CLIMATE JUSTICE

Climate Justice

Climate justice is a term used for framing global warming as an ethical and political issue, rather than one that is purely environmental or physical in nature. This is done by relating the effects of climate change to concepts of justice, particularly environmental justice and social justice and by examining issues such as equality, human rights, collective rights, and the historical responsibilities for climate change. A fundamental proposition of climate justice is that those who are least responsible for climate change suffer its gravest consequences. Occasionally, the term is also used to mean actual legal action on climate change issues.

Controversial interpretations of climate justice

One contentious issue in debates about climate justice is the extent to which capitalism is viewed as its root cause. This question frequently leads to fundamental disagreements between, on the one hand, liberal and conservative environmental groups and, on the other, leftist and radical organizations. While the former often tend to blame the excesses of neoliberalism for climate change and argue in favor of market-based reform, the latter view capitalism with its exploitative traits as the underlying central issue.

Social justice

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Social justice is the fair and just relation between the individual and society. This is measured by the explicit and tacit terms for the distribution of wealth, opportunities for personal activity and social privileges. In Western as well as in older Asian cultures, the concept of social justice has often referred to the process of ensuring that individuals fulfill their societal roles and receive what was their due from society.[1][2][3] In the current global grassroots movements for social justice, the emphasis has been on the breaking of barriers for social mobility, the creation of safety nets and economic justice.

Social justice assigns rights and duties in the institutions of society, which enables people to receive the basic benefits and burdens of cooperation. The relevant institutions often include taxation, social insurance, public health, public school, public services, labour law and regulation of markets, to ensure fair distribution of wealth, equal opportunity and equality of outcome.[9]

Interpretations that relate justice to a reciprocal relationship to society are mediated by differences in cultural traditions, some of which emphasize the individual responsibility toward society and others the equilibrium between access to power and its responsible use.[10] Hence, social justice is invoked today while reinterpreting historical figures such as Bartolomé de las Casas, in philosophical debates about differences among human beings, in efforts for gender, racial and social equality, for advocating justice for migrants, prisoners, the environment, and the physically and mentally disabled.[11][12][13][14][15][16][17]

While the concept of social justice can be traced through the theology of Augustine of Hippo and the philosophy of Thomas Paine, the term “social justice” became used explicitly from the 1840s. A Jesuit priest named Luigi Taparelli is typically credited with coining the term, and it spread during the revolutions of 1848 with the work of Antonio Rosmini-Serbati. In the late industrial revolution, progressive American legal scholars began to use the term more, particularly Louis Brandeis and Roscoe Pound. From the early 20th century it was also embedded in international law and institutions; the preamble to establish the International Labour Organization recalled that “universal and lasting peace can be established only if it is based upon social justice.” In the later 20th century, social justice was made central to the philosophy of the social contract, primarily by John Rawls in A Theory of Justice (1971). In 1993, the Vienna Declaration and Programme of Action treats social justice as a purpose of the human rights education.[20][21]

Environmental justice emerged as a concept in the United States in the early 1980s. The term has two distinct uses. The first and more common usage describes a social movement whose focus is on the fair distribution of environmental benefits and burdens. Second, it is an interdisciplinary body of social science literature that includes theories of the environment, theories of justice, environmental law and governance, environmental policy and planning, development, sustainability, and political ecology.

Welcome to the website of the Climate Law Database, an initiative of the Climate Justice Programme. 

On this site you can find information and documents on many of the legal initiatives that have been brought under various legal theories in national and international forums.

Climate change impacts are already affecting people and the planet. And the science shows it will get far, far worse. The biggest impacts will be on the lives and livelihoods of the poor and developing countries, especially small island states. The biggest culprits are the rich and the developed countries.

Progress has been made: we have international agreements; more resources for scientific research, leading to stronger evidence; some policy advances; a change in industry rhetoric; and a certain increase in public awareness. But all this falls far short of what is needed. At the heart of the problem is the production and use of fossil fuel; and the continuing problems of deforestation and land degradation.

There are laws in place now that can address this. Many kinds of legal action have been taken around the world to enforce the law to combat climate change. A range of national and international legal theories have been invoked by dozens of different organisations, communities and individuals, such as human rights law, constitutional law, emission control regulation, endangered species protection, freedom of information and international legal obligations. Judgments and administrative decisions have begun to come through.

The Climate Justice Programme seeks to encourage enforcement of the law to combat climate change and on this website we aim to provide information and materials on the legal actions we are aware of, and on other aspects of climate change law.

