Can courts trump diplomacy in delivering climate justice?

Frustrated with the pace of global action to fight climate change, more at-risk nations could follow the Pacific island nation’s lead by turning to the courts.

Ridge to reef_Philippines
Filipino government workers, academics, and members of indigenous communities participate in a ridge-to-reef mapping workshop in Cagayan de Oro City to identify threats to the local forest and environment ecosystem. Image: Department of Foreign Affairs and Trade, CC BY-SA 3.0, via Flickr.

Plagued by cyclones and threatened by rising seas, the Pacific island nation of Vanuatu hopes an opinion it plans to seek from the International Court of Justice (ICJ) can speed up global action to fight climate change.

As frustration grows over the pace of diplomatic efforts to tackle global warming, other climate-vulnerable nations could follow the tiny country’s lead and pursue “creative” legal strategies to press their demands, analysts and activists said.

“We’re really tired of band-aid solutions,” said Solomon Yeo, campaign director at the climate group behind Vanuatu’s ICJ push. “This is a global problem and to address this global issue, you need a global solution.”

Global warming is projected to blow past the 1.5-degree Celsius (2.7 Fahrenheit) limit governments are aiming for under the Paris Agreement, as emissions rise, and reach about 2.7C this century.

We really need to speed up our game to address climate change. We’re racing against time.

Solomon Yeo, campaign director, Pacific Islands Students Fighting Climate Change

That would put low-lying and disaster-prone nations at even greater risk.

A flagship UN report in February warned that climate-change-driven losses are already happening and are set to become much worse if measures to curb emissions from fossil fuel use worldwide are not dramatically stepped up.

This comes as climate-vulnerable countries grapple with the slow pace of progress at international negotiations, with their longstanding demands on issues such as finance and compensation for climate damages not fully met.

In the disaster-prone Philippines, an inquiry by the country’s human rights commission that wrapped up this month found legal grounds for holding 47 fossil fuel firms accountable for climate change-related disasters.

Green groups hope the findings will inspire campaigners in other countries to demand similar public inquiries or find other innovative ways to accelerate climate action by invoking national or international law.

“It really is the frustration with the international process,” said Yeb Sano, executive director of Greenpeace Southeast Asia, which was among the groups that petitioned for the inquiry together with survivors of the 2013 Typhoon Haiyan.

“That is why creative legal action and climate litigation is a big way forward, and it’s not just for us in the Philippines,” he told the Thomson Reuters Foundation from Manila.

A former chief climate negotiator for the Philippines, Sano himself made headlines in 2013 when he delivered a tearful plea at a UN summit in the aftermath of Haiyan and went on a two-week fast to press for urgent climate action.

‘Racing against time’

Vanuatu is building support among UN member states to request the ICJ to issue an advisory opinion on the human rights impacts of climate change after taking up the proposal by Yeo and a group of law students from several Pacific island nations.

The country’s proposal received support from an alliance of more than 1,500 civil society groups in May and from Caribbean countries in March, but requires a simple majority at the UN General Assembly in September before it can go ahead.

An advisory opinion is not legally binding, but advocates and legal experts said it would help shape international law and provide clarity on the obligations of countries to protect their people from the worsening impacts of global warming.

Yeo, from the Solomon Islands, recalled the “terrifying” experience he had as an undergraduate studying first in Fiji and later in Vanuatu when cyclones hit.

“When we came out after the cyclone passed, it was like someone had dropped a bomb in Fiji. It was truly horrific,” he said, referring to Cyclone Winston in 2016.

“We really need to speed up our game to address climate change,” said Yeo, 26, by phone from New York, where he is now based. “We’re racing against time.”

Snail’s pace

From worsening droughts to rising sea levels, climate change is increasingly seen as a human rights risk and a growing number of climate litigation cases that invoke basic rights have been launched against governments and companies around the world.

Companies that extract coal, oil and natural gas have been targeted in a series of climate lawsuits, and legal analysts said the surge in law-based climate action could help make up for the snail’s pace of global climate talks.

This includes at the UN climate summit in the Scottish city of Glasgow in November, in which efforts to create a new fund to cover climate loss and damage faced resistance from rich nations, despite the problem winning greater recognition.

“We saw that explicitly at Glasgow where loss and damage was a critical issue for climate-vulnerable nations and yet progress on that question of damage was blocked,” said Carroll Muffett, chief executive of the nonprofit Center for International Environmental Law.

“It’s unsurprising that having spent three decades trying to get an answer to these questions … through diplomatic processes that you would see small island nations and other climate-vulnerable countries turning to legal processes,” he said.

Lavetanalagi Seru from the Pacific Islands Climate Action Network, an advocacy group helping the Vanuatu government to rally support ahead of the September vote at the UN General Assembly, said he expected pushback from industrialised nations.

But he urged countries to throw their support behind Vanuatu’s campaign, saying a legal opinion from the ICJ would provide a “moral call” to governments to increase their climate ambitions and cut emissions quicker.

Seru from Fiji said the resolution “speaks volumes” about the realities faced by many small island developing states, adding that many governments are struggling to cope with climate change impacts, from food security to health.

“They are using all the tools that are available to seek not only justice but also the support that is needed,” the regional policy coordinator added.

This story was published with permission from Thomson Reuters Foundation, the charitable arm of Thomson Reuters, that covers humanitarian news, climate change, resilience, women’s rights, trafficking and property rights. Visit http://news.trust.org/climate.

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