Transnational Climate Litigation: The Contribution of the Global South
Jacqueline Peel and Jolene Lin, Transnational Climate Litigation: The Contribution of the Global South, 113(3) American Journal of International Law (2019) (Forthcoming)
96 Pages Posted: 24 May 2019 Last revised: 8 Oct 2019
Date Written: April 28, 2019
Coinciding with negotiations for, and conclusion of, the Paris Agreement, litigation raising issues of climate change has become a global phenomenon. This global expansion gives substance to claims of a transnational climate justice movement with courts as important players shaping multilevel climate governance. However, most climate litigation scholarship and practitioner discussion focuses on court actions in developed countries of the Global North, with little analysis of climate cases in the Global South. Nonetheless, it is these countries—in Asia, the Pacific, Africa, and Latin America—that are among the most vulnerable to climate impacts.
This Article is the first to shine a light on the Global South’s contribution to transnational climate litigation. We argue that analysis of this experience is essential if transnational climate jurisprudence is to contribute meaningfully to global climate governance and to ensuring just outcomes for the most climate-vulnerable. Attention to the types of climate cases emerging in the Global South allows reframing of our understanding of transnational climate litigation to encompass suits that: raise climate issues “at the edge” as well as at the center of the litigation; frame claims in terms of constitutional and human rights; seek to hold governments to account for implementation and enforcement of existing mitigation and adaptation goals rather than pursuing new or better climate laws; and advance climate change concerns via a “stealthy” strategy that recognizes judicial reluctance to engage politically-charged climate policy questions.
Viewing transnational climate litigation through this broader “lens” allows a clearer picture of its distinctive governance role and possibilities for fostering more robust climate action in the Global South. At the same time, there is the potential to enhance transnational dialogue about the role of courts in climate governance by drawing lessons from decisions in the Global South for case law development elsewhere, both in the Global North and in other Global South countries.
Keywords: climate litigation, transnational governance, Paris Agreement, Global South, Global North, constitutional rights, climate justice
JEL Classification: K32, K33
Suggested Citation: Suggested Citation