05 Jan Inter-State Climate Change Litigation and the Monetary Gold Principle
[Jefferi Hamzah Sendut holds a law degree from St John’s College, University of Cambridge, and an LLM (Public International Law) (Distinction) from the London School of Economics and Political Science].
For prospective claimant States, litigating to prompt the adoption of more robust climate change mitigation measures by major greenhouse gas emitting States comes with a host of legal and diplomatic hurdles. This post addresses one potential hurdle to the admissibility of an inter-State climate change case before the International Court of Justice (ICJ), the Monetary Gold principle. It argues that this hurdle can be surmounted. While the point has been made previously (see J. Chris Larson, p. 505, Margaretha Wewerinke-Singh, p. 163), this post adds to existing discussion by considering the issue in light of recent scholarly work on the Monetary Gold principlegenerally, and on situations of shared State responsibility.
The Monetary Gold principle dictates that the ICJ will deem a case between two disputant States inadmissible if the legal interests of an absent third State would form ‘the very subject-matter’ of a merits decision (p. 32). Commentators have previously suggested, albeit without expressing a definitive view, that the Monetary Gold principle could render a climate change case before the ICJ inadmissible. For example, Benoit Mayer highlights how ‘climate change results from the concurrent conduct of multiple States whose consequences affect all States’ (p. 240) as indicative of the Monetary Gold principle’s potential applicability (see also Tom Sparks, Nataša Nedeski, and Gleider Hernández).
The Monetary Gold principle and a climate change case based on the no-harm rule
Assessing the Monetary Gold principle’s applicability requires one to specify the basis upon which a climate change case would be mounted. Any climate change case would require a claimant State to identify an attributable breach of a primary legal obligation by a respondent State. The type of attributed conduct would likely take the form of an omission to pursue adequate climate change mitigation measures. With regards to the primary obligation of which breach is alleged, the customary international law ‘no-harm’ rule is often suggested as a candidate. A claimant State would argue that breach was established through the respondent State’s failure to meet a due diligence standard in reducing net greenhouse gas emissions (see eg. Christina Voigt, p. 7-9).
A case of this kind would require the ICJ to deal with a situation involving injury to the claimant State from deleterious climate change impacts (‘climate change injury’). An argument in favour of the Monetary Gold principle’s applicability could be put forward considering three features of climate change injury. The injury would be: (i) connected to multiple States’ breach of the same primary obligation (ie. the no-harm rule), (ii) the cumulative result of the independent conduct of greenhouse gas emitting States, and (iii) indivisible, since no one act ‘qualifies as [its] single necessary and sufficient cause’ (see Commentary to the Guiding Principles on Shared Responsibility in International Law, (‘GPSR Commentary’) p. 26, 28). This post’s focus on the characteristics of a case’s factual matrix takes its lead from the approach of Martins Paparinskis (p. 308-312 (2013) and p. 81-82 (2020)) and André Nollkaemper (p. 17-22) to the Monetary Gold principle’s scope.
In an attempt to frame a climate change case as inadmissible under the Monetary Gold principle, the respondent State would point to substantially similar conduct by absent third States also bound by the no-harm rule. The respondent State would argue that third States’ responsibility constituted ‘the very subject-matter’ of the case, because determining the respondent State’s breach would by extension determine breaches by third States of the same primary obligation through the same type of conduct, cumulatively resulting in the same indivisible injury.
Corfu Channel: independent breach of different primary obligations cumulatively leading to indivisible harm
The pre-Monetary Gold Corfu Channel case is a useful starting point. The UK’s successful claim in Corfu Channel concerned the destruction of its naval ships after Albania failed to warn them of mines in Albanian territorial waters laid by a third State. Corfu Channel can hence be seen as an instance where the ICJ adjudicated a case involving an injury which was the cumulative result of multiple (two) States’ independent conduct, and which was also indivisible (Commentary to the Draft articles on Responsibility of States for Internationally Wrongful Acts, p. 93, GPSR Commentary, p. 26, cf. André Nollkaemper p. 29).
The main distinction between Corfu Channel and the hypothetical climate change case this post considers is that in Corfu Channel, Albania and the third State were not in breach of the same primary obligation. Albania was held to be in breach of the ‘obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States’ (p. 22). This necessarily implies that the third State’s minelaying was unlawful, but not on the same basis as Albania’s conduct.