About

The Climate Justice Programme (CJP) is an independent not for profit, non-government organisation that uses the law to expose environmental and human rights issues relating to climate change.

We are a group of lawyers, academics and campaigners who support the development and execution of strategic initiatives to address global climate change. We seek to raise awareness and engagement in climate law through long standing global networks of lawyers and international organisations.

The CJP is the only program globally that has been established with the sole purpose to work collaboratively with lawyers, campaigners and scientists in this innovative field.

The CJP does not accept funding, gifts or donations from any major greenhouse gas emitters or producers.

“Climate change litigation has proved to be a vehicle through which matters that are important to communities are being brought to the attention of governments and, hence, act as a catalyst for executive action.”

Justice Brian Preston, Chief Judge of the Land and Environment Court, Australia

Vision

We are dedicated to the pursuit of climate justice, through the development of climate law.

We advocate for the protection of the environment through seeking to reduce the impact of and mitigate the risk of climate change caused by the emission of greenhouse gases, through policy and legislative reform and strategic litigation, education and professional development.

Mission

To use the law to protect the natural environment and people from the adverse impacts of climate change.

Values
  1. Climate justice;
  2. Social justice;
  3. Human rights;
  4. Creativity, innovation and excellence;
  5. Working in partnership;
  6. Inclusiveness, respect and self-determination;
  7. Leading by example;
  8. Social responsibility as an organisation;
  9. Environmental sustainability;
  10. Diversity and equality;
  11. Respect for Indigenous peoples.

 

The Importance of a Human-Rights Perspective

The CJP is calling for a human rights approach to climate change. We are also calling for the development of a right to a safe climate: one that recognises the inter-connectedness of such a right with other rights and the importance of inter-generational equity to the essence of such a right.

Climate change poses an immediate and far-reaching threat to human rights across the globe. The world’s poor are especially vulnerable to the effects of climate change. There is a growing momentum around enforcing legal responsibilities and obligations to prevent and minimise the impacts of climate change upon human lives and human rights.

While there is no recognition of a right to a safe climate at international law there has been some recognition of a right to an adequate environment. For example Article 1 of the Aarhus Convention states:

“In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention.”

A number of existing human rights rely on a safe climate for their complete realisation. These include many civil, political, economic, social and cultural rights. For example rights to life, health, adequate standard of living, property, self-determination and just and favourable conditions of work all may rely on conditions of a safe climate.

Human rights are too often equated with “moral” questions and a common theme of government bureaucrats in consultations with non-government organisations has been the urging of NGOs to frame climate policy in economic not moral concerns.

Nevertheless it is our view that a human rights framework is essential for understanding the urgency of acting on climate change and is necessary to communicate fully the impact climate change will have on people in Australia and around the world.

In response to climate change, human rights requires a triple task to be performed by governments, namely to:

  1. avoid harmful emissions nationally in order to respect the right to live in freedom from human-induced climate perturbations;
  2. protect human rights against third-party emissions of countries or corporations through international cooperation; and
  3. fulfil human rights obligations by upgrading people’s capability to cope with climate change through adaptation measures, such as dam building, resettlement, or land redistribution.

Key Cases

Gbemre v Shell Petroleum Development Company of Nigeria

In this case an individual and community in the Niger Delta filed a case in the Federal High Court of Nigeria against Shell and other major oil companies to stop gas flaring. Gas flaring in Nigeria has contributed more greenhouse gas emissions than all other sources in sub-Saharan Africa combined, as well as poisoning local communities. The court held that the gas flaring was a gross violation of constitutionally guaranteed rights to life and dignity. This is the first time that a Nigerian court has applied the rights to life and dignity in an environmental case.

Petition to the Inter American Commission on Human Rights Seeking Relief from Violations Resulting from Global Warming Caused by Acts and Omissions of the United States

The Arctic Inuit filed a petition arguing that the impacts of climate change in the Arctic infringe upon the environmental, subsistence, and other human rights of Inuit. The Inuit sought a ruling from the Commission that the US must adopt mandatory limits on greenhouse gases and “…help the Inuit adapt to unavoidable impacts of climate change.” The Inuit relied on the breach of the following rights set out in the American Declaration of Rights and Duties of Man: the right to life (Art. 1), the right to residence and movement (Art. VIII), the right to inviolability of the home (Art. IX), the right to preservation of health and to well-being (Art. XI), the rights to benefits of culture (Art. XIII) and the right to work and to fair remuneration (Art. XIV). The Commission technically dismissed the Petition in December 2006. A hearing was however held in March 2007. No hearing report appears to have been published.

