Thursday, September 10, 2015

Can low-lying coastal states sue CO2 polluting industries under international law?

Could a coastal states like Indonesia pictured above
sue companies contributing to climate change
using international law?
The idea that multinational companies may have rights derived from international law is pretty old and possibly already a majority view. The idea that multinational companies may have obligations based on international law directly (not just by transposition into national law) is not as old, but still far from being the majority view amongst lawyers. It has now been raised in the context of the major topic of this blog, the possible liability of CO2 emitting industries towards the victims of climate change.

Christopher Y. Nyinevi, in his article “Universal Civil Jurisdiction: An Option for Global Justice in Climate Change Litigation”, argues as follows: 
  1. Private companies are subjects of international law. Thus they can be competent defendants in climate suits under international law. Therefore they can be made liable for climate damages caused to other international actors, e.g. low-lying coastal states, through their activities.
  2. The doctrine of universal jurisdiction by which national courts may exercise jurisdiction over certain international law offences is applicable not only to criminal offences, but also to civil claims. Ordinary national civil courts could accordingly rule on the basis of the international law on compensation claims.
The author is not the only one to claim that the principle of universal jurisdiction could be extended to civil claims, see e.g. the footnote 3 in the article “The principles of universal jurisdiction and complementarity: how do the two principles intermesh?” by Xavier Philippe. The author is not the only one to claim that private companies can be subjects of international law, see the overview on the literature on this topic given by José Alvarez in his skeptical article “Are Corporations Subjects of International Law?” But admittedly, these views are minority views which cannot be expected to become majority views by tomorrow. Thus it is rather unlikely that the average civil law judge would follow Christopher Y. Nyinevi's argumentation.

However, most current legal majority views were minority views some time in the past. In the light of the tremendous public debate triggered by the global challenge called “climate change”, it is not excluded that the Christopher Y. Nyinevi's theory finds its way in some jurisdictions at least. In this case, Christopher Y. Nyinevi might be regarded retrospectively as laying the ground for another path of getting CO2 emitting multinational companies liable. But again, it is anything but likely for the time being.

Hence we recommend using Christopher Y. Nyinevi's theory as subsidiary argumentation to a campaign of detouring climate change activities rather than the main method of attempting to combat these activities. Low-lying coastal states and other states affected by climate change should preferably follow the path generally recommended by this website:
  • Assess which jurisdictions, according to their international private law, offer the possibility to sue a certain CO2 polluting company, e.g. because the company has a place of business in that jurisdiction or because it operates CO2 emitting facilities therein;
  • Assess whether the chances for success are high in that jurisdiction;
  • Assess whether the principle of joint and common liability is applied in that jurisdiction so that the company needs to pay for the entire damage and not just proportionately for its contribution;
  • Assess collateral factors like costs.
Further Reading: Relevant information thereon can be found in many of our blog posts and the hyperlinks therein, see our overview on recent articles.

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