28

of a Workshop Sponsored by the NSF/NOAA/UGSG (2006), at 3.
William C. G. Burns
318


Although chemically neutral in the atmosphere, carbon dioxide in the ocean is
chemically active.29 As carbon dioxide dissolves in seawater, it reacts with water
molecules (H2 O) to form a weak acid, carbonic acid (H2 CO3 ), the same weak acid
found in carbonated beverages. Like all acids, carbonic acid then releases hydrogen
ions (H+ ) into solution,30 leaving both bicarbonate ions (HCO3 ’1 ) and, to a lesser
extent, carbonate ions (CO3 2’ ) in the solution as well.31 The acidity of ocean waters
is determined by the concentration of hydrogen ions, which is measured on the pH
scale. The higher the level of hydrogen ions in a solution, the lower the pH.32
The increase of atmospheric concentrations of carbon dioxide since the advent of
the Industrial Revolution has decreased surface pH values by 0.12 units.33 Although
this may not sound like a substantial change, the pH scale is logarithmic.34 Thus,
a 0.1 unit change in pH translates into a 30% increase in hydrogen ions.35 The pH
of the world™s oceans now stands at approximately 8.2, with a variation of about
±0.3 units because of local, regional, and seasonal variations.36 The pH unit change
over the past 150 years is probably the greatest seen over the past several million
years.37
Although increases in ocean acidi¬cation have been substantial to date,38 far more
dramatic changes are likely to occur during this century and beyond as a substantial
portion of burgeoning levels of anthropogenic carbon dioxide emissions enter the
world™s oceans. Under a “business as usual” scenario, carbon dioxide emissions are
projected to grow at 2% annually during the remainder of this century,39 although


R. Schubert et al., The Future Oceans “ Warming Up, Rising High, Turning Sour, German Advi-
29

sory Council on Global Change (2006), <http://www.wbgu.de/wbgu sn2006 en.pdf>, site visited on
Dec. 25, 2007, at 26.
Haruko Kurihara, Shoji Kato & Atsushi Ishimatsu, Effects of Increased Seawater pCO2 on Early
30

Development of the Oyster Crassostrea Gigas, 1 Aquatic Biology 91, 91 (2007).
Scott C. Doney, The Dangers of Ocean Acidi¬cation, Sci. Am., Mar. 2006, at 60.
31

Royal Society, Ocean Acidi¬cation Due to Increasing Atmospheric Carbon Dioxide, Policy Doc. 12/05
32

(2005), at 4, <http://royalsociety.org/displaypagedoc.asp?id=13539>, site visited on Dec. 25, 2007.
Ulf Riebesell, Effects of CO2 Enrichment on Marine Phytoplankton, 60 J. Oceanography 719, 719“20
33

(2004).
Caspar Henderson, Paradise Lost, New Sci., Aug. 5, 2006, at 36.
34

Schubert, et al., supra note 29, at 66.
35

Royal Society, supra note 32, at 1.
36

C. Turley et al., Reviewing the Impact of Increased Atmospheric CO2 on Oceanic pH and the
37

Marine Ecosystems, Avoiding Dangerous Climate Change 67 (Hans Joachim Schellnhuber ed.,
2006).
The term “ocean acidi¬cation” was coined in 2003 by climate scientists Ken Caldeira and Michael
38

Wickett. Elizabeth Kolbert, The Darkening Sea, New Yorker, Nov. 20, 2006, at 67, <http://equake.
geos.vt.edu/acourses/3114/global warming/061120nyek-sea.html>, site visited on Dec. 25, 2007. How-
ever, it should be emphasized that this term is a bit of a misnomer since seawater is naturally alkaline,
and a neutral pH is 7. Thus, it highly unlikely that surface ocean seawater will ever actually become
acidic. Y. Shirayama & H. Thornton, Effect of Increased Atmospheric CO2 on Shallow Water Marine
Benthos, 110 J. Geophysical Res. 1, 1 (2005).
James Hansen et al., Climate Change and Trace Gases, Phil. Trans. Royal Soc™y A, 1925, 1937
39

(2007);
Potential Causes of Action for Climate Change 319


emissions have grown far more substantially in the past six years,40 exceeding even the
upper range of the projections of the Intergovernmental Panel on Climate Change
(IPCC).41 The IPCC in its Special Report on Emissions Scenarios projected that
carbon dioxide emissions could be as high as 37 gigatons of carbon annually by 2100,
with the median and mean of all scenarios being 15.5 and 17 GtC, respectively.42
Atmospheric concentrations of carbon dioxide may reach twice preindustrial levels
by as early as 205043 and could triple or quadruple by 2100.44
The “business as usual” scenario for carbon dioxide emissions during this century,
in turn, is projected to result in a tripling of dissolved carbon dioxide in seawater
by 2100, producing an additional decline in ocean pH by approximately 0.3 to 0.4
units.45 Moreover, continued oceanic absorption of carbon dioxide may result in a
further decline of pH levels of 0.77 units by 2300, reaching levels not seen for the
past 300 million years, with the possible exception of rare, extreme events.46 These
levels will persist for thousands of years even after oceanic concentrations of carbon
dioxide begin to decline.47


Fossil fuel and cement emissions of carbon dioxide increased at a rate of 3.3% annually from 2006“
40

2006, a dramatic acceleration from the rate of 1.3% annually from 1990“1999. Josep G. Canadell, et al.,
Contributions to Accelerating Atmospheric CO2 Growth from Economic Activity, Carbon Intensity, and
Ef¬ciency of Natural Sinks, Proc. Nat™l Acad. Sci. Early Edition, 10.1073 (2007), at 5. The
increasing growth rate of carbon dioxide emissions is attributable to increased economic growth, an
increase in carbon dioxide emissions required to produce each additional unit of economic activity,
and decreasing ef¬ciency of carbon sinks on land and the oceans. Id. at 3.
Michael R. Raupach, et al., Global and Regional Drivers of Accelerating CO2 Emissions, 104(24) Proc.
41

Nat. Acad. Sci., 10,288, 10,289 (2007).
IPCC, Nebojsa Nakicenovic et al., Special Report on Emissions Scenarios (2000),
42

<http://www.ipcc.ch/ipccreports/sres/emission/116.htm>, site visited on Dec. 30, 2007.
James E. Hansen, Dangerous Human-Made Interference with Climate, Testimony to the Select Com-
43

mittee on Energy Independence and Global Warming, U.S. House of Representatives, Apr. 26, 2007,
<http://www.columbia.edu/∼jeh1/testimony 26april2007.pdf>, site visited on Dec. 30, 2007, at 4.
David Talbot, The Dirty Secret, Tech. Rev. (July/Aug. 2006), <http://www.technologyreview.
44

com/Energy/17054/>, site visited on Dec. 30, 2007; Richard A. Feely et al., Impact of Anthropogenic
CO2 on the CaCO3 System in the Oceans, 305 Sci. 362, 362 (2004); Stephen F. Lincoln, Fossil Fuels
in the 21st Century, 34(8) Ambio 621, 621 (2005).
G.A. Meehl et al., Global Climate Projections, in Climate Change 2007: The Physical Science
45

Basis. Contribution of Working Group I to the Fourth Assessment Report of the
Intergovernmental Panel on Climate Change 750 (2007), <http://www.ipcc.ch/pdf/assessment-
report/ar4/wg1/ar4-wg1-chapter10.pd>, site visited on Dec. 30, 2007; Bjorn Rost & Ulf Riebesell, Coc-
¨
colithophores and the Biological Pump: Responses to Environmental Changes, in Coccolithophores:
From Molecular Processes to Global Impacts 116 (Hans R. Thierstein & Jeremy R. Young eds.,
2004), <http://books.google.com/books?id=0IAVyi Ga0AC&pg=PA119&lpg=PA119&dq=
coccolithophores+acidi¬cation&source=web&ots=4433-fDIg7&sig=LNpJCjhmNa1vgVYEzILe6W-
oeiM#PPA99,M1>, site visited on Dec. 30, 2007; Henry Elder¬eld, Carbonate Mysteries, 296 Sci.
1618, 1619 (2002).
J.C. Blackford et al., Regional Scale Impacts of Distinct CO2 Additions in the North Sea, 56 Marine
46

Pollution Bull. 1461, 1466 (2008). See also Ben I. McNeil & Richard J. Matear, Climate Change
Feedbacks on Future Oceanic Acidi¬cation, 59(B) Tellus 191, 191 (2007).
The Acid Ocean “ The Other Problem with CO2 Emission, RealClimate, July 2, 2005, <http://www.
47

realclimate.org/index.php?p=169>, site visited on Dec. 25, 2007.
William C. G. Burns
320


