Climate Litigation in the Global South: Constraints and Innovations

Abstract

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 and other developed countries, cases in the Global South are growing both in terms of quantity and in the quality of their strategies and regulatory outcomes. However, so far climate litigation in the Global South has received scant attention from the literature. We argue that climate litigation in the Global South opens up avenues for progress in addressing climate change in highly vulnerable countries. We first highlight some of the capacity constraints experienced in Global South countries to provide context for the emerging trend of strategic climate litigation in the area. In spite of significant constraints experienced, the strategies adopted by litigants push the climate litigation agenda forward as a result of their outward-looking objective of combating ongoing environmental degradation, and, on a doctrinal level, the way in which they link climate change and human rights. Bearing in mind the limitations resulting from the selective nature of the cases examined, we draw upon Legal Opportunity Structures (LOS) approaches and identify two reasons for innovative cases and outcomes in Global South strategic climate litigation: (i) how litigants are either † This contribution is part of a collection of articles growing out of the conference 'Climate Change Litigation', held at

The Rule of Climate Policy: How Do Chinese Judges Contribute to Climate Governance without Climate Law?

“…Researchers have recently highlighted the importance of heterodox legal reasoning in the global south, where judges may decide 'to enforce existing progressive environmental and/or climate legislation or, in its absence, to decide favorably for litigants in strategic regulatory climate litigation'. 63 Such climate change litigation often involves a degree of judicial activism and generates a shared concern about 'the legitimacy of generally unelected members of the judiciary to create new laws and shape regulatory tool[s]'. 64 In global south jurisdictions with robust civil societies and legal systems, the judiciaryespecially the highest court in each jurisdictionmay justify its decision and method of interpretation with reference to human rights, or to ethical ideals such as intergenerational equity.…”

“…64 In global south jurisdictions with robust civil societies and legal systems, the judiciaryespecially the highest court in each jurisdictionmay justify its decision and method of interpretation with reference to human rights, or to ethical ideals such as intergenerational equity. 65 This 'rights turn' and ethics-based justification are absent in climate change-related cases argued before Chinese courts of justice. The Chinese judiciary turns instead to national or local state policies to determine what is required for the global public good, and thus justify its rulings and interpretations.…”

The UNGPs on Business and Human Rights and the Greening of Human Rights Litigation: Fishing in Fragmented Waters?

“…This literature, however, does not conceptualise the phenomenon worldwide beyond the common dichotomy of the global north and global south and tend to ignore legal innovation of many courts worldwide that were trendsetters during the first wave of human rights litigation to enforce ESCR and that now increasingly adopt postmodern ecocentric perspectives [186]. Other authors highlight progress in the "global south" as something new and rare and even identify climate change litigation framed in other terms [187]. Others seek to map these experiences, yet rather from a legal procedural perspective [188].…”

Making Infrastructure ‘Visible’ in Environmental Law: The Belt and Road Initiative and Climate Change Friction

“…95 Our current focus, however, is on judiciaries insisting on the enforcement of environmental laws already in place, which is the case for climate change cases in developing countries. 96 Examining infrastructure by focusing on the specific applicable environmental legal provisions, we underline the need to view infrastructure in terms of locality. In scholarship on climate change law and climate change litigation, multi-level perspectives are often given, 97 which aligns with our view that infrastructurewhich is often spoken about in terms of markets and global connectivitymust also be conceived in terms of the particular place and the local communities.…”