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	Climate change litigation - a rising tide? by Alertnet & agencies   June 2012   Could supreme courts make a difference, by Stanley Johnson.   A number of supreme court chief justices were at the Earth summit, to argue the illegality of politicians reneging on promises.   Twenty years after the first Earth summit in Rio, there is a growing recognition that unless countries actually deliver on the promises they make, their words – as St Paul put it – may be as "sounding brass and tinkling cymbals".   One of the important side-events at Rio was the first-ever gathering of the chief justices of the world"s supreme courts – the Unep-organised World Congress on Justice, Law and Environmental Sustainability. Supreme court justices from all over the world met in Rio de Janeiro"s own Tribunal di Justiça to make it absolutely clear that environmental rights were part and parcel of the rule of law, to be enforced alongside, and indeed as a component of, basic human rights.   Ricardo Lorenzetti, the supreme court chief justice of Argentina made it absolutely clear that in his view it was the duty of the judiciary to stop the politicians reneging on their promises, or the "no-regression principle". Once a human right has been admitted, including the right to a decent environment, it cannot be reversed. "The key role of the judiciary is that we do not depend on election," he said.   Mr Kwon Jae-Jin, Korea"s minister of justice, gave a graphic account of how his country had cleaned up the rivers and waterways by using the full force of the law against polluting industries.   Prof Nicholas Robinson, a former chairman of IUCN"s Commission on Environmental Law, said: "It is probably utopic to expect that judges by themselves will be able to solve the environmental problems of the planet. But too bad for the planet if it doesn"t have the judges on its side."   Achim Steiner, Unep"s executive director, told the gathering that good governance nationally as well as internationally was one of the key themes at Rio+20. "Citizens have to be able to take their own governments to account for failure to uphold commitments they have entered into," Steiner said.   The draft of Our Common Vision, part of the overall text negotiators in Rio worked on, stated: "We encourage action at regional, national, sub-national, and local levels to promote access to information, public participation, and access to justice in environmental matters".   Climate change litigation - a rising tide, by Mairi Dupar.   Have you heard of anyone going to court to obtain protection from climate change impacts? Or to sue a company for causing climate-related harm?   Individuals, communities and even whole nations are increasingly exploring these possibilities, broadly termed ‘climate change litigation’.   On April 27 in London, a group of lawyers met to discuss the role of the courts in arbitrating climate-related disputes. Participants in the roundtable on climate change litigation, policy and mobilisation debated: What role do the courts have in clarifying the rights and responsibilities of greenhouse gas emitters? Can courts help stakeholders to secure governmental protection from climate-related harm? Is climate change litigation forcing governments and businesses to adopt more climate compatible policies and practices?   DEFINING CLIMATE CHANGE LITIGATION   The term ‘climate change litigation’ can have a range of meanings. At its core, it describes when claimants appeal to a court to enforce or clarify existing climate change laws - for example, if citizens believe government or a corporation is not meeting its legal requirements to reduce greenhouse gas emissions.   Such lawsuits can only stand up, of course, when the defendant is subject to legally-binding actions on climate change. Call these ‘pro-climate’ lawsuits.   Conversely, ‘climate change litigation’ can refer to citizens, groups and companies who go to court to challenge the legitimacy of climate change laws passed by government - in other words, ‘anti-climate’ lawsuits. For example, claimants may believe that climate-related laws undermine their other legal rights.   The definitions of ‘climate change litigation’ are flexible, though. All the lawyers who presented at the roundtable recognised that an increasing number of public interest lawsuits cite climate change as one of several arguments in a case.   This is especially the case when the legal principle associated with climate-related action is weaker than other legal principles that would apply in a case. To give an example: claimants fighting major energy or transport developments which they believe will damage their human or environmental rights – such as airport runways, large dams, or fossil fueled power stations – may rely primarily on environmental conservation or human rights law to make their case, with climate change arguments making up a secondary or tertiary part.   Building on this flexible understanding of ‘climate change litigation’, the discussion charted several major trends:   ACROSS BORDERS   The dangers posed by climate change have recently generated a small but significant number of lawsuits from climate-vulnerable nations and communities against large greenhouse gas emitters in other countries.   The Federal States of Micronesia’s case against the largest coal-fired power station in the Czech Republic provides one such example. In 2009, the FSM filed suit in the Czech Republic against the CEZ Corporation, which sought to extend the life of the country’s largest coal-fired power station by 30 years, without climate mitigation technologies.   