Who is ultimately responsible for global catastrophic risk? For nuclear war, the UN Security Council is the clear owner, and the recent Paris agreement shows progress in global coordination on climate change. But in both cases, under existing structures, a considerable level of risk remains. Meanwhile, hope may come from elsewhere: where legislative powers have failed, individuals are now resorting to the courts as alternative channels to address the challenge of climate change.
One of the central dilemmas in addressing the thorny subject of global catastrophic risk is, who bears responsibility for dealing with it? In management speak, who is the issue owner? More colloquially, whose problem is it to handle?
For conventional hard security risks such as nuclear war – a top-level ‘continuing risk’ according to this year’s Global Challenges Foundation Annual Report – the answer is clear. National governments have a duty to protect their own citizens, and regional military pacts such as NATO, ANZUS, or the InterAmerican Treaty of Reciprocal Assistance (Rio Treaty), have been set up with the explicit goal to ensure security for their members. But over and above them, the United Nations Security Council is the international body vested with the authority to address issues of peace and security, and therefore the global issue owner.
The Security Council comprises fifteen Members, five permanent and ten non-permanent, elected by the UN General Assembly for 2-year terms each. The five permanent members are China, France, the Russian Federation, the United Kingdom and the United States. The ten non-permanent members, in alphabetical order, are Angola, Egypt, Japan, Malaysia, New Zealand, Senegal, Spain, Ukraine, Uruguay and Venezuela. In June 2015, Sweden was elected by the General Assembly to succeed Spain on the Security Council for a two-year term, starting on January 1, 2017. This could augur well for global catastrophic risks being placed on the Security Council’s agenda. Under revitalisation reforms introduced in 2014, newly-elected members now have six months to prepare for their terms before assuming council responsibilities.
The Security Council derives its authority from the United Nations charter and deals with threats from both UN member states and non-State actors, such as terrorist groups. Threats from the former are governed by multilateral agreements such as the Treaty on the Non-Proliferation of Nuclear Weapons and bodies such as the International Atomic Energy Agency. Threats from the latter are dealt with through a special subsidiary body established by the Security Council called the 1540 Committee.
The 1540 Committee is directly responsible for managing the threat of the use, and proliferation, of weapons of mass destruction by rogue elements and terrorist groups. It derives its legal authority by virtue of Resolution 1540 (2004) which imposes “binding obligations on all States to adopt legislation to prevent the proliferation of nuclear, chemical and biological weapons, and their means of delivery, and establish appropriate domestic controls over related materials to prevent their illicit trafficking.”
The pulverizing force of climate impact is leading some to the doors of the courts for the judiciary to rule where legislators and policy makers have been unable to affect change quickly enough.
As a creation of the Security Council, the 1540 Committee could also, in theory, resort to Security Council sanctions as an enforcement tool to compel members states to comply with these legal obligations.
Elsewhere within the UN system, the response on nuclear weapons appears more equivocal. For example, the International Court of Justice (ICJ, another Security Council creation) ruled in its 1996 Advisory Opinion on Nuclear Weapons that it “cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a state would be at stake.” Hardly encouraging if one’s very existence as a state was threatened by nuclear annihilation from a neighboring state.
This existential fear of annihilation is, of course, at the forefront of concern for many low-lying, small island states as a result of climate change and subsequent sea-level rise. Climate change is another of the ‘continuing risks’ highlighted by the Global Challenges Foundation Annual Report in 2016 and, in fact, in December 2014, the Pacific Island state of Palau announced it was seeking an advisory opinion from the ICJ on climate change damage. It would seek guidance from the Court on how the ‘no harm rule’ and the UN Law of the Sea Convention apply to climate change damage. Most recently, the Commission on Human Rights of the Philippines, a constitutional body, has been approached by public-interest groups to assess the responsibility of the world’s top 50 fossil fuel companies such as Shell, Exxon and BHP Billiton, for human rights violations as a result of loss and damage caused by climate change.
For climate change, unlike nuclear proliferation, there is no global issue owner. The only global treaty that exists to address the Global Catastrophic Risk of climate change is the United Nations Framework Convention on Climate Change (UNFCCC 1992).
Article 2 of the Convention sets out its objective as follows: “The ultimate objective of this Convention and any related legal instruments that the Conference of the Parties may adopt is to achieve, in accordance with the relevant provisions of the Convention, stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a time-frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.”
