1. INTRODUCTION
Cases involving climate change have been litigated in the courts for some time, but new directions and trends have started to emerge. While the majority of climate litigation has occurred in the United States (US) and other developed countries, cases in the Global SouthFootnote 1 are growing both in terms of quantity and in the quality of their regulatory outcomes. Over the past years, cases of strategic climate litigation have been initiated in Brazil, Colombia, India, Indonesia, Pakistan, the Philippines, and South Africa. These cases push forward climate jurisprudence in the chosen jurisdictions, and perhaps even beyond to other Global South countries. Despite resource and governance constraints, some strategic cases from the Global South have achieved bold outcomes. Yet, so far climate litigation in the Global South has received scant attention in the literature.
In this article we tease out some initial findings from a selection of strategic climate cases filed in the Global South. Admittedly, the reliance on a small number of strategic cases, in selected jurisdictions, offers a limited picture of climate litigation in the Global South. Nevertheless, this narrow focus is a useful entry point to investigate how climate change is being adjudicated in the area. We are interested in exploring how these positive judicial outcomes have been achieved, given the capacity constraints experienced by these and other countries in the Global South, particularly around the environmental rule of law. Ultimately, the strategies and outcomes from these courts in the Global South might be able to contribute to the development of transnational climate change litigation.Footnote 2
We begin by considering the significant capacity constraints for climate litigation to develop in the Global South. This examination provides context for the characteristics of this initial trend of innovation in the countries where strategic climate litigation has been brought. We then identify initial trends in Global South climate litigation. To a certain extent, climate cases in this area follow trends observed in the Global North. However, Global South climate litigation has unique characteristics that are distinct from those observed in the Global North. Strategic approaches to and outcomes of litigation in the Global South reflect these different characteristics.
Even where the contours (for example, strategies and legal grounds) of Global North and Global South climate litigation are similar, we observe that the context and content of the filing is ‘painted in different colours’. This is the case with constitutional rights or human rights claims, on which litigants in both the Global North and South have relied. However, in Global South countries the character of human rights claims is arguably more desperate because of the high vulnerability of their populations to climate-induced risks and loss and damage, as well as their limited access to life-sustaining resources.Footnote 3 For example, an innovative approach to corporate liability was used in the Carbon Majors Inquiry carried out by the Philippines Human Rights Commission in the context of loss and damage suffered by its citizens as a result of an extreme event which killed over 6,000 people.Footnote 4 In Future Generations v. Ministry of the Environment and Others, the Supreme Court of Colombia also focused on the issue of human rights, but went further to discuss intergenerational equality and solidarity, private liability and accountability for climate change, human dependence on the environment, and recognized Colombia's Amazon basin as an entity the subject of rights.Footnote 5
Otherwise, the trends in Global South climate litigation reflect the priorities of the jurisdiction in which the action is commenced. These lawsuits are purposely adapted to address challenges that are generally more acute in developing countries. Indeed, while a number of landmark cases of strategic climate litigation in the Global North are targeted at driving governmental ambition on climate change, litigants from the Global South are more likely to use litigation to compel governments to enforce existing policies for mitigation and adaptation, attempting to overcome implementation constraints. For example, in Ashgar Leghari v. Federation of Pakistan, the court ordered a number of regulatory outcomes in the face of delay and lack of action on climate change adaptation by government agencies on the basis of human rights violations.Footnote 6 In a related vein, Peel and Lin suggest that Global South litigation connects the ‘peripheral’ nature of climate issues to wider disputes over constitutional rights, environmental protection, land use, disaster management and natural resource conservation.Footnote 7 For example, in EarthLife Africa Johannesburg v. Minister of Environmental Affairs & Others, the South African High Court determined that global climate change was a relevant consideration in the environmental review of plans for a new coal-fired plant.Footnote 8
Based on these characteristics, and drawing upon Legal Opportunity Structures (LOS) approaches, we identify two related factors that are driving and contributing to the initial regulatory outcomes observed in Global South strategic climate litigation: (i) access to justice in conjunction with the existence of progressive climate and/or environmental rights legislation, and (ii) judicial opportunism. When these factors are combined, they have the potential to help actors in the Global South to overcome countervailing dynamics of significant capacity constraints in implementing environmental legislation and managing fragmented and under-resourced institutional structures, and can therefore contribute to progressive outcomes.
Taking into consideration the initial trends of climate litigation in the Global South and the factors that contribute to this movement, we anticipate that strategic climate litigation in this area is likely to increase in the coming years. Moreover, it may lead to outcomes that uphold or advance climate change protection, particularly around climate change adaptation, in jurisdictions that have adopted progressive procedural as well as regulatory approaches to environmental protection and justice. With more countries in the Global South implementing procedural and regulatory innovations in the environmental field, the new directions opened by progressive climate litigation could provide lessons and clear avenues for other litigants. Yet, it remains to be seen whether these specific instances of positive climate outcomes will remain cabined within the progressive judicial environments of these specific countries, or whether they may broaden to develop a distinct field of climate jurisprudence.
In Section 2, the article briefly reviews the capacity constraints that many Global South countries experience in implementing international environmental law as well as domestic environmental law. Section 3 identifies climate litigation trends in the Global South. Section 4 identifies two key features of emerging Global South litigation, highlighting their innovative characteristics, and comparing them with similar efforts and outcomes of climate litigation in the Global North. Section 5 discusses two reasons for these key features, which have arguably contributed to successful outcomes and innovative initiatives. The final section identifies potential lessons and the impacts of these successes in going forward.
