Authored By: Vanshita Kumari
Lloyd Law college
Abstract
In a world where smoke knows no borders and rising seas obey no flags, justice remains trapped behind walls. As climate change intensifies, it consequences spare no boarder but justice? It does. Across the globe those who caused least damage suffer, while the richest adapt and the poor endure. This is not law of the nature; this is climate apartheid.
While wildfire smoke drifts across borders , justice still remains trapped and suffocated in outdated legal doctrines. International principles like the ‘no-home rule’ exists more in textbooks than in courtroom, offering little to those who suffers most. Despite decades of warnings from past environmental disasters, the legal system remains deaf to their consequences.
This article through cases like Bhopal Gas tragedy, Trail Smelter Arbitration, and Pacific Island displacement, exposes how those least responsible are left most vulnerable. While justice ends at border, injustice arises globally. This paper calls for radical rethinking of environmental law: centring enforced accountability and bridging the gap between legal norms and lived experiences. Climate change is, above all, a justice crisis.
Keywords: Bhopal Gas Tragedy, Climate Apartheid, Climate Change, Enforced Accountability, Environmental Law, Justice Crisis, Legal Norms, No-Harm Principle, Pacific Island Displacement, State Responsibility, Trail Smelter Arbitration, Vulnerable Communities
Introduction
“We are facing a climate apartheid scenario where the wealthy pay to escape overheating, hunger, and conflict while the rest of the world is left to suffer.” – Philip Alston, former UN Special Rapporteur on Extreme Poverty and Human Rights Climate change is not the great equalizer but the great divider. It is anything but fair. Though its reach is global, its weight is carried on one shoulder. As the planet burns, floods, and gasps for breath, the harshest blows fall on those who did the least to cause it: the poor, the displaced, the unheard. This isn’t just environmental collapse, it’s climate apartheid, where inequality deepens as the world heats.
And yet, the law remains tongue-tied. International frameworks claim to protect the environment and its people, but when it comes to real accountability, they shrink. Principles like the ‘no-harm rule’ or the right to a healthy environment sound noble, but in practice, they rarely move beyond paper. The ones who suffer most are often left without protection, without justice and often, without shelter.
This article lays bare that failure. Through the lens of environmental harm that crosses borders and disproportionately affects the Global South, it argues that the law, in its current form, protects the powerful and disavows the vulnerable. Case studies like the Bhopal Gas Tragedy, the Trail Smelter Arbitration, and the slow drowning of Pacific Island nations show just how deep the gaps run.
What we need is more than legal reform, we need a legal reckoning. A shift from passive principles to active justice. One that centres fairness, enforces responsibility, and responds to the urgency of our time. Until then, international law will remain part of the problem, not the solution.
The Illusion of Protection: The No-Harm Principle and Its Limits
At the foundation of international environmental law lies the no-harm principle; a doctrine that sounds deceptively fair. It holds that states must ensure activities within their jurisdiction do not cause environmental damage to other states or to areas beyond national control. Enshrined in instruments like the Stockholm Declaration (1972) and reaffirmed in the Rio Declaration (1992), this principle has been hailed as a cornerstone of environmental cooperation.
However , in the face of climate crisis, the no-harm principle has been proven more symbolic than effective. Despite its global recognition, it suffers from a fatal weakness: a lack of enforceability. No binding mechanism exists to hold a state legally accountable for emitting greenhouse gases that lead to floods in Bangladesh or droughts in Kenya. The principle exists in theory, but crumbles in practice, especially when the polluters are powerful and the victims are poor.
This failure is not accidental; it is structural. The principle is anchored in state sovereignty, permitting countries to act unilaterally within their borders—even when their actions harm others. This principle is anchored in state sovereignty, which allows countries to act almost unilaterally within their borders, even when those actions harm others. In reality, it provides political cover for wealthy nations to pollute freely, while affected communities in the Global South are left to absorb the damage with no legal recourse.
The Trail Smelter Arbitration (1938) between the United States and Canada is often cited as the origin point of the no-harm rule. Yet this case dealt with localized industrial pollution: not the slow, borderless violence of climate change. To apply such a doctrine to today’s global emergency is like using an umbrella to stop a flood.
What the no-harm principle reveals is the illusion of environmental protection under international law. It offers the appearance of responsibility without enforcement, especially when justice crosses borders and challenges the geopolitical status quo. In this way, the no-harm principle not only fails to deliver justice, it becomes a shield behind which injustice hides and thrives.
State Responsibility and the Limits of Accountability
In theory, state responsibility is meant to keep nations in check, to hold them liable when their actions cause harm beyond their borders. It’s painted as the backbone of international justice. But in the context of climate change, it’s more of a myth than a mechanism. Like a law written in sand, it disappears the moment real accountability is needed.