Acidi¬cation of the oceans will result in a decrease in the concentration of carbon-
ate and related ions that reef-building and other calcifying organisms48 draw upon to
produce calcium carbonate.49 In recent experiments in which dissolved carbon diox-
ide was increased to double preindustrial levels, shell- and skeleton-building rates
of organisms with carbonate shells and skeletons declined by as much as 50%.50
Moreover, a recent analysis of the causes of mass extinctions of scleractinian corals
and sphinctozoid sponges during the Late Triassic period (with declines of these
species of 96.1% and 91.4%, respectively) concluded that substantial declines of
ocean pH during that period may have been the primary factor.51
Among the species that might be severely affected are a group of thirty-two species
of planktonic snail species with calcium carbonate shells, pteropods. Although the
species have a global distribution, population densities are highest in polar and
subpolar regions, and they are the primary calci¬ers in the Southern Ocean.52
In the Ross Sea, the subpolar-polar pteropod Limacina helicina sometimes
replaces krill as the dominant zooplankton species in the ecosystem.53 A recent
study indicates that increased acidi¬cation of pteropod habitat in the sea might ulti-
mately result in the disappearance of the species from Antarctic waters, or shift its
distribution to lower latitudes.54 The potential exclusion of the pteropod from other
polar and subpolar regions could also have negative impacts on several straddling
stock species for which it is a prey species, including North Paci¬c salmon, mackerel,
herring, and cod.55
Other potential impacts of reduced pH in the oceans could include disruptions in
the carbon cycle and the nutrient ratios, which could adversely affect phytoplankton
species critical for many ¬sh species, including straddling stocks and high migratory
species,56 as well as changes in internal acid-base parameters and ion levels in
¬sh species, and reductions in the ability of species to carry oxygen.57


An example of noncoral reef builders is rudistid bivalves, which secrete calcium carbonate shells
48

or skeletons. Kaustuv Roy & John M. Pandol¬, Responses of Marine Species and Ecosystems to Past
Climate Change, in Climate Change & Biodiversity 164 (Thomas E. Lovejoy & Lee Hannah eds.,
2005).
O. Hoegh-Guldberg et al., Paci¬c in Peril, Greenpeace Rep., Oct. 2000, at 14.
49

Feely et al., supra note 27, at 2.
50

Michael Hautmann et al., Catastrophic Ocean Acidi¬cation at the Triassic-Jurassic Boundary, 249(1)
51

N. Jb. Geology Pal¨ ont. Abh. 119, 122“125 (2008).
a
James C. Orr et al., Anthropogenic Ocean Acidi¬cation over the Twenty-First Century and Its Impact
52

on Calcifying Organisms, 437 Nature 681, 685 (2005).
Id.
53

Id.
54

Id.; Feely et al., supra note 27, at 3.
55

P.S. Liss, G. Malin & S.M. Turner, Production of DMS by Marine Phytoplankton, in Dimethylsul-
56

phide: Oceans, Atmosphere & Climate, European Commission, Proceedings of the International
Symposium held in Belgirate, Italy, 13“15 Oct. 1992, at 10, <http://books.google.com/books?id=
YMjnw9MBJDMC&pg=PA10&lpg=PA10&dq=coccolithophores+dimethyl+sulphide&source=
web&ots=1SrjC-AJLk&sig=mCDJoARMLGabTTxQajLLzrGf68s#PPP1,M1>, site visited on Dec.
31, 2007
Hautmann et al., supra note 51, at 122.
57
Potential Causes of Action for Climate Change 321


Given the severe impacts of that climate change may have on straddling stock and
high migratory species, it is germane to next assess the prospects for enhancing their
protection through the primary international legal instrument for their management
and conservation.


2. UNFSA AND CLIMATE CHANGE

2.1. Overview of UNFSA
The Third United Nations Conference of the Law of Sea convened in 1973 and
culminated nine years later in the adoption of the United Nations Convention
on the Law of the Sea (UNCLOS).58 UNCLOS entered into force in 1994 and
currently has 148 parties.59 A major component of UNCLOS is provisions for the
regulation of ¬sheries, with an emphasis on the sovereign rights of coastal States
to explore, exploit, conserve, and manage living natural resources, including ¬sh
stocks, within their respective 200-mile EEZs.60 UNCLOS thus extends coastal
State jurisdiction over 90% of the world™s ¬sh resources, and almost 40% of the
world™s oceans.61 The emphasis on coastal State management of ¬sheries resources
was premised on the belief that “entry into ¬sheries would be controlled, thereby
reducing both the potential for over¬shing and for overcapitalization of ¬shing
¬‚eets.”62 Moreover, it was hoped that coastal States™ authority to enforce regulations
against all ¬shing vessels within their respective EEZs would obviate the problems
associated with weak ¬‚ag-state enforcement of national and international ¬sheries
regulations.63
Although many have characterized UNCLOS as “a constitution for the oceans,”64
it provides only general governing principles for the management of straddling

United Nations, Convention on the Law of the Sea, October 10, 1982, 21 I.L.M. 1261 (1982),
58

<http://www.un.org/Depts/los/convention agreements/texts/unclos/unclos e.pdf>, site visited on
Dec. 26, 2006.
UN Oceans and the Law of the Sea, Chronological Lists of Rati¬cations of, Accessions and
59

Successions to the Convention and the Related Agreements as at 01 February 2005, <http://www.un.
org/Depts/los/reference ¬les/chronological lists of rati¬cations.htm#The%20United%20Nations%20
Convention%20on%20the%20Law%20of%20the%20Sea>, site visited on June 2, 2005.
UNCLOS, supra note 58, at art. 58; arts. 61“68.
60

Derrick M. Kedziora, Gunboat Diplomacy in the Northwest Atlantic: The 1995 Canada-EU Fishing
61

Dispute and the United Nations Agreement on Straddling and High Migratory Stocks, 17 N.W. J. Int™l
L. & Bus. 1132, 1139 (1996“1997).
Donna R. Christie, The Conservation and Management of Stocks Located Solely within the Exclu-
62

sive Economic Zone, in Developments in International Fisheries Law 396 (Ellen Hey ed.,
1999).
Donna R. Christie, It Don™t Come EEZ: The Failure and Future of Coastal States Fisheries Manage-
63

ment, 14 J. Transnat™l L. & Pol™y 1, 2 (2004); Christopher C. Joyner, Compliance and Enforcement
in New International Fisheries Law, 12 Temp. Int™l & Comp. L. J. 271, 277“78 (1998).
United Nations, Division for Ocean Affairs and the Law of the Sea, Tommy T.B. Koh, A Constitution
64

for the Oceans (1982), <http://www.un.org/Depts/los/convention agreements/texts/koh english.pdf>,
site visited on Aug. 30, 2005; Report of the Work of the United Nations Ad Hoc Open-Ended Informal
William C. G. Burns
322


stocks and high migratory species. In cases where stocks are found within the EEZs
of two or more coastal States, or an EEZ and an area beyond it, UNCLOS merely
requires that the pertinent ¬shing States “seek” to agree upon management measures
either directly or through subregional or regional organizations.65 In the case of
highly migratory species, coastal States and other States with nationals ¬shing in
the region are exhorted to cooperate directly or through international organizations
“with a view” to ensuring conservation and optimal utilization.66 A proposal by some
coastal States for an arbitration clause was beaten back by DWFNs and subsequently
withdrawn.67 Thus, States may, consistent with the provisions of UNCLOS and in
good faith, fail to agree to conservation measures to protect highly migratory and
straddling ¬sh stocks.68
The lack of binding obligations in UNCLOS for high migratory species and
straddling stocks was largely attributable to the fact that ¬shing in these regions
was not considered to be a major issue in the early 1980s.69 However, as coastal
States began to claim their rights within their EEZs, large distant water ¬shing ¬‚eets
were increasingly displaced from their traditional ¬shing grounds, placing rapidly
increasing pressures on highly migratory species and straddling stocks.70 Moreover,
technological breakthroughs during this period, including satellite tracking, specially
designed nets to compensate for the reduced density of stocks on the high seas,
and larger and more ef¬cient vessels, facilitated an ever-expanding scope of ¬shing
operations by distant water ¬shing nations.71 Overall, the proportion of catches taken
beyond 200-mile EEZs doubled during the 1990s.72
These trends quickly took their toll. In 1994, the U.N. Food and Agriculture
Organization (FAO) reported that straddling ¬sh stock catches in EEZs and high


Working Group to Study Issues Relating to the Conservation and Sustainable Use of Marine Biolog-
ical Diversity Beyond Areas of National Jurisdiction, at 21, <http://daccessdds.un.org/doc/UNDOC/
GEN/N06/277/50/PDF/N0627750.pdf?OpenElement>, site visited on July 8, 2007.
UNCLOS, supra note 58, at art. 63.
65

