Should the UN Security Council establish a Climate-Change Tribunal?

Shirley Scott and Charlotte Ku explore what the UN Security Council could potentially do to contribute constructively to global climate governance

Climate change is highly likely to cause some disputes and to exacerbate others. These may be at any of the traditional levels of governance, from sub-national to global. Changing patterns of rainfall may lead to disputes over shared water supplies; increased natural disasters may give rise to disputes over the most appropriate agency to lead the response; the inability to reinsure buildings in coastal areas may lead to disputes over responsibility; the need to finance adaptation may lead to disputes over attribution of climate change; and non-voluntary movements of people may generate disputes over where they may resettle and who will pay for the costs involved.

There has already been a growth in climate-related litigation at a domestic level. The number of climate-related cases runs into the hundreds in the US and Australia and is growing elsewhere. Both governments and corporations have been defendants. In 2015 an environmental group, Urgenda, brought a case against the Dutch Government for its failure to achieve the greenhouse gas emission target to which it had committed. If the gap between necessary mitigation and reality widens – and without adequate adaptation, the amount of social, economic, political and legal tension can be expected to increase.

The United Nations Security Council has been given primary responsibility under the Charter of the United Nations for the maintenance of international peace and security. By article 34, the Council may `investigate any dispute, or any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security’. The Council may make recommendations to the parties to a dispute with a view to its peaceful settlement.

In the 1990s, the Council went further than these Chapter VI provisions, however, to use its compulsory `Chapter VII’ powers to establish the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda. The Special Tribunal for Lebanon was established by the Council in 2007, again acting on its Chapter VII powers. These examples set a precedent for asking whether, in the right circumstances, the Council might choose to use its chapter VII powers to establish a climate change tribunal?

This is just one of the questions posed in Climate Change and the UN Security Council, edited by Shirley Scott and Charlotte Ku. The volume considers just what the Council could potentially do to contribute constructivelyto global climate governance. The Council has in the decades since its creation developeda suite of tools but there has not previously been book length consideration as to whether any or all of these tools could usefully be brought to bear on climate insecurity.

Despite interest within criminology and beyond for the creation of climate `crimes’, the chapter by Shirley Scott, Patrick Keenan and Charlotte Ku on the potential for the Council to establish a climate court ortribunal finds that climate change is anuneasy fit for an international criminal tribunal, most basically because of the absence of any existing international crime.But there is nothing to say that this particular tool of the Council could not be adapted, for example by applying a body of law other than that of international criminal law.

Indeed, the Special Tribunal for Lebanon applies Lebanese as opposed to international law. The Extraordinary Chambers in the Courts of Cambodia, a hybrid international-national tribunal established by domestic law, can apply both domestic and international law.

An international climatechange tribunal could apply public international law inclusive of international refugee law and/or international economic law. It couldalso potentiallyhave a role to play in clarifying expectations under the Paris Agreement with agoal ofincreasing ambition. For, as efforts are directedtowardsratchetingup the effectiveness of national plansunder the Paris Agreement, tensions if not disputes are virtually inevitable over such things as financing, relative effort, and cross-border implications of national decisions.

Creation of a climate change court or tribunalwould not preclude continued use of the Chapter VI repertory of peaceful settlement techniques including conciliation and mediation. Though less institutionalized than a formal court proceeding, these techniques may have the advantage of faster conclusions, lower costs, and potential settlements that are closer to the sources of the disputethan would be the creation of a climate court or tribunal. These techniques would also be available to both state and non-state actors that may be involved in activities seen to contribute to climate change in contrast to the jurisdictional concerns that an international tribunal could face. Mediation could further work to facilitate dialogue and change behaviour by bringing parties together to seek a mutually acceptable solution to a problem.

A decision of the UN Security Council to create an international climate change court or tribunal would necessarily require the alignment of positions on the part of P5 membersand is unlikely to be on the Council’sagenda in the foreseeable future. Nevertheless,the Council has already debated the security implications of climate change and it is not inconceivable that in a situation of extreme climate-induced disruption the Council willdirect its attention towards considering how it might contribute most constructivelyin this issue area. As also considered in this volume, the Council might consider other of its existing repertoire of tools including so-called `legislative decisions’, sanctions, and/or the inclusion of climate security considerations in peace mission mandates.

Climate Change and the UN Security Council is available now.

Read chapter one free on Elgaronline.