DOCSLIB.ORG

Climate Torts and Ecocide in the Context of Proposals for an International Environmental Court

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Climate Torts and Ecocide in the Context of Proposals for an International Environmental Court City University of New York (CUNY) CUNY Academic Works Dissertations and Theses City College of New York 2011 Climate Torts and Ecocide in the Context of Proposals for an International Environmental Court Patrick Foster CUNY City College How does access to this work benefit ou?y Let us know! More information about this work at: https://academicworks.cuny.edu/cc_etds_theses/40 Discover additional works at: https://academicworks.cuny.edu This work is made publicly available by the City University of New York (CUNY). Contact: [email protected] Climate Torts and Ecocide in the Context of Proposals for an International Environmental Court Patrick Foster Graduating June, 2011 Advisor: Professor Jürgen Dedring Submitted in Partial Fulfillment of the Requirements for the Degree of Master of International Affairs at the City College of New York TABLE OF CONTENTS ABSTRACT ..........................................................................................................................................................3 CHAPTER ONE: NECESSITY AND FEASIBILITY...................................................................................4 CAUSES OF ACTION AND THEORIES OF JUSTICE...............................................................................................5 DIPLOMATIC THEORY IN THE CONTEXT OF ENVIRONMENTAL TREATY MAKING ...........................................7 CHAPTER TWO: INTERNATIONAL ENVIRONMENTAL TORTS: CLIMATE CHANGE LITIGATION .......................................................................................................................................................9 PRINCIPLES OF ENVIRONMENTAL JUSTICE APPLIED TO INDIGENOUS COMMUNITIES ..................................11 THE CURRENT INTERNATIONAL JUDICIAL FRAMEWORK...............................................................................14 A. International Court of Justice: Getting to Court.................................................................................15 B. Regional Human Rights Court: The Inter-American Court of Human Rights ..................................25 C. International Criminal Court: Subject Matter Competency...............................................................27 D. International Tribunal of the Law of the Seas.....................................................................................32 POTENTIAL CASE AT ITLOS ...........................................................................................................................34 A. Factual Introduction..............................................................................................................................35 B. Legal Principles.....................................................................................................................................37 C. Applicable International Law...............................................................................................................43 CONCLUSIONS ON INTERNATIONAL ENVIRONMENTAL TORTS ......................................................................45 CHAPTER THREE: INTERNATIONAL ENVIRONMENTAL CRIME: ECOCIDE.........................47 THE ROOTS OF ECOCIDE..................................................................................................................................52 A. Vietnam: International Environmental Warfare .................................................................................55 B. Iraq: Civil Environmental Warfare......................................................................................................56 C. Ecuador: Private Environmental Warfare ..........................................................................................59 TOWARD A NEW FORMULATION OF ECOCIDE ................................................................................................61 A. Richard Falk: Genesis of an Idea.........................................................................................................61 B. A Scholarly Mini-Movement: The scholarship on Ecocide in the 1990’s..........................................64 C. Mark Drumbl: Elaboration in a New International Order ................................................................68 CONCLUSIONS ON THE GENESIS OF ECOCIDE .................................................................................................70 CHAPTER FOUR: PROSPECTS FOR AN IEC..........................................................................................72 A NEW DIPLOMACY FOR A NEW CONVENTION FOR A NEW COURT .............................................................72 ENVIRONMENTAL DIPLOMACY .......................................................................................................................72 A. History of the Protocols ........................................................................................................................74 B. The Precautionary Principle.................................................................................................................78 C. Multilateral Diplomacy.........................................................................................................................82 D. Innovative Approaches .........................................................................................................................84 PROPOSALS FOR AN IEC ..................................................................................................................................86 CONCLUSIONS ................................................................................................................................................95 