Nations are already attempting to use UNCLOS to sue other countries over climate change

Two decades ago environmental lawyers Durwood Zaelke and James Cameron wrote about the possibility of low-lying islands suing industrialized states over rising sea levels. Unfortunately, the prospect of international lawsuits is more than the gleam of an academic’s eye.

The Pacific island state of Palau announced last September that it would seek a ruling from the International Court of Justice barring nations from allowing emissions from their territory to cause climate change affecting other countries. Palau indicated that it would rely on LOST as well as the Kyoto Protocol. A decade ago Fiji, Kiribati, Nauru, and Tuvalu, also Pacific islands, threatened to sue under LOST, though as yet have not filed. Groves suggested that mountainous nations could similarly sue over shrinking glaciers. One could imagine other states claiming damages based on drought, desertification, or other alleged consequences of global warming.

The issue of climate change is extraordinarily complex. The best evidence is that the planet is warming, but the role of human activity and impact on the environment are far less certain and remain highly controverted. Nor is it possible to demonstrate causation between any particular emission and any particular consequence. There may be good political reasons to mitigate the distress of island countries, but such matters belong in international negotiations, not international courts.