Epidiri and Samuel Godfrey
Bayelsa State
November 2012

​​​​​​International Law Commission’s 2001 Articles on State Responsibility, Art. 42:

A state is entitled as an injured State to invoke the responsibility of another State if the obligation breached is owed to:

a)that State individually; or

b)a group of States including that State, or the international community as a whole, and the breach of the obligation:

i) Specially affects that State; or

ii) Is of such a character as radically to change the position of all the other States to which the obligation is owed with respect to the further performance of the obligation.​

Barcelona Traction Company case (Belgium v Spain) (1970) ICJ Reports 4 at 32: An essential distinction should be drawn between the obligations of a state towards the international community as a whole, and those arising vis-à-vis another state in the field of diplomatic protection. By their very nature the former are the concern of all states. In view of the importance of the rights involved, all states can be held to have a legal interest in their protection; they are obligations erga omnes.

List of countries recognising ICJ's jurisdiction as compulsory

Will Burns, ‘Potential causes of action for climate change damages in international fora: The Law of the Sea’ (2006) 2(1) International Journal of Sustainable Development Law & Policy.

​​UNCLOS Art 1(4): '"pollution of the marine environment" means the introduction by man, directly or indirectly, of substances 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, hazards to human health, hindrance to marine activities, including fishing ...' 

UNCLOS Art. 192: States have the obligation to protect and preserve the marine environment. 

UNCLOS Art 194(1): States shall take, individually or jointly as appropriate, all measures ... necessary to prevent, reduce and control pollution of the marine environment from any source ...

UNCLOS Art 211(1): States ... shall establish international rules and standards to prevent, reduce and control pollution of the marine environment from vessels ...


​​UNCLOS Art. 234: ​1. States are responsible for the fulfilment of their international obligations concerning the protection and preservation of the marine environment. They shall be liable in accordance with international law.

2. States shall ensure that recourse is available in accordance with their legal systems for prompt and adequate compensation or other relief in respect of damage caused by pollution of the marine environment by natural or juridical persons under their jurisdiction.

3. With the objective of assuring prompt and adequate compensation in respect of all damage caused by pollution of the marine environment, States shall cooperate in the implementation of existing international law and the further development of international law relating to responsibility and liability for the assessment of and compensation for damage and the settlement of related disputes, as well as, where appropriate, development of criteria and procedures for payment of adequate compensation, such as compulsory insurance or compensation funds.

16 September 2016: US wins solar case over India at WTO

Marrakesh Agreement Establishing the World Trade Organization, Preamble: Recognizing that their relations in the field of trade and economic endeavour should be conducted with a view to raising standards of living ... while allowing for the optimal use of the world’s resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means for doing so ...

GATT 1994, Article XX, 'General Exceptions'Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any Member of measures:

... (b) necessary to protect human, animal or plant life or health;

... (g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption ... 

United States - Standards for Reformulated and Conventional Gasoline, WTO, Report of the Appellate Body, WT/DS2/AB/R, 29 April 1996 p.14: The Panel Report took the view that clean air was a "natural resource" that could be "depleted." Accordingly, as already noted earlier, the Panel concluded that a policy to reduce the depletion of clean air was a policy to conserve an exhaustible natural resource within the meaning of Article XX(g) [nb this point was not contested on appeal]. 

Against this background, we turn to the specific question of whether the baseline establishment rules are appropriately regarded as "primarily aimed at" the conservation of natural resources for the purposes of Article XX(g). We consider that this question must be answered in the affirmative.

The baseline establishment rules whether individual or statutory, were designed to permit scrutiny and monitoring of the level of compliance of refiners, importers and blenders with the"non-degradation" requirements. Without baselines of some kind, such scrutiny would not be possible and the Gasoline Rule's objective of stabilizing and preventing further deterioration of the level of air pollution prevailing in 1990, would be substantially frustrated.  