Id. at art. 64.
66

D.H. Anderson, The Straddling Stocks Agreement of 1995: An Initial Assessment, 45(2) Int™l & Comp.
67

L.Q. 463, 465 (1996).
Jon C. Goltz, The Sea of Okhotsk Peanut Hole: How the United Nations Draft Agreement on Straddling
68

Stocks Might Preserve the Pollack Fishery, 4 Pac. Rim L. & Pol™y 443, 458 (1995); Mack, supra note 17,
at 322“23.
FAO, supra note 5, at 1; Anderson, supra note 67, at 465.
69

Stuart Kaye, Implementing High Seas Biodiversity Conservation: Global Geopolitical Considerations,
70

28 Marine Pol™y 221, 222 (2004); Chairman of the Conference at the Opening of the Organizational
Session, United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks,
19 April 1993, at 1, UN. Doc. A/Conf.164/7. Distant water ¬shing ¬‚eets were often subsidized by high-
seas ¬shing nations. Alison Rieser, International Fisheries Law, Over¬shing and Marine Biodiversity,
9 Geo. Int™l Envtl. L. Rev. 251, 263 (1997).
A. Anna Zumwalt, Straddling Fish Stock Spawn Fish War on the High Seas, 3 U.C. Davis J. Int™l L.
71

& Pol™y 35, 43 (1997); Rieser, supra note 70, at 263.
Note, Toward a Rational Harvest: The United Nations Agreement on Straddling Fish Stocks and Highly
72

Migratory Species, 5 Minn. J. Global Trade 357, 365 (1999).
Potential Causes of Action for Climate Change 323


seas had been declining since 1989, and that many highly migratory ¬sh stocks,
including a majority of tuna species, were depleted, in some cases severely.73
In 1992, the participants at the U.N. Conference on Environment and Develop-
ment called for an intergovernmental conference under the auspices of the United
Nations to address to promote effective implementation of UNCLOS provisions
related to straddling stocks and highly migratory species.74 In December, 1992, the
U.N. General Assembly, recalling Agenda 21, passed Resolution 47/192, which autho-
rized the convening of the United Nations Conference on Straddling Fish Stocks
and Highly Migratory Fish Stocks (UNCSFS).75
In 1993, the U.N. General Assembly convened the UNCSFS, culminating in
adoption of UNFSA in August of 1995. UNFSA entered into force in December of
2001 and currently has sixty-two Parties,76 “including most States with signi¬cant
interests in international ¬sheries.”77
The Agreement™s overarching objective is to “ensure long-term conservation and
sustainable use of straddling ¬sh stocks and highly migratory ¬sh stocks. . . .”78 The
Agreement™s primary means of effectuating this is through engendering cooperation
between coastal States and States ¬shing on the high seas, through, inter alia:
r Seeking agreement between coastal States and States on the high seas on nec-
essary measures for conservation of stocks in the high seas areas and straddling
stocks through direct agreements and cooperation in Regional Fisheries Man-
agement Organizations;79
r Collecting and exchanging of critical data with respect to straddling stocks and
high migratory species;80 and
r Expanding the duties of Flag States to ensure enforcement of and compliance
with the Convention™s provisions, as well as the rights of other States, including
port States, to ensure compliance with the Agreement.81
Giselle Vigneron, Compliance and International Environmental Agreements: A Case Study of the 1995
73

United Nations Straddling Fish Stocks Agreement, 10 Geo. Int™l Envtl. L. Rev. 581, 586 (1998).
The status of these stocks remains imperiled a decade later. According to the most recent analysis by
the FAO, “about 30 percent of the stocks of highly migratory tuna and tuna-like species, more than
50 percent of the highly migratory oceanic sharks and nearly two-thirds of the straddling stocks and
the stocks of other high seas ¬shery resources are overexploited or depleted.” FAO, supra note 5, at iv.
United Nations Conference on Environment and Development, Agenda 21, Programme of Action for
74

Sustainable Development, ch. 17, para. 17.49 (1992).
United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, United
75

Nations Resolutions and Decisions, 47th Sess., Supp. No. 49, at 145, G.A. Res. 47/192, U.N. Doc.
A/47/49 (1992).
U.N. Oceans and Law of the Sea, Status of the Agreement, <http://www.un.org/Depts/los/
76

convention agreements/convention overview ¬sh stocks.htm%20stocks>, site visited on Dec. 27,
2006.
Balton & Koehler, supra note 9, at 7.
77

UNFSA, supra note 2, art. 2.
78

Id. at arts. 7“10.
79

Id. at art. 14.
80

Id. at arts. 19“23.
81
William C. G. Burns
324


However, although the focus of UNFSA is on the relationship between coastal
States and States ¬shing in areas beyond EEZs, there are a large number of provisions
that could give rise to claims associated with climate change impacts on straddling
stocks and highly migratory species.


2.2. UNFSA and Climate Change
UNFSA adopts the well-recognized “no harm rule” of international environmental
law, which obliges States to ensure that activities within their jurisdiction or control
do not result in injuries to the interests of other States or areas beyond national
control.82 UNFSA provides that “States Parties are liable in accordance with inter-
national law for damage or loss attributable to them in regard to this Agreement.”83
Many of the provisions of UNFSA, in turn, could provide the basis for a Party to
bring an action against one or more other Parties for climate-related damages to
¬sheries.
As indicated earlier, the Agreement™s primary objective is to ensure the long-
term conservation and sustainable use of straddling ¬sh stocks and highly migratory
species,84 mandating that its Parties take conservation and management measures
to further this objective. Although the Agreement™s primary focus is on the impacts
of the harvesting of ¬sh stocks,85 it clearly contemplates the regulation of other
potential activities that could imperil the conservation and sustainable use of such
stocks. For example, UNFSA requires the Parties to assess the impacts of “other
human activities and environmental factors on target stocks and species belonging
to the same ecosystem or associated with or dependent upon the target stocks.”86
Moreover, the Agreement requires the Parties to “minimize pollution.”87
Although the Agreement doesn™t de¬ne the term “pollution,” Article 4 provides
that UNFSA is to be “interpreted and applied in the context of and in a manner
consistent with the Convention.”88 Thus, it is germane to look at the de¬nition of pol-
lution provided for in UNCLOS. In pertinent part, UNCLOS de¬nes “pollution of



Nuclear Tests (AUSTRALIA v. FRANCE) ICJ Rep. 1973; 2 Restatement (Third) Foreign Rela-
82

tions Law 103 sec. 601, at 103. See also Roda Verheyen, Climate Change Damage & Inter-
national Law 146 (2005); Richard S.J. Tol & Roda Verheyen, State Responsibility and Compensation
for Climate Change Damages “ A Legal and Economic Assessment, 32 Energy Pol™y 1109, 1110 (2004).
As embodied in documents such as Principle 2 of the Rio Declaration, Principle 21 of the Stockholm
Declaration, treaties, including the UNFCCC, and the Trail Smelter Arbitration in the 1941, the
no-harm rule “has its foundations in the principle of good neighbourliness between States formally
equal under international law.” Id.
UNFSA, supra note 2, at art. 35.
83

See supra note 78.
84

Timothy D. Smith, United States Practice and the Bering Sea: Is It Consistent with a Norm of Ecosystem
85

Management?, 1 Ocean & Coastal L.J. 141, 150 (1995).
UNFSA, supra note 2, at art. 5(d).
86

Id. at art. 5(f ).
87

Id. at art. 4.
88
Potential Causes of Action for Climate Change 325


the marine environment” as: “the introduction by man, directly or indirectly, of sub-
stances or energy into the marine environment . . . which results or is likely to result
in such deleterious effects as harm to living resources and marine life . . . hindrance
to marine activities, including ¬shing. . . .”89
Although rising ocean temperatures related to climate change could not reason-
ably be construed as a “substance” under Article 1.1 of UNCLOS, it would likely be
construed by a dispute resolution body as “energy,” much as introduction of heat,
such as wastewater from production processes, appears to fall under this rubric.90
Moreover, as developed earlier, the uptake of anthropogenically generated carbon
dioxide into the oceans can result in direct deleterious impacts on marine life,91
which clearly brings carbon dioxide under the de¬nition in Article 1.1 of UNCLOS
of an a polluting “substance” introduced into the ocean.
Where necessary, UNFSA also imposes obligations on the Parties to adopt con-
servation and management measures for “species belonging to the same ecosystem
or associated with or dependent upon target species” and to “protect biodiversity of
the marine environment.”92 Moreover, the Parties are obligated to ensure adequate
implementation and enforcement of such measures “through effective monitoring,
control and surveillance.”93 Finally, UNFSA requires the Parties to promote and
conduct relevant scienti¬c research. A coherent research agenda is extremely impor-
tant in the context of climate change to ensure quanti¬cation of potential impacts
on speci¬c species and to incorporate such impacts into stock assessment processes
that are critical for successful long-term management of marine species.94
Thus, to the extent that climate change may result in the diminution of certain
stocks, or alter their distribution in a way that adversely affects the interests of
discrete Parties, a cause of action could arise under the Agreement by which Parties
might seek: (1) damages; (2) enforcement of conservation obligations; and (3) a
commitment by all Parties to assess the potential impacts of climate change on
species regulated under UNFSA.
Rare among international environmental agreements, UNFSA provides for a
binding dispute resolution mechanism where efforts to resolve the dispute through
nonbinding methods, such as negotiation, inquiry, mediation, or conciliation, have
proven to be unavailing. Part VIII of the Agreement applies the dispute resolution
mechanism set out in Part XV of UNCLOS to any dispute under the Agreement,
even where one or more of the disputants are not Parties to UNCLOS.95


