The International Climate Change Tribunal: A Property Rights Framework, per U.S. Law

This Note outlines an international regime to compensate landowners for property damage due to the impacts of climate change, loosely modeled on U.S. Takings Clause jurisprudence.  As no appropriate forum currently exists, this Note proposes the creation of an International Climate Change Tribunal (ICCT), a judicial organ to be established by the U.N. Security Council.  The excerpt below compares the ICCT’s competence and jurisdiction to two existing judicial bodies: the International Court of Justice (ICJ)[1] and Iran-U.S. Claims Tribunal[2].

The developed world may espouse serious concerns with the wide swath of cases that may fall under ICCT jurisdiction.  An effective limitation on the class of cases would be the Takings Clause category espoused in Lucas, namely the deprivation of economically beneficial land use.[3]  The U.S. Supreme Court included the word “complete,”[4] but a more flexible word such as “substantial” may be appropriate in the climate change context.

One reason is that the kinds of harms are largely unknown to date.  In addition, the ability of the world’s poor to modify land use is low, even if more saline soil may fertilize different crops, for example.  The ICCT should be given significant latitude to adjust this threshold based on practice, but a higher bar up front would promote compliance and establish a base of precedential case law.

In terms of who can bring claims to the ICCT, another check on “opening the floodgates” is to limit parties to states only.  This would strike a compromise between some human rights conventions, which allow individuals to bring causes of action if a state ratifies a separate declaration,[5] and ICJ practice.[6]  One difference from conventional practice, however, is that any state may bring a claim on behalf of an aggrieved individual, even if he or she is not a national.[7]

As a further limit on the class “opening up,” the ICCT could work in concert with a small commission that would refer cases to the court.[8]  This commission would assess the merits of cases before it and pass on those that: (1) have not been substantially decided previously; and (2) present issues on the merits.  This procedure would be similar in scope to a summary judgment motion in U.S. domestic law.[9]  In addition, local remedies would have to be exhausted,[10] and an individual’s grievance against his or her own state, if not advanced by another state, would remain a matter of domestic law.

It will be a significant challenge for the ICCT to obtain compulsory jurisdiction over states, based on precedent in the ICJ,[11] so states will require diplomatic and political encouragement to participate.  Political pressure also will be important to ensure that aggrieved parties receive timely compensation.  Concerns over so-called “climate change refugees”[12] should motivate regional neighbors of the plaintiff state to get involved, even if only for humanitarian reasons.  The court’s decisions should be final and binding,[13] though enforcement would be left up to members.[14]  Finally, the ICCT’s expenses would be borne by its members, namely the international community at large.[15]

Property damage claims due to the effects of climate change mark a new frontier in international environmental law.  A new judicial body like the ICCT is needed to properly adjudicate the claims of affected landowners.  Adapting common-law tort causes of action to the climate change context[16] would provide a strong basis for liability against both states and multinational corporations.  In this manner, what is now U.S. law would extend to compensate for climate change-induced property damage around the world.

– S.R. Sidarth, Associate


[1] The ICJ is the successor to the Permanent Court of International Justice, which was established in 1922 and disbanded in 1946.  See Publications of the Permanent Court of International Justice, Int’l Court of Justice, http://www.icj-cij.org/pcij/index.php?p1=9 (last visited Apr. 4, 2011).

[2] The Iran-U.S. Claims Tribunal is an issue-specific arbitral body created in the aftermath of the 444-day Iranian hostage crisis and codified by the Algiers Accords of 1981.  See Declaration of the Government of the Democratic and Popular Republic of Algeria, U.S.-Iran, Jan. 19, 1981, 81 Dep’t St. Bull., Feb. 1981, 1 [hereinafter Algiers Accords].

[3] See Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015 (1992) (holding that a government regulation crippling use of private beachfront property constitutes a compensable total regulatory taking).

[4] See id.

[5] See Rules of Procedure of the Inter-American Court of Human Rights art. 25, Nov. 28, 2009, available at http://www.corteidh.or.cr/reglamento/regla_ing.pdf (last visited Apr. 4, 2011).

[6] See Statute of the International Court of Justice art. 34(1), June 26, 1945, 59 Stat. 1055.

[7] See Rules of Procedure of the Inter-American Court of Human Rights, supra note 5, art. 36.

[8] See id. arts. 6, 35.

[9] See Fed. R. Civ. P. 56(a) (“[N]o genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”).

[10] See, e.g., International Norms and Standards Relating to Disability, United Nations, http://www.un.org/esa/socdev/enable/comp201.htm (last visited Apr. 4, 2011) (“[O]ne of the basic rules in international law.  The object of the rule is to enable the respondent State the first opportunity to correct the harm and to make redress.”).

[11] See Sean D. Murphy, Principles of International Law 136 (2006).  Of the permanent members of the U.N. Security Council, only the United Kingdom continues to accept the ICJ’s compulsory jurisdiction.  UN Security Council: Members, United Nations, http://www.un.org/sc/members.asp (last visited Apr. 4, 2011).

[12] See Alice C. Doyle, EcoChic Campaigns for Ursula & her Climate Refugees, EcoChic Magazine, http://www.ecochiccollection.co.uk/magazine/green-pages/climate-refugees-tulele-peisa-the-carteret-islands (last visited Feb. 4, 2011).

[13] See Statute of the International Court of Justice, supra note 6, arts. 1, 60; Algiers Accords, supra note 2, art. IV(1).

[14] Cf. U.N. Charter art. 94.  However, the U.N. Security Council has never enforced an ICJ decision.

[15] See, e.g., Algiers Accords, supra note 2, arts. III(4), VI(3).

[16] See, e.g., Conn. v. Am. Elec. Power Co., 582 F.3d 309 (2d. Cir. 2009), cert. granted, 131 S. Ct. 813 (2010).

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