2. THE NORTH-SOUTH DIVIDE AND CAPACITY CONSTRAINTS
Many Global South countries have not traditionally viewed climate change as one of their greatest threats, focusing instead on immediate needs for economic development, poverty reduction, and energy security,Footnote 9 as well as more immediate environmental threats such as hazardous waste and safe drinking water.Footnote 10 Because environmental issues are intertwined with economic issues, international environmental law has long been a site of intense contestation over environmental priorities and liability for past harm.Footnote 11 Some countries in the Global South viewed environmentalism as a luxury that low-income countries could not afford to implement, and as a hurdle in achieving poverty reduction and economic development.Footnote 12 Past histories of colonialism, and postcolonial global economic orders, have also led to environmental harm and poverty in the Global South, thereby engendering further mistrust by these countries regarding environmental protection efforts by the Global North.Footnote 13
The international environmental law architecture also leads to constraints in implementation in countries in the Global South. Many multilateral environmental agreements have significant reporting requirements, as well as a number of annual conferences which take place all over the world.Footnote 14 Limited human and financial resources in countries in the Global South mean they often struggle to maintain a presence at these meetings and to comply with reporting requirements. The primary needs for adequate financing, appropriate technology transfer, and effective dispute resolution mechanisms in order to aid implementation in the Global South are yet to be met.Footnote 15 Partly as a result, countries in the Global South often lack the capacity to build and maintain effective environmental institutions, create strong scientific knowledge bases for environmental policymaking, effectively integrate environmental concerns into national economic development planning, and set up effective environmental monitoring and implementation schemes. In addition, conflicts between environmental protection and economic development are particularly pronounced in these countries as a result of policy priorities focused on development projects which target foreign direct investment.Footnote 16
Where environmental legislation exists, policymakers face an array of barriers to enforcement, including weak and fragmented institutions, incomplete legal foundations, and limited political will.Footnote 17 Many countries lack the resources, infrastructure, technology, and monitoring facilities needed to support effective enforcement. Additionally, environmental legislation may be outdated, or may not match existing technical, economic, and human resource limitations.Footnote 18 Environmental legislation also often requires the establishment of new institutions. Where established, these are often poorly resourced, with fragmented institutional structures where administrators may operate in silos. In Brazil, for example, budgetary constraints, inappropriately staffed agencies, as well as strong industrial and commercial lobbies have all hampered enforcement of environmental legislation.Footnote 19 In South Africa, the legacy of apartheid and its consequential economic and spatial inequality has placed tremendous pressure on policymakers to ensure energy security through cheap, and often fossil-fuel intensive, energy sources.Footnote 20
Non-governmental organizations (NGOs) and environmental defenders often step into these governance gaps, working with local communities to identify environmental risks and impacts and promote human rights in the context of large-scale extraction projects through the protection of biodiversity, water, and forestry.Footnote 21 Yet, some governments in the Global South restrict the activities of organizations that receive foreign funding on the basis of maintaining transparency and accountability.Footnote 22 Between 1993 and 2012, 39 of the world's low and middle-income countries enacted laws that restrict the activities of these organizations.Footnote 23 Moreover, environmental defenders are often subjected to threats, intimidation, physical violence, and even death. Murders of environmental defenders are on the rise worldwide, and especially in resource-rich countries.Footnote 24 A report by Global WitnessFootnote 25 names 207 activists killed in 2017, with Brazil, the Philippines, and Colombia listed as the most dangerous countries. Kellman has also documented threats to environmental public prosecutors who have attempted to enforce environmental regulations in Brazil.Footnote 26
Nevertheless, countries where progressive climate outcomes in litigation have been experienced are all on the list of countries that are the most dangerous for environmental defenders, as documented between 2000 and 2015. Brazil is at the top of this list with 527 defenders murdered, the Philippines is third with 115, Colombia fourth with 103; lower on the list are Indonesia with 11, Pakistan with five, and South Africa with one.Footnote 27 Considering these constraints and pressures, it is remarkable that strategic climate litigation in the Global South has appeared at all.
3. CLIMATE LITIGATION IN THE GLOBAL SOUTH
Over the last 20 years climate litigation has emerged as an alternative governance mechanism to address climate change.Footnote 28 The contours of what constitutes climate litigation are unclear, as the number of cases varies immensely, ranging from litigation around government permits issued for fossil fuel projects to implementation of climate change adaptation plans. Markell and Ruhl define climate litigation as any piece of federal, state, tribal or local administrative or judicial litigation in which party filings or tribunal decisions directly and expressly raise an issue of fact or law regarding the issue or policy of climate change, its causes or impacts.Footnote 29 Peel and Osofsky define it as involving cases that have the issue of climate change at their core, and that generally raise climate-specific arguments or judicial analysis referring to climate change.Footnote 30 They also provide a model for understanding the regulatory impact of climate change, with litigation focused on three main areas: (i) constitutional interpretation, (ii) statutory interpretation (including procedural and substantive requirements), and (iii) under common law, nuisance, negligence, and public trust areas of law.Footnote 31
It is generally recognized that the first climate legal action was brought in the US in 1990,Footnote 32 while the first case expressing itself as climate litigation is understood to have been initiated in New South Wales (Australia) in 1994.Footnote 33 As of May 2019, almost 1,300 lawsuits and administrative investigations involving climate change were identified in 28 jurisdictions, with over 1,000 cases filed in the US.Footnote 34 The increase in the number of climate-related litigation cases has been attributed to worsening climatic conditions and to the use of litigation as a strategy aimed at drawing public attention to the issue of climate change and increasing the political will to tackle it.Footnote 35 These climate lawsuits are concentrated in a relatively small number of jurisdictions, most of them in the Global North. The US has been at the centre of the climate change litigation phenomenon.Footnote 36 Australia has also experienced a high number of climate litigation cases (97),Footnote 37 followed by the United Kingdom (46), New Zealand (16), Canada (14), and Spain (13). In the Global South, 32 cases of climate litigation have been identified, of which over half are in Asia (18 cases), five are in Africa, and nine in Latin America.