 

The climate is changing, human activities are contributing to this and the impacts are already being felt by people, plants and animals across the globe1. However the impacts of climate change are not evenly distributed. The poorest countries and the most vulnerable people within them, particularly those whose economies are dependent on agriculture, will be most affected despite having contributed least to climate change. It is this unfair situation that has led to calls from NGOs and developing countries for climate justice.

Justice is generally understood to mean that which is right, fair, appropriate or deserved, with justice being achieved when an unjust act is redressed. Within the context of climate change this means that the poorest countries and people should be supported by those who have contributed most to climate change. As a fairly new concept there are multiple definitions of climate justice. One that is used by the Mary Robinson Foundation – Climate Justice states that ‘climate justice links human rights and development to achieve a human-centred approach, safeguarding the rights of the most vulnerable and sharing the burdens and benefits of climate change and its resolution equitably and fairly’.

Essentially, climate justice means trying to ensure that people and the planet are treated fairly in the ways in which we: a) try to reduce further climate changes, for example by cutting down the amount of fossil fuels we burn to produce energy (known as mitigation); and b) adapt to the changes we have brought about in the climate, for example by developing crops that are resistant to droughts where rainfall levels have dropped as a result of climate change (known as adaptation).

1IPCC Fourth Assessment Report: Climate Change 2007. Available online at: www.ipcc.ch/ publications_and_data/ar4/syr/en/contents.html

 

International Climate Justice Tribunal

February 7, 2010 in 05. Climate Justice Tribunal, Working Groups

Objectives of the group in terms of debate and product:

– Assess whether an International Climate Justice Tribunal or alternatively an International Environmental Court is necessary or appropriate as a means to enforce states’ commitments to reduce greenhouse gas emissions.

– Analyze the strengths and weaknesses of the existing environmental tribunals.

– Agree on the creation of an international mechanism that can legally enforce the commitment of countries to comply with their responsibilities to humanity and to nature, including the commitment to reduce greenhouse gas emissions.

  • Agree on a strategy toward establishing such mechanism under the UN framework.

Principal questions:

– Is an International Climate Justice Tribunal necessary or appropriate?

– Should the tribunal’s jurisdiction be limited to enforcing commitments under the UNFCCC or should it also have the authority to enforce other multilateral environmental treaties? Alternatively, should its jurisdiction be limited to serious crimes against nature that are considered equivalent to a violation of human rights?

– Should the tribunal have universal jurisdiction or territorial jurisdiction, limiting jurisdiction to those crimes committed by a national of a state party or on the territory of a state party?

– Should the tribunal follow the complementarity principle of the ICC whereby the case may only be brought to the international tribunal if the state party is unwilling or unable to try the crime in a domestic court?

– Who should be able to bring complaints? Only states, or also non-state actors such as individuals, companies, and NGOs? If only states, then should non-state actors be allowed to express their opinion on a particular dispute?

– Should the tribunal set up an independent commission or public prosecutor, linked to a UN organization such as UNEP, to trigger procedures against a particular state or number of states?

– Should the tribunal be constituted as a UN body, or should it be an independent body?

– How should the tribunal be composed and who should decide its composition?

– How should the tribunal be financed?

– What relief can the tribunal grant and how should its decisions be enforced?

Rationale

– Under international law, States have an obligation to ensure that activities within their jurisdiction and control respect the environment of other States and areas beyond national control. This obligation is contained in many of the present international environmental treaties.

– Unfortunately, many of these international environmental treaties lack the mechanisms to enforce state party obligations.

– The UNFCCC contains no mechanisms for trying or sanctioning countries that fail to comply with their commitments to reduce greenhouse gas emissions.

– The polluter and user of natural resources should be held accountable for the environmental harm caused by their activities.

– The scale of legal responses must correspond to the scale of the problem.