​There is, of course, no textual basis for requiring identical treatment of domestic and imported products. Indeed, where there is identity of treatment - constituting real, not merely formal, equality of treatment - it is difficult to see how inconsistency with Article III:4 would have arisen in the first place. On the other hand, if no restrictions on domestically-produced like products are imposed at all, and all limitations are placed upon imported products alone, the measure cannot be accepted as primarily or even substantially designed for implementing conservationist goals. The measure would simply be naked discrimination for protecting locally-produced goods. 

p.21: We do not believe, finally, that the clause "if made effective in conjunction with restrictions on domestic production or consumption" was intended to establish an empirical "effects test" for the availability of the Article XX(g) exception. In the first place, the problem of determining causation, well-known in both domestic and international law, is always a difficult one. In the second place, in the field of conservation of exhaustible natural resources, a substantial period of time, perhaps years, may have to elapse before the effects attributable to implementation of a given measure may be observable. The legal characterization of such a measure is not reasonably made contingent upon occurrence of subsequent events. 

p. 22: The burden of demonstrating that a measure provisionally justified as being within one of the exceptions set out in the individual paragraphs of Article XX does not, in its application, constitute abuse of such exception under the chapeau, rests on the party invoking the exception. 

p. 27: We have above located two omissions on the part of the United States: to explore adequately means, including in particular cooperation with the governments of Venezuela and Brazil, of mitigating the administrative problems relied on as justification by the United States for rejecting individual baselines for foreign refiners; and to count the costs for foreign refiners that would result from the imposition of statutory baselines. In our view, these two omissions go well beyond what was necessary for the Panel to determine that a violation of Article III:4 had occurred in the first place. 

p. 29, ​It is of some importance that the Appellate Body point out what [the finding of discrimination] does not mean. It does not mean, or imply, that the ability of any WTO Member to take measures to control air pollution or, more generally, to protect the environment, is at issue. That would be to ignore the fact that
Article XX of the General Agreement contains provisions designed to permit important state interests - including the protection of human health, as well as the conservation of exhaustible natural resources - to find expression ... WTO Members have a large measure of autonomy to determine their own policies on the environment (including its relationship with trade), their environmental objectives and the environmental legislation they enact and implement. 

United States - Import Prohibition Of Certain Shrimp and Shrimp Products, Report of WTO Appellate Body, WT/DS58/AB/R 12 October 1998, para. 142: In our view, therefore, Section 609 is a measure "relating to" the conservation of an exhaustible natural resource within the meaning of Article XX(g) of the GATT 1994. 

165: In other words, shrimp caught using methods identical to those employed in the United States have been excluded from the United States market solely because they have been caught in waters of countries that have not been certified by the United States. The resulting situation is difficult to reconcile with the declared policy objective of protecting and conserving sea turtles. 

para. 166: Another aspect of the application of Section 609 that bears heavily in any appraisal of justifiable or unjustifiable discrimination is the failure of the United States to engage the appellees, as well as other Members exporting shrimp to the United States, in serious, across-the-board negotiations with the objective of concluding bilateral or multilateral agreements for the protection and conservation of sea turtles, before enforcing the import prohibition against the shrimp exports of those other Members. 

para. 185: In reaching these conclusions, we wish to underscore what we have not decided in this appeal. We have not decided that the protection and preservation of the environment is of no significance to the Members of the WTO. Clearly, it is. We have not decided that the sovereign nations that are Members of the WTO cannot adopt effective measures to protect endangered species, such as sea turtles. Clearly, they can and should. And we have not decided that sovereign states should not act together bilaterally, plurilaterally or multilaterally, either within the WTO or in other international fora, to protect endangered species or to otherwise protect the environment. Clearly, they should and do. 

Rio Declaration, Principle 13: States shall develop national law regarding liability and compensation for the victims of pollution and other environmental damage.

Environmental Group Alleges Scientific Fraud in Disputed Methane Studies

Paris Agreement, Preamble: 'Acknowledging that climate change is a common concern of humankind, Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to development, as well as gender equality, empowerment of women and intergenerational equity.' 