Whereas Global North climate litigation began in the 1990s, such litigation in the Global South started almost 20 years later, and became visible in the late 2010s.Footnote 38 We still have a very limited understanding of how the Global South is engaging with climate change litigation,Footnote 39 and the legislation and procedures that allow or facilitate legal claims in that context.Footnote 40 Academic examination of climate litigation has been produced mostly by scholars from the Global North and has focused primarily on a small number of high-profile cases concentrated in North America, Europe, and Australia. The systematic analysis of climate litigation scholarship by Setzer and Vanhala confirms this imbalance, and calls for comprehensive studies focused on Global South litigation.Footnote 41
In other areas of law, scholars have pointed to the fact that jurisprudence coming from the South might be used to develop legal jurisprudence and political issues in Northern jurisdictions. While Global South scholars and legal institutions occupy a marginal position in the interpretation, use, and transformation of modern constitutionalism, a number of creative courts in the Global South have contributed (or have attempted to contribute) to the structural transformation of the public and private spheres of their countries.Footnote 42 A study of courts in Asia, Africa, and Latin America concludes that many of these are ‘activist tribunals’, and that some of their jurisprudence contributes directly to the ongoing global conversation on constitutionalism, bringing new light to interpreting the principle of separation of powers, connecting social and economic rights with the principle of human dignity and strategies to allow poor individuals access to justice.Footnote 43
4. TWO KEY FEATURES OF GLOBAL SOUTH CLIMATE LITIGATION
We compare Global South strategic climate litigation with that of the Global North, highlighting two key features of emerging Global South litigation: the outward-looking objective of combating ongoing environmental degradation, and, on a doctrinal level, the use of rights-based principles.Footnote 44 Unlike strategic climate litigation in the Global North, litigants in the Global South currently do not focus on eliciting new regulatory targets or instruments from governments on reducing emissions. Rather, they use existing legislative tools and human rights discourses to highlight the vulnerability of their populations to climate change and protect their valuable ecosystems. By comparing the two approaches, we do not diminish either strategy, but rather aim to contrast a more recent trend in litigation in the Global South in relation to the more established trend in the Global North. There are different levels of synergies and distinctions between litigation in the Global South and the Global North, and these are also highlighted below.
4.1. Combating Ongoing Environmental Degradation
A number of landmark strategic climate litigation cases in the Global North are targeted at driving governmental ambition on climate change. The Urgenda case has so far been successful in determining that the Dutch government needs to reduce its emissions to 25% below 1990 levels by 2020.Footnote 45 In Juliana v. United States the plaintiffs claim that governmental failure to take action on climate change will deprive future generations of the same protection provided to previous generations.Footnote 46 While the case has faced significant procedural hurdles regarding standing,Footnote 47 if successful it could direct the US government to develop a plan to reduce carbon dioxide (CO2) emissions.Footnote 48Urgenda and Juliana have inspired other cases, including a lawsuit brought by Friends of the Irish Environment against the Irish government for alleged failure to mitigate climate change, and a legal challenge brought by the NGO ENvironnement JEUnesse against the Canadian government for alleged failure to protect the fundamental rights of young people.Footnote 49 Similarly, in France four NGOs have taken a first step towards a lawsuit against the state by submitting a formal notice to the French Prime Minister and 12 members of the government for their inadequate efforts to effectively tackle climate change, in violation of a statutory duty to act.Footnote 50
In contrast to this approach, rather than requesting direct regulatory action on climate change by governments, plaintiffs in the Global South take a more indirect route. Cases are brought to address poor enforcement of existing planning and/or environmental legislation, possibly acknowledging the capacity constraints involved in passing new legislation on climate change in some jurisdictions. In addition, these cases tend to include efforts to protect important native ecosystems. A common strategy in the Global South has been for governments to engage with climate change arguments through taking action against defendants for enforcement of existing environmental and planning legislation.Footnote 51 This is the case for enforcement actions brought by the Ministry of Environment of Indonesia against companies in the extractive sector (mining, oil palm, and timber logging) for violations of natural resource management laws.Footnote 52 This strategy has also been used in different environmental class actions brought by the Brazilian Prosecutor's office for violations of natural resource management laws (e.g., unauthorized clearing of forest for the development of economic activities).Footnote 53
