Towards a new climatic rule of law in and through the Global South: Discussions on the intersections of human rights and courts

I. INTRODUCTION

Climate change undoubtedly constitutes one of the greatest challenges of the 21st century. Despite the voices highlighting the urgency for adequate action (IPCC, 2024: 24) little progress has been achieved in curtailing climate change’s causes and effects. It is this failure of political measures that has triggered an unprecedented turn to courts and other adjudicatory bodies to advance holistic climate governance (Bodansky, 2019: 264-265). While initially climate change was peripheral in litigation procedures and the focus was on issues of bilateral nature, more recent cases have tried to highlight -and eventually adjudicate- the structural failures of States in the fight against climate change (Peel, Osofksy and Foerster, 2018: 800-802).

Within this general trajectory of judicialization of climate change, where courts are being brought in the regulatory forefront (Colby et al., 2020: 172-173), human rights provisions have become increasingly central (Peel and Osofsky, 2017). Having either a central or peripheral function, human rights are used to fill the gaps in climate change regulation, especially when there are no other available remedies (Savaresi, 2021: 2). From the available databases, it becomes evident that the Global South is leading the efforts to incorporate human rights concerns in climate change litigation (Iyengar, 2023: 306-307).

Despite its proliferation in practice, the incorporation of human rights claims in climate change litigation efforts is not always perceived as a successful or even desirable strategy (Mayer and van Asselt, 2023) mainly because of foundational discrepancies, such as standing and determination of causation in harm. A closer look, though, reveals that this conclusion is based on research prioritising cases and literature on the Global North with the Global South providing, on the other hand, evidence that human rights function as more than mere gap-fillers in climate litigation.

 Against this background, the present post -using the PSB v. Brazil (Climate Fund) case as a starting point and by utilising socio-legal conceptions of norm interaction and entrepreneurship- will discuss how the human rights-focus in Global South climate litigation has the potential to contribute to the emergence of a new climatic rule of law trend and what role can adjudicatory mechanisms play in this process. In Part II we juxtapose the function of human rights between the Global North and the Global South and focus on the particular role of right-based claims in Global South climate litigation. Part III turns to the function ascribed to courts in climate litigation in Global South emphasising their oversight and horizontal accountability initiatives. Part IV tries to synthesise the previous two analyses presenting our conception of a ‘new climatic rule of law’ trend emerging in the Global South.

II. COMPARING THE INTERSECTION OF HUMAN RIGHTS AND CLIMATE CHANGE BETWEEN THE GLOBAL NORTH AND SOUTH

A. A distinctive individualism of Northern human rights

Following the Urgenda judicial saga in the Netherlands (Wewerinke-Singh and McCoach, 2021) and the Neubauer (Peel and Markey-Towler, 2021) decision in Germany, human rights-based climate litigation strategies gained new impetus in Global North, but high levels of scepticism remained. The recent decision of the Strasbourg Court on Duarte Agostinho et al. further elucidated the uncertain and limited internalisation of the climate change-human rights nexus in the Global North (Heri, 2024).

The conception of rights in Global North jurisdictions is predominantly linked to the attribution of civil and political rights to persons; both the European Convention on Human Rights and the International Covenant on Civil and Political Rights were drafted under a particularly liberal and individualistic logic (Harris et al., 2023). With human autonomy remaining a sacredly protected legal interest, any human right violation can be recognised only when specific individuals experience harm causally attributed to a specific action (Fredman, 2018: 30-32).

This approach, though, fails to effectively account for the discrepancies and different levels of vulnerability amongst individuals and communities (Biletzki, 2019: 47-53). Since this framework perceives everyone as typically equal, it is highly contested whether it can deal with the structural and systemic concerns and deficiencies at the centre of climate change vulnerabilities (Ferrajoli, 2001). With climate change labelled a ‘super wicked problem’ affecting multiple levels of governance and requiring multi-dimensional regulation (Lazarus, 2009), the individualistic human rights perhaps can have only a limited impact on challenging the systemic regulatory vulnerabilities through climate litigation.

This dominant individualism has also resulted in the devaluation of socio-economic rights (SERs) in the Global North (Martinez Esponda, 2022: 38), which specifically aim to address structural inequalities akin to those at the heart of climate change. SERs are considered ‘programmatic rights’ and not justiciable before courts in the effort to deal with social and climatic vulnerabilities (Chimni, 2003: 56).

B. The integration of (socio-economic) rights in Global South litigation

The philosophical foundations and the role of human rights in the Global South appears rather different from the above-elucidated situation. The aftermath of colonial and de/post-colonial realities of brutality and exploitation for the majority of the Global South countries elevated human rights to symbols against and means to combat inequality, which is closely connected to climate change vulnerabilities (Kotzé, 2015: 178-179). Subsequently, human rights, especially SERs, were central in the constitutionalisation processes expanding in the Global South from late 1980s (Rodríguez-Garavito, 2020: 41); for example, human rights have been central in the litigation before Supreme Courts in various countries, such as the right to food in India (Shah, 2006), with the aim to stabilise and expand the fight against inequalities. Hence, human rights in the Global South are inextricably linked to State and institution formation, with actors invoking them to progressively enhance States’ regulatory efforts and minimise their vulnerability (Engstrom and Hillebrecht, 2018).