Precedents: existing legal enforcement mechanisms of International Environmental Law

Various tribunals and dispute resolution mechanisms currently exist to solve international environmental disputes. Below is a list of the most relevant mechanisms: International Court of Justice (ICJ)

o The ICJ is the judicial arm of the United Nations and the only international court with universal jurisdiction. All UN member states may bring a case for all subject matters involving a dispute between states. However, both states must agree to its jurisdiction ex ante or ad hoc.

o Non-state actors can be neither complainant nor defendant. However, states may take up the case of an individual before the ICJ.

o The role of the ICJ is to settle legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized UN organs and specialized agencies.

o In 1993, the ICJ appointed a Chamber for Environmental Matters, composed of 7 of the 15 ICJ judges. Use of the Chamber requires the agreement of both parties and the ICJ can appoint assessors and scientific experts to assist with scientific questions related to the environment. The Chamber has yet to be used.

o Some decisions and advisory opinions relating to the environment include the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996, and Judgment in the case Concerning Gabcikovo-Nagymaros Project (Hungary v. Slovakia), ICJ Reports 1997, on the Danube Dam Project.

o Under the UNFCCC, Art. 14, a State Party may submit their disputes to the ICJ.

o In 2002, the Pacific island nation of Tuvalu contemplated suing the United States in the ICJ for its refusal to ratify the Kyoto Protocol. It decided not to do so after recognizing the difficulties of winning such a case.

Permanent Court of Arbitration (PCA)

o The PCA is neither a standing court nor a judicial organ. It is an arbitration body whose dispute resolution rules are based closely on the 1976 UN Commission on International Trade Law (UNCITRAL) Arbitration Rules and the 1980 UNCITRAL Conciliation Rules. The PCA has 110 member states.

o The PCA is independent from any environmental organizations and conventions.

o In 2001, member states adopted the Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment. They can be used by and against states, intergovernmental organizations, NGOs, multinational corporations, and private parties, as long as the parties agree that their dispute would be referred to arbitration under the Optional Rules. The Rules are based on UNCITRAL Arbitration Rules but also allow for the participation of environmental experts. PCA has handled several environmental cases including disputes under the UN Convention for the Law of the Sea (UNCLOS).

o Under the UNFCCC, Art. 14, State Parties may arbitrate in accordance with procedures adopted by the PCA.

World Trade Organization (WTO) Dispute Settlement system

o Where parties fail to seek a consensus solution, the WTO Dispute Settlement Body (DSB) establishes a panel to hear the dispute. If a measure is found to be inconsistent with WTO obligations, the member has to comply with the ruling and the recommendations, typically by removing the offending measure.

o The DSB can impose retaliatory trade sanctions for non-compliance.

o Environmental disputes have included the Shrimp-Turtle Case (1998) and Beef-Hormones case.

UN Convention on the Law of the Sea (UNCLOS)

o UNCLOS, which governs virtually all aspects of the law of the sea, provide a range of dispute settlement mechanisms in Part XV, some of which are compulsory and binding.

o Where parties fail to reach a consensus, they are obligated to settle the dispute through the International Tribunal for the Law of the Sea (ITLOS), the ICJ, or an arbitral tribunal.

o Environmental disputes have included the Southern Bluefin Tuna case.

Regional Forums

o Inter-American Court of Human Rights and the Inter-American Commission on Human Rights

– In 2005, the Inuit Circumpolar Conference (ICC) submitted a petition to the Commission seeking relief from violations of the human rights of Inuit resulting from global warming caused by greenhouse gas emissions from the United States. The petition urged the Commission to recommend that the United States adopt mandatory limits to its emissions of greenhouse gases and co-operate with the community of nations to prevent dangerous anthropogenic interference with the climate system. The petition also requested the Commission to declare that the United States has an obligation to work with Inuit to develop a plan to help Inuit adapt to unavoidable impacts of climate change, and to take into account the impact of its emissions on the Arctic and Inuit before approving all major government actions. The Petition was dismissed for insufficient evidence of harm.

o African Court on Human and Peoples’ Rights

o European Court of Human Rights (ECHR)

o Court of Justice of the European Community (ECJ)

Ethical Opinion Tribunals

o Permanent People’s Tribunal

o Latin American Water Tribunal

Preliminary Proposals

– Establishment of an International Environmental Court

o The idea of an International Environment Court (IEC) was first proposed in 1989, at the conference of the National Academy of Lincei in Rome. A draft Statute of the International Environmental Agency and the International Court of the Environment was presented at the UNCED Conference in Rio in 1992. See http://www.icef-court.org/base.asp?co_id=51.

o More recently, an IEC has been promoted by the UK group ICE Coalition, advocating for the creation of an environmental court molded on the ICJ, which will be able to enforce binding targets, enforce the right to a healthy environment, and “fine countries or companies that fail to protect endangered species or degrade the natural environment”.

o The risks associated with creating an entirely new tribunal is the potential for overlapping jurisdiction with existing international tribunals and the lack of financial resources to ensure an effective institution.

