Prospects for invoking the law of self-determination in international climate litigation

Abstract

The question of the substantive law that international courts and tribunals can apply in adjudicating climate change cases has been widely debated. This article focuses on the potential of self-determination, a cornerstone of international law, to shed light on the duties held by States in the face of climate change. The applicability of the law of self-determination is broad, not limited to the classic decolonization setting. Focusing on the situation of low-lying island States that face the prospect of large-scale loss of their entire territory, or its effective use, the article constructs an argument by analogy regarding the content of the right to self-determination. Low-lying States have the right to free determination of political status in the face of inundation, although this is limited by the territorial integrity of other States. Correlative obligations may be attributed to all States erga omnes, to current administering powers and potentially to high-emitting States.