NGOs in the Global South have also started to use the courts to enforce legislation regarding the licensing of polluting activities. Peel and LinFootnote 54 identify five out of the 32 cases in the Global South docket that referred to environmental impact assessment (EIA) or used this as one of the grounds of action. Some of these cases have climate change in the ‘periphery’ of the claim (e.g., the final decision might result in benefits from a climate mitigation perspectiveFootnote 55), while others have climate change as their ‘core’ (e.g., the lack of consideration of climate impacts challenges the validity of the approval given). The case of Earthlife Africa Johannesburg v. Minister of Environmental Affairs and Others provides an example of climate change being central to the case. Humby argues that the case made a ‘meaningful contribution’ to climate change litigation as, notwithstanding the absence of an express legal obligation to conduct a focused climate change impact assessment, the Gauteng High Court ruled that climate change is a relevant consideration when granting an environmental authorization.Footnote 56
Other climate litigation suits in the Global South focus on the destruction of emblematic ecosystems. By doing this, climate litigation gives continuity to ongoing efforts in the environmental movement. For example, in Future Generations v. Ministry of the Environment and Others, a group of 25 children and young adults between the ages of 7 and 26 required the government to comply with its prior commitment to stop deforestation in the Amazon forest by 2020. This lawsuit was the first on climate change and future generations in Latin America and concerned a long-standing problem: the conservation, maintenance, and restoration of the Amazon forest. Attempts to address deforestation in the Amazon have been made for over several decades through various legal and non-legal strategies,Footnote 57 but this particular case is being framed in terms of its climate impacts and brought as a climate lawsuit.Footnote 58
4.2. Vulnerability and Rights-based Claims in the Global South
Despite human rights and climate change linkages becoming increasingly understood,Footnote 59 courts were initially reluctant to adjudicate in ways that highlight these linkages.Footnote 60 However, the international framework of human rights is well established and can provide existing principles and frameworks within which climate litigation and judicial decision making operate. For instance, the human rights-based approach established by the United Nations (UN) can provide procedural and substantive protection to citizens in the context of climate impacts, and can help to ensure that development-based projects do not result in adverse human rights consequences.Footnote 61
Consequently, over the last few years the legal relationship between human rights and climate change has started to emerge in courts to a point where Peel and Osofsky have identified a ‘rights-based turn’ in climate litigation.Footnote 62 The lawsuits brought by Urgenda, Juliana et al. and JEUnesse all focused on issues of vulnerability and human rights violations. Urgenda grounded the case on the duty of care under Article 21 of the Dutch Constitution and Article 6:162 of the Dutch Civil Code to ensure ‘the livability of the country and the protection and improvement of the living environment’.Footnote 63 The District Court of the Hague decided that Article 6:162 of the Civil Code was breached by a tortious act committed by the state – the act of hazardous negligence of not taking adequate action to prevent climate harm. Interestingly, on appeal, rather than accepting the duty of care from tort law, the Court of Appeal ruled that the duty of care was informed by human rights. The Court recognized a ‘positive obligation [of the state] to take concrete actions to prevent a future violation of Articles 2 and 8 ECHR [European Convention for the Protection of Human Rights and Fundamental FreedomsFootnote 64]’.Footnote 65 In doing so, the Court of Appeal ruled that dangerous climate change would result ‘in the serious risk that the current generation of citizens will be confronted with loss of life and/or a disruption of family life’.Footnote 66 In Juliana v. United States, young people claim that failure by the government to take action on climate change violates their Fifth Amendment rights by denying protection to future generations of essential natural resources, including a safe climate.Footnote 67 The plaintiffs are also relying on the public trust doctrine, and the violation of rights to life, liberty and property, as well as failing to protect public natural resources. The Environment JEUnesse case against the Canadian government claims violation of the fundamental rights of young people under the Canadian Charter of Rights and Freedoms and the Québec Charter of Rights and Freedoms.Footnote 68
The application of the human rights framework to the impacts of climate change has been one of the key features of litigation in the Global South. In addition to the reasons why rights-based cases are being brought in the Global North, many countries in the Global South have constitutions which already provide for human rights protection, as well as agencies or commissions which oversee the implementation and operationalization of those rights.Footnote 69 Also, historically marginalized communities in the Global South have successfully vindicated collective human rights in regional human rights bodies, and some national courts have a record of innovation in human rights and environmental rights.Footnote 70 The role of progressive legislation and judges will be further discussed in the next section when we examine the rationale for strategic climate litigation and innovative decisions in the Global South.