But the Convention is not legally binding on Member States in a conventionally understood way and does not constitute global climate change law as such. Its provisions, as with the recently concluded Paris Agreement, have to be translated into domestic legislation passed by national parliaments to acquire the force of law. This process has already begun and close to twenty countries (including the French parliament) have now ratified the Paris Agreement since it opened for signature on 22 April 2016. The Agreement will formally come into force once it has been ratified by national parliaments in fifty-five countries that represent at least 55% of global greenhouse gas emissions. National governments and parliaments can already enact laws and regulations that give the Agreement domestic legal effect. After ratification by the required number of signatory countries, the agreement will come into effect for all UN member countries, with enforcement subject to international laws and regulations.
One can argue, however, that the objective of the Convention has already been overtaken and undermined by events. Recent reports of record-breaking extreme weather events and phenomena such as widespread coral reef bleaching, unprecedented Artic ice melt, drought in India and wildfires in North America have added to a high-pitch of alarm at the gathering storm of climate impacts. With 2014, 2015 and now 2016 consecutively confirmed as the hottest year in the century – and the planet reaching its highest temperatures in 5000 years – it is little wonder that scientists now openly describe the situation as a climate emergency.
While the UN Security Council has debated climate security on two occasions (2007 and 2011), there are no visible attempts to formalise attention to this global catastrophic risk through a separate committee structure as with the 1540 Committee. In the meantime, the pulverizing force of climate impact is leading some to the doors of the courts for the judiciary to rule where legislators and policymakers have been unable to effect change quickly enough. For example as in the Urgenda case in the Netherlands and the Leghari case in Pakistan, where petitioners claims of climate inaction by national governments were upheld by sub-national courts. Litigation is therefore likely to rise in popularity as a measure for short-term redress, and to establish principles of transboundary responsibility of State and non-State actors such as business and industry for climate change damage.
As with the whole field of global catastrophic risk, this is a rapidly changing area and one is likely to see developments in the near to mid-future establishing clarity on who owns the issue, and what is required at the global level to more effectively manage this global catastrophic risk.
Where governments are perceived to fail, those affected by climate impacts are increasingly taking to the courts for redress. The most well-known is the Urgenda case in the Netherlands. In 2013 a Dutch NGO, the Urgenda Foundation, and 900 citizens took the government to court for failing to respond adequately to climate change. In a widely-publicised decision in June 2015, the District court in The Hague, after taking the known scientific evidence into account, ordered the Dutch government to reduce its emissions by a minimum of 25% by 2020 compared to 1990. The country is currently on a path towards 17% in 2020. The ruling sets an important legal precedent affirming the danger presented by climate change to societies, based on the scientific facts, and affirming the duty of governments to act. The Dutch government, despite parliamentary and public opposition, is presently appealing the decision.
Meanwhile, in Pakistan, an extraordinary though lesser-known ruling by the Lahore High Court took place in September 2015. In this case, an individual farmer, Asghar Leghari, acting on his own initiative, took the government of Pakistan to court for failing to enforce its own framework law on climate change. With his livelihood damaged by successive catastrophic floods, the farmer from Punjab province filed a complaint in the Lahore High Court in summer 2015. Within weeks, the sitting judge, Justice Syed Mansoor Ali Shah, had not only ruled in favour of Leghari, but also set in motion a series of remedial steps. Justice Shah concluded that “the most serious threat faced by Pakistan is that of climate change”. The court’s September 2015 ruling established a high-powered Commission supporting the government to deliver on domestic commitments on climate change, including adaptation measures to protect the livelihoods of vulnerable groups such as agricultural workers.
Malini Mehra is Chief Executive of the GLOBE International Secretariat. GLOBE International brings together prominent serving politicians and lawmakers, across party lines, to exert their authority and powers of law-making, legislative and budgetary oversight to advance practical action on sustainable development. As a civil society leader, Malini served on UN Secretary- General Kofi Annan’s Panel on UN-Civil Society Relations and co-authored two UN flagship Human Development Reports. She was the architect of the UK Governments’ pioneering Sustainable Development Dialogues with China, India, Brazil, South Africa and Mexico, and has served on the corporate boards of numerous world-leading companies.