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Courtrooms over COPs

Lucy Lönnqvist | Climate Fellow

Image credit: Christian Wasserfallen via Pexels.


Intergovernmental debate on climate mitigation strategies culminate every year at the Conference of Parties, with the most recent COP28 having just passed in early December. While COPs serve to raise the profile of climate accountability, attracting media attention to major emitters, we know that merely participating in climate discussions once a year does not cut carbon emissions in itself. Year after year, COPs are increasingly stained by the negative track record of ‘all talk, no action’, proving themselves to be a scheme of self-congratulation whereby world leaders disguise their inability to meet Paris climate targets in a grandeur greenwashing discourse.

 

It has become clear that COP conferences are inapt to concretely hold governments accountable for failure to phase-out fossil fuels or transition to renewable energy. This is due to their operation in an advisory capacity and lack of substantive power to issue sanctions or compel governments to act on climate commitments.

 

However, there has been a growing international trend towards courtrooms as an alternative forum for climate activists to hold nation-states accountable for their climate-adaption deficiencies. This phenomenon is coined by the term ‘rights-based litigation’ and involves framing governments’ failure to uphold climate commitments as violations of fundamental human rights. On the international stage, the cases of Urgenda Foundation v. The Netherlands and Leghari v. Federation of Pakistan have led the movement towards rights-based litigation, with the national governments in both cases sanctioned for violation of constitutional rights in failing to execute climate action policy. Both cases illustrate that despite the absence of concrete accountability measures issued at COP conferences year after year, we can fall back on human rights law as a tool to barter more ambitious action on climate change.

 

One of the themes occupying the focus of climate discussions in recent COPs has been addressing the inequality of climate change impact between the Global North and Global South. That is, protecting developing countries who are contributing least to the climate crisis, yet are paying the greatest price. For example, the land, sovereignty and people of the Torres Strait Islands region and Pacific Island countries are at much greater exposure to climate extremes induced by the overproduction of other nations. While tackling these issues has been the focus of COPs in the last two years, evident by the establishment of the Loss and Damage Fund at COP27, rights-based litigation has presented itself as a much more effective means in both supporting countries at the frontlines of climate impacts and sanctioning those inducing the climate crisis.

 

In the same year that COP27 issued the Loss and Damage Fund, the U.N. Human Rights Committee found that Australia failed to comply with human rights provisions outlined in the International Covenant on Civil and Political Rights (ICCPR). This was on the grounds that the country’s insufficient action on climate mitigation was putting the ancestral homelands of Torres Strait Islanders at risk of future submergence. More specifically, Australia’s failure to fund adequate coastal defence measures on the islands, such as seawalls, combined with its perpetual funding of coal mining projects violates Article 27, the right to culture; Article 17, freedom from arbitrary interference with privacy, family and home; and Article 6, the right to life of the ICCPR. The case was filed by Indigenous inhabitants of the Torres Strait Islands, demonstrating the effectiveness of rights-based litigation in – for the first time – holding the Australian government to account before a UN committee for its climate change deficiencies.

 

Merely a few months following the Torres Strait Islander case ruling, the Pacific Island state of Vanuatu took the climate litigation narrative one-step further through a successful ruling in March 2023 before the International Court of Justice (ICJ), the world’s highest international court. Vanuatu, one of the most vulnerable countries to climate extremes, filed to create legal obligations compelling countries to address the climate crisis, as well as a means to be sued if they fail to do so. This meant establishing concrete sanctions for states falling short of their climate commitments. The case has been celebrated as a significant advancement for Global South countries as it sets minimum standards of behaviour for all countries signatory to climate agreements.

 

When measuring the effectiveness of courts versus COPs in protecting the countries contributing the least to the climate crisis, it becomes clear that rights-based litigation is the platform we should be concentrating greater resources toward as opposed to the glitz and glamour of climate politics demanded by COPs. In the same time that the Loss and Damage Fund sat empty and abandoned over the last year, international justice mechanisms have catalysed rights-based climate litigation to not only call out states on their climate mitigation shortcomings, but issue punishments for failing to adequately protect fundamental human rights.

 

It is evident that legal processes inspire greater progress towards climate accountability than political spokesmanship, so perhaps it is time to rethink the level of time, funds, and carbon emissions we devote to COPs year in, year out, and redirect our resources towards climate litigation mechanisms as a more productive means to reach our global climate targets.



Lucy Lönnqvist is the Climate Fellow for Young Australians in International Affairs. She studies Economics and Political Science at Sciences Po Paris.


Having worked for over a month at a refugee camp located in the former Calais jungle in France’s North, as well as regularly conducting migrant permanences at the Franco-Italian border, Lucy is well-versed in the study of refugee rights protection, and is particularly excited to publish her first hand knowledge on migration as a climate-adaptation strategy, delving into global affairs sitting at the intersection of international law, migration and climate change.

 

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