UNCLOS, supra note 58, at art. 1(4).
89

Verheyen, supra note 82, at 194“95.
90

See Sec. 2, infra.
91

UNFSA, supra note 2, at art. 5(g).
92

Id. at art. 5(l).
93

Jonathan A. Hare & Kenneth W. Able, Mechanistic Links Between Climate and Fisheries Along the
94

East Coast of the United States: Explaining Population Outbursts of Atlantic Croaker (Micropogonias
undulates), 16(1) Fisheries Oceanography 31, 45 (2007).
Id. at art. 30(1).
95
William C. G. Burns
326


As Jonathan Hafetz observes, UNCLOS “creates a binding system of obligations
and dispute resolutions, which confers on a forum international jurisdiction, author-
ity, and implementing powers that exceed those of other international environmental
law forums and rival those conferred on the World Trade Organization.”96 Part XV
of UNCLOS provides States with four potential fora for settlement of disputes:97 the
International Tribunal for the Law of the Sea (ITLOS);98 the International Court of
Justice; an arbitral panel; or a special arbitral panel.99 States may choose to declare
their choice of forum, but in cases where they have not, or where Parties to a dis-
pute have not accepted the same procedure for dispute settlement, the dispute must
be submitted to binding arbitration unless the Parties agree otherwise.100 To date,
the vast majority of Parties to UNCLOS have, de facto, chosen arbitration by their
silence on the matter, as have most Parties to UNFSA.101

3. POTENTIAL BARRIERS TO CAUSES OF ACTION UNDER UNFSA

A Party to UNFSA pursuing an action based on climate change damages would face
some imposing barriers, though none need prove fatal.

3.1. Causation
As Smith and Shearman observe, “establishing legal causation in climate change
actions “ that is, proving that a defendant™s actions caused the harm suffered by
a plaintiff “ will pose the greatest obstacle for a majority of plaintiffs.”102 Indeed,
causation issues have been raised in two international climate cases to date, in
the Inuit petition to the Inter-American Commission on Human Rights,103 and the
petitions to the World Heritage Committee to list several sites allegedly threatened by

Jonathan L. Hafetz, Fostering Protection of the Marine Environmental and Economic Development:
96

Article 131(3) of the Third Law of the Sea Convention, 15 Am. U. Int™l L. Rev. 583, 596 (2000).
Under UNCLOS™s dispute resolution mechanism “[a]ny decision rendered by a court or tribunal
97

having jurisdiction under this section shall be ¬nal and shall be complied with by all the parties to
the dispute.” UNCLOS, supra note 58, at art. 296(1).
Id. at Annex VI. The Tribunal is composed of twenty-one judges representing the legal systems of
98

UNCLOS™s Parties. Id. at arts. 1, 2, 4.
Id. at art. 287(1). Special arbitral panels may be convened for disputes involving “(1) ¬sheries, (2) pro-
99

tection and preservation of the marine environment, (3) marine scienti¬c research, or (4) navigation,
including pollution from vessels and by dumping . . .” Id. at Annex VIII, art. 1.
Id. at art. 287(3)-(5).
100

Andree Kirchner, International Marine Environmental Law 22 (2003); U.N. Division for
101

Ocean Affairs and the Law of the Sea, Straddling Stocks Convention, Declarations, <http://www.
un.org/Depts/los/convention agreements/¬sh stocks agreement declarations.htm>, site visited on
Dec. 28, 2006. The United States has chosen a special arbitral tribunal for, inter alia, disputes
involving ¬sheries or marine pollution. Id. However, since most Parties to UNFSA have chosen either
another option for dispute resolution, or none at all, any dispute involving the United States would
likely be settled by an arbitration panel.
Joseph Smith & David Shearman, Climate Change Litigation 107 (2006).
102

In the course of the hearing granted by the Commission in March of 2007, Commissioners
103

Abramovitch and Pinheiro pressed the petitioners as to whether the Commission could attribute
State responsibility to the United States for the alleged human rights violations to petitioners given
Potential Causes of Action for Climate Change 327


climate change on the List of World Heritage in Danger under the World Heritage
Convention.104 Domestic legal systems, and to some extent international law, draw a
distinction between general and speci¬c causation, the former referring to the causal
link “between an activity and the general outcome,” and the latter to the causal link
between a speci¬c activity and speci¬c damage.105 It is likely that both aspects of
causation would be raised in an UNFSA climate action.


3.1.1. General Causation
In many cases, declines of ¬sh stocks or shifts in distribution may be attributable to
a number of factors other than, or in conjunction with, climate change, including
over¬shing,106 habitat destruction,107 or diminution of prey species.108 As a report to
the European Commission recently concluded, “it is extremely dif¬cult to separate,
in terms of changes in population densities and recruitment, regional climate effects
from direct anthropogenic in¬‚uences.”109 Thus, a Party to UNFSA defending itself
against a claim of damages associated with climate change may contend that species
decline or distribution shifts cannot be linked solely to climatic factors, and thus the
State cannot be held liable under UNFSA. This argument should not prevail. First,


that many other States, including States that were not members of the Organization of the Amer-
ican States, were substantial emitters of greenhouse gases. Response to the Commission™s Question
on Attribution of Responsibility Submitted by Sheila Watt-Cloutier, Earthjustice and the Center for
International Environmental Law, March 2007.
United States, Position of the United State [sic] of America on Climate Change with
104

Respect to the World Heritage Convention and World Heritage Sites, <http://www.elaw.org/
assets/word/u.s.climate.US%20position%20paper.doc>, site visited on Sept. 28, 2007. The United
States contended, inter alia, that “there is not enough data available to distinguish whether climatic
changes at the named World Heritage Sites are the result of human-induced climate change or
natural variability.” Id. at 4. For additional information on the petitions, see Erica J. Thorson, The
World Heritage Convention and Climate Change: The Case for a Climate-Change Mitigation Strategy
Beyond the Kyoto Protocol, this volume.
Richard S.J. Tol & Roda Verheyen, Liability and Compensation for Climate Change Damages “
105

A Legal and Economic Assessment, Research Unit Sustainability and Global Change, Ham-
burg University, FNU-9 (2001), <http://www.fnu.zmaw.de/¬leadmin/fnu-¬les/publication/working-
papers/adapcap.pdf>, site visited on Sept. 25, 2007.
Samuel F. Herrick, Jr., et al., Management Application of an Empirical Model of Sardine-Climate
106

Regime Shifts, 31 Marine Pol™y 71, 91 (2007); Gian-Reto Walther et al., Ecological Responses to Recent
Climate Change, 416 Nature 389, 393 (2002).
K.I. Matics, Measures for Enhancing Marine Fisheries Stock in Southeast Asia, 34(3) Ocean & Coastal
107

Mgmt. 233“247 (1997).
Michel Potier et al., Forage Fauna in the Diet of Three Large Pelagic Fishes (Lancet¬sh, Sword¬sh
108

and Yellow¬n Tuna) in the Western Equatorial Indian Ocean, 83(1) Fisheries Res. 60“72 (2007);
Giovanni Bearzi et al., Prey Depletion Caused by Over¬shing and the Decline of Marine Megafauna in
Eastern Ionian Sea Coastal Waters (Central Mediterranean), 127 Biological Conservation 373“382
(2006).
Institute for Environment & Sustainability, supra note 24, at 21, <http://ies.jrc.cec.eu.int/¬leadmin/
109