BIBLIOGRAPHY ..............................................................................................................................................96 2 Abstract This thesis is an exploration of two questions that are neither novel nor lacking in exploration: Is an International Environmental Court (IEC) needed? Is such a court feasible? Proposals for an IEC have a rich history, are well founded and numerous. On the issue of necessity, this thesis attempts to pull together historical and current information on two distinct areas of international environmental law and use these analyses to contextualize the need for an international environmental tribunal. Arguments for and against an IEC are presented within a discussion of environmental diplomacy. This thesis begins with a legal discussion of potential climate change actions in current international fora. This section is an attempt to add a layer of context on what the international legal landscape looks like for environmental actions while presenting one of two broad areas of environmental redress: a civil action. The analysis then moves on to discuss an international cause of action debated and advocated for over the past half century: ecocide. The need for a singular cause of action to fit the particularities of intentional environmental harm inflicted upon peoples is used to present the second broad area of environmental redress necessitated by international affairs: a criminal action. The analysis then moves from necessity to feasibility, beginning with an overview of proposals for an international agreement to create an environmental tribunal adequate to address the needs presented in the preceding sections. This analysis draws on international relations theory in its conclusion that such a tribunal is necessary and potential, dependent on legally cognizable factors working in tandem with considerable advocacy. The belief that the potentially catastrophic human ability to affect the global environment has existed at least since the reality of nuclear holocaust threatened during the Cold War, is currently at issue in relation to climate change, and is likely to be an ongoing reality in a quickly developing, technologically hyper-driven, globally interconnected, resource-scarce future underpins this analysis. The need to have international legal mechanisms to protect those at the fringes of these processes who are often the most harmed by environmental degradation lends urgency to the project of investigating the feasibility of creating an IEC tasked with ruling on agreed international environmental norms and rights. 3 Chapter One: Necessity and Feasibility This thesis is an exploration of two questions that are neither novel nor lacking in exploration: Is an International Environmental Court (IEC) needed? Is such a court feasible? Proposals for an IEC have a rich history, are well founded and numerous. On the issue of necessity, this thesis attempts to pull together historical and current information on two distinct areas of international environmental law and use these analyses to contextualize the need for an international environmental tribunal. Arguments for and against an IEC are presented within a discussion of environmental diplomacy. This thesis begins with a legal discussion of potential climate change actions in current international fora. This section is an attempt to add a layer of context on what the international legal landscape looks like for environmental actions while presenting one of two broad areas of environmental redress: a civil action. The analysis then moves on to discuss an international cause of action debated and advocated for over the past half century: ecocide. The need for a singular cause of action to fit the particularities of intentional environmental harm inflicted upon peoples is used to present the second broad area of environmental redress
Load more

Recommended publications
  • Climate Change and Human Health: Risks and Responses
    Climate change and human health RISKS AND RESPONSES Editors A.J. McMichael The Australian National University, Canberra, Australia D.H. Campbell-Lendrum London School of Hygiene and Tropical Medicine, London, United Kingdom C.F. Corvalán World Health Organization, Geneva, Switzerland K.L. Ebi World Health Organization Regional Office for Europe, European Centre for Environment and Health, Rome, Italy A.K. Githeko Kenya Medical Research Institute, Kisumu, Kenya J.D. Scheraga US Environmental Protection Agency, Washington, DC, USA A. Woodward University of Otago, Wellington, New Zealand WORLD HEALTH ORGANIZATION GENEVA 2003 WHO Library Cataloguing-in-Publication Data Climate change and human health : risks and responses / editors : A. J. McMichael . [et al.] 1.Climate 2.Greenhouse effect 3.Natural disasters 4.Disease transmission 5.Ultraviolet rays—adverse effects 6.Risk assessment I.McMichael, Anthony J. ISBN 92 4 156248 X (NLM classification: WA 30) ©World Health Organization 2003 All rights reserved. Publications of the World Health Organization can be obtained from Marketing and Dis- semination, World Health Organization, 20 Avenue Appia, 1211 Geneva 27, Switzerland (tel: +41 22 791 2476; fax: +41 22 791 4857; email: [email protected]). Requests for permission to reproduce or translate WHO publications—whether for sale or for noncommercial distribution—should be addressed to Publications, at the above address (fax: +41 22 791 4806; email: [email protected]). The designations employed and the presentation of the material in this publication do not imply the expression of any opinion whatsoever on the part of the World Health Organization concerning the legal status of any country, territory, city or area or of its authorities, or concerning the delimitation of its frontiers or boundaries.
