This year at COP26, there were more climate change litigation events throughout the various COP venues, universities and the city than at any previous Climate COPs. This blog post briefly reflects on some of the key issued discussed around COP26 on climate litigation, recent initiatives by the Strathclyde Centre for Environmental Law and Governance, and ongoing Hub research on their potential relevance for the ocean-climate nexus.
THE RISE OF CLIMATE LITIGATION
The poet Peter deGraft-Johnson (the Repeat Beat Poet), in his poignant “Rhyming Guide to Climate Litigation” asks how we can “creatively employ the law for good” and reminds us of the connection between the human toll of climate change and the law, ending with a call to action to “defend the rights of the poor, and save the climate” asking, “what better use could the law be for?”
The sheer number of events on climate litigation around COP 26 and the attendance at these events was an incredible reminder that this field of law is rapidly expanding. Many of the issues negotiators and delegates at COP26 grappled with as they found their way toward agreement – or not – include questions of liability for loss and damage, deniability of responsibility, the reliance on science and the role of non-state actors. These are the same issues that are on the agenda for those of us focused on climate change litigation as one of the tools in the climate change toolbox as we all work to find ways to save ourselves from the climate crisis.
Among the climate change litigation events at COP26, the Climate Litigation, Legislation and the Rule of Law event co-hosted by SCELG, LSE, IUCN and funded by FILE was an afternoon of panel discussions and sessions related to climate change litigation in domestic courts, international and regional fora, along with an investigation of the role of law and legislation in climate change litigation. Key takeaways from the day include that climate change litigation, in its many and varied forms, is only one tool – albeit an important one – in the fight against climate change, and that this are of law is rapidly expanding with ever more creative and complex use of law. The event was organised by a small team from LSE and SCELG, including the Hub’s own Francesco Sindico and Kate McKenzie. The event drew 125 in-person attendees and nearly 400 online attendees. It was the first “climate litigation day” at any COP and also served as the platform for the official launch of the Climate Change Litigation Initiative, C2LI.
C2LI is project that has been 4 years in the making and began with a book co-edited by Francesco Sindico and Makane Moïse Mbenge from the University of Geneva, “Comparative Climate Change Litigation: Beyond the Usual Suspects”. In the 4 years since beginning the book project, C2LI has grown into a searchable web-based portal that focuses on making accessible qualitative legal information, such as standing requirements, grounds, and possible remedies that are relevant to climate change litigation with a particular focus on countries that have seen little or no climate change litigation in the past. C2LI has benefited from the leadership of Francesco and Kate, with a team of 30 volunteer research assistants, senior research assistants and legal analysts, and with the generous contribution and support from over 40 National Rapporteurs and 20 legal experts across 30 countries.
WHY DOES THIS POTENTIALLY MATTER FOR THE OCEAN?
Although there have not yet been any ocean-specific climate change cases filed, the announcement by a coalition of small island states of a new Commission of Small Island States on Climate Change and International Law brings with it the possibility of a request for an advisory opinion from the International Tribunal for the Law of the Sea (ITLOS) concerning climate change, sea-level rise, marine ecosystem protection, and international responsibility. The connection between the ocean and climate change litigation is the subject of an ongoing One Ocean Hub PhD by Kate McKenzie who is investigating whether the due diligence requirements under the Law of the Sea Convention could bolster due diligence arguments made in climate change litigation before national courts, where there is a direct ocean-related component of the climate change harms complained of in the lawsuits.