Documentation/Reports/Varie/cc marine report optimized2.pdf>, site visited on Feb. 19, 2007. See
also Anna Rindorf & Peter Lewy, Warm, Windy Winters Drive Cod North and Homing of Spawners
Keeps Them There, 43 J. Applied Ecology 445, 445 (2006).
William C. G. Burns
328


even if other factors may constitute threats to regulated species, climate change is
clearly a substantial peril for many of these species. A tribunal or panel could assess
the extent of this threat by employing statistical probability analysis to support a
¬nding of liability where a moving party can establish that climate change results
in a “material increase in risk.”110 This approach has been embraced by a number
of courts in recent years.111 This would in turn trigger the obligation of major emit-
ters of greenhouse gases that are Parties to UNFSA to adopt measures to reduce
these emissions to levels that substantially reduce the threat to high migratory and
straddling stock species.112
Second, all causation challenges must be considered in light of the regime™s
precautionary principle provisions. Recognition of the failure of the assimilative
capacity paradigm to adequately safeguard the environment led to the formulation
of the precautionary principle:

The precautionary concept advocates a shift away from the primacy of scienti¬c
proof and traditional economic analyses that do not account for environmental
degradation. Instead, emphasis is placed on: 1) the vulnerability of the environ-
ment; 2) the limitations of science to accurately predict threats to the environment,
and the measures required to prevent such threats; 3) the availability of alterna-
tives (both methods of production and products) which permit the termination or
minimization of inputs into the environment; and 4) the need for long-term, holis-
tic economic considerations, accounting for, among other things, environmental
degradation and the costs of waste treatment.113

“The precautionary principle can also be viewed as a safeguard against the oppor-
tunism of decision-makers in situations of asymmetric information or imperfect
monitoring by society.”114 In the context of management and conservation of wildlife
species, the principle re¬‚ects the recognition that “scienti¬c understanding of

See Peter A. Stott, D.A. Stone, & M.R. Allen, Human Contribution to the European Heatwave of
110

2003, 432 Nature 610 (2004) (“It is an ill-posed question whether the 2003 heatwave was caused, in
a simple deterministic sense, by a modi¬cation of the external in¬‚uences on climate “ for example,
increasing concentrations of greenhouse gases in the atmosphere “ because almost any such weather
event might have occurred by chance in an unmodi¬ed climate. However, it is possible to estimate
by how much human activities may have increased the risk of the occurrence of such a heatwave.”)
Penalver argues that the “but for” analysis employed by many courts to assess causation, re¬‚ecting a
˜
“deductive nomological” model of scienti¬c explanation, is inappropriate in causal analysis in toxic
tort and climate change cases. He advocates a probabilistic theory of causation that re¬‚ects the nature
of these phenomena. Eduardo M. Penalver, Acts of God or Toxic Torts? Applying Tort Principles to the
˜
Problem of Climate Change, 38 Nat. Resources J. 563, 582“85 (1998). See also S. Greenland & J.M.
Robins, Epidemiology, Justice and the Probability of Causation, 40 Jurimetrics 321“40 (2000).
See Fairchild v. Glenhaven, [2002] UKHL 22 (collecting cases from Australia, Canada, and Britain).
111

UNFSA, supra note 2, at art. 5(a).
112

Ellen Hey, The Precautionary Concept in Environmental Policy And Law: Institutionalizing Caution,
113

4 Geo. Int™l Envtl. L. Rev. 303, 307 (1992).
Ylva Arvidsson, The Precautionary Principle: Experiences from Implementation into Swedish Law, IIIEE
114

Reports, 2001:7 (2001), at 11, <http://www.iiee.u.se/information/libary/publicatons/reports/20001/Ylva-
Arvidsson.pdf>, site visited on July 8, 2007.
Potential Causes of Action for Climate Change 329


ecosystems is complicated by a host of factors, including complex and cascading
effects of human activities and uncertainty introduced by naturally chaotic popula-
tion dynamics.”115
UNFSA provides that “States shall apply the precautionary approach widely to
conservation, management and exploitation of straddling ¬sh stocks and highly
migratory ¬sh stocks in order to protect the living marine resources and preserve the
marine environment.”116 Thus, even under scenarios of uncertainty about a given
threat, such as climate change impacts, Article 6 of UNFSA provides “[t]he absence
of adequate scienti¬c information shall not be used as a reason for postponing or
failing to take conservation and management measures.”117 As Colburn observes,
“[t]he precautionary approach essentially reverses the process of marine scienti¬c
research (“MSR”) application in the management of straddling and highly migratory
¬sh stocks, allowing states and RFOs to proceed with conservation measures even in
the absence of scienti¬c certainty.”118 Thus, in the context of potential threats posed
by climate change to ¬sh species regulated under UNFSA, it can be argued that the
Parties have an obligation to take action even in the absence of de¬nitive proof of
causation.


3.1.2 Speci¬c Causation
The targeted Party in a climate-related UNFSA action might argue that climate
change is caused by a multitude of anthropogenic sources, and thus, any speci¬c
harm cannot be attributable to a speci¬c Party, even a large greenhouse emitting
State such as the United States or China. This argument should not prevail for two
reasons. First, the issue of speci¬c causation would be most germane in cases where a
moving Party seeks damages.119 A Party to UNFSA might not seek monetary damages
in pressing a climate change case against another Party. Rather a Party bringing such
an action might be exclusively, or in the alternative, seeking a commitment by the
targeted Party to ful¬ll its “duty to cooperate” under the treaty 120 by enacting effective
measures to contribute to the goal of “long-term sustainability of straddling ¬sh stocks
and highly migratory ¬sh stocks.”121
Under the terms of UNFSA, as well as customary international law, all treaty
obligations must be ful¬lled in good faith, the principle of pacta sunt servanda.122

Robert J. Wilder, Precautionary Principle; Prevention Rather Than Cure, Ocean 98, <http://www.
115

wildershares.com/pdf/Ocean98.Nature%20article.Wilder.pdf >, site visited on Sept. 28, 2007.
Id. at art. 6(1).
116

Id. at art. 6(2).
117

Colburn, supra note 5, at 347.
118

Verheyen, supra note 82, at 248.
119

UNFSA, supra note 2, at art. 5.
120

Id. at art. 5(a).
121

Id. at art. 34; Vienna Convention on the Law of Treaties, May 23, 1969, at art. 26; I.I. Lukashuk, The
122

Principle of ˜Pacta Sunt Servanda™ and the Nature of Obligation Under International Law, 83 Am. J.
Int™l L. 513, 513 (1989).
William C. G. Burns
330


The obligation of good faith, which Henkin has correctly characterized as “the
most important principle of international law,”123 imposes a duty upon treaty Par-
ties to exercise their sovereign rights in a manner that is consistent with their
treaty obligations.124 Moreover, the failure to ful¬ll treaty obligations in good faith
constitutes a breach of treaty obligations and entails international responsibility.125
Furthermore, a ¬nding of a breach of a treaty obligation would not require the
establishment of speci¬c causation:

It is important to note that injury or material damage is not a prerequisite for the
existence of a wrongful act, i.e. for the invocation of State responsibility. . . . Thus,
while a claimant State must, under the [Draft Articles on State Responsibility], show
a causal relationship between the activity and the damage caused to be eligible for
reparations . . . the State can, without showing a causal relationship demand, as
long as breach of an international obligation has taken place. This is in line with
customary law. . . . 126

Thus, any UNFSA Party failing to make a good faith effort to address its anthro-
pogenic emissions of greenhouse gases, given their potential impact on ¬sh species,
could be found to be in violation of the treaty even in the absence of establishment of
speci¬c causation. This breach, in turn, would impose an obligation on the breach-
ing Party to cease its wrongful conduct,127 which in this context would require a
Party to reduce its emissions below a threshold that would substantially decrease the
risks to interests protected under UNFSA.
Moreover, even in cases where a Party might seek damages under UNFSA, the
fact that other States may contribute to climate change need not prove fatal to such
an action. As Roda Verheyen notes, “[T]hat a contribution to the legally relevant
outcome can be suf¬cient to establish causation is accepted in many jurisdictions
around the world.”128 This includes under the U.S. Restatement of Torts, which
provides that “a conduct or event question is a cause in fact of the harm if it is a
substantial factor in producing it,”129 as well as under German law, which provides
for holding a person responsible for increases in risk that manifest themselves in
damages.130 Moreover, the International Law Commission has held that a State can

Louis Henkin, Constitutionalism, Democracy, and Foreign Affairs 62 (1990).
123

Declaration on Principles of International Law concerning Friendly Relations and Co-operation
124

among States in Accordance with the Charter of the United Nations, G.A. Res. 2625 (Oct. 24, 1970);
Final Act of the Conference on Security and Cooperation in Europe, Aug. 1, 1975, 73 Dep™t State
Bulletin 323 (1975).
Duncan Currie, Whales, Sustainability and International Environmental Governance, 16 RECIEL
125

45, 53 (2007). See also International Law Commission, Draft Articles on Responsibility of States for
Internationally Wrongful Acts (2001), at art. 2.
Verheyen, supra note 82, at 243.
126