Understanding Human Rights and Climate Change,
Submission of the Office of the High Commissioner for Human Rights to the 21st Conference of the Parties to the United Nations Framework Convention on Climate Change 

​Philippines launches world’s first national human rights investigation into 50 big polluters

PE T I T I ON, To the Commission on Human Rights of the Philippines (updated May 2016) Requesting for Investigation of the Responsibility of the Carbon Majors for Human Rights Violations or Threats of Violations Resulting from the Impacts of Climate Change:

'Climate change interferes with the enjoyment of the Filipinos’ fundamental rights. Hence, the Petitioners demand accountability of those contributing to climate change.' 

​​Council of Europe, Manual on Human Rights and the Environment, 2012: “(...)the [European Court of Human Rights] has emphasised that the effective enjoyment of the rights which are encompassed in the Convention depends notably on a sound, quiet and healthy environment conducive to well-being. The subject-matter of the cases examined by the Court shows that a range of environmental factors may have an impact on individual convention rights, such as noise levels from airports, industrial pollution, or town planning.

As environmental concerns have become more important nationally and internationally since 1950, the case-law of the Court has increasingly reflected the idea that human rights law and environmental law are mutually reinforcing. Notably, the Court is not bound by its previous decisions, and in carrying out its task of interpreting the Convention, the Court adopts an evolutive approach. Therefore, the interpretation of the rights and freedoms is not fixed but can take account of the social context and changes in society. As a consequence, even though no explicit right to a clean and quiet environment is included in the Convention or its protocols, the case-law of the Court has shown a growing awareness of a link between the protection of the rights and freedoms of individuals and the environment. The Court has also made reference, in its case law, to other international environmental law standards and principles (...).

However, it is not primarily upon the European Court of Human Rights to determine which measures are necessary to protect the environment, but upon national authorities. The Court has recognised that national authorities are best placed to make decisions on environmental issues, which often have difficult social and technical aspects. Therefore, in reaching its judgments, the Court affords the national authorities in principle a wide discretion – in the language of the Court a wide “margin of appreciation” – in their decision-making in this sphere. This is the practical implementation of the principle of subsidiarity, which has been stressed in the Interlaken Declaration of the High Level Conference on the Future of the European Court of Human Rights. According to this principle, violations of the Convention should be prevented or remedied at the national level with the Court intervening only as a last resort. The principle is particularly important in the context of environmental matters due to their very nature.” 

Manual, Part II, Chapter 1 (Right to Life): “(a) The right to life is protected under Article 2 of the Convention: This Article does not solely concern deaths resulting directly from the actions of the agents of a State, but also lays down a positive obligation on States to take appropriate steps to safeguard the lives of those within their jurisdiction. This means that public authorities have a duty to take steps to guarantee the rights of the Convention even when they are threatened by other (private) persons or activities that are not directly connected with the State.

1. (...) in some situations Article 2 may also impose on public authorities a duty to take steps to guarantee the right to life when it is threatened by persons or activities not directly connected with the State. (...) In the context of the environment, Article 2 has been applied where certain activities endangering the environment are so dangerous that they also endanger human life.

2. It is not possible to give an exhaustive list of examples of situations in which this obligation might arise. It must be stressed however that cases in which issues under Article 2 have arisen are exceptional. So far, the Court has considered environmental issues in four cases brought under Article 2, two of which relate to dangerous activities and two which relate to natural disasters. In theory, Article 2 can apply even though loss of life has not occurred, for example in situations where potentially lethal force is used inappropriately.

( b) The Court has found that the positive obligation on States may apply in the context of dangerous activities, such as nuclear tests, the operation of chemical factories with toxic emissions or waste- collection sites, whether carried out by public authorities themselves or by private companies. In general, the extent of the obligations of public authorities depends on factors such as the harmfulness of the dangerous activities and the foreseeability of the risks to life.

( c) (...)

( d) In the first place, public authorities may be required to take measures to prevent infringements of the right to life as a result of dangerous activities or natural disasters. This entails, above all, the primary duty of a State to put in a place a legislative and administrative framework which includes: (...)” 

Manual Part II, Chapter II (right to respect for private and family life): “(a) (...)

( b) Environmental degradation does not necessarily involve a violation of Article 8 as it does not include an express right to environmental protection or nature conservation.