Nauru: breach of the same primary obligation leading to indivisible harm
The question is then whether the Monetary Gold principle, while apparently inapplicable in a Corfu Channel situation, could apply to a climate change case because an indivisible injury is being independently and cumulatively caused by breaches of the same primary obligation. The ICJ’s Nauru judgment would suggest not. There, the ICJ rejected the Australian argument that Nauru’s case contending violations of a trusteeship agreement was inadmissible. It was no obstacle that determining Australia’s responsibility would simultaneously determine the responsibility of two other States which jointly administered the trusteeship with Australia (p. 261). This indicates that a claim involving allegations of an indivisible injury ‘may be heard even if the primary rules in question bind absent states’ (Martins Paparinskis, p. 311).
The Monetary Gold principle in cases of independent conduct and cumulative contribution
Two distinctions of note exist between Nauru and a climate change case based on the no-harm rule. A respondent State might highlight how Nauru concerned (i) the responsibility of States acting jointly rather than independently, and (ii) a situation where a single contribution ‘attributable to multiple international persons [would have been] sufficient to cause the [alleged] injury on its own’, without cumulative effect (GPSR Commentary, p. 25).
On the first distinction, there seems to be no reason why the Monetary Gold principle should apply in a case concerning joint wrongdoing like Nauru, but not in a climate change case involving independent wrongdoing. Whether one considers the Monetary Gold principle’s rationale to be one linked with consent to adjudication or the integrity of the judicial process (see Ori Pomson, p. 109-111), it would seem possible to state that the more unrelated the conduct of a respondent State and third State, the less likely the Monetary Gold principle applies. If a case involving an indivisible injury resulting from joint wrongdoing does not warrant the Monetary Gold principle’s application, it is difficult to see why a case involving an indivisible injury from more unrelated independent wrongdoing should (see Oil Platforms, Separate Opinion of Judge Simma, p. 361).
Regarding the second distinction, the nature of climate change injury as the product of cumulative, rather than individual, contribution raises questions about compensation beyond the scope of this post. As far as the Monetary Gold principle’s applicability in a climate change case is concerned, the chief issue raised by cumulative contribution relates to establishing a breach of the no-harm rule.
A claimant State would need to establish some pertinent causal nexus between injury suffered and inadequacies in the climate change mitigation measures of the respondent State (Benoit Mayer, p. 85). The respondent State could attempt to argue that determining the existence of this causal nexus, and thus its responsibility for breach of the no-harm rule, would necessarily involve the determination of the responsibility of third States with similar net greenhouse gas emissions.
At this juncture, the approach of those such as Dapo Akande (p. 635) and Alexander Orakhelashvili (p. 384, 392) to the Monetary Gold principle becomes especially helpful. As they have emphasised, tracing ICJ jurisprudence following Monetary Gold shows that the ICJ only regards a third State’s responsibility as the ‘very subject-matter’ of a case if its determination is a ‘logical’ precondition to a merits decision regarding the respondent State. This is especially evident from the Nauru judgment’s text (p. 261).
For the ICJ to determine a respondent State’s breach of the no-harm rule may well have a bearing upon third State legal interests, such that they have a right of intervention. But in making that determination, the ICJ is free to remain silent on the precise question of third State responsibility (see also J. Chris Larson, p. 505, Margaretha Wewerinke-Singh, p. 163), unlike in Monetary Gold itself and later in East Timor(paras. 33-34).
This post has evaluated the applicability of the Monetary Gold principle to an ICJ climate change case asserting a respondent State’s breach of the no-harm rule. Doing so in light of current perspectives on Monetary Gold and shared responsibility allows one to disaggregate the issues involved to conduct detailed analysis. While the hurdles to a successful inter-State climate change case remain formidable, the Monetary Gold principle is unlikely to constitute one of them.
Such a finding is likely to be of significance to small island States, not only because of their particular vulnerability to climate change impacts, but also because of the experience of the Marshall Islands cases (Marshall Islands v India, Marshall Islands v Pakistan, Marshall Islands v UK). There, a small island State instituted proceedings against nuclear weapons States in an effort to compel disarmament negotiations.
The Marshall Islands cases were dismissed by the ICJ on the basis that the claimant State had not established the existence of a dispute. The ICJ’s approach in Marshall Islands defeated an attempt by a small island State to litigate a matter implicating ‘communitarian interests’ through the formalistic application of a legal threshold (Federica Paddeu, p. 2-3). Small island States seeking to litigate the communitarian issue of climate change would be eager to avoid a repeat of the Marshall Islands result via the Monetary Gold principle.
This is especially since Monetary Gold arguments were raised by the Marshall Islands respondent States as alternative preliminary objections (Preliminary Objections of the UK, para. 84, Counter-Memorial of India, para. 33-34, Counter-Memorial of Pakistan, para. 8.85), though the ICJ did not pronounce on them (cf. Dissenting Opinion of Judge Crawford, para. 30). Arguing against the Monetary Gold principle’s applicability in a climate change case helps to keep recourse to the ICJ on the radar as a viable policy option.