The socio-economic and political contexts of Global South jurisdictions are also relevant. Colonial and postcolonial activities of Northern countries, combined with multinational corporate actors, have caused drains on wealth, dysfunctional institutions, rent-seeking elites, and ethnic conflicts, which have led to grave human rights abuses and environmental destruction.Footnote 71 Consequently, the environment/human rights nexus is often closely related to issues of equity, survival, security, human capital development, and defunct governance practices, making human rights violations particularly pertinent in the Global South.Footnote 72
The application of a human rights framework to the impacts of climate change is particularly relevant in the Global South because populations in these countries are extremely vulnerable. The most recent report of the Intergovernmental Panel on Climate Change (IPCC) states that climate-related risks for natural and human systems are higher for global warming of 1.5 degrees Celsius (°C) than is the case at present, but are lower than for the risks related to a 2°C rise above pre-industrial levels.Footnote 73 The impact of the risks will depend not only on the magnitude and rate of warming but also on geographic locations, levels of development and vulnerability, and choices of adaptation and mitigation.Footnote 74 Disadvantaged and vulnerable populations, indigenous people, and local communities who are highly dependent on agriculture or coastal livelihoods are at disproportionately higher risk.Footnote 75 Poverty and disadvantage are likely to increase in vulnerable populations as global warming increases.Footnote 76 Countries in the tropics and southern hemisphere subtropics have populations that will be exposed to the greatest impacts on economic growth as a result of climate change should global warming increase from 1.5°C to 2°C, and the number of people who are exposed to climate-related risks and are susceptible to poverty may reach up to several hundred million by 2050.Footnote 77
For the above reasons, a human rights framework is particularly relevant in building a compelling climate justice narrative in the Global South. This narrative enhances political will for greater ambition in climate policy formation, and also provides vulnerable countries and communities with the opportunity to account for their experience of climate impacts.Footnote 78
However, the adoption and implementation of a human rights approach in the context of climate change in the Global South is a complex issue for a number of reasons. Firstly, the traditionally vertical relationship between the state and individual for the enforcement of human rights violations does not take into account the historic responsibility of the Global North for the impacts of climate change. A human rights approach also imposes obligations, with consequential costs, to manage and mitigate the impacts of climate change on some countries that are least responsible for climate change, which has obvious equity implications. Therefore, a climate justice framework may be more appropriate, particularly for smaller nations.Footnote 79 Despite these inequities, developing countries have agreed to take on obligations under the Paris AgreementFootnote 80 to address climate change, albeit in an approach that is nationally determined with differentiated obligations for developing countries.Footnote 81
In addition, human rights-based approaches face practical constraints at the national level in Global South countries.Footnote 82 As Olawuyi notes, human rights have varying levels of protection and implementation in countries where climate injustices are most severe, and local challenges such as the inadequacy or absence of climate change laws, restrictive property laws or inadequate capacity and lack of resources impacts upon the capacity of vulnerable groups to invoke human rights norms to seek redress.Footnote 83 Vulnerable countries may fear using a human rights narrative which would invite the international community to interrogate their own questionable human rights records, particularly in the area of political and civil rights.Footnote 84
Notwithstanding these considerable complexities and constraints, a number of cases in the Global South have invoked the issue of human rights violations arising from the impacts of climate change, and they have seen progressive outcomes. In Leghari v. Federation of Pakistan Footnote 85 Judge Syad Mansoor Ali Shah provided an extensive decision, in which he listed the impacts of climate change in Pakistan and focused on the vulnerability of citizens in that country, referring to climate change as ‘a defining issue of our time’.Footnote 86 While the Pakistani Constitution did not contain a specific right of environmental protection, the judge focused on Articles 9 and 11 of the Constitution protecting the rights to life, human dignity, property, and access to information, combined with international environmental law principles such as sustainable development, the precautionary principle, the public trust doctrine, and intergenerational equity. He determined that together these provisions provided a sufficient judicial toolkit for him to make a positive decision on the impacts of climate change.
A further case brought by a youth petitioner in Pakistan claims that climate change harm continuously threatens mental and physical health and quality of life. It violates the constitutionally guaranteed right to life, and the fundamental rights of the youth petitioner, as well as future generations in Pakistan.Footnote 87 While the judicial approach in the Leghari case may seem unusual, there is already a judicial precedent in Pakistan which lends itself to such interventionist judicial activity. In 2012, the High Court of Lahore ordered the establishment of the River Ravi Commission to manage the restoration of the river, held periodic hearings on the Commission's progress, and ordered full-scale implementation of the bioremediation project in 2015.Footnote 88
Similarly, in the Colombian climate case, Future Generations v. Ministry of the Environment and Others, the Supreme Court was asked to rule on the impacts of climate change on the rights of future generations. The plaintiffs argued that the government had failed to respect the constitutional rights of existing children to a healthy environment, life, health, nutrition and water, as well as failing to protect the rights of future generations.Footnote 89 The Court's decision relied on the ‘future generations’ argument to press the government to take action on climate change, including to mandate the formulation and implementation of action plans to address deforestation in the Amazon.Footnote 90 With regard to standing, the decision applied the same constitutional provisions used for the protection of the environment for current generations, but this time to protect future generations, thereby substantially expanding the limits of such rights.Footnote 91
A new angle to existing human rights strategies was introduced by the Carbon Majors Inquiry. The Philippines Commission on Human Rights is investigating whether a relatively small group of Northern corporations is aggravating the already vulnerable livelihoods of Philippine citizens.Footnote 92 This first legal action against fossil fuel-intensive corporations in the Global South has been innovative in that it eschews the normal tort-based approachesFootnote 93 and focuses instead on an investigation of the role of carbon major corporations in specific extreme events. The petition was submitted by Greenpeace Southeast Asia, the Philippine Rural Reconstruction Movement to the Philippines Commission on Human Rights and a group of Filipino citizens. It specifically situated its requests in the context of the extreme events and slow onset events experienced by residents in the Philippines and, in particular, the events of Typhoon Haiyan. The costs of this and other extreme events experienced in the Philippines in terms of human lives, financial costs to the state, and additional impacts of climate change on traditional livelihoods such as fishing and agriculture, are extensive and are highlighted in the petition.