International Law Commission, supra note 125, at art. 30.
127

Verheyen, supra note 82, at 255.
128
129 Restatement (Second) of Torts § 431, cmt. a (1965).
Verheyen, supra note 82, at 255.
130
Potential Causes of Action for Climate Change 331


be held liable for reparations in cases where it has played a “decisive” role in causing
an injury.131


3.2. Reluctance of Dispute Resolution Bodies to Address Climate Change
Experience with climate change litigation to date in the United States, at least, has
demonstrated some reluctance on the part of members of the judiciary to address
climate change issues given their limited scienti¬c expertise. Consider, for example,
Justice Scalia™s ¬‚ippant but telling comment in the recent Supreme Court oral
arguments in Massachusetts v. Environmental Protection Agency:132

JUSTICE SCALIA: . . . your assertion is that after the pollutant leaves the air and
goes up into the stratosphere it is contributing to global warming.
MR. MILKEY: Respectfully, Your Honor, it is not the stratosphere. It™s the tropo-
sphere.
JUSTICE SCALIA: Troposphere, whatever. I told you before I™m not a scientist.
(Laughter.)
JUSTICE SCALIA: That™s why I don™t want to have to deal with global warming,
to tell you the truth.133

Parties bringing an action before ITLOS or an arbitral panel might experience
similar reservations on the part of the dispute resolution body to grapple with the
complicated technical issues associated with climate change, especially since the
primary area of expertise of tribunal or panel members may be more traditional
¬sheries issues, such as the impact of harvesting on species. UNFSA provides two
mechanisms to help address this concern. First, in cases where “a dispute concerns
a matter of a technical nature,” the States involved in a dispute may refer the
dispute to an “ad hoc expert panel,” which will confer with the Parties and seek
to resolve the dispute without recourse to binding procedures.134 A Party seeking
to press a climate change claim could certainly seek to engage another Party in
such negotiations initially, and should this fail to resolve the dispute, which is likely,
seek to introduce the panel™s scienti¬c ¬ndings in a binding dispute resolution
forum.
Additionally, if both Parties agree to it, cases of this nature can be referred to a
“special arbitral panel.”135 Under UNCLOS™s dispute resolution provisions in this

Gaetano Arangio-Ruiz, 2nd Report on State Responsibility, II(1) Y.B. Int™l L. Commission, A/CN.4/426
131

(1989), at 14.
No. 05“1120, U.S. Supreme Court, Oral Argument, Nov. 29, 2006, <http://www.supremecourtus.
132

gov/oral arguments/argument transcripts/05“1120.pdf>, site visited on Dec. 29, 2006.
Id. at 23.
133

UNFSA, supra note 2, at art. 29.
134

See note 99, supra, and accompanying text.
135
William C. G. Burns
332


context, which UNFSA fully incorporates,136 a panel hearing a climate change“
related dispute could be constituted by experts in the ¬elds of ¬sheries, marine
environmental protection, and marine scienti¬c research drawn from the FAO,
the United Nations Environment Programme, and the Intergovernmental Oceano-
graphic Commission,137 all of whom have expertise on the nexus of ¬sheries and
climate change. Of course, as indicated earlier, this provision of UNFSA can only
be invoked with the consent of both parties. Thus, there is a very good chance that
a party against which a climate action would be brought would refuse, believing
that ITLOS or an arbitral panel might be far less likely to grapple with complicated
science associated with such a case.
Perhaps an even more imposing barrier to a cause of action under UNFSA may
be the perceived threat to the legitimacy of a dispute resolution body should it enter
a decision against a hegemonic State that then chose to either ignore the decision
or drag its feet. International tribunals carefully marshal their political capital in an
effort to preserve and enhance their legitimacy. The primary threat to the legitimacy
of a UNFSA dispute resolution body in the context of climate change may be that
a powerful State would choose to not comply with the decision given the dramatic
policy changes that it might necessitate. As Richard Silk recently noted, States may
choose to not to comply with “binding” decisions when they deem it against their
interests:
In international law, even allegedly binding dispute settlement mechanisms such
as arbitration may be ignored when a state disagrees with the decision. To illustrate,
in the Beagle Channel dispute between Chile and Argentina, Argentina challenged
the validity of the arbitrators™ decision on dubious grounds and, despite the implau-
sibility of Argentina™s repudiation, the decision was never enforced. . . . Under
UNCLOS, there might be strong domestic and international pressures to sign a
¬shery agreement regardless of the costs of compliance, but when the time for
compliance comes, narrower national interests may prevail.138

Indeed, the fear that decisions against the United States might be ignored may
help to explain the recent rejection of petitions to address climate change by the
Inter-American Commission on Human Rights and World Heritage Committee.139


CONCLUSION

In a perfect world, the threat of climate change would be effectively addressed
through the international institutional responses developed in the 1990s. Unfortu-
nately, the specter of climate change looms larger currently than it did a decade ago,
See note 95, supra, and accompanying text.
136

UNCLOS, supra note 58, at Annex VIII, art. 2(1)(2).
137

Richard J. Silk, Jr., Nonbinding Dispute Resolution Processes in Fisheries Con¬‚icts: Fish out of Water?,
138

16 Ohio St. J. on Disp. Resol. 791, 800“01 (2001).
See supra notes 22“23 and accompanying text.
139
Potential Causes of Action for Climate Change 333


and the prospects for adequate responses within the UNFCCC framework appear
increasingly remote. Now more than ever, those most vulnerable to the impacts
of climate change must explore alternatives that may ¬nally galvanize the major
greenhouse-emitting States into action. UNFSA is one option that deserves further
exploration.
15

Climate Change Litigation: Opening the Door
to the International Court of Justice

Andrew Strauss—



INTRODUCTION

In March 2003, I wrote an article for the Environmental Law Reporter surveying
potential international judicial forums where victims of global warming could bring
lawsuits.1 In the ensuing six years, numerous lawsuits have been brought in the
United States and in other countries,2 and environmentalists can now celebrate
— Visiting Professor of Law, Notre Dame Law School, Distinguished Professor of Law, Widener Uni-
versity School of Law. I would like to thank Janet Lindenmuth, Gina Serra, Michael Hubbard, and
Warren Rees for their very valuable research help on this chapter.
Andrew L. Strauss, The Legal Option: Suing the United States in International Forums for Global
1

Warming Emissions, 33 Envtl. L. Rep. 10, 185 (2003).
See, e.g., Friends of the Earth, Inc. v. Watson, No. C02“4106 JSW, 2005 WL 2035596, at— 1 (N.D. Cal.
2

Aug. 23, 2005) (alleging the U.S. Overseas Private Investment Corporation and Export-Import Bank
facilitated the ¬nancing of projects in developing countries that contributed signi¬cantly to global
warming without following proper procedures, including the production of Environmental Impact
Statements, under the National Environmental Policy Act (NEPA) and the Administrative Procedures
Act (APA)); Connecticut v. Am. Elec. Power Co., 406 F. Supp. 2d 265 (S.D.N.Y. 2005) (alleging that
¬ve major American power company emitters of carbon dioxide should be held liable under federal
and state common law for contributing to the public nuisance of global warming); California v.
Gen. Motors, No. 3:06 CV-05755 MJJ (2006) (alleging that the six largest automobile manufacturers
should be held liable to the state of California for global warming-related damages under both the
federal and state common law of public nuisance); New York v. EPA, No. 06-1148, 2007 U.S. App.
Lexis 30013 (D.C. Cir. Dec. 26, 2007) (per curium) (challenging the EPA™s refusal to add carbon
emissions standards to the new power plant source performance standards); Cent. Valley Chrysler-
Jeep v. Witherspoon, 2007 WL 135688 E.D.Cal., 2007. January 16, 2007 (challenging the California
Air Resources Board™s regulations to limit greenhouse gas emissions from motor vehicles on the basis
that the regulations are preempted by the Clean Air Act and on other grounds); Ctr. for Biological
Diversity v. Norton, N.D. Cal., No. 3:05CV05191 (settled Jan. 2007) (alleging that the Secretary of
the Interior had not acted within the statutory period to review the petition of the polar bear as an
endangered species due to global warming); Comer v. Murphy Oil, C.A. No. 1:05-cv-00436-LG-RHW
(S.D. Miss.) (dismissed) (on appeal to U.S. Court of Appeals for the Fifth Circuit, No. 07“60756)
(claiming that, because of their contribution to global warming which warms the waters in the Gulf of
Mexico, insurers, chemical companies, oil companies and coal companies are liable for the increasing
frequency and severity of Atlantic hurricanes including Hurricane Katrina). For representative cases
outside of the United States, see GermanWatch v. Euler Hermes AG, Administrative Court Berlin, Jan.
10, 2006, 10A 215.04, available at http://www.climatelaw.org/media/Germany/de.export.decision.pdf;
Genesis Power Ltd. v. Franklin Dist. Council, 2005 NZRMA 541 A148/05 (Env™t Ct. Auckland);
Gbemre v. Shell Petroleum Dev. Co Nigeria Ltd., [2005] F.H.C. FHC/B/CS/153/05 (Nigeria).