– Establishment of an International Climate Justice Tribunal

o In October of 2009, a preliminary hearing of the International Climate Justice Tribunal was held in Cochabamba, Bolivia, to hear seven cases regarding the impact of climate change and the violation of communities’, peoples’ and Mother Earth’s rights. The tribunal is a response to the absence of mechanisms and institutions that sanction crimes related to climate change. It originates from organized civil society rather than the State, and its rulings seek to have moral, ethical, and political implications. The tribunal aims to construct the necessary force to convince governments and multilateral entities to assume their responsibities with regard to equity and justice.

o In October of 2009, climate justice tribunals were also held in other parts of the world, including the Asian People’s Climate Tribunal in Bangkok, where the aim was to examine the culpability of developed countries for global warming and claim damages for the hardships inflicted on the people of Asia.

– Reform of the International Court of Justice (ICJ)

o The newly established environmental chamber could be used to enforce environmental obligations; however the ICJ has limited enforcement powers due to need for parties to agree to its exercise of jurisdiction and the lack of monitoring authority to ensure compliance with the decisions.

o The ICJ statute could be reformed in order to strengthen its enforcement powers.

– Reform of the International Criminal Court (ICC)

o The ICC allows the prosecution of individuals for the commission of the most serious crimes of concern to the international community: the crime of genocide, crimes against humanity, war crimes, and the crime of aggression.

o The jurisdiction of the ICC could be expanded to cover environmental crimes.

o However, critiques have noted that the inclusion of environmental crimes might water down the seriousness of other human rights violations. Nor does the ICC have particular expertise in international environmental law.

 

Final Conclusions working group 5: Climate Justice Tribunal

April 30, 2010 in 05. Climate Justice Tribunal, Working Groups | 1 comment

The peoples of the world have gathered at the World People’s Conference on Climate Change and the Rights of Mother Earth in the city of Cochabamba, Bolivia, from 19 to 22 April, 2010.  We, the Working Group of the Tribunal for Climate Justice, have made the following conclusions: Read the rest of this entry »

Working Group 5: Climate Justice Tribunal

April 16, 2010 in 05. Climate Justice Tribunal, Working Groups | 1 comment

As Indigenous Organizations and social movements we have met in the context of the PRE CONFERENCE OF INDIGENOUS PEOPLES AND SOCIAL ORGANIZATIONS, held in the city of Cochabamba from the 29th and to the 30th of March 2010, and we have constituted as the Working Group Nº 5 of Climate Justice Tribunal.

Read the rest of this entry »

ENVIRONMENTAL COURT

April 16, 2010 in 05. Climate Justice Tribunal, News, Working Groups | 4 comments

The case for the Environmental Court:

Dear activists, esteemed delegates, panelists and participants,

”The promotion, development and determination of international Environmental Law is based on the recognition that the principal causes and effects of the world’s major environmental problems are international in nature and so require solutions which are also international and based on an equitable sense of Justice for all.

Environmental Cooperation among the nations of this earth and the multinational institutions, can only be achieved if there is an inherent Justice in the centre of any response and a high regard for human rights as the overriding concern and main principle of the global response to Climate Change.”

Pano Kroko.  Chairman – Environmental Parliament  Read the rest of this entry »

International Climate Justice Tribunal

February 7, 2010 in 05. Climate Justice Tribunal, Working Groups | 3 comments

Objectives of the group in terms of debate and product:

– Assess whether an International Climate Justice Tribunal or alternatively an International Environmental Court is necessary or appropriate as a means to enforce states’ commitments to reduce greenhouse gas emissions. Read the rest of this entry »

GROUP 5: CLIMATE JUSTICE TRIBUNAL

February 7, 2010 in 05. Climate Justice Tribunal | Leave a comment

The UN Framework Convention on Climate Change contains no mechanisms for trying or sanctioning developed countries that fail to comply with their commitments to reduce greenhouse gas emissions. Thus, President Evo Morales has proposed the creation of an International Climate Justice Tribunal at the United Nations.

Is an International Climate Justice Tribunal necessary? What should be its characteristics? What is the path toward establishing it under UN framework? This working group will analyze and develop a proposal for the creation of an International Climate Justice Tribunal.