The Commission responded to the petition by opening an investigation, and its approach has also been innovative. The work of the Commission is framed as a dialogue which highlights the voices and experiences of the climate vulnerable, with a focus on the responsibilities of corporations headquartered in the Global North.Footnote 94 While the Commission cannot impose fines or force the defendants to reduce emissions, it can seek the assistance of the UN to encourage the defendants to cooperate, make recommendations to the government, and issue a fact-finding report.Footnote 95 The legal conclusions of this investigation may influence further suits in the Global South as well as in the Global North. In terms of underlying narratives, the investigation can help to expose the relationship between major emitters based in the Global North and the suffering experienced by people living in the Global South.
Also targeting one of the carbon majors, but crossing the North-South divide, the ongoing case of Saúl Luciano Lliuya v. RWE was brought in Germany by a plaintiff from, and in respect of damage incurred in the Global South. Lliuya, a farmer and mountain guide in Peru, claimed liability from RWE, a pan-European energy company based in Germany. The damages claimed were proportionate to RWE's share of global greenhouse gases, amounting to approximately €17,000. Lliuya based his claim on paragraph 1004 of the German Civil Code, which deals with interference with property.Footnote 96 The Peruvian Ministry of Health and the National Authority for Civil Protection determined that Lliuya and the lives of people in his village would be especially affected by the potential for flooding. The Civil High Court in Hamm in an oral hearing accepted Lliuya's reasoning that the defendant's emissions ‘advanced, to a not irrelevant degree’ the probability of glacial flooding.Footnote 97 This unusual and daring lawsuit is a real case study to educate judges and the public on how vulnerable populations in the Global South are disproportionately affected by carbon intensive corporations headquartered in the Global North.
While there are synergies in Global North and Global South strategic climate litigation, with an increasing focus on both the role of human rights and carbon major corporations in climate change, the approach taken by litigants in the Global South is particularly relevant given the precarious nature of law enforcement and human rights protection in these countries. Following this discussion of key features of emerging climate jurisprudence, we now identify what may be the main reasons underpinning innovative approaches and outcomes in Global South strategic climate litigation.
5. RATIONALE AND OUTCOMES
Pursuing a legal campaign is a lengthy, costly, and risky process for litigants, in both wealthier and poorer countries. As highlighted in Section 2, litigants in Global South jurisdictions face additional challenges, from significant capacity constraints to death threats. Differing legislative backgrounds, judicial histories, and social and political contexts contribute greatly to the contrasts between Global North and Global South climate litigation. It is therefore surprising that organizations in the Global South have been investing time and resources to bring legal cases dealing with climate change, and that some have achieved a certain degree of success. The Legal Opportunity Structures approaches offer a useful framework for explaining the variables that condition access to judicial governance and also seek to account for the role of judges in the policy output process.Footnote 98 Bearing in mind the limitations resulting from the selective nature of the cases examined, we identify two reasons for innovative strategies and outcomes in the Global South: (i) how litigants are either overcoming or using procedural requirements for access to environmental justice, which in turn is combined with (ii) the existence of progressive legislation and judicial approaches to climate change.
5.1. Access to Justice
The existence of a court is only one of the conditions for granting access to justice. Litigants depend on rules relating to standing, which vary across jurisdictions, in order to be granted the right of access to courts – individually, collectively, or as a third party or amicus curiae. Rules governing standing to sue are a crucial dimension of Legal Opportunity Structures approaches for environmental litigation.Footnote 99
In many developing countries, the requirements for standing have been interpreted stringently by courts.Footnote 100 Yet, the Global South countries where cases of strategic climate litigation have been decided (see Table 1) all allow citizen suits in their constitutions and environmental legislation.Footnote 101 Countries such as India and the Philippines have allowed broad standing for individuals and organizations, extending to the unborn in the Philippines.Footnote 102 South Asian courts, in particular, have seen much success in using public interest litigation to address environmental concerns, partly because of judicial support for the achievement of sustainable development.Footnote 103 Emeseh cites a number of cases in this region where technical standing restrictions were done away with, and very broad interpretations given to constitutional provisions to ensure access to the courts in environmental cases.Footnote 104 Some of these countries have also attempted to address the geographical remoteness of litigants by sending specialized buses to remote regions, as illustrated by the Philippines Supreme Court and the Brazilian state of Amazonia's Court of Environment and Agrarian Issues.Footnote 105 The progressive judicial outcomes identified in strategic climate litigation in the Global South can be understood as part of the history of environmental jurisprudence in these countries, combined with progressive procedural requirements which aid class action suits.
Selection of Global South Strategic Climate Litigation mentioned in this Article, with an Indication of the Issue Areas They Address
In addition to standing, financial resources and lack of expertise are yet another hurdle that litigants in the Global South need to overcome in order to secure access to justice.Footnote 106 The existence of legal opportunities is no guarantee that litigants will be successful in their claims. As Epp argues, ‘combining rights consciousness with a bill of rights and a willing and able judiciary improves the outlook for a rights revolution, but material support for sustained pursuit of rights is still crucial’.Footnote 107 In the context of climate issues, the adjudication of climate cases often involves complex intersections between social, economic, and political interests. Limited specialist knowledge in the policy-science nexus can thus severely constrain access to justice.Footnote 108
To support strategic climate litigation in the Global South, philanthropists have been providing financial resources as well as technical expertise to allow cases in the Global South to be filed, and some Northern NGOs have been providing strategic support (e.g., defining media and communications strategy) to partner organizations in the Global South.Footnote 109 As a result, Global South climate cases brought by local communities or individuals often enjoy the support of local NGOs, which in turn are supported by transnational cooperation with NGOs located outside the jurisdiction in which the case was brought.