Yes, there are frameworks. The Draft Articles on State Responsibility (2001) lay out what states should do when they commit internationally wrongful acts. But what happens when the harm is dispersed, slow-moving, and decades in the making? What happens when the victim isn’t a powerful state, but a sinking island or a silenced village? The answer: almost nothing.
Because here’s the truth no legal textbook will admit; climate harm doesn’t fit the neat categories of legal doctrine. Greenhouse gases don’t carry flags. They drift, accumulate, and devastate in ways that no single courtroom is built to address. The law demands proof: of injury, of attribution, of intent. But how do you “prove” that a superpower’s historical emissions caused this flood, this drought, this famine? How do you hold an entire global order accountable? And even when responsibility is undeniable, who really pays? Certainly not the biggest polluters. The ones who suffer; the displaced, the poor, the forgotten aren’t even at the table. They have no standing, no voice, no seat in the tribunal of international law. The very people who need protection the most are shut out by design.
So we’re left with a doctrine that promises justice, but only delivers it when it’s convenient for power. State responsibility, in its current form, doesn’t bridge the gap between cause and consequence, it hides it. It speaks of fairness, but safeguards impunity. Until it’s radically reimagined, it will continue to serve as a legal fiction, useful for reports and rhetoric, but useless for the world’s most vulnerable.
CASE STUDIES
Bhopal Gas Tragedy
If there is one disaster that exposes the emptiness of corporate accountability and the paralysis of international law, it is Bhopal. In 1984, toxic gas leaked from a Union Carbide plant in the heart of Bhopal, Madhya Pradesh. Thousands died within days. Over half a million were exposed. And decades later, the air still carries the scent of betrayal.
This was not just an industrial accident: it was a crime. But who stood trial? Who paid? Who answered for the bodies that fell asleep and never woke up? Union Carbide, the American corporation responsible, fled into the arms of sovereignty and legal loopholes. The Indian state, overwhelmed and underpowered, settled for compensation that insulted the scale of suffering, just $470 million, far less than what American victims of similar disasters received. Dow Chemicals, which later acquired Union Carbide, has refused to submit to Indian courts. International law? Silent. Useless. Watching from the sidelines.
The Bhopal gas tragedy is not just a reminder of corporate negligence, it’s a legal autopsy. It shows us what happens when multinational power collides with national weakness, and international frameworks step back instead of stepping in. There was no international tribunal. No binding mechanism. No global law to hold a foreign company accountable on Indian soil. Just a trail of suffering, sealed in court files and forgotten by justice.
And the worst part? Bhopal was not the last. It was the blueprint. It proved that if you’re powerful enough, profitable enough, or foreign enough, you can harm, you can run, and law will not follow.
In a world grappling with climate collapse and environmental injustice, Bhopal stands as a warning carved in ash: when law doesn’t protect the powerless, it protects the powerful.
The Trail Smelter Arbitration
The Trail Smelter Arbitration of the 1930s is often paraded in legal textbooks as the moment international law finally acknowledged cross-border environmental harm. It involved sulphur dioxide emissions drifting from a Canadian smelter into the United States, damaging crops and forests in Washington state. The outcome? Canada was held liable and made to pay damages.
It was historic, but let’s not romanticize it. The Trail Smelter ruling was a whisper in a storm, not a roar. It addressed a localized dispute between two powerful countries over measurable, visible harm. There were no displaced communities, no global injustice, no rising seas or climate refugees. Just trees. Just property.
And yet, decades later, we’re still told this tiny case is the cornerstone of environmental responsibility.
But can a case built on smoke and trees bear the weight of floods, famines, and fire? Can it carry the cries of sinking islands or the silence of vanished villages? Trail Smelter may have laid the bricks of the no-harm principle, but it wasn’t built for the world we live in now. It wasn’t built for slow violence or systemic inequality. It wasn’t built for climate apartheid.
What it shows is this: international law can act, when it wants to. When the victims are white farmers, when the states are Western, and when the harm is easy to quantify. But when the damage is complex, when the victims are voiceless, when the justice needed threatens global systems of power, the law hesitates. It forgets how to move.
So yes, Trail Smelter made history. But it also set a precedent for what kind of harm is seen, and what kind of people are heard. And in the climate crisis, that precedent is not just outdated, it’s dangerous.
Pacific Island Displacement
In the heart of the Pacific, entire nations are disappearing not metaphorically, but literally. Rising sea levels are swallowing shorelines, salting farmlands, and forcing thousands to flee homes that have existed for generations. Tuvalu, Kiribati, the Marshall Islands, these aren’t just places on a map. They are living testaments to the failure of the world’s most powerful institutions to protect the most vulnerable.
