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After twenty-five years of climate litigation dominated by cases in the United States, Australia, and other jurisdictions in the Global North, a second wave of lawsuits arose in the mid-2010s that prominently feature cases filed in countries of the Global South. I argue that the use of human rights norms and strategies characterizes the “Global South route” to climate litigation, one that is firmly rooted in the trajectory of human rights adjudication and litigation in key Southern countries over the last three decades. I posit that, in order to understand the present and the future of this route, it is essential to (1) track its origins and features to the trajectory of “Global South constitutionalism” over the last three decades, especially litigation around socioeconomic rights, and (2) unpack the category of “Global South” countries, in order to avoid overgeneralizations and to identify the types of countries that are likely to see most climate litigation and court decisions. I close by suggesting that, in light of the planetary and urgent nature of the climate challenge, future research and advocacy should explore transnational forms of litigation that cut across the North-South divide and pay systematic attention to the impact of climate litigation.
Jacqueline Peel and Jolene Lin's informative assessment of climate litigation in the Global South is a vital and timely contribution to the growing literature on the issue. It relies on a definition of climate litigation that allows the authors to draw on a much larger set of cases from the Global South by including cases in which climate concerns are “at the periphery.” This essay examines climate litigation in India. Although the term “global warming” started appearing in Indian environmental judgments in the 1990s, climate litigation in India is of relatively recent provenance, and with a few exceptions, climate concerns are peripheral to other, more mainstream environmental issues. Peel and Lin analyze five Indian cases as part of their Global South docket; I expand this set by including fourteen more cases that I believe fit their article's chosen definitional ambit. I classify these cases into four categories based on the use of climate language—reference to climate change, greenhouse gas (GHG) emissions, or the international negotiations—in the courts’ judgment. Drawing from case law analysis and Indian environmental litigation, I make observations about what we can interpret from the current set of climate cases, and I predict that while conditions are favorable for climate litigation in India to grow, in the near future climate claims are likely to remain peripheral issues.
Jacqueline Peel and Jolene Lin note that a “transnational understanding of the nature, significance and effects of climate litigation is incomplete if it fails to encompass the Global South experience.” This is especially important because the broader aim of climate litigation—namely, to provide redress to victims for climate harms—requires a collective global effort. Peel and Lin thus call for a broadening of our understanding of climate change litigation to include the experiences of the Global South. The term “Global South” has been used to refer to the collection of mostly developing countries with similar agendas that have often collaborated in environmental negotiations. These countries form a significant bloc in climate change negotiations. However, the experiences and views of many of the countries of the Global South differ in the way climate change matters are conceived and tackled. This essay demonstrates as much by examining climate change litigation in Ghana.
New scholarship has identified trends, constraints, and opportunities for climate litigation in the Global South. While countries in the Global South tend to experience a lack of capacity within government agencies, civil society, and the judiciary, the Global South is not a homogenous group. Where climate litigation has been identified, the judiciary is often implementing government policy prescriptions in the absence of detailed climate legislation or filling enforcement gaps. But there are also a number of countries where climate litigation is not taking place or where gaps exist between ongoing litigation and traditional definitions of climate litigation. The scholarship is yet to further explore the relationship between climate legislation and litigation in the Global South, in particular in circumstances where ripe policy and legislative conditions for climate litigation exist. Taking into account different regional and national experiences, this essay explores that relationship.
Jacqueline Peel and Jolene Lin make an important contribution to the climate change litigation literature through their analysis of emerging climate change litigation in the Global South. Their article provides insights into patterns in that litigation and implications for how the cases may fit into transnational climate change governance. As Peel and Lin discuss, context matters greatly in establishing pathways for climate change litigation and determining regulatory impact. They acknowledge that the countries that they study as a group have significant differences among them and that these differences influence how this litigation is emerging. However, their article largely focuses on differences in legal systems and available legal mechanisms. This essay builds upon their article by considering how the geography of climate change interacts with this emerging litigation.