(c ) For an issue to arise under Article 8, the environmental factors must directly and seriously affect private and family life or the home. Thus, there are two issues which the Court must consider – whether a causual link exists between the activity and the negative impact on the individual and whether the adverse have attained a certain threshold of harm. The assessment of that minimum threshold depends on all the circumstances of the case, such as the intensity and duration of the nuisance and its physical or mental effects, as well as on the general environmental context.


15. In the Kyrtatos v. Greece case, the applicants brought a complaint under Article 8 alleging that urban development had led to the destruction of a swamp adjacent to their property, and that the area around their home had lost its scenic beauty. The Court emphasised that domestic legislation and certain other international instruments rather than the Convention are more appropriate to deal with the general protection of the environment. The purpose of the Convention is to protect individual human rights, such as the right to respect for the home, rather than the general aspirations or needs of the community taken as a whole. The Court highlighted in this case that neither Article 8 nor any of the other articles of the Convention are specifically designed to provide general protection of the environment as such. In this case, the Court found no violation of Article 8.

( d) While the objective of Article 8 is essentially that of protecting the individual against arbitrary interference by public authorities, it may also imply in some cases an obligation on public authorities to adopt positive measures designed to secure the rights enshrined in this article. This obligation does not only apply in cases where environmental harm is directly caused by State activities but also when it results from private sector activities. Public authorities must make sure that such measures are implemented so as to guarantee rights protected under Article 8. The Court has furthermore explicitly recognised that public authorities may have a duty to inform the public about environmental risks. Moreover, the Court has stated with regard to the scope of the positive obligation that it is generally irrelevant of whether a situation is assessed from the perspective of paragraph 1 of Article 8 which, inter alia, relates to the positive obligations of State authorities, or paragraph 2 asking whether a State interference was justified, as the principles applied are almost identical.


Youth v US, US District Court for the District of Oregon, Eugene Division, Case No. 6: 15-cv-01517-TC, 10 November 2016: In framing the fundamental right at issue as the right to a climate system capable of
sustaining human life, I intend to strike a balance and to provide some protection against the constitutionalization of all environmental claims. On the one hand, the phrase "capable of sustaining human life" should not be read to require a plaintiff to allege that governmental action will result in the extinction of humans as a species. On the other hand, acknowledgment of this fundamental right does not transform any minor or even moderate act that contributes to the warming of the planet into
a constitutional violation. In this opinion, this Court simply holds that where a complaint alleges governmental action is affirmatively and substantially damaging the climate system in a way that will cause human deaths, shorten human lifespans, result in widespread damage to property, threaten human food sources, and dramatically alter the planet's ecosystem, it states a claim for a due process violation. To hold otherwise would be to say that the Constitution affords no protection against a
government's knowing decision to poison the air its citizens breathe or the water its citizens drink. Plaintiffs have adequately alleged infringement of a fundamental right.

Center for Climate Crime Analysis: The CCCA is a non-profit organization of prosecutors and law enforcement professionals to trigger and support prosecutions of criminal activities that result in, or are associated with, the emission of significant amounts of greenhouse gases (climate crimes)

US v Philip Morris, 2006: U.S. Cigarette Companies Liable for Violating Federal Anti-Racketeering Statute. 

Financial Stability Board, Task-Force on Climate-related Financial Disclosures, Phase I Report, March 2016

​Biggest US coal company funded dozens of groups questioning climate change

​JP Morgan: Coal investments on par with child labour

Green Climate Fund partners condemned for fossil fuel funding

The following 'categories' of legal action are not mutually exclusive and overlap with each other in various ways. ​An action brought against a fossil fuel company, for example, might involve domestic and private international law, tort and environmental law. 

1.  Public International Law

  • duty to prevent
  • law of the sea (UNCLOS)
  • ​trade law (WTO)

​​2.  Public Law (Domestic)

3.  Private Law

4.  Environmental Law

5.  Human Rights Law

6.  Tort Law

​7.  Criminal Law

8.  Actions against governments

9.  Actions against corporates

10. Actions against investors

Exercising my "reasoned judgment," ... I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society. Just as marriage is the "foundation of the family," a stable climate system is quite literally the foundation "of society, without which there would be neither civilization nor progress."

