Climate Change Litigation: Global Perspectives, by Ivano ALOGNA

The title refers both to our presentation during the last BACL Annual Seminar and our newly published edited volume (I. Alogna, C. Bakker and J.-P. Gauci (eds), Climate Change Litigation: Global Perspectives, Brill, 2021). This research builds on an event (see its report) held at the British Institute of International and Comparative Law (BIICL) in London on 16 January 2020, where an illustrious group of practitioners, academics, NGO representatives, domestic and international law experts were brought together to discuss what is currently one of the most discussed and appealing topic of our time. In the months that followed we worked together with this very heterogenous group of experts, many of whom are also directly involved in climate change lawsuits, and we solicited additional contributions, with a view to providing an overview of the global phenomenon of climate change litigation. The book, as the event before that, is organised in two parts reflecting the two complementary souls of BIICL and offering both comparative and international perspectives on climate litigation, highlighting both opportunities and constraints, related to each different legal system taken into consideration and to the regional and international fora where this kind of cases have been or are potentially going to be brought. But let’s make a step back to understand what we are talking about.

Climate Change Litigation: What Is That?

Climate change litigation is a relatively new phenomenon having emerged during the last two decades in response to the failure by national and international policymakers to achieve the goals enshrined in the international climate change regime (broadly speaking, the UN Framework Convention on Climate Change, the Kyoto Protocol and the Paris Agreement). In fact, as often highlighted by the literature, climate change is considered an always more evident ‘super-wicked problem’: time is running out, there is no central authority to tackle it, and those seeking to end the problem are also those causing it. Notwithstanding the elaborate international climate regime, States’ climate measures are lagging behind compared to the rapid devolpment of climate change and its impacts. This failure and delay in action has required other actors (beyond national governments and parliaments) to react in order to tackle climate change. Therefore, a complex mix of actors, including NGOs and citizens, but also shareholders, investors, cities and states, have decided to react to challenge local authorities and national governments’ actions or inactions. This has created a global momentum whereby courts and tribunals are recognised as fundamental actors for exerting pressure on the other two branches of the government to act on climate change issues – at the same time, climate change-related cases have also been filed against private actors, such as the ‘Carbon Majors’, which are major greenhouse gas emitters, mostly fossil fuel and cement companies. Although this momentum has been contrasted by national constraints and well-established doctrines, such as the ‘separation of powers’ (which is at the core of a international virtual summit convened by BIICL on 7th-8th July 2021 – Our Future in the Balance: the Role of Courts and Tribunals in Meeting the Climate Crisis), it has produced an unmistakable  impact on policymakers and companies through several landmark decisions all around the world – suffice to cite globally (and already) iconic cases such as Massachusetts vs. EPA, Urgenda Foundation vs. the State of the Netherlands, Leghari vs. Federation of Pakistan, Notre Affaire à Tous and Others v. France, or the most recent Milieudefensie et al et al vs. Royal Dutch Shell.

Why Are ‘Global Perspectives’ Needed?

As we highlight in our volume, in order to provide a comprehensive understanding of this complex phenomenon, it is critical to adopt an epistemological approach which is global in its dimensions and capable to apprehend the complexity of the context around climate and the response thereto. Therefore, the ‘Global Perspectives’ are needed in order to tackle this issue and other related global problems which are occurring as we seem to have entered a new geological epoch: the Anthropocene (from the Greek word ‘anthropo’ for man, and the root ‘cene’, the standard suffix for epoch), where human beings have become capable of impacting Earth’s geology and the functioning of its global ecosystem. Hence, individual States and their legal and governance structures must be considered as part of a bigger political and normative response, combining both comparative and international experiences and future prospects. ‘Global Perspectives’ are including not only legal systems in which climate change litigation has flourished, such as the United States (more than three-quarters of the total number of cases, according to the ‘Climate Change Litigation Databases’),[1] Australia (with the second largest number of climate cases globally, identified in the ‘Australian Climate Change Litigation database’)[2] or the United Kingdom (with 73 climate cases to date, according to the ‘Climate Change Laws of the World’),[3] or whose tribunals have issued landmark decisions (ex: the Netherlands and Pakistan), but also countries where the developments in this field are ripe for judicial intervention. Moreover, our inquiry in the book spans the most significant examples of international litigation and the possibilities originating from regional and global fora yet to engage with climate issues. That’s why it appears necessary for a comprehensive analysis of climate change litigation to take into consideration its global perspectives through both its comparative (Part I) and international perspectives (Part II).

