Imagine for a moment that you’re a citizen of Tuvalu, an island nation in the South Pacific. Your home will soon disappear beneath the waves, an early casualty of rising sea levels linked to global warming. The people largely responsible for your plight — the oil-burning, carbon-dioxide-spewing citizens of the United States — are thousands of miles away and show no signs of lending a hand. What do you do? A growing number of environmental advocates, alarmed by the Bush administration’s repudiation of the Kyoto Protocol, have this advice: take ’em to court.
The idea of filing lawsuits to recover damages from emissions of carbon dioxide is the brainchild of Andrew Strauss, a professor of law at Widener University in Wilmington, Del. In a controversial paper delivered this summer at a conference in London, Strauss explored the ”litigation possibilities” for filing suit against the United States. Though Strauss is the first to admit that there are serious obstacles to bringing such a case, the mounting evidence that global warming is a real and present danger has lent momentum to his idea.
There are plenty of candidates for the role of plaintiff: countries as diverse as Bangladesh, the Netherlands and China will suffer if sea levels rise. But as Strauss notes, finding aggrieved parties won’t be a problem; what will be difficult is finding a court willing to take the case. After all, it’s not clear what court would have jurisdiction over such a novel proceeding. International law is famously complex and has never handled anything on this economic scale.
Nevertheless, Strauss has a few proposals. One promising avenue, he thinks, would be for the plaintiff nations to file a case before the International Court of Justice, the legal arm of the United Nations. There’s only one hitch: typically, the court can hear the case only with the assent of the accused nation. More promising, perhaps, is for the General Assembly to ask the U.N. court for an ”advisory opinion,” a decision that is not legally binding but would give environmentalists a public-relations victory. The battle over global warming, Strauss explains, ”is a battle in the court of public opinion, so such a decision would strengthen your negotiating position.”
Another option is to force the United States before the World Trade Organization. Countries that abide by the Kyoto Protocol could argue, with some legitimacy, that the cheap-energy policies of the United States constitute an unfair competitive advantage. Affected countries could then impose so-called countervailing duties on goods made here. The U.S. would then have to go before the W.T.O. to try and have the duties removed, forcing a potentially embarrassing hearing that might not work out in its favor.
Strauss doesn’t expect immediate success. ”There will be different generations of this litigation as it unfolds,” he says. But as the world becomes increasingly entwined with international legal tribunals, courts and binding treaties, it may one day become difficult for one country to wreak environmental havoc on the rest without paying a price. Should that come to pass, no country — not even America — will be able to live as an island unto itself. Stephen Mihm