Judge Anne Aiken, November 2016

'The reason I'm doing this is because this is an urgent situation. This is not a situation that these children can wait on. Polar bears can't wait, the people of Bangladesh can't wait. I don't have jurisdiction over their needs in this matter, but I do have jurisdiction in this court, and for that reason I'm taking this action.' 

Judge Hollis Hill, Washington, 2016

This section remains under development

“If there are companies, whether they’re utilities, whether they’re fossil fuel companies, committing fraud in an effort to maximize their short-term profits at the expense of the people we represent, we want to find out about it. We want to expose it and want to pursue them to the fullest extent of the law”
Eric Schneiderman, New York Attorney General

Types of Legal Action

This section provides an overview of:

  1. Different causes of legal action; and
  2. The different fora in which they may be brought.

​Given the diverse, cross-cutting nature of climate change impacts, a wide range of legal frameworks is potentially applicable. 

The section is not intended to be comprehensive. Rather it aims to draw attention to different types of approach, and to summarise some of the key considerations pertinent to each.

1. Public International Law

a) The 'no harm' principle (or 'duty to prevent')

The principal function of Public International Law is to regulate conduct between nation states (although it may engage other actors in various ways). From the first principle of 'sovereignty of states' it follows that states have a responsibility to respect the sovereignty of others. That, in turn, imposes on all states a duty to ensure that activities within their jurisdiction do not cause substantial harm beyond their borders. A failure to do so is a breach of international law.  

Prima facie ​anthropogenic climate change is the archetype case for an action in public international law, based on the duty to prevent harm to others. The UNFCCC specifically refers to the duty in its Preamble, confirming the principle's relevance to climate change.

Practical application of the 'duty to prevent'

Historically States have brought actions based on this duty where the threat has been minor compared to that posed by climate change (e.g. air pollution causing damage to a discrete area of farm-land). What explains the lack of legal action to date, in particular from states on the record as considering climate change 'an existential threat'? 

It is not, of course, that states are unaware of their rights (a number of climate vulnerable states made declarations asserting these rights on signing the UNFCCC). Rather the explanations for inaction appear to be as follows:

​(i) potential claimants are nervous about the repercussions of bringing an action against those on whom they depend on for finance and trade;

(ii) given that all states are, to some extent, emitters of greenhouse gases, there is uncertainty about how the principle would be applied in practice; and

​(iii) states have been hoping to address climate change comprehensively through the UNFCCC process rather than the courts.

The limits of the UNFCCC are now clear; potential claimants might spread the political risk by bringing an action jointly, or simply seeking an advisory opinion from the ICJ; and the Court would be bound to apply the principle on the basis of equity and the precautionary principle.

Who can bring a claim for breach?

In practice, enforcement of international obligations is likely to occur through a combination of international organisations, state and non-state actors. The main subjects of international law, however, are states. Generally speaking, to have standing a state must be able to show it is an 'injured state', which it can do on the basis that it is specially affected by an obligation owed to a group of states or the international community as a whole (see International Law Commission's 2001 Articles on State Responsibility, Art. 42).

Some obligations, however, are considered to be of such fundamental importance that they apply as between all members of the international community: these are described as obligations ​erga omnes. In respect of such an obligation a state (or group of states) may bring a claim on behalf of the international community as a whole - an ​actio popularis. 

The obligation to preserve a safe climate may be considered the archetype of an obligation ​erga omnes. On that basis it is open to any state or group of states to bring an action for breach of the duty to prevent (recognising that the more immediately climate vulnerable countries have the most obvious motivation to do so).

The International Court of Justice (ICJ)

The ICJ is the principal court of the UN. It has jurisdiction where:

a) state parties refer a specific dispute;

b) a dispute is referred via a compromise clause in a treaty;

c) relevant state parties have agreed to submit to its jurisdiction more generally (72 countries have done so, including India, Marshall Islands, Mauritius, UK, Canada Australia, but not US, China or Russia); or

​d) the UN General Assembly, Security Council, or specialised agency (such as the World Meteorological Organisation, International Maritime Organisation or World Health Organisation) request an advisory opinion.