334
Climate Change Litigation 335


their ¬rst signi¬cant victory. In April 2007, based upon its ¬nding that greenhouse
gases are pollutants under Section 202(a)(1) of the U.S. Clean Air Act, the Supreme
Court in Massachusetts v. EPA3 held that the U.S. Environmental Protection Agency
(EPA) has the authority to regulate greenhouse gases.
Though we are still in the early days of global warming litigation, these lawsuits are
having a signi¬cant impact on the legal and political climate. In response to a good
deal of popular4 and academic discussion5 suggesting that those most responsible
for the global warming problem be held legally accountable, corporations in the
carbon sector are becoming concerned about the extent of their potential legal
liability. This concern is one reason they are coming to publicly accept the reality of
anthropogenic-caused global warming, and the corresponding need for regulation
of greenhouse gas emissions.6
Despite the signi¬cance of this litigation, however, global warming actions thus far
have almost all been brought in domestic rather than international forums. The only
exceptions are a petition by the Inuit to the Inter-American Commission on Human
Rights,7 and petitions by environmental groups and others to UNESCO™s World
Heritage Committee to include various natural sites as world heritage endangered
by global warming.8 While domestic courts are still far and away the primary formal

Massachusetts v. EPA, 549 U.S. 497 (2007).
3

See, e.g., Andrew Simms & Andrew Strauss, America in the Dock: Poor Nations at Risk from Global
4

Warming Are Growing Tired of Talking, Fin. Times, Aug. 22, 2002, at 21. Eoin O™Caroll, As Earth
Warms, Lawsuits Mount, Christian Sci. Monitor, Feb. 22, 2007, at 12; Global Warming: Here Come the
Lawyers, Bus. Wk., Oct. 30, 2006, David Lynch, Corporate America Warms to Fight Against Global
Warming, USA Today, June 1, 2006, at 1B.
See, e.g., Joseph Smith & David Shearman, Climate Change Litigation (2006); Justin R. Pidot,
5

Global Warming in the Courts: An Overview of Current Litigation and Common Legal
Issues (2006); Roda Verheyen, Climate Change Damage and International Law: Prevention,
Duties and State Responsibility (Developments in International Law) (2005); Sara Aminzadeh,
A Moral Imperative: The Human Rights Implications of Climate Change, 30 Hastings Int™l & Comp.
L. Rev. 231 (2007); Philippe Sands, International Environmental Litigation and Its Future, 32 U. Rich.
L. Rev. 1619 (1999); Rebecca Elizabeth Jones, Comment, Treading Deep Waters: Substantive Law
Issues in Tuvalu™s Threat to Sue the United States in the International Court of Justice, 14 Pac. Rim L.
& Pol™y J. 103 (2005); J. Chris Larson, Note, Racing the Rising Tide: Legal Options for the Marshall
Islands, 21 Mich. J. Int™l L. 495 (2000); Kevin Healy & Jeffrey Tapick, Climate Change: It™s Not Just
an Issue for Corporate Counsel “ It™s a Legal Problem, 29 Colum. J. Envtl. L. 89 (2004).
Jeffrey Ball, Electricity Group Backs Emissions Caps, Wall St. J., Feb. 7, 2007, at A10; Jeffrey Ball,
6

Conoco Calls for Emissions Cap “ Oil Producer Joins Effort to Shape New U.S. Policy on Greenhouse-
Gas Limits, Wall St. J., Apr. 11, 2007, at A3.
See Petition to the Inter-American Commission on Human Rights Seeking Relief from Violations
7

Resulting from Global Warming Caused by Acts and Omissions of the United States (submitted
Dec. 7, 2005), at 13“20, available at http://www.earthjustice.org/library/reports/ICC_Human_Rights_
Petition.pdf; Letter from the Organization of American States to Sheila Watt-Cloutier regarding
Petition No. P-1413“05, Nov. 16, 2006, available at http://graphics8.nytimes.com/packages/pdf/science/
16commissionletter.pdf.
See U.N. Educ. Sci. and Cultural Org. [UNESCO], World Heritage Comm., Decision 29COM
8

7B.a Threats to World Heritage Properties (2005), available at http://whc.unesco.org/download.
cfm?id_document=5941; U.N. Educ. Sci. and Cultural Org. [UNESCO], World Heritage Comm.,
Decision 30COM 7.1 The Impacts of Climate Change on World Heritage Properties (2006), available
at http://whc.unesco.org/download.cfm?id_document=6728.
Andrew Strauss
336


institutions of dispute resolution in the world, they are in certain ways ill suited
to address the global nature of the climate change problem.9 For example, in the
Massachusetts case, the EPA partially based its refusal to regulate carbon emissions
on the global dimensions of the climate change problem which raise “important
foreign policy issues” that are “the President™s prerogative” to address.10 Also based
in part on similar concerns and quoting from that EPA decision, Judge Preska of the
Southern District of New York dismissed a claim that the greenhouse gas emissions
of the power companies constituted a nuisance.11 Though both the EPA and Judge
Preska address the problem from their vantage point as discrete decision makers
within a domestic forum, the implication of their analysis points to the need for
global prescriptive and adjudicatory action.
Within the international realm, the one court of general competence is the World
Court or the International Court of Justice (ICJ). In terms of status and hold on the
public imagination, it is the closest institution we have to a high court of the world.
Initiating a global warming case before that body could, therefore, bring signi¬cant
bene¬ts, but the barriers to initiating such a case are also quite formidable, perhaps
fatally so. My intention in this chapter is to contribute to the discussion of global
warming litigation with an exploration of both the bene¬ts of and barriers (primarily
jurisdictional) to initiating a case. It updates and expands that part of my analysis
from the 2003 Environmental Law Reporter relating speci¬cally to the ICJ. As with
the 2003 article, this chapter is not meant to be the de¬nitive word on possibilities
for litigating before the ICJ, but rather a contribution to an evolving exploration of
the issue. Because the United Nations Framework Convention on Climate Change
(UNFCCC) and the Kyoto Protocol establish the core of the present global warming
international legal regime, they both loom large in my analysis. Yet the days of the
Kyoto Protocol are numbered, and what will come after is now the subject of
intensive negotiations. To the extent (as is likely) that the post-Kyoto regime draws
on many of the legal structures and institutional approaches of Kyoto, much of my
Kyoto speci¬c analysis will continue to be relevant in the post-Kyoto world.
In Section 1, I continue with a general discussion of the advantages of litigating
before the ICJ. In Section 2, I introduce the countries that could be potential
applicants and those that could be potential respondents in a global warming suit, and
I focus on evaluating the possible jurisdictional basis upon which such a suit could
proceed. I conclude this section with a discussion of other procedural and substantive
hurdles that would have to be overcome before a case could be decided by the ICJ.
In Section 3, I then shift to reviewing brie¬‚y the nature of the substantive law that
the ICJ would apply. Finally, I conclude by considering the need to view litigation

For a view critical of the characterization of the climate change problem as of essentially global
9

dimension, see Hari M. Osofsky, Is Climate Change “International”: Litigation™s Diagonal Regulatory
Role, 49 Va. J. Int™l L. 585 (2009).
Control of Emissions from New Highway Vehicles and Engines, 68 Fed. Reg. 52,922, at 52,928 (Sept.
10

8, 2003).
Connecticut v. Am. Elec. Power Co., F. Supp. 2d 265 (S.D.N.Y. 2005).
11
Climate Change Litigation 337


before the ICJ in the context of the broader political strategies for responding to the
global warming challenge.