The court found in favour of the FSM. Although the polluting activity was not stopped, the suit nonetheless strengthened the principle of legal redress for climate-related harm across national boundaries. (The power station expansion went ahead, but the company was ordered to offset its emissions.) The case also garnered remarkable international publicity.   Last year, the Republic of Palau, which like FSM is highly vulnerable to sea level rise, requested an opinion from the International Court of Justice on the principle of transboundary harm from climate change. For more on this request and the ICJ’s draft resolution see Keely Boom’s article, ‘See you in court.’   COMPANIES CHALLENGE CLIMATE LAWS   Climate change litigation has, in its short history, been seen principally as citizens and stakeholder groups suing governments and businesses for climate-damaging policies and behaviours. However, there’s an emerging trend in litigation ‘the other way’, where industries take governments to court to challenge climate regulations.   A recent prominent example was a lawsuit by United States airlines against the European Union. The EU sought to extend its Emissions Trading Scheme (ETS) , so that airlines flying into EU airports would be subject to a cap on their emissions - and would have to purchase carbon credits for any ‘right to pollute’ above the cap (the EU won the case). Last week, plaintiffs from the US biofuel industry filed suit against the state of California to challenge its low carbon fuel initiative.   These examples are from North America but the trend has broader ramifications, given the global nature of the industries concerned, and of the emissions themselves.   COURTS INCREASINGLY ACTIVE   One speaker noted that claimants used to look toward North America or Europe as favourable jurisdictions to bring environment-related lawsuits. However, courts such as India and the Philippines now demonstrate “a potent mixture of judicial activism combined with modern constitutions that express environmental rights that older constitutions do not,” he said.   Kenya and Ecuador, for instance, have progressive constitutions which confer explicit environmental rights on their citizens.   The message was that developing countries are developing considerably in legal, as well as economic terms. Therefore, depending on which jurisdiction is involved, developing country stakeholders may have considerable potential to clarify their environmental rights in the courts and seek enforcement of those rights, including rights to a safe climate, where they feel their rights have been trespassed.   Two recent books: Adjudicating Climate Change: State, National and International Approaches and Climate Change Liability: Transnational Law and Practice explore recent developing country precedents at some length.   ADAPTATION AND MITIGATION   Finally, we may see a rise in litigation over governments’ failure to protect citizens from the damaging effects of climate change. Speakers cited the US civil lawsuit against the US Army Corps of engineers where four individuals successfully sued the Corps for failing to maintain the levies around New Orleans.   These levies were breached catastrophically during Hurricane Katrina (2005), flooding large areas of the city and causing loss of life and property.   In suits such as this one, which are concerned with the impacts of a particular disaster, the link with climate change is more tenuous: the science cannot establish a definite causal link between one natural disaster and manmade climate change (and therefore a very loose definition of ‘climate change litigation’ applies); slow onset disasters such as sea level rise have a firmer scientific link with manmade climate change.   The broader point is an interesting one: use of the courts to force climate adaptation actions by government could be an area to watch in the future. An Indian lawyer provided final food for thought: there is great potential for legal action against government to protect citizens’ right to livelihoods, shelter and other basic human rights in low-lying areas such as the Sundarbans (India/Bangladesh), she said.   Whether such lawsuits will be brought, and will lead to better environmental governance or a more proactive international position on climate change is another question. According to this speaker, the problem is not lack of policy and an active judiciary in India, it is lack of legal enforcement once rulings have been made.   In summary, the publication of two weighty volumes on climate change litigation in the past year (as above) is a sign of the growing body of jurisprudence in this area.   A number of high profile cases have set precedents for principles of transboundary justice as well as domestic justice in offering redress for climate change-related damages.   What’s more, the Roundtable on Climate Litigation, Policy and Mobilisation made it clear that there is very considerable further potential for claimants to use not just climate-specific laws but a range of environmental rights (broadly writ) and human rights laws to seek compensation for climate change impacts from big emitters and seek active protection from climate change impacts from governments.   This mobilisation for justice through the courts is in its infancy, and we can expect the movement to mature considerably in the coming years. Developing countries, especially those with activist judiciaries and progressive, modern constitutions will play an important part in this evolution.   * Mairi Dupar heads global public affairs for the Climate and Development Knowledge Network. The Roundtable on Climate Change Litigation, Policy and Mobilisation was convened by Lisa Vanhala, University College London, and Chris Hilson, University of Reading, UK. Visit the related web page