    [Show full text]
  • Lasting Coastal Hazards from Past Greenhouse Gas Emissions COMMENTARY Tony E
    COMMENTARY Lasting coastal hazards from past greenhouse gas emissions COMMENTARY Tony E. Wonga,1 The emission of greenhouse gases into Earth’satmo- 100% sphereisaby-productofmodernmarvelssuchasthe Extremely likely by 2073−2138 production of vast amounts of energy, heating and 80% cooling inhospitable environments to be amenable to human existence, and traveling great distances 60% Likely by 2064−2105 faster than our saddle-sore ancestors ever dreamed possible. However, these luxuries come at a price: 40% climate changes in the form of severe droughts, ex- Probability treme precipitation and temperatures, increased fre- 20% quency of flooding in coastal cities, global warming, RCP2.6 and sea-level rise (1, 2). Rising seas pose a severe risk RCP8.5 0% to coastal areas across the globe, with billions of 2020 2040 2060 2080 2100 2120 2140 US dollars in assets at risk and about 10% of the ’ Year when 50-cm sea-level rise world s population living within 10 m of sea level threshold is exceeded (3–5). The price of our emissions is not felt immedi- ately throughout the entire climate system, however, Fig. 1. Cumulative probability of exceeding 50 cm of sea-level rise by year (relative to the global mean sea because processes such as ice sheet melt and the level from 1986 to 2005). The yellow box denotes the expansion of warming ocean water act over the range of years after which exceedance is likely [≥66% course of centuries. Thus, even if all greenhouse probability (12)], where the left boundary follows a gas emissions immediately ceased, our past emis- business-as-usual emissions scenario (RCP8.5, red line) sions have already “locked in” some amount of con- and the right boundary follows a low-emissions scenario (RCP2.6, blue line).
    [Show full text]
  • Asia's Wicked Environmental Problems
    ADBI Working Paper Series Asia’s Wicked Environmental Problems Stephen Howes and Paul Wyrwoll No. 348 February 2012 Asian Development Bank Institute Stephen Howes and Paul Wyrwoll are director and researcher, respectively, at the Development Policy Centre, Crawford School, Australian National University. This paper was prepared as a background paper for the Asian Development Bank (ADB)/Asian Development Bank Institute (ADBI) study Role of Key Emerging Economies—ASEAN, the People Republic of China, and India—for a Balanced, Resilient and Sustainable Asia. The views expressed in this paper are the views of the authors and do not necessarily reflect the views or policies of ADBI, the ADB, its Board of Directors, or the governments they represent. ADBI does not guarantee the accuracy of the data included in this paper and accepts no responsibility for any consequences of their use. Terminology used may not necessarily be consistent with ADB official terms. The Working Paper series is a continuation of the formerly named Discussion Paper series; the numbering of the papers continued without interruption or change. ADBI’s working papers reflect initial ideas on a topic and are posted online for discussion. ADBI encourages readers to post their comments on the main page for each working paper (given in the citation below). Some working papers may develop into other forms of publication. Suggested citation: Howes, S. and P. Wyrwoll. 2012. Asia’s Wicked Environmental Problems. ADBI Working Paper 348. Tokyo: Asian Development Bank Institute. Available: http://www.adbi.org/working- paper/2012/02/28/5009.asia.wicked.environmental.problems/ Please contact the author(s) for information about this paper.
    [Show full text]
  • Historical Overfishing and the Recent Collapse of Coastal Ecosystems
    E COLOGY T HROUGH T IME REVIEW Historical Overfishing and the Recent Collapse of Coastal Ecosystems Jeremy B. C. Jackson,1,2* Michael X. Kirby,3 Wolfgang H. Berger,1 Karen A. Bjorndal,4 Louis W. Botsford,5 Bruce J. Bourque,6 Roger H. Bradbury,7 Richard Cooke,2 Jon Erlandson,8 James A. Estes,9 Terence P. Hughes,10 Susan Kidwell,11 Carina B. Lange,1 Hunter S. Lenihan,12 John M. Pandolfi,13 Charles H. Peterson,12 Robert S. Steneck,14 Mia J. Tegner,1† Robert R. Warner15 Ecological extinction caused by overfishing precedes all other pervasive longer term cycles or shifts in oceanographic human disturbance to coastal ecosystems, including pollution, degrada- regimes and productivity (15–17). To help ad- tion of water quality, and anthropogenic climate change. Historical abun- dress this problem, we describe ecosystem dances of large consumer species were fantastically large in comparison structure predating modern ecological studies with recent observations. Paleoecological, archaeological, and historical using well-dated time series based on biological data show that time lags of decades to centuries occurred between the (18, 19), biogeochemical (20, 21), physical onset of overfishing and consequent changes in ecological communities, (22), and historical (23) proxies that are infor- because unfished species of similar trophic level assumed the ecological mative over a variety of spatial scales and bio- roles of overfished species until they too were overfished or died of geographic realms (24). Although proxies vary epidemic diseases related to overcrowding. Retrospective data not only in precision and clarity of the signals they mea- help to clarify underlying causes and rates of ecological change, but they sure, the use of multiple proxies that give the also demonstrate achievable goals for restoration and management of same ecological signal greatly increases confi- coastal ecosystems that could not even be contemplated based on the dence in results.