1. ADVANTAGES OF LITIGATING BEFORE THE INTERNATIONAL
COURT OF JUSTICE

As I will discuss, there are large hurdles to bringing a global warming suit before
the ICJ, but the potential bene¬ts of a favorable ruling on treaty negotiations over
the future of the climate change regime are signi¬cant enough to make a serious
exploration of prospective litigation worth the effort. Because the ICJ is the only
standing international court whose subject matter competence and membership is
not limited, and because of its unique status and visibility, a favorable ruling would
contribute to creating a political environment conducive to the furtherance of a post-
Kyoto treaty regime that can meaningfully deal with the global warming problem.
In a pluralistic world of con¬‚icting opinions, anyone can argue that it is morally
wrong for countries not to do what is possible to reduce greenhouse gas emissions.
However, a favorable ruling by the ICJ could provide an authoritatively sanctioned
reference point around which public opinion can crystallize by imbuing that claim
with the of¬cial imprimatur of law.12
In addition, such a ruling could alter the interstate dynamics of negotiation over
the future of the treaty regime. Recalcitrant countries can regard the subjective
moral claims of their negotiating partners as deserving of no greater deference in
the negotiations than their own contrary claims. But the ability of parties pushing
global warming remediation to appeal to neutral determinations of law adds a new
dimension to the negotiations. It backs their claims with the venerable weight of
respected independent legal authority and gives them the normative high ground in
the negotiations.
Furthermore, to the extent that corporations face a credible threat of exposure
to climate change litigation, corporate managers are likely to want to reduce that
potential by encouraging their governments to join past and/or future international
agreements containing clearly identi¬able limits to which they can adhere.13 While

For a classic work discussing the role and in¬‚uence of the International Court of Justice, see Robert
12

Y. Jennings, The United Nations at Fifty: The International Court of Justice After Fifty Years, 89 Am. J.
Int™l L. 493 (1995). See also Nagendra Singh, The Role and Record of the International Court
of Justice (1989).
For the classic case study of the interests and role of corporations in promoting regulation, see Gabriel
13

Kolko, The Triumph of Conservatism: A Reinterpretation of American History, 1900“1916
(1977). For discussion of the potential legal liability of corporations for climate change, see David A.
Grossman, Warming Up to a Not-So-Radical Idea: Tort-Based Climate Change Litigation, 28 Colum.
J. Envtl. L. 1 (2003); J. Kevin Healy and Jeffrey M. Tapick, Climate Change: It™s not Just a Policy Issue
for Corporate Counsel “ It™s a Legal Problem, 29 Colum. J. Envtl. L. 89 (2004). For examinations
of how various corporations are adapting to the shifting legal, regulatory, and political environment
brought about by climate change, see Miquel Bustillo, A Shift to Green: Driven by Pro¬t and the
Opportunity to Shape Regulations, Major Corporations Are Backing Stronger Measures to Reduce
Global Warming, L.A. Times, June 12, 2005, at C1; Jad Mouawad, Oil Industry Moves to Curb Carbon
Andrew Strauss
338


the ICJ would likely rule on State responsibility under international law rather
than corporate responsibility under domestic law, its rulings would carry liability
implications for corporations. In potential domestic nuisance or negligence cases
against corporations for causing harm, it is necessary to establish that the defen-
dant corporation™s contribution to the global warming problem contravened some
community-wide standard of behavior.14 A decision by the ICJ could help to establish
the existence of such standards and perhaps be a guide as to the limits on corporate
greenhouse gas emissions they require.
Finally, as will be discussed in Section 2, the mere fact that countries join a climate
change regime does not ensure compliance with that regime. Moreover, even such
compliance may not be adequate to meet the whole compliment of their remedial
obligations under international law. As Section 3 explains, standards derived from
customary international law and general principles of international law as evidenced
frequently in judicial and arbitral decisions, solemn declarations, and restatements
can also effect the ultimate obligation of states to limit their contribution to the
global warming problem. A ruling by the ICJ can help to put pressure on countries
to comply with their obligations, and it can help clarify the full extent of these
obligations.


2. GETTING INTO THE ICJ

2.1. Contentious Cases

2.1.1. Applicants and Respondents
Only countries can bring suits against other countries before the ICJ.15 Determining
which applicant State or States could most effectively bring such a suit would not be
simple. Almost all of us today are participants in the carbon economy. We are both
contributors to, as well as victims of, global warming. Having said that, some are
contributing orders of magnitude more than others to the problem. For example,
the average citizen in the United States is responsible for emitting over forty times
more greenhouse gases into the environment than the average citizen of Kiribati.16
And some, in contrast, are bearing the brunt of the effects of global warming and
will continue to do so into the foreseeable future. The most obvious applicant
Emissions: The Energy Challenge: Big Oil, Small Step, N.Y. Times, June 30, 2006, at C1; Steven
Mufson & Juliet Eilperin, Energy Firms Come to Terms with Climate Change, Wash. Post, Nov. 25,
2006, at A1; Daniel B. Wood, On Road to Clean Fuels, Automakers Cover Some Ground, Christian
Sci. Monitor, Dec. 1, 2006, at 01; Claudia H. Deutsch, Selling Fuel Ef¬ciency the Green Way, N.Y.
Times, Dec. 11, 2006, at C7; John O™Dell, So Who™s the Greenest of Them All?: Well, It Depends on
Who You™re Talking To: In Any Case, There™s Hot Competition Among Car Makers to Lay Claim to
the Eco-Friendly Crown, L.A. Times, Mar. 29, 2000, at 1.
See generally Dan D. Dobbs, The Law of Torts 393“403 (2000).
14

Statute of the International Court of Justice, effective Oct. 24, 1945, art. 34 (1), 59 Stat. 1031, 1060, T.S.
15

No. 993.
See World Resources Institute Chart of Total Greenhouse Gas Emissions in 2000, available at
16

http://cait.wri.org/cait.php?page=yearly (last visited Apr. 30, 2007).
Climate Change Litigation 339


countries, therefore, are those that have contributed little to the problem and are
most victimized by it. Low-lying Paci¬c island countries such as Kiribati whose very
existence is imperiled by global warming have been most often mentioned.17 A few
years ago, the small Paci¬c island nation of Tuvalu, for example, considered trying
to bring a claim against the United States before the ICJ.18
Another category of applicant countries that has not been considered are devel-
oped country parties to the Kyoto Protocol.19 Speci¬cally identi¬ed in Annex 1 to
the Protocol, these countries bear almost the entire burden for reducing greenhouse
gases.20 Consistent with the increasingly accepted principle that countries have com-
mon but differentiated responsibilities to remediate environmental problems,21 the
Protocol puts the onus on them because of the developed world™s disproportionate
wealth and historical contribution to the global warming problem. To the extent,
therefore, that such developed countries are themselves victims of global warming,
a potential claim could be explored against fellow developed countries that are
not bearing their share of the responsibility for the global warming problem, either
because they do not appear to be on track to meet their emission reduction obliga-
tions, including under the Protocol, or they have not acceded to the Protocol and
are not otherwise bearing their share of the responsibility for the global warming
problem.
Whether either vulnerable developing countries or developed countries that are
making a serious effort to deal with the global warming problem could successfully
bring a lawsuit before the ICJ presents the threshold question of whether the ICJ
would ¬nd it had jurisdiction over the dispute. In accordance with the principle
of State sovereignty, jurisdiction by the Court must ultimately be based upon State
Low-lying coastal states such as Bangladesh are also particularly at risk. For a discussion of the
17

probable effects of global warming on low-lying coastal island states, see Intergovernmental Panel
on Climate Change, Climate Change 2007: Impacts, Adaptation and Vulnerability. Contribution of
Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change
(2007), at 481. For a discussion of the extent to which international law protects vulnerable island states
from harms caused by global warming, see William C.G. Burns, Potential Implications of Climate
Change for the Coastal Resources of Paci¬c Island Developing Countries and Potential Legal and
Policy Responses, 8(1) Harv. Asia-Pac. Rev. 1“8 (2005). See also Nicholas D. Kristof, Island Nations
Fear Sea Could Swamp Them, N.Y. Times, Dec. 1, 1997, at F9.
Koloa Talake, the prime minister who was the driving force behind the lawsuit, lost reelection in
18

August 2002, and the subsequent government did not pursue the litigation. See Leslie Allen, Will
Tuvalu Disappear Beneath the Sea? Global Warming Threatens to Swamp a Small Island Nation,
Smithsonian, Aug. 1, 2004, at 44.
Protocol to the United Nations Framework Convention on Climate Change (UNFCCC), art 3, Dec.
19

11, 1997, 37 I.L.M. 32 (1998), available at http://unfccc.int/resources/docs/cpmvp/kpeng.html.
Id.
20

The idea that international agreements should place different burdens on differently situated states
21

predates modern international environmental law. The term ¬rst appears explicitly in the United
Nations Framework Convention on Climate Change (UNFCCC), see infra note 20, but the concept
has been integrated into earlier international environmental agreements. For further discussion, see
Christopher D. Stone, Common but Differentiated Responsibilities in International Law, 98 Am. J.
Int™l L. 276 (2004). For an exploration of the idea applied speci¬cally to climate agreements, see
Comment, Rethinking the Equitable Principle of Common but Differentiated Versus Absolute Norms
of Compliance and Contribution in the Global Climate Change Context, 13 Colo. J. Int™l Envt™l L.
& Pol™y 473 (2002).
Andrew Strauss
340

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