This interaction has been institutionalised with the integration of extensive human rights catalogues in the constitutions of many Global South countries, the majority of which incorporate at least some form of right to a healthy environment (Feria-Tinta, 2021). At the same time, human rights treaties in many jurisdictions are frequently placed in a higher hierarchical position compared to regular legislation, such as in the case of Brazil (Moreira Maués, 2013).

Against this background, Global South climate change litigation has extensively utilised human rights. First, the majority of jurisdictions incorporate the right to a health environment within their constitutional text, thus enabling the establishment of a new type of environmental constitutionalism (Boyd, 2015: 182). Environmental degradation, including climate change, is recognised as a direct threat not only to human rights but also the inherent values recognised through and within each legal order (Gearty, 2010). Human rights-based climate litigation becomes, then, ‘a juridically elevated expression of constitutions through human rights’ (Kotze, 2015: 146) and thus more ingrained in the fabric of institutions and the State itself.

Second, it is through this elevated role of human rights in climate litigation that marginalised communities can elucidate the dynamics of vulnerability inherent in climate change and its complexity and interconnection with other concerns, such as poverty, and strive for more ambitious climate regulation (Cameron and Limon, 2012: 204; Gonzalez, 2015: 165). This interlinkage of human rights and climate change litigation has already manifested in the Global South. In the Leghari case, the litigants claimed and the Lahore High Court accepted that although the Pakistani Constitution does not contain a right to a healthy environment, other human rights, such as the right to life and dignity, suffice to provide legal protection against failure to address climate change (Setzer and Benjamin, 2019: 91-92); similarly, the Colombian Supreme Court utilised the constitutional rights framework in order to expand environmental protection to future generations, even though they are not included in the constitutional text as bearers of rights (Alvarado and Rivas-Ramírez, 2018: 519). Lastly, in PSB v Brazil, the Supreme Court declared that the Paris Agreement constitutes a human rights treaty and must be accorded a supra-legislative character, solidifying the importance of human rights for achieving climate justice in the Global South (Kamiski, 2022).

The above highlight that climate litigation trends in the Global South challenge us to adjust our analytical lens in relation to human rights as effective means of climate protection (Peel and Lin, 2019: 701). From the perception of partially effective ‘gap-fillers’ in the Global North, human rights in the Global South have a distinct institutional identity and allow for a robust exploration of value-laden dynamics in climate litigation.

III. THE ROLE OF COURTS IN CLIMATE LITIGATION THROUGH AN INTERACTIONAL AND ENTREPRENEURIAL LENS

Socio-legal approaches aim to elucidate the socially integral role of the law in structure formation and focus on how the law is (un-)done through interactive proceedings and exchanges of various actors (Hirsch, 2005; Hollis, 2011: 63-64.). Within this approach, (international) law is approached through a relational prism and is contingent on the existence, choices, and interactions of the various participants operating within ‘intersubjective understandings, expectations and knowledge’ (Hirsch, 2015).

In the interactional model espoused here different legal regimes co-exist and (re-)formulate each other through creative interaction and the exchange of principles (Toope and Brunnée, 2010). Once a system’s common understandings are stabilised, new legal norms and values can be created if they can be anchored in existing principles. In the case of climate change litigation, thus, perpetuating an inherent legal connection between human rights and climate change is attainable because of the common function of human rights in institution-formation in the Global South.

In this interactional approach to the law, the role of courts extends beyond merely resolving disputes; they focus on integrating differentiated, yet co-existing, spheres of legal interest (Aksenova, 2019: 90.) and stabilising normative expectations (von Bogdandy and Venzke, 2013: 54). Climate change litigation constitutes the main vehicle through which the various actors’ positions are brought in the forefront and courts in the Global South are more willing to engage in innovative legal thinking and link climate change with human rights concerns and values, thus becoming an integral part of climate change governance (Kotze 2019).

Closely related to the above framework lies the norm-entrepreneurial function of courts (Keck and Sikkink, 1998), which focuses on their ability and will to actively participate in the interpretation, (re-)formulation and even creative restructure of specific legal norms based on existing legal vacuums or judicial priorities (Madsen, 2015). In this regard, courts can actively communicate their legal interpretation and perceptions and its specific application and interpretation either by specifically targeting executive or legislative acts or by deciding on general legal questions (Kapiszewski, Silverstein and Kagan, 2013). While potentially conflicting the other two branches, in the entrepreneurial model the judiciary aims to expand and integrate the understanding of existing laws.

