COP28 and the Road Ahead for Climate Justice: Building on the Legal Empowerment Movement

The Justice for All report highlights the importance of putting people at the center of justice. This can be achieved by understanding their justice needs, preventing and resolving their justice problems, empowering them, and improving their justice journeys. As part of the Pathfinders #JusticeForAll series, this article calls attention to the limitations of current climate change redress policy, and highlights an opportunity for climate justice initiatives to have an impact. Reflecting on the importance of climate litigation and the recently announced Loss and Damage Fund, this is a call to action for policymakers to draw lessons from transitional justice practices and the human rights movement to ensure effective climate action.

Photo: COP28/Amira Grotendiek

Has the moment for climate justice finally arrived? Looking at the over 2,500 US and global cases of climate litigation, the agreement on the Loss and Damage Fund at COP28, together with how activists are framing their campaigns, one might be inclined to believe so. Dig a little deeper, and you realize we are just at the beginning of a long journey.

While any progress is positive, current efforts need to be more inclusive, global in reach, and target affected communities. By better leveraging legal empowerment approaches such as participatory documentation of harm suffered, community-focused public interest litigation, and advocacy campaigns grounded in law, climate justice initiatives could be a game changer in addressing the broader climate crisis.

It is time to apply lessons from the justice and human rights movements to the climate agenda.

Some important background to what’s driving momentum toward climate justice is the failure of the global response to the climate crisis to date. With few exceptions, our governments talk too much and do too little, with our global institutions not up to the task. It bears repeating that in the almost 30 years since the United Nations Framework Convention on Climate Change (UNFCCC) entered into force, global greenhouse gas emissions—despite some fluctuations—have continued a steady rise. While the Paris Agreement provided a step in the right direction, it too has failed to deliver meaningful change. The recent agreement at COP28 to transition away from fossil fuels is positive but not enough. We are a planet addicted to cheap fossil fuels, and over 30 years of global climate action have failed to shift this fundamental premise.

Promising Climate Justice Initiatives

Against this bleak backdrop, perhaps climate justice initiatives can offer hope in turning things around. Climate litigation, coupled with lessons from transitional justice and the human rights movement, can provide fertile ground for progress. While still in its infancy, climate  litigation is showing much-needed promise in shifting governments and the private sector away from business as usual and kick-starting a just transition away from fossil fuel dependency.

Two cases amongst many stand out: the Urgendra Foundation v. the Netherlands case of 2015, where the Dutch government was ordered to take stronger action to address climate change; and the 2020 Portuguese youth case (still pending), where the plaintiffs argue their human rights are violated by insufficient action on climate change. By protecting the interests of future generations, preventing new exploration for fossil fuel extraction, and requiring governments to substantially increase their mitigation ambition, climate litigation shows the potential to achieve a step change in our response to the climate crisis, pushing political leaders to go further and faster.

Those of us working on legal empowerment, however, know that what happens in the courtroom should be but one part of a more holistic strategy. In contexts where climate impacts hit hardest, and those most affected are generally part of the 5.1 billion people who lack meaningful access to justice, climate-related law, policy, and litigation are rarely used and often perceived as foreign concepts.

Yet, this could not be further from the truth. If communities at the frontlines understand their rights, the latest climate trends, and how to seek redress, climate-related legal action offers a powerful way forward. Recent cases in Kenya (2019) and South Africa (2021) demonstrate the potential. To maximize potential, global climate justice efforts need to be less top-down, not overly focused on the centers of power responsible for the crisis, and responsive to the diverse needs of those most vulnerable to climate impacts.

A key example is the Loss and Damage Fund, a positive achievement of recent UNFCCC negotiations that aims to finance vulnerable developing countries’ response to the economic and non-economic impacts of climate change. While a step in the right direction, the Fund could go much further toward climate justice. Initially administered by the World Bank, the USD 700 million pledged at COP28 is modest relative to the immense need. Furthermore, by avoiding the critical question of accountability for historical emissions, it risks perpetuating many of the dynamics it aims to address.

The Case for Climate Accountability

Hard-wired into the Fund is the decision that accompanied the Paris Agreement that loss and damage “does not involve or provide a basis for any liability or compensation.” With only a fraction of the required funds, facing early scrutiny of its administration model, and with accountability issues off limits, the Fund will struggle to meaningfully move the climate justice agenda forward.

It does not have to be this way. The Fund and broader efforts to provide climate-related redress can build on the lessons of transitional justice and the human rights movement at large. Experience teaches us that an accurate account of past harm and the structures that enabled it, together with accountability for those most responsible, are critical to breaking cycles of violations and achieving institutional reform.

Providing financial compensation without addressing the underlying accountability may not only send the cause of justice backward but also be a lost opportunity to promote the scale and pace of change we urgently require.

One need only look at the impact of tobacco litigation globally to understand the importance of securing accountability in shifting state and corporate conduct. As unpalatable as it may be for the world’s largest historical emitters, accountability must not be divorced from the Fund or any meaningful attempt to further climate justice. Rather, with due acknowledgment and accountability for past wrongs, the Fund could be a vital catalyst for meaningful climate action.

Next Steps for Long-Term Success

Drawing further lessons from the justice sector, practitioners also know that when victims of injustice are shut out of efforts to achieve redress, mechanisms can ring hollow and struggle to meet their aims. Contemporary best practice strives for people or victim-centered justice, ensuring those directly affected shape the design and delivery of the response. Current efforts for climate justice often fail on this score. Litigation tends to occur in the US and Europe, where the highest emitters are domiciled, removed from where the greatest impacts are felt. Yet, if the patterns of inequality and exclusion can be addressed, climate justice can be an empowering force that shifts power away from the fossil fuel industry and largest emitters, moving the needle toward vulnerable communities at the frontlines.

As the dust settles after COP28, there can be no doubt the struggle for climate justice will be long and painstaking, rivaling the great human rights struggles of the past. Long-term success will require an unprecedented energy transition, taking on powerful economic interests, and addressing entrenched global inequality. It will not come easy.

Past movements for justice must be drawn on, deploying the full legal empowerment toolkit and tapping into the powerful networks of public interest lawyers, paralegals, and human rights activists worldwide, especially where climate impacts hit hardest. Initial signs point to legal strategies being a vital part of combatting the climate crisis. Maximizing its impact demands that current efforts be more people-centered, inclusive, global in reach, and build on the legal empowerment movement.

Ross Clarke is a human rights lawyer with over 20 years of experience designing, leading, and evaluating legal empowerment, access to justice, human rights, and climate change-related programs across Asia, East and Southern Africa. He has technical expertise in climate change law and policy, transitional justice, land governance, and documentation of human rights violations.

Originally posted on LinkedIn.