    [Show full text]
  • Substantial Vegetation Response to Early Jurassic Global Warming with Impacts on Oceanic Anoxia
    ARTICLES https://doi.org/10.1038/s41561-019-0349-z Substantial vegetation response to Early Jurassic global warming with impacts on oceanic anoxia Sam M. Slater 1*, Richard J. Twitchett2, Silvia Danise3 and Vivi Vajda 1 Rapid global warming and oceanic oxygen deficiency during the Early Jurassic Toarcian Oceanic Anoxic Event at around 183 Ma is associated with a major turnover of marine biota linked to volcanic activity. The impact of the event on land-based eco- systems and the processes that led to oceanic anoxia remain poorly understood. Here we present analyses of spore–pollen assemblages from Pliensbachian–Toarcian rock samples that record marked changes on land during the Toarcian Oceanic Anoxic Event. Vegetation shifted from a high-diversity mixture of conifers, seed ferns, wet-adapted ferns and lycophytes to a low-diversity assemblage dominated by cheirolepid conifers, cycads and Cerebropollenites-producers, which were able to sur- vive in warm, drought-like conditions. Despite the rapid recovery of floras after Toarcian global warming, the overall community composition remained notably different after the event. In shelf seas, eutrophication continued throughout the Toarcian event. This is reflected in the overwhelming dominance of algae, which contributed to reduced oxygen conditions and to a marked decline in dinoflagellates. The substantial initial vegetation response across the Pliensbachian/Toarcian boundary compared with the relatively minor marine response highlights that the impacts of the early stages of volcanogenic
    [Show full text]
  • Sea-Level Rise for the Coasts of California, Oregon, and Washington: Past, Present, and Future
    Sea-Level Rise for the Coasts of California, Oregon, and Washington: Past, Present, and Future As more and more states are incorporating projections of sea-level rise into coastal planning efforts, the states of California, Oregon, and Washington asked the National Research Council to project sea-level rise along their coasts for the years 2030, 2050, and 2100, taking into account the many factors that affect sea-level rise on a local scale. The projections show a sharp distinction at Cape Mendocino in northern California. South of that point, sea-level rise is expected to be very close to global projections; north of that point, sea-level rise is projected to be less than global projections because seismic strain is pushing the land upward. ny significant sea-level In compliance with a rise will pose enor- 2008 executive order, mous risks to the California state agencies have A been incorporating projec- valuable infrastructure, devel- opment, and wetlands that line tions of sea-level rise into much of the 1,600 mile shore- their coastal planning. This line of California, Oregon, and study provides the first Washington. For example, in comprehensive regional San Francisco Bay, two inter- projections of the changes in national airports, the ports of sea level expected in San Francisco and Oakland, a California, Oregon, and naval air station, freeways, Washington. housing developments, and sports stadiums have been Global Sea-Level Rise built on fill that raised the land Following a few thousand level only a few feet above the years of relative stability, highest tides. The San Francisco International Airport (center) global sea level has been Sea-level change is linked and surrounding areas will begin to flood with as rising since the late 19th or to changes in the Earth’s little as 40 cm (16 inches) of sea-level rise, a early 20th century, when climate.