The progressive trend of courts in the Global South to frame climate change as a human rights issue (Setzer and Benjamin, 2019: 90) thus engaging even in activities akin to law-creation constitutes one of the clearest examples of entrepreneurial judicial function. First, the courts act as the iterative fields where various arguments can be formulated and discussed in relation to human rights and climate change. In the Future Generations case before the Colombian Supreme Court, the litigants provided an innovative view on transtemporal human rights protection which the court accepted. Also, in the PSB v Brazil case, the Court held an extensive and innovative public consultation to gather information on human rights impacts of climate change and the scientific background to them (Borges, 2020). Second, the innovative processes of new legal avenues can be realised when the courts interact in such a manner with litigants. In the PSB case, the Court was seized multiple times to determine and strengthen the content of specific climate change regulations (Mello Neiva and Mantelli, 2022) and through this interaction managed to provide an innovative legal classification of the Paris Agreement as a human rights treaty. This can enable the formation of a true environmental/climate constitutionalism within the Global South where human rights will play a central role (Peel and Lin, 2019; Gonzalez, 2015). Nevertheless, this ‘conflictual’ relationship with the other branches does not aim to undermine but to enhance participatory decision-making (Lehmen, 2021: 1475).

IV. NEXT STEPS: TOWARDS A NEW CLIMATIC RULE OF LAW (?)

Taking an analytical step back, it can be conceived that our previous analyses have revealed two fundamental aspects of modern state-formation (in relation to climate change). The recognition of substantive legal norms which reflect the inherent values of societies, and the establishment of the respective procedural actors entrusted to stabilise normative expectations and prevent regulatory arbitrariness (Tamanaha, 2009: 5).

Rule of law constitutes perhaps one of the most elusive concepts in legal theory; in the present post, we perceive the notion as overarching guarantees against domination by the state apparatus and protection of people from being subjected to ‘arbitrary discretion by governments’ (Follesdal, 2021: 119). The conception of the rule of law and environmental/climate protection are closely connected. Scholars have tried to establish a Grundnorm based on which various legal norms can be integrated and can act as counterweight to minimise potential executive/legislative arbitrariness (Bosselmann, 2013: 83-4). Basic respect for human rights, especially in situations of climate emergency, has been recently brought to the forefront (Sulyok, 2024: 12-14).

On the procedural level, the role of courts for the establishment of a rule of law has been extensively debated. From the fundamental denial of courts’ involvement in the executive or legislative processes in fear of usurpation of democratic will (Waldron, 2021) to more nuanced and balanced approaches (Follesdal, 2021), courts are consistently perceived as fundamental actors whose role deserves deeper research. In this post, we ascribe with the position that courts through their counter-majoritarian function can hold the other two branches accountable and therefore not minimise the separation of powers but strengthen collaborative decision-making (Eckes 2022). In this conception, judicial oversight of human rights respect and separation of powers are not inherently incompatible; the courts allow the necessary deference to the executive and legislature to determine the specificities of policies but ensure the existence of institutional checks and balances (Lehmen, n.d.). Similar to this conception lies the notion of ‘dialogical judicial activism’ regarding the role of courts in SERs litigation towards enhancing pre- and post-litigation public participation (Rodríguez-Garavito and Rodríguez-Franco, 2015: 173). This approach is fundamentally present in Global South climate litigation; in PSB, the Court convened the extensive public dialogue, in Leghari, the Court mandated the creation of a Commission to monitor the implementation of the decision and in Future Generations, the Colombian Supreme Court mandated the creation of national plans with specific indicators of progress and success.

Analytically synthesising the above analyses, we tentatively see the gradual emergence of a new type of climatic rule of law in the Global South. On the substantive level, the specific interrelation between human rights and climate change in the region, namely the emphasis on vulnerability and inequality, and the role of human rights in value-laden institutional formation -as seen through the recognition of the Paris Agreement as a human rights agreement- can be regarded as a specific Grundnorm surpassing the individualistic chuckles of the Global North. On the procedural level, courts in the Global South taking an active -yet, not activist- stand by providing the venue for legal norms interaction and acting as entrepreneurs for the (re-)framing of specific rules, most notably the translation of climate change to specific human rights violations and the mandate towards States to take necessary protective measures. In their function, they can ensure a system of ‘horizontal accountability’ (O’Donnel, 2003: 38) where they exercise the necessary oversight and protection of human rights’ core in climate change from regression, while maintaining respect for the separation of powers (Tigre and Setzer, 2023: 630-636), which is also fundamental in the rule of law conception.

V. CONCLUSION

In this post we tried to succinctly present some first thoughts on potential modalities for the emergence of a new climatic rule of law conception based on the specific realities of Global South, as they can be distilled through climate change litigation. A perception where the interconnection between climate vulnerabilities and human rights protection is integral with the effort to translate this connection to institution-formation through litigation rests on the substantive corner. On the procedural one, we can find courts who are willing to make a legal step towards the establishment of a collaborative and dialogic approach to climate policy-making in order to minimise arbitrariness and ensure the protection of human rights’ core at all times during the climate change realities.

Of course, we have not managed to exhaust the analysis of the issue; au contraire, our aim is to stir the legal scholarship in new legal discussions which of course have their advantages and disadvantages. In this initial effort we recognise that due to space limitation we have resorted in a generalisation of jurisdictions in the Global South which might have reductionist effects for the proposed theory; for this reason, we consider that the next analytical step would be to undertake empirical and disaggregated research, which is unfortunately beyond the limits of the current endeavour.

 

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