	Rio+20 and human rights by Navi Pillay UN High Commissioner for Human Rights   Rio de Janeiro, Brazil (22June 2012)   UN Human Rights Chief Navi Pillay, in Rio De Janeiro for the United Nations Conference on Sustainable Development (Rio+20), welcomed today the final outcome of the Conference, for its broad inclusion of human rights provisions. “The future we want”, said Pillay, citing the title of the outcome document, “is clearly a future of human rights.”   Commenting on the human rights provisions in the document, Navi Pillay said: “When we began our engagement with this process a few short months ago, human rights were virtually absent from the draft text being negotiated by the preparatory committees. Today, the centrality of human rights in the international community’s conception of sustainable development has been affirmed.”   In March, she wrote to all UN member states, urging them to support the full integration of human rights into the Rio process, launching a campaign that continued through the final conference itself.   In commenting on what observers have called “the Rio surprise”, Navi Pillay cited the specific inclusion in the document of provisions on the right to development, the right to an adequate standard of living, the right to food, the right to water and sanitation, the right to health, to education, to social protection, labour rights, access to justice, the human rights of women, of indigenous peoples, minorities, older persons, migrants (including those in an irregular situation), and of people living under foreign occupation. She noted, as well, explicit references to human rights relating to sexual and reproductive health and sexuality.   Pillay also pointed to the inclusion in the outcome of several “key elements of human rights-based approach, including the principles of participation, accountability, non-discrimination, and empowerment as well as the rule of law and democracy.”   Recognizing that the document “also leaves us with some unfinished business”, she urged the international community to view the Rio document as “only the first step toward a more ambitious and responsible agenda for our planet, and for the people who live here.”   I am disappointed”, she added, “at the lack of adequate resource provisions, and of adequate environmental controls, as well as in the deletion in the final hours of the negotiations of references to free assembly and association, and the failure to include provisions on free expression.   Also missing, said Pillay, were “the imperative of human rights impact assessment, as well as calls for due diligence by public and private entities, and stronger accountability mechanisms for government and business enterprises alike.”   “As we move now to develop ‘sustainable development goals’ (SDGs), and to establish a new institutional framework, as called for in the outcome, we must ensure that these additional elements are reflected, and that the SDG framework, is a human rights framework. Only a human rights approach can be truly a people-centred approach" said Pillay.   June 2012   Since the 1992 Earth Summit the world has seen tremendous changes. Within a generation, nearly one and half billion people have been added to the planet, around a billion in cities. Globalization has intensified, but its benefits have not been shared equally. Inequalities have widened and despite some progress in achieving the MDGs, there are massive disparities between and within countries.   The last decade has seen the hottest temperatures since humans began recording temperatures around 150 years ago. Climate change threatens to destroy our path towards sustainable development, a global financial crisis has shaken the planet”s economic foundations, and a global food crisis has brought suffering and unrest.   Perhaps most worryingly, the global political will to address the structural and root causes of these multiple crises seems ever elusive.   In the pursuit of an institutional framework for sustainable development, human rights, development and the environment are intricately linked. A healthy environment is a key factor in promoting human health and life, basic human rights and creating sustainable development.   To encourage and promote sustainable development, integrated strategies and policies regarding human rights and the environment need to be developed to create an effective strategy.   A human rights-based approach to sustainable development is central to efforts to move towards a green economy that will deliver benefits to the international community in addressing food, energy and water security and the MDGS.   “Simply put, participatory, accountable, non-discriminatory and empowering development is more effective, more just and ultimately more sustainable,” said UN Human Rights Chief Navi Pillay.   “The pursuit of inclusive, equitable and sustainable development can only take place when human beings become the central concern,” says Melinda Ching Simon, from the UN Human Rights office, speaking during the latest Human Rights Council session. “Human Rights must therefore be internalized in both principle and practice, in the transition to a green economy.”   Ching Simon also added that there is “an urgent need to strengthen international commitment and joint action in favour of sustainable development, and its institutional framework at all levels, and to do so in a manner that respects, rather undercuts human rights.”   Sustainable development is not possible without due regard for human rights, UN High Commissioner for Human Rights Navi Pillay stressed.   “Human rights and sustainable development are inextricably linked – without explicit human rights safeguards, policies intended to advance environmental or development goals can have serious negative impacts on people’s rights and livelihoods”. 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