Climate change, one of the defining challenges of our time, demands multifaceted approaches to drive action and accountability. Two central players in this arena are climate litigators and United Nations (UN) climate negotiators. While they may seem like separate pieces of the climate puzzle, they interact in a symbiotic and mutually reinforcing manner in the collective effort to combat global warming. Their relationship has the potential to be further strengthened through ongoing advisory opinion processes, most notably a current climate advisory request before the International Court of Justice.
As I prepare to attend the UN’s 28th annual Conference of the Parties (COP28), I’ve been thinking a lot about the connection between the UN climate talks and litigation, especially in light of the stark reality that parties to the 2015 Paris Agreement are falling short on key milestones leading up to the next month’s meeting.
Complementary roles for climate action
The UN climate negotiations, exemplified by the Paris Agreement, set the stage for countries worldwide to commit to concrete actions to mitigate climate change. The Paris Agreement’s goals are supposed to be realized primarily through a system of countries’ self-determined commitments, known as nationally determined contributions (NDCs), to reduce their heat-trapping emissions. The UN designed this approach to promote global cooperation by allowing each country to set its own targets, taking into account its unique circumstances and capabilities, to foster greater participation and worldwide commitment to address climate change. The agreement also incorporates a transparent reporting and review process, which encourages accountability and facilitates regular assessment of progress toward global climate goals. This flexibility and inclusiveness were intentional design features aimed at securing broad international support and fostering a spirit of collective responsibility in addressing the urgent issue of climate change. However, when countries are behind schedule to meet their NDCs and their current commitments will still likely lead to a devastating 2.4 degrees Celsius of warming or more, the crucial question is, how do we ensure their promises become more than just words on paper?
This is where climate litigation steps in. Consider the landmark Urgenda case in the Netherlands. In 2015, the Dutch environmental organization Urgenda Foundation with nearly 900 co-plaintiffs took the Dutch government to court. They argued that the government was failing to take sufficient action to combat climate change, which was, in their view, a violation of its duty to protect its citizens’ well-being. The Dutch court agreed, ruling in 2019 in favor of Urgenda and requiring the government to reduce global warming emissions. This legal precedent illustrates how climate litigation can compel governments to fulfill their commitments made during UN climate negotiations.
Improving accountability and enforcement
When nations miss their climate pledges, lawsuits can be an additional tool to ensure accountability. Take the Portuguese youth case, a groundbreaking 2020 initiative accusing 33 countries of violating human rights by neglecting climate action. The plaintiffs, voicing their vulnerability to climate change-related impacts, have succeeded in fast-tracking this case in the European Court of Human Rights, setting a precedent for global climate litigation. Meanwhile, in the United States, the recent Held v. Montana case illustrates the power of climate lawsuits at the subnational level, underscoring accountability in environmental matters. These cases mark a global trend, driving home the need to hold governments at all levels accountable for climate action.
Raising awareness and public pressure
Climate litigation often generates significant news media attention, shining a spotlight on climate issues and pushing them to the forefront of public consciousness. The Urgenda Foundation case in the Netherlands, for example, was covered widely, motivating people worldwide to demand more ambitious climate action from their governments. Such cases also play a pivotal role in challenging and diminishing the social license of powerful entities, notably the fossil fuel industry, that have historically operated with limited accountability. This heightened awareness, driven by legal proceedings, intensifies public pressure and further emphasizes the significance of complying with international climate agreements.
Setting legal standards and precedents
Successful climate litigation cases can establish legal standards that influence the interpretation and implementation of international climate agreements. In the Leghari v. Pakistan case, Pakistani farmers sued their government for its failure to combat climate change, which has exacerbated extreme weather events and negatively impacted their livelihoods. The Lahore High Court in Pakistan recognized the government’s responsibility and ordered it to take steps to protect citizens from the adverse effects of climate change, including appointing “climate change focal persons” within government ministries to ensure that the government implements climate policies and monitors progress. The Leghari case exemplifies how climate litigation can set legal precedents that promote accountability and climate action.
Advancing justice and human rights
In a groundbreaking ruling in March of this year, the Hawai‘i Supreme Court set a historic precedent by recognizing an affirmative right to a “life-sustaining climate system.” The decision, which marked the first time that a US court acknowledged the existence of such a fundamental right, revolved around the state Public Utilities Commission’s (PUC) refusal to approve the energy company Hu Honua Bioenergy’s proposal to provide power to the state electric grid from a proposed biomass energy facility.
The court’s judgment connected the right to a clean and healthy environment with the duty of a public agency, in this case the PUC, to consider global warming emissions in its decisionmaking process. The landmark ruling underscores the growing recognition of the intersection of climate change and human rights, particularly in the context of a stable and life-sustaining climate system. It also signifies a shift from traditional legal frameworks and offers an innovative and promising path for climate litigation in the United States and globally where climate obligations are increasingly grounded in human rights language.
The International Court of Justice (ICJ) advisory opinion request (explained in more detail here) bridges the gap between the realm of international law and the practical implementation of climate agreements, such as the Paris Agreement. It seeks to elucidate existing state obligations under international law to safeguard the environment from anthropogenic global warming emissions.
The ICJ advisory opinion request not only transforms climate change from an environmental concern to a matter of international legal responsibility, but also deepens the ethical dimensions of addressing the climate crisis. Further, it underscores the significance of international climate agreements in addressing the climate crisis and emphasizes the need for robust implementation of these treaties.
By posing critical questions about the legal consequences for states that cause significant harm to the climate system and the environment, particularly regarding nations and individuals disproportionately affected by climate change due to their geographic and social circumstances, the ICJ advisory opinion request reinforces the interconnectedness of environmental sustainability, human rights, and international law. It signifies a growing global awareness of the intricate relationship between climate litigation and UN climate talks, highlighting the critical need to advance climate action on a global scale and shape the world’s response to this pressing issue.
States’ written submissions are due to the ICJ in January 2024, the first step in the formal process. For the most recent update, check the World’s Youth For Climate Justice website.
Learning and collaborating
Climate litigators and UN climate negotiators are not working in isolation. They collaborate and learn from each other. Successful climate lawsuits provide practical insights for policymakers involved in UN negotiations. The Urgenda case, for instance, not only prompted immediate policy responses in the Netherlands, but it also provided valuable lessons for policymakers and negotiators worldwide.
Climate litigation and UN climate negotiations are connected through a collective effort to address the global climate challenge. Each plays a distinct, yet crucial, role in advancing climate action on a global scale. As the urgency of climate change continues to mount, their efforts will become increasingly significant in holding governments and fossil fuel companies accountable and driving ambitious climate action, thereby shaping the world’s response to this critical issue.