    [Show full text]
  • The North American Mosaic: an Overview of Key Environmental Issues 3
    The North American Mosaic An Overview of Key Environmental Issues June 2008 Commission for Environmental Cooperation section title A This report addresses the state of the environment in the territories of the Parties to the North American Agreement on Environmental Cooperation by providing an overview of key environmental issues. It provides an objective appraisal of environmental trends and conditions to inform the Council’s deliberations on strategic planning and future cooperative activities. This publication was prepared by the Secretariat of the Commission for Environmental Cooperation. The design and implementation of this report benefited from the participation of the State of the Environment Advisory Group, which is composed of environmental reporting experts from the Parties. The views contained herein do not necessarily reflect the views of the governments of Canada, Mexico or the United States of America. In general, this report does not address the wide variety of responses to the environmental issues described herein. Likewise, an evaluation of the efficacy of these responses is beyond its scope. More information, including detailed references for the findings in this report, is available on the CEC website: <http://www.cec.org/soe>. Publication details Type: Project report Date: June 2008 Original language: English Review and Quality Assurance Procedures • Review by the Parties: February – April 2008; April – May 2008 • For more information please consult the Acknowledgements. Published by the Communications Department
    [Show full text]
  • Fact Sheet on the Kyoto Protocol
    The U.S. View FACT SHEET ON THE KYOTO PROTOCOL t a conference held December 1–11, 1997, in Kyoto, Japan, the Parties to A the UN Framework Convention on Climate Change agreed to an historic Protocol to reduce greenhouse gas emissions by harnessing the forces of the global marketplace to protect the environment. Key aspects of the Kyoto Protocol include weather, either of which could spike emissions targets, timetables for industrial- emissions in a particular year. ized nations, and market-based measures for meeting those targets. The Protocol • The first budget period will be makes a down payment on the meaning- 2008–2012. The parties rejected bud- ful participation of developing countries, get periods beginning as early as but more needs to be done in this area. 2003, as neither realistic nor achiev- Securing meaningful developing country able. Having a full decade before the participation remains a core U.S. goal. start of the binding period will allow more time for companies to make the transition to greater energy efficiency Emissions Targets and/or lower carbon technologies. A central feature of the Kyoto Protocol is a set of binding emissions targets for • The emissions targets include all six developed nations. The specific limits major greenhouse gases: carbon diox- vary from country to country, though ide, methane, nitrous oxide, and three those for the key industrial powers of the synthetic substitutes for ozone-deplet- European Union, Japan, and the United ing CFCs that are highly potent and States are similar—8 percent below 1990 long-lasting in the atmosphere. emissions levels for the European Union, 7 percent for the United States, and 6 • Activities that absorb carbon, such as percent for Japan.
    [Show full text]
  • Emissions Gap Report 2018 © 2018 United Nations Environment Programme November 2018
    Emissions Gap Report 2018 © 2018 United Nations Environment Programme November 2018 ISBN: 978-92-807-3726-4 Job number: DEW/2210/NA This publication may be reproduced in whole or in part and in any form for educational or non-profit services without special permission from the copyright holder, provided acknowledgement of the source is made. UN Environment would appreciate receiving a copy of any publication that uses this publication as a source. No use of this publication may be made for resale or any other commercial purpose whatsoever without prior permission in writing from UN Environment. Applications for such permission, with a statement of the purpose and extent of the reproduction, should be addressed to the Director, Communication Division, UN Environment, P. O. Box 30552, Nairobi 00100, Kenya. The designations employed and the presentation of the material in this publication do not imply the expression of any opinion whatsoever on the part of United Nations Environment Programme concerning the legal status of any country, territory or city or its authorities, or concerning the delimitation of its frontiers or boundaries. For general guidance on matters relating to the use of maps in publications please go to http://www.un.org/Depts/Cartographic/english/htmain.htm Disclaimers Mention of a commercial company or product in this document does not imply endorsement by UN Environment or the authors. The use of information from this document for publicity or advertising is not permitted. Trademark names and symbols are used in an editorial fashion with no intention on infringement of trademark or copyright laws.
