A Cure for What Ails Us: Environmental Remedies in International Law

By Paul Johnson 

The subject of legal remedies has traditionally been considered a dry academic topic. In the context of climate change, however, getting the remedies right impacts us all, so we should be considering them with the utmost focus.

Legal remedies, the end product of successful litigation, are a crucial outcome of the legal system. Despite their importance, remedies have not received sufficient attention, particularly in climate change litigation. In this context, progressive remedies — new and stronger remedies that require concerted action on climate change — are a means of addressing the time-sensitive crisis of climate change. Early signs suggest international law has a vital role to play in the development of progressive environmental remedies. The International Justice and Human Rights (IJHR) Clinic has published the Guidebook on Remedies in International Climate Change Litigation (“Guidebook on Remedies”) to articulate effective remedy requests and support environmental litigants. It is also important for the broader public to learn more about possible remedies for environmental wrongs, as individuals and prospective litigants may not realize the remedies available.

Litigants are increasingly turning to international legal and human rights systems, including at the United Nations and regional bodies, such as European Union and Organization of American States, with hopes of achieving progressive remedies to environmental problems. There can be a beneficial interplay between domestic legal systems and the international legal system, with developments in each system catalyzing changes in the other.

Why are international legal systems increasingly interesting to climate change litigants? First, international systems are less likely to hyper-focus on separation of powers issues between the legislature, judiciary, and executive, which dominate many domestic legal proceedings, particularly in federal countries. Second, sovereignty is less of an issue. While international law must concern itself with the degree to which State sovereignty can be impinged by international law, States relinquish a degree of their sovereignty when they sign on to international agreements. Thus, it may be easier to advance innovative remedies at the international level rather than the domestic level.

International legal remedies can also mirror domestic remedies. Domestic remedies are evolving due to the exigencies of climate change. Structural injunctions, sometimes called “orders of continuing mandamus” are a notable innovation in domestic remedies. Structural injunctions are composite remedies that domestic courts use to address specific social issues. Structural injunctions combine several remedial devices, which may include orders requiring the government to change its policy, the establishment of advisory committees, and the continuing oversight of the court after the case is decided.

Metropolitan Manila Development Authority et al v Concerned Residents of Manila Bay et al (“Manila Bay”) is a case from the Philippines, which provides an example of a structural injunction remedy. There, the court compelled the port authority to clean Manila Bay. The court also created the Manila Bay Advisory Committee for ongoing progress reports on the cleanup process.

The international law equivalent of structural injunctions would be “targeted recommendations”. However, claims for such targeted recommendations have not yet been made in international law. Hopefully, such a claim will be made soon, so that climate change litigants (and the world more broadly) can benefit from this powerful remedy which is crucial for addressing the time-sensitive climate crisis. Furthermore, the use of targeted recommendations in international law might promote the importation of structural injunction-style remedies into the domestic law of states that do not yet have such a remedy, since international law has a broader normative reach than the domestic law of any one state.

In  Billy v Australia the United Nations Human Rights Committee (UNHRC) awarded novel remedies to compensate Indigenous islanders for the negative impacts of climate change on their rights under the International Covenant on Civil and Political Rights. The UNHRC asked Australia to take action to protect the existence of the Torres Strait Islanders’ communities, including by constructing sea walls. Encouragingly, this remedy could be viewed as an incremental step towards the use of targeted recommendations in international law. However, it should be noted that Billy v Australia has also been criticized for not going far enough to be effective.

The beneficial remedies in Billy v Australia demonstrate to other groups disproportionately impacted by State inaction on climate change that they may have international legal avenues where concrete remedies are offered. The twin benefits of this outcome are that more groups will receive the remedies they deserve, and more action to protect the climate will be taken around the world.

Environmental remedies in international law are a crucial part of the fight against climate change, and we must promote the application and further development of these remedies.

Student Bio

Paul Johnson is a third-year law student at the Peter A. Allard School of Law. He is a member of the IJHR Clinic’s Environment Team and hopes to promote united action on climate change.