Impact of an ICJ judgement

Assuming the ICJ were asked to determine the scope of Country X's duty to prevent in relation to GHG emissions, it would need to determine a general formula for doing so. Most likely this would involve equitable distribution of a carbon budget, determined on the basis of consistency with the long-term temperature goal. Consequently an ICJ judgement has the potential to deliver a generalised framework for binding, country greenhouse gas (GHGs) emissions (with far greater ease than the UNFCCC process).

See further:

Principles of Public International Law

Carbon Budgets, Equity and Attribution

b) Obligation to protect and preserve the marine environment under UNCLOS

GHGs threaten the marine environment in two ways:

  1. by warming the oceans beyond the adaptive capacity of many forms of ocean life; and
  2. in the case of CO2, by acidifying the oceans, jeopardising the ocean food chain, and the livelihoods and food security of those who depend on it.

State use of the oceans is governed principally by the UN Convention on the Law of the Sea (UNCLOS).  

UNCLOS Art. 1(4) defines 'pollution of the marine environment' in broad terms, applicable to the emission of GHGs.

States are obliged to protect and preserve the marine environment generally (Art. 192), and specifically to take all measures necessary to 'prevent, reduce and control' pollution of the marine environment.

​UNCLOS, in other words, imposes on states a clear, legal obligation to avoid damaging the marine environment through the emission of GHGs.

​Liability and compensation under UNCLOS

In contrast to UNFCCC, UNCLOS explicitly provides for liability and compensation, requiring that States ensure the availability of 'prompt and adequate compensation' in relation to damage to the marine environment caused by those within its jurisdiction (UNCLOS Art. 234).


​Dispute resolution under UNCLOS

UNCLOS Article 287 provides a choice of procedures for dispute resolution (to be determined by Party declaration):

(a)  the International Tribunal for the Law of the Sea;

(b)  the International Court of Justice;

(c)  an arbitral tribunal constituted in accordance with Annex VII;

(d)  a special arbitral tribunal constituted in accordance with Annex VIII for one or more of the categories of disputes specified therein. 

In the absence of a declaration a Party is deemed to have elected arbitration, and where two or more Parties have chosen different options, the dispute will go to arbitration, unless they otherwise agree.

Lex specialis

It might conceivably be argued that, in light of the UNFCCC framework, UNCLOS should not be applied to the emission of GHGs: ​lex specialis derogat legi generali (the specific law overrides the general).

Such an argument fails on two grounds: 

  1. Ocean acidification is outside the mandate of the UNFCCC (which makes no mention of it);
  2. In any event UNFCCC does not impose specific emission reduction commitments (which therefore remain subject to general principles of law and the requirements of other relevant treaties).

c) Trade restrictions and the WTO

This section does not describe proactive legal action (i.e. a legal action taken to challenge directly activity contributing to climate change). Rather it provides an overview of the legal framework relating to trade restrictions, imposed for the purpose of tackling climate change.

​As the WTO Appeal Hearing in United States - Standards for Reformulated and Conventional Gasoline, WTO makes clear​trade restrictions designed to promote cleaner forms of energy are, in principle, permissible under the WTO regime.

​The Preamble  to the Marrakesh Agreement Establishing the World Trade Organization begins with an acknowledgement that rules of trade should support the objective of sustainable development and should seek to 'protect and preserve the environment'.

GATT, Article XX allows WTO members to take measures 'necessary to protect human, animal or plant life or health' or 'relating to the conservation of exhaustible natural resources', as long as the measures do not constitute 'arbitrary or unjustified discrimination' or 'a disguised restriction on trade.'

As as is evident from the WTO case United States - Standards for Reformulated and Conventional Gasoline, as long as a measure is genuinely intended to prevent climate change it is likely to be covered by Article XX (g) (i.e. that it relates to the conservation of exhaustible natural resources).