5.2. Progressive Legislation and Judicial Approaches
Domestic legislation is another important dimension of Legal Opportunity Structures. An existing legal framework that recognizes environmental and human rights facilitates the defence of these rights in courts. Similarly, progressive judicial approaches are central in determining precedents in strategic cases.
Cases of strategic climate litigation in the Global South have relied on using existing constitutions and legislation rather than adopting the tort-based approaches found in some cases in the Global North. The adoption of constitutions by many countries around the world over the past two decades has also been accompanied by an ‘environmental rights revolution’, with environmental problems increasingly being addressed through the prism of human rights and constitutionalism.Footnote 110 A number of countries in the Global South – such as Brazil, Colombia, Kenya, and Mexico – have constitutional provisions that recognize the right to a healthy environment and the role of the public prosecutor's office in the enforcement of this right against private corporations or the government. In addition to the legal culture and background doctrinal frameworks, which can provide different interpretive outcomes of climate legislation,Footnote 111 all countries in the Global South have already adopted some sort of climate law or policy.Footnote 112 The combination of constitutional provisions with a growing body of robust climate change legislation provides an increasingly solid basis for climate litigation.Footnote 113
Yet, ultimately, the decision to enforce existing progressive environmental and/or climate legislation or, in its absence, to decide favourably for litigants in strategic regulatory climate litigation, depends on the judges. Some judges in the Global South have been drivers of innovative approaches to climate change. They have explicitly challenged legal formalism, and have been active outside the courtroom on climate change. Perhaps the clearest example of progressive judicial decision making which attempts to overcome institutional lethargy by the government can be found in the Leghari case.Footnote 114
Judge Syad Mansoor Ali Shah identified adaptation as the way forward for Pakistan and developing countries generally, and interpreted existing national policies accordingly, focusing on adaptation as an integral and synergistic complement to future national planning on climate change.Footnote 115 The Court ordered the appointment of a national focal point on climate change and members of the Climate Change Commission, and retained jurisdiction to hear progress reports. The Commission subsequently submitted a number of progress reports to the Court. In 2018 the Commission and Court determined that the remaining items on the agenda of the Commission could be implemented by the government, thereby dissolving the Climate Change Commission and replacing it with a Standing Committee on Climate Change to assist and ensure the continued implementation of Pakistan's 2012 National Climate Change Policy and its framework Climate Change Policy (2014–30). During the progress of the case, a new Climate Change Act was passed in 2017, illustrating how climate litigation and regulatory progress can have a cooperative relationship. While there is some scepticism as to whether the new Act will be fully implemented,Footnote 116 the objects and reasons section of the Act notes the extreme vulnerability of the country to climate change, and the Act was passed as a result of renewed political will on the issue.Footnote 117 The judiciary in this case took on significant policy and regulatory activities, essentially stepping into the shoes of government and establishing and directing policymaking initiatives and institutions.
Similarly, a progressive and heterodox legal reasoning was followed by the Colombian Supreme Court in the decision adopted in Future Generations v. Ministry of the Environment and Others. Alvarado and Rivas-Ramírez highlight how different this outcome was from the traditionally moderate jurisprudence usually adopted when applying public interest-oriented constitutional rights. The decision discussed ‘intergenerational equality and solidarity, private liability and accountability for climate change, and human dependence on the environment – topics rarely, if ever, debated by the Supreme Court’.Footnote 118 However, the implementation of ambitious judicial orders can be challenging. Despite the decision, deforestation in the Amazon has increased over the past year, prompting the plaintiffs to seek a declaration that the government and other defendants have failed to fulfil the orders of the Supreme Court.Footnote 119
These progressive judicial approaches may be an attempt by the judiciary to acknowledge the extreme vulnerability of their populations to climate change, while at the same time circumventing deficiencies in existing legislation or capacity constraints in enforcement. Indeed, decisions given in these strategic cases suggest that judges in the Global South are open to adapting their traditional role of administering justice to the challenges posed by climate change litigation, even if this means holding their own government accountable.Footnote 120 It is possible that climate litigation finds a stronger footing in jurisdictions that have express constitutional provisions on environmental protection.Footnote 121 Nevertheless, these cases demonstrate that progress can also be made where no environmental constitutional provisions exist, provided judges are willing and able to take action on climate change. As exemplified by the Leghari case, a court that is willing to exercise an active role can guide and build regulatory capacity even where the statutory and institutional framework is ineffective.Footnote 122 However, it might also be that in some of these cases judges have taken bold decisions on climate cases without realizing the extent to which their decisions are innovative.Footnote 123
6. LESSONS AND PROSPECTS
Based on the initial trends of strategic climate litigation in the Global South and taking into consideration factors that contribute to this movement, some lessons can be gleaned. In contrast to Global North cases, strategic climate litigation in the Global South is generally not asking for more ambitious regulatory action to be taken by governments, even if this is an indirect outcome of the case. This may be an implicit acknowledgement of capacity constraints as well as recognition of the climate equity implications involved. Asking national governments to implement stringent mitigation measures at the expense of poverty reduction, energy security needs or other development agendas will be taxing for the judiciary in the Global South. This is particularly pertinent in small developing countries. However, enforcing existing environmental legislation, protecting ecosystems, boosting adaptation efforts, and enhancing institutional structures – all of which may have mitigation co-benefits – can be easier tasks to achieve through the courts.
