People increasingly turning to courts for climate rights

ISLAMABAD: As the impacts of climate change are getting more intense, people are increasingly turning to courts to combat the crisis, according to a new report.

The “Global Climate Litigation Report, 2023 Status Review”, published by the United Nations Environment Programme (UNEP), said 2,180 climate-related cases have been filed in a year — reflecting a steady increase from 884 cases in 2017 and from 1,550 cases in 2020,

The cases have been filed in 65 jurisdictions, including international and regional courts, tribunals, quasi-judicial bodies, or other adjudicatory bodies such as Special Procedures at the United Nations and arbitration tribunals.

The report highlighted challenges to whether courts have the power to resolve the dispute, identifying the source of an enforceable climate-related right or obligation, crafting a remedy that will lessen the plaintiffs’ injuries, and, importantly, marshalling the science of climate attribution.

It said there were countries where there was limited information about the extent of climate litigation, and it was likely that more cases in jurisdictions not yet represented will be brought to light in the near future.

Number of cases surged from 884 in 2017 to 2,180 last year, global litigation study finds

Statistics showed that the 10 jurisdictions, excluding the US and the European Union, with the highest number of cases, are: Australia, the UK, Canada, Brazil, New Zealand, Germany, France, Spain, Mexico and India.

While cases in the US still represented an overwhelming majority of cases globally, the overall percentage of cases outside the US is increasing.

Cases brought in domestic forums have argued that climate rights emerge from existing constitutional and fundamental rights under domestic law, and often relate to international obligations under the Paris Agreement.

The 2017 and 2020 litigation reports had highlighted climate rights cases in Austria, Australia, Brazil, Canada, Colombia, India, the Netherlands, Norway, Pakistan, Peru, the Philippines, the Republic of Korea, Switzerland and the US.

While several cases were still pending as on December 31, 2022, many are still not brought to the forefront as financial challenges, intimidation, lack of know-how and other barriers remain in place.

Rights of children

By the end of last year, about 34 cases based on human rights have been brought by and on behalf of children and youth, as the plaintiffs argued that due to their young age, they would endure the effects of climate change — which would intensify over time — for longer.

Two claims were led by girls as young as seven and nine years old, respectively. In Rabab Ali versus the Federation of Pakistan and in another (2016) case, a seven-year-old girl challenged Pakistan’s climate policies from a rights-based perspective.

In Maria Khan versus Federation of Pakistan (2019), a coalition of women argued that since climate change has a disproportionate impact on women, the federal government’s climate inaction violates women’s rights to equal protection under the law and no discrimination on the basis of gender.

According to the report, climate change litigation was increasing and broadening in geographical reach, while the range of legal theories is expanding.

It has become clear — and is now recognised by the Intergovernmental Panel on Climate Change — that inclusive approaches to climate litigation that also address the human rights of the most vulnerable groups in society can contribute in meaningful ways to compel governments and corporate actors to pursue more ambitious climate change mitigation and adaptation goals.

Children and youth, women’s groups, local communities and Indigenous Peoples, among others, are taking a prominent role in bringing these cases and driving climate change governance reform in more and more countries around the world, UNEP said.

Future trends

The report identified a series of future trends in global climate litigation, indicating the direction in which it may head in the coming years.

First, it is predicted that the number of cases dealing with migrants, internally displaced people and asylum seekers seeking temporary or permanent relocation from their home countries or regions, owing at least in part to climate change, will continue to grow.

Research continued to suggest a growing number of pre- and post-disaster cases premised on a defendant’s failure to properly plan for or manage the consequences of extreme weather events.

Future research will integrate a gender analysis to better determine the involvement of women and girls who are often viewed as victims to the impacts of climate change as opposed to agents of change who, given the necessary resources and opportunities, are strong leaders that fight for climate justice for the benefit of all.

This report demonstrated the importance of an environmental rule of law in combating the triple planetary crises of climate change, biodiversity loss and pollution. Access to justice enables the protection of environmental law and human rights and promotes accountability in public institutions.

Despite numerous corporate pledges to achieve net-zero emissions in the future, the international community is still a long way from achieving the goals and objectives of the Paris Agreement.