Climate justice and rights-based litigation in a post-Paris world

Abstract

ABSTRACT In spite of the 2015 Paris Agreement requiring all Parties, irrespective of their development status, to take climate action, the operationalization of climate justice in global climate governance and policy has been fraught. Other avenues, such as litigation, have emerged as a policy tool for seeking redress for past and prospective harm resulting from climate change. The academic and policy literatures have, however, had limited engagement with the role of rights-based litigation in climate governance since Paris. We help fill this gap by developing the four-component OATH (Objective, Associated climate impact, Type of justice, Harm) framework and applying it to three high-profile climate litigation cases – Urgenda v. The Netherlands, Juliana v. United States, and Demanda v. Minambiente. Our analysis confirms that the progress and achievements of these cases demonstrate the potential of climate litigation to force greater national and sub-national government action on climate change. However, litigation better serves some types of justice (e.g. intergenerational) than others (e.g. distributive). Therefore, as its ambition and progress continue to grow, litigation must be combined with other forms of climate action to better advance justice in a post-Paris world. Key policy insights International climate agreements and obligations are important to the success of climate litigation. Climate litigation can be used to hold countries accountable to the commitments they communicate in their NDCs and other policy instruments, but it should be used as one of several policy tools. Litigation pertaining to climate adaptation should and can be expanded to support and advance justice. Distributive justice cannot be sufficiently advanced through domestic climate litigation so it must be further incorporated into international climate agreements and obligations. The universal right to a clean environment, its definition and criteria should be (a) established in international environmental agreements and obligations, and (b) aligned with the goals of the Paris Agreement.