Can climate litigation help promote accountable institutions of government?
By Sam Betts-Davies, Ambassador
Goal 16 of the UN’s Sustainable Development Goals soon may undergo an expansion of its remit.
The historical application of its aim has been to promote justice and peace within societies by targeting corruption within law enforcement, regulating governmental institutions, and aiming to bolster their capacity to provide human rights standards. These aims continue to be important, particularly in developing areas such as sub-Saharan Africa where still only 46% of children under five are registered with their respective governments. The goal also targets school attendance in conflict-affected areas, the rule of national and international law, criminal justice systems and creating effective, accountable and transparent institutions.
It is the last goal on that list that is set to expand. In a world where the deadly impacts of climate change are felt evermore, it is becoming increasingly evident that a just and peaceful society is one protected from raging forest fires, poisonous smog and rising tides.
This was the decision made by the High Court of the Hague, upheld upon appeal in October this year. In the original 2015 ruling, the government’s planned carbon cuts of 14–17% from 1990 levels by 2020 were deemed unlawful in the face of the immense threat posed by global climate change, with the court prescribing 25% of carbon cuts by 2020.
The legal basis of the ruling was found in the European Convention for Human Rights which ensures subscribed states fulfil its obligations to protect citizens’ right to a decent private life, increasingly including a legal precedent for protection from ‘unsafe or disruptive environmental conditions’. As a result of this high-profile case, the UN produced a 40-page report centred on climate litigation, giving details of trends in national and international law that has increased such cases’ standing.
Following this, the development of stronger legal institutions on matters of climate change begins to align with the UN’s stated SDGs. The responsibility for the climate crisis has been diluted by belonging to everybody, to all of humanity, and as a result, nobody has been compelled to act sufficiently. In a future where peace and justice in society depend on action to tackle climate change, stronger lines of accountability have to be drawn. This is the case for climate litigation: the strengthening of national and international justice systems to enable direct lines of accountability from affected individuals, to governments and businesses.
In view of the ruling in the Netherlands and the stated SDG of creating institutions that are effective in their aims and accountable to their citizens, will climate litigation close up the accountability deficit holding us back from achieving the targets laid out in the Paris agreement?
It is important to point out the potential scope of the new phenomenon of climate litigation that has arisen in recent years. There are currently states facing climate lawsuits in the UK, Ireland, India, the US, Switzerland, Belgium, Portugal and Norway and more, centred around the responsibility of governments setting meaningful reduction targets in pursuit of a zero-carbon future.
The map below gives the number of cases that have been brought under the banner of climate litigation. By virtue of the number of cases brought to court around the world under the banner of climate litigation, it is clear that there is an appetite for legal remedies to hold governments to account over their climate change policies, in the hope of directly influencing policy.
The 2017 UN report into climate litigation has suggested that the rise in climate litigation cases owes itself primarily to the rise in national laws that addresses climate change directly, mostly written in the aftermath of the Paris agreement. These new laws have provided a foothold for complaints to be made, within the wider context of commitments made in the Paris talks.
In light of this assessment and the UN’s SDGs, it seems necessary that the UN should publicly state the aim of facilitating the development of national legal structures that can assess claims of a responsibility to protect the right to life of current and future generations on earth against the potentially catastrophic impacts of climate change. This seems like a natural continuation of the already stated UN aim of fostering effective, accountable and transparent institutions.
Of course, it is not the case that climate litigation holds the solution to all of the world’s problems. Judicial remedies alone are not sufficient to hold governments to account, and there are yet to be any serious examples of governments responding to lawsuits with increased carbon cuts. Even in the case of the Netherlands, three years were wasted between the initial 2015 and the latest appeal settled only this year — and it is likely that the government will appeal again, wasting yet more valuable time. Legal struggles are rarely quick; justice takes time.
As a result, equally important is visible public pressure — a sight that is seemingly on the rise, from the Extinction Rebellion road-blocks in London to the school strikes held in Australia and Scandinavia. Democratically elected representatives need to know that their jobs are on the line, that the people care enough about their environmental records to vote against those that fail to act sufficiently against climate change.
The solutions to this problem exist and have existed for several years; the problem now is about ensuring that we act. Therefore, whether through traditional methods of public protest or cases of climate litigation, the more lines of accountability that governments are subject to, the better.