The case concerned a US regulation (Regulation of Fuels and Fuel Additives - Standards for Reformulated and Conventional Gasoline), enacted by the US Environmental Protection Agency, pursuant to the Clean Air Act 1990, to control toxic and other pollution caused by the combustion of gasoline manufactured in or imported into the United States. In respect of both reformulated gasoline and conventional gasoline, 1990 baselines are an integral element of the regulation's enforcement process. Brazil and Venezuela argued that the rule contravened the WTO free trade regime. 

The first instance WTO Panel concluded that clean air was a 'natural resource' that could be depleted; and therefore that a policy to reduce the depletion of clean air would be covered by Article XX(g). 

​In practice the more difficult issue for the Country applying the policy may be demonstrating that it does not cause 'unjustifiable discrimination' between countries. In this case the US did not make available to foreign refiners the same provision allowed to domestic refiners to determine an individual baseline for 1990, arguing that this was impractical. The WTO Appellate Body disagreed on this point, and consequently found a violation of Article III(4). However the Body went out of its way (on page 29 of the judgement) to emphasise that this finding:

does not mean, or imply, that the ability of any WTO Member to take measures to control air pollution or, more generally, to protect the environment, is at issue.

The Appellate Body adopted a similar approach in the 'Shrimp / Turtle' case of 1998. There, again, it held that a US requirement that imported shrimps be harvested using a specific device to prevent turtle by-catch:

  1. was covered by the exemption of Article XX(g); 
  2. but had been applied in a way that was discriminatory.

In particular the Body focussed on the failure of the US to engage in negotiations with exporters regarding the requirement, and  to consider alternatives that might serve an equivalent purpose.

​The broad principles emerging from these cases seem reasonably clear:

1) WTO Members may introduce rules restricting imports where the purpose of the rules is to prevent climate change;

2) The rules must be applied in a way that is fair between countries, and not overly prescriptive where different approaches might reasonably be considered to serve the same purpose;

3) It may be appropriate to enter into negotiations with affected Parties regarding the rules and their potential impacts on exporters.


2. Public Law (Domestic)

3. Private Law


In private law, actions which cause damage to the person or property of another will generally constitute a tort or 'delict', giving the injured party the right to sue the perpetrator. 

Private international law concerns the application of private law to cross-border cases.

On this basis individuals or communities suffering climate change loss and damage should have multiple claims against the major polluters, covering not just the costs of climate change damage incurred, but also the costs of adaptation. If successful, such actions would:

1. ensure victims of climate change are appropriately compensated; and

2. provide accountability and responsibility for climate change loss and damage, harnessing investment towards clean technologies.

Potential claimants have been deterred from bringing claims by the perceived complexities of issues such as causation and attribution.

This section will provide an overview of:

  • how claims in private law might work in practice; and
  • what countries can do, in terms of domestic legislation, to ensure their citizens are supported in bringing claims in private law.


Choice of law

Cause of action






Class actions


5. Human Rights Law

7. Criminal Law

​9. Actions against corporates


10. Actions against investors

​'The prudence standard of the Act can easily support a decision not to continue to hold or invest in fossil fuel companies. The risks and rewards now offered by such securities are asymmetric, in the sense that the foreseeable rewards are not likely to be equal to the foreseeable risks. The risk that, at some unknown and unknowable, yet highly likely, point in the future, markets will begin to adjust the equity price of fossil fuel company securities downward to reflect the swiftly changing future prospects of those companies, is as serious as it is immense. Moreover, the possibility of that adjustment being a swift one is also a serious risk. A decision to linger in an investment with such an overhanging risk, and expect to time one’s exit before the danger is recognized in the market, is a strategy hard to fit within the concept of prudence.

Whether the duties of care, skill and caution today compel a decision not to hold or invest in fossil fuel companies can ultimately only be answered by a court, which always looks back in time, and therefore can be subject to the force of hindsight.

At some point down the road towards the red light of 2 degrees C, however, it is entirely plausible, even predictable, that continuing to hold equities in fossil fuel companies will be ruled negligence.' Bevis Longstreth, 2016