These island nations have contributed almost nothing to the crisis that is erasing their existence. Their carbon footprint is microscopic. And yet, they are forced to pay the price, not just in land, but in culture, language, identity, and sovereignty. What international law offers in return is silence. A silence that speaks volumes.
When leaders from these nations plead before the UN, they are heard, but not listened to. When they ask for accountability, they are given sympathy, not action. There is no global mechanism to hold polluting states responsible for existential harm. Not under the no-harm principle. Not under state responsibility. Not even under human rights law, because the right to not have your nation erased isn’t written down anywhere.
If Bhopal was a tragedy ignored, and Trail Smelter a precedent too narrow, then the Pacific is something worse: a slow-motion apocalypse, sanctioned by inaction.
Toward a Legal Reckoning
It is no longer enough to tinker around the edges of environmental law. The crisis is not just scientific it is structural, legal, and deeply moral. What we need is not reform, but reckoning.
International law must stop pretending it is neutral. It is not. The current system protects those who profit, not those who perish. It draws its boundaries around sovereignty, not survival. It speaks in declarations while entire communities are silenced by rising seas and poisoned air.
So what does a legal reckoning look like? First, accountability must become enforceable. The no-harm principle cannot remain a classroom theory. We need binding legal obligations that hold states and corporations liable, not just in name, but in courts. Climate lawsuits must no longer be dismissed as political, they are demands for survival, and the law must hear them.
Second, climate justice must become part of human rights. The right to a clean and healthy environment must mean more than access to green parks, it must mean protection from extinction, displacement, and slow violence. Climate refugees must be recognized. Communities facing erasure must be given legal standing. Justice cannot be limited to borders when destruction isn’t.
Third, the voices of the Global South must lead. Those who have suffered the most cannot be expected to wait while others debate. Climate finance must be fair, accessible, and reparative, not charity, but restitution. Not assistance, but acknowledgment.
This is not about creating new principles. It’s about finally acting on the ones we already claim to believe in; equity, dignity, responsibility. The law has served power long enough. Now, it must serve people.
Until international law aligns itself with the urgency of climate justice, it will continue to be part of the problem. And we cannot afford that, not anymore. Because what the climate divides, only justice can reconnect.
Conclusion
Climate change is not just an environmental crisis, it is a legal and moral breakdown. It exposes the cracks in a system that was never built to protect the vulnerable. International law, despite its lofty language, has remained passive in the face of planetary emergency. Principles like no-harm and state responsibility exist, but only in theory. Justice, when trapped by borders and shackled by sovereignty, becomes complicit in injustice.
What we’re witnessing is not the failure of law; it is the success of a legal system designed to favour the powerful and forget the powerless. Bhopal. Trail Smelter. The Pacific Islands. These are not isolated tragedies. They are connected chapters of a story the law refuses to rewrite.
If law is to have any relevance in this century, it must be reimagined, not as a shield for states, but as a lifeline for people. The time for declarations has passed. This is the era of decisions. Climate change is already rewriting the rules of our world. It’s time the law caught up. Because until justice crosses borders, there will be no justice at all; only survival.
Reference(S):
- Draft Articles on Responsibility of States for Internationally Wrongful Acts, Int’l Law Comm’n, U.N. Doc. A/56/10, at 43 (2001),https://legal.un.org/ilc/texts/instruments/english/draft_articles/9_6_2001.pdf.
- U.N. Conference on the Human Environment, Stockholm Declaration, U.N. Doc. A/CONF.48/14/Rev.1 (June 16, 1972).
- U.N. Conference on Environment and Development, Rio Declaration on Environment and Development, U.N. Doc. A/CONF.151/26/Rev.1 (Vol. I), annex I (Aug. 12, 1992).
- Trail Smelter Arbitration (U.S. v. Can.), 3 R.I.A.A. 1905 (Trail Smelter Arb. Trib. 1941).
- Philip Alston (Special Rapporteur on Extreme Poverty and Human Rights), Report on Climate Change and Poverty, U.N. Doc. A/HRC/41/39 (June 25, 2019), https://undocs.org/en/A/HRC/41/39.
- Amnesty Int’l, Bhopal Disaster – 30 Years of Injustice (2014), https://www.amnesty.org/en/latest/news/2014/12/bhopal-disaster-years-injustice/.
- Human Rights Council, The Human Right to a Clean, Healthy and Sustainable Environment, Res. 48/13, U.N. Doc. A/HRC/RES/48/13 (Oct. 18, 2021).
- U.N. High Comm’r for Refugees (UNHCR), Legal Considerations Regarding Claims for International Protection Made in the Context of the Adverse Effects of Climate Change and Disasters (Oct. 1, 2020) https://www.refworld.org/docid/5f75f2734.html