    [Show full text]
  • Causes of Sea Level Rise
    FACT SHEET Causes of Sea OUR COASTAL COMMUNITIES AT RISK Level Rise What the Science Tells Us HIGHLIGHTS From the rocky shoreline of Maine to the busy trading port of New Orleans, from Roughly a third of the nation’s population historic Golden Gate Park in San Francisco to the golden sands of Miami Beach, lives in coastal counties. Several million our coasts are an integral part of American life. Where the sea meets land sit some of our most densely populated cities, most popular tourist destinations, bountiful of those live at elevations that could be fisheries, unique natural landscapes, strategic military bases, financial centers, and flooded by rising seas this century, scientific beaches and boardwalks where memories are created. Yet many of these iconic projections show. These cities and towns— places face a growing risk from sea level rise. home to tourist destinations, fisheries, Global sea level is rising—and at an accelerating rate—largely in response to natural landscapes, military bases, financial global warming. The global average rise has been about eight inches since the centers, and beaches and boardwalks— Industrial Revolution. However, many U.S. cities have seen much higher increases in sea level (NOAA 2012a; NOAA 2012b). Portions of the East and Gulf coasts face a growing risk from sea level rise. have faced some of the world’s fastest rates of sea level rise (NOAA 2012b). These trends have contributed to loss of life, billions of dollars in damage to coastal The choices we make today are critical property and infrastructure, massive taxpayer funding for recovery and rebuild- to protecting coastal communities.
    [Show full text]
  • Ecocide: the Missing Crime Against Peace'
    35 690 Initiative paper from Representative Van Raan: 'Ecocide: The missing crime against peace' No. 2 INITIATIVE PAPER 'The rules of our world are laws, and they can be changed. Laws can restrict, or they can enable. What matters is what they serve. Many of the laws in our world serve property - they are based on ownership. But imagine a law that has a higher moral authority… a law that puts people and planet first. Imagine a law that starts from first do no harm, that stops this dangerous game and takes us to a place of safety….' Polly Higgins, 2015 'We need to change the rules.' Greta Thunberg, 2019 Table of contents Summary 1 1. Introduction 3 2. The ineffectiveness of current legislation 7 3. The legal framework for ecocide law 14 4. Case study: West Papua 20 5. Conclusion 25 6. Financial section 26 7. Decision points 26 Appendix: The institutional history of ecocide 29 Summary Despite all our efforts, the future of our natural environments, habitats, and ecosystems does not look promising. Human activity has ensured that climate change continues to persist. Legal instruments are available to combat this unprecedented damage to the natural living environment, but these instruments have proven inadequate. With this paper, the initiator intends to set forth an innovative new legal concept. This paper is a study into the possibilities of turning this unprecedented destruction of our natural environment into a criminal offence. In this regard, we will use the term ecocide, defined as the extensive damage to or destruction of ecosystems through human activity.
    [Show full text]
  • Slow-Onset Processes and Resulting Loss and Damage
    Publication Series ADDRESSING LOSS AND DAMAGE FROM SLOW-ONSET PROCESSES Slow-onset Processes and Resulting Loss and Damage – An introduction Table of contents L 4 22 ist of a bbre Summary of Loss and damage via tio key facts and due to slow-onset ns definitions processes AR4 IPCC Fourth Assessment Report 6 22 What is loss and damage? Introduction AR5 IPCC Fifth Assessment Report COP Conference of the Parties to the 23 United Nations Framework Convention on 9 What losses and damages IMPRINT Climate Change can result from slow-onset Slow-onset ENDA Environment Development Action Energy, processes? Authors Environment and Development Programme processes and their Laura Schäfer, Pia Jorks, Emmanuel Seck, Energy key characteristics 26 Oumou Koulibaly, Aliou Diouf ESL Extreme Sea Level What losses and damages Contributors GDP Gross Domestic Product 9 can result from sea level rise? Idy Niang, Bounama Dieye, Omar Sow, Vera GMSL Global mean sea level What is a slow-onset process? Künzel, Rixa Schwarz, Erin Roberts, Roxana 31 Baldrich, Nathalie Koffi Nguessan GMSLR Global mean sea level rise 10 IOM International Organization on Migration What are key characteristics Loss and damage Editing Adam Goulston – Scize Group LLC of slow-onset processes? in Senegal due to IPCC Intergovernmental Panel on Climate Change sea level rise Layout and graphics LECZ Low-elevation coastal zone 14 Karin Roth – Wissen in Worten OCHA Office for the Coordination of Humanitarian Affairs What are other relevant January 2021 terms for the terminology on 35 RCP Representative
    [Show full text]