Similarly, strategic climate litigation in the Global South does not rely extensively on traditional tort-based approaches to climate damage against either state or non-state actors. Instead, litigation in the Global South relies on existing legislation to achieve climate aims, and utilizes human rights-based approaches. These approaches can find synergies with litigation in the Global North which also, and so far successfully, adopts rights-based approaches. Yet, rights-based approaches to climate litigation in the Global South make even more sense considering the high vulnerability of their populations to climate impacts. Where specific climate legislation does not exist, plaintiffs instead focus on existing legislation or human rights instruments to achieve climate-related goals.
In this context, climate litigation in the Global South may continue to lead to successful outcomes and regulatory progress. These key features of strategic climate litigation in the Global South may establish new strategic directions in climate litigation going forward.
Furthermore, it would be particularly helpful to most vulnerable populations if climate litigation in the Global South were to target addressing adaptation to climate change. While, so far, most Global South climate lawsuits focus on mitigation issues (e.g., challenging coal-fired power plants and mining of coal, preventing carbon-intensive practices such as timber logging and oil palm cultivation),Footnote 124 adaptation efforts by governments pay dividends in that they save lives and can be compatible with existing development plans and efforts. Finding co-benefits between developmental and climate mitigation and adaptation efforts may be a key innovation by Global South judges, which in turn can inform policymakers in the Global South.Footnote 125
It is also possible that climate litigation in the Global South will gather pace as the impacts of climate change become more frequent and severe in these countries.Footnote 126 For instance, the island state of Vanuatu is considering litigation for climate impacts from both Global North governments and corporations located in the Global North.Footnote 127 While it is unclear whether the positive outcomes so far achieved will spread to other countries in the Global South which lack these legal characteristics, it is also important not to reduce the significance of a judgment to its dispositive part. Even if a claim is dismissed, a judicial decision may highlight a need for legal change and/or help to raise social awareness, thus contributing to behavioural change.Footnote 128
Another question is whether the regulatory impacts and frameworks established in the context of Global North cases should be applied, and if necessary adjusted, in the context of the growing number of climate litigation cases in the Global South. Synergies with litigation in the Global South appear in the EIA realm. The African EIA climate cases – especially if their results are amplified by South-South partnering in subsequent cases – signal a potential growth area for future Global South climate litigation.Footnote 129 While there have not been many cases in Africa, and procedural difficulties remain,Footnote 130 if this trend takes off it would mirror the development of jurisprudence in climate litigation ‘hotspots’ in the Global North such as the US and Australia. In addition, given the history of judicial activism on environmental provisions in South Asian courts, we might observe more cases that uphold or advance climate change protection in this region as well.
7. CONCLUDING REMARKS
For decades, Northern countries have been advocating collective action to protect the environment, while Southern countries have insisted that Northern countries take the lead in addressing climate change. This divide is motivated in part by tensions regarding historic responsibility for environmental degradation, concerns regarding sovereignty over natural resources, and the desire to prioritize poverty reduction and development over environmental conservation in the Global South. The new climate litigation emerging in the Global South could help to reframe the limitations observed by the climate justice movement in the context of a persistent divide between countries in the Global North and the Global South over core environmental issues. To achieve positive outcomes plaintiffs and judicial actors in the Global South are finding innovative ways to overcome significant capacity constraints, legislative deficiencies, procedural and implementation hurdles, and sometimes unsafe political environments.
Litigation does not only circumvent and bypass political partisan divides;Footnote 131 it can also create fluid pathways between multiple actors at the subnational, national, and international levels.Footnote 132 However, litigation can perhaps be more useful in the Global South in its regulatory role of creating pathways between fragmented institutional actors. It could bind together previously fragmented governance structures in the Global South to ensure that they focus on national climate goals, whether they be mitigation, adaptation, disaster management, or a combination of those aims. This regulatory outcome has already been highlighted by the progressive outcomes of the Leghari case where the judge mandated coherent action by government actors over time until institutional coherence on the issue was achieved.
The valuable role of litigation as a regulatory tool has begun to be seized upon in the Global South. As populations in these countries are the most vulnerable to climate impacts, and as impacts increase, the observations gleaned from an initial spate of cases may solidify into a litigation trend. The regulatory impact of this litigation in the context of the Global South may therefore provide lessons and open up new avenues for progress on climate change in these highly vulnerable countries which suffer from capacity constraints. Despite these constraints, this initial spate of strategic litigation attempts to overcome the traditional North-South divide, with litigants relying on human rights arguments, existing legislation, and progressive procedural rules to achieve climate-resilient development. The latest strategies and decisions from courts in the Global South suggest that it might be possible for the Global South to innovate and establish new trends towards climate change adaptation and mitigation in an ever more transnational climate jurisprudence.