Comparative and International Perspectives

The first part of our volume focuses on some of the most significant climate change litigation developments in domestic legal systems around the world. The selection of countries and the order in which they are presented follow three criteria: quantitative, geographical and diversity of legal families. We focused on countries in a descending order based on the number of climate change litigation case reported – the United States, Australia, United Kingdom, Pakistan and India, France, Brazil, South Africa and the Netherlands – and finishing with two legal systems that are new yet critical to the global fight against climate change – Russia and China – and their future prospects in this field. Geographically, we wanted to provide a global perspective reflecting the developments of climate change litigation in every continent, through important legal experiences from Asia, Europe, the Americas, Africa and Oceania, and reflecting the balance in developments between countries in the Global North (6) and the Global South (5). Finally, we tried to reflect the traditional comparative law classification of legal families: common law (the US, Australia and the UK), countries with a strong common law influence (India and Pakistan), civil law, (France, Brazil, the Netherlands and Russia) and finally China as a mixed system or as a separate and particular legal system on its own. The framework of the different legal families is completed by South-Africa, a typical mixed system of common law and civil law.

The second part of the volume takes into consideration regional and international perspectives of climate change litigation. The regional dimension refers to the European courts (both the courts of the European Union, and the European Court of Human Rights), and to the African and Inter-American human rights systems. Even though these regional bodies also fall within the broader ambit of ‘international perspectives’, their specificity, both in terms of their geographical scope, and of their role in monitoring and enforcing States’ human rights obligations, justify a particular focus on this regional component. The international dimension of climate change litigation analysed in this part covers the main fora that exist at the ‘universal’ level, including the two United Nations Human Rights Treaty Bodies where climate-related claims have been initiated or decided in recent years: the UN Human Rights Committee and the UN Committee on the Rights of the Child. Subsequent chapters address the possibilities and limitations for climate change-related claims to be brought before the International Court of Justice, the International Tribunal for the Law of the Sea (ITLOS), the Dispute Settlement Mechanism of the World Trade Organization, the International Criminal Court and various forms of international arbitration.

Conclusions

Climate change litigation is increasingly being used as a tool to pressure governments to adopt and implement more ambitious climate policies that better align with their national and international obligations, and to hold major greenhouse gas emitting corporations accountable for their role in exacerbating climate change. The success of such climate litigations in different parts of the world has inspired citizens and NGOs in other countries to try this way of environmental and climate activism, also stimulating the improvement of their climate change laws and regulations. There has also been an increase in complaints launched before United Nations human rights treaty bodies and regional courts, which are becoming interesting laboratories of judicial experimentation, triggering States’ consciousness in relation to climate change issues. A consciousness of the necessary interdependence among States is triggering the need for the dialogue, cooperation and necessary collective response, from a legal point of view, in order to tackle climate change in an effective manner. As acknowledged in the introductory chapter of the volume, climate change litigation is ever evolving, and we are witnessing every week more cases everywhere around the world, whose developments are likely to be informed in different ways and to different degrees by the decisions, cases and prospects discussed in this volume. With the other co-editors, we decided to choose the painting ‘On the wing of a blue butterfly’ by the Dutch artist Marianne Benkö for the cover of the volume, in order to represent the ‘butterfly effect’, the idea that the flap of a butterfly’s wings in a part of the world might ultimately cause a tornado elsewhere. This is the metaphor of the existing interdependence in the natural world and in the climate system, and in the global normative space and between the different legal systems, which makes us understand how important the interactive exchange of knowledge and experiences through comparative and international perspectives is to tackle more effectively the issues related to climate change.

Posted by Ivano ALOGNA (Arthur Watts Research Fellow in Environmental and Climate Change Law, British Institute of International and Comparative Law)


[1] Developed by the Sabin Center for Climate Change Law at Columbia University.

[2] Provided by the Centre for Resources, Energy and Environmental Law at the University of Melbourne.

[3] Another global climate litigation database by the Grantham Research Institute on Climate Change and the Environment at the London School of Economics and Political Science (LSE), covering also national-level climate change laws and policies.