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Transnational Climate Litigation: The Contribution of the Global South

  • Jacqueline Peel (a1) and Jolene Lin (a2)

Abstract

Since the conclusion of the Paris Agreement, climate litigation has become a global phenomenon, casting courts as important players in multilevel climate governance. However, most climate litigation scholarship focuses on court actions in the Global North. This Article is the first to shine a light on the Global South's contribution to transnational climate litigation. 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.

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This research was supported by a National University of Singapore-Melbourne Law School Research Partnership grant (2018–2019). A work-in-progress version of this paper was presented at the American Society of International Law Mid-Year Research Forum, Nov. 9–10, 2018 held at UCLA, Los Angeles. We are grateful for feedback on earlier drafts from Professor Doug Kysar at Yale Law School, Dean Hari M. Osofsky at Penn State Law School and School of International Affairs, Professor Alex Wang at UCLA Law School, Associate Professor Lisa Vanhala at UCL, and Dr. Joana Setzer at the LSE Grantham Research Institute on Climate Change and the Environment. We also appreciate the suggestions and criticisms offered by five anonymous peer reviewers of the manuscript. Our thanks to Carol Yuen at NUS for her assistance in formatting footnotes.

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1 Paris Agreement, Dec. 12, 2015, UNTS I-54113 (entered into force Nov. 4, 2016). The Paris Agreement is a multilateral environmental treaty that seeks to enhance the implementation of the United Nations Framework Convention on Climate Change (UNFCCC), May 9, 1992, 1771 UNTS 107 (entered into force Mar. 21, 1994) and to strengthen the global response to the threat of climate change.

2 Leghari v. Pakistan, WP No. 25501/2015, Lahore High Court, Order of Sept. 4, 2015, para. 1 (Pak.), available at https://elaw.org/PK_AsgharLeghari_v_Pakistan_2015 (hereinafter Leghari, Order of Sept. 4, 2015). See also Anam Gill, Farmer Sues Pakistan's Government to Demand Action on Climate Change, Reuters (Nov. 13, 2015), at www.reuters.com/article/pakistan-climatechange-lawsuit-idUSL8N1383YJ20151113.

3 Government of Pakistan, Ministry of Climate Change, National Climate Change Policy (Sept. 2012), available at www.gcisc.org.pk/National_Climate_Change_Policy_2012.pdf. Furthermore, see Government of Pakistan, Climate Change Division, Framework for Implementation of Climate Change (2014–2030), at 1 (Nov. 2013), available at www.gcisc.org.pk/Framework%20for%20Implementation%20of%20CC%20Policy.pdf.

4 Leghari, Order of Sept. 4, 2015, supra note 2, para. 1.

5 Id., para. 6.

6 Id., para. 11.

7 Parvez Hassan, Judicial Commission on Climate Change in Pakistan, at 5 (APCEL Climate Change Adaptation Platform, APCEL 20th Anniversary Celebration, Nov. 10, 2016), available at https://law.nus.edu.sg/apcel/cca/4.%20JudicialCommissiononClimateChangeinPakistan.pdf.

8 Pakistan Climate Change Act, § 95 et seq., 2017, National Assembly, The Gazette of Pakistan (Apr. 3, 2017), available at www.na.gov.pk/uploads/documents/1491459994_555.pdf.

9 Rina Saeed Khan, Pakistan Passes Climate Change Act, Reviving Hopes – and Skepticism, Reuters (Mar. 24, 2017), at www.reuters.com/article/us-pakistan-climatechange-lawmaking/pakistan-passes-climate-change-act-reviving-hopes-and-skepticism-idUSKBN16V19N.

10 Michal Nachmany, Sam Fankhauser, Joana Setzer & Alina Averchenkova, Global Trends in Climate Change Legislation and Litigation 2017 Update, at 1, 13 fig. 6, Grantham Res. Inst. (May 2017), available at http://www.lse.ac.uk/GranthamInstitute/wp-content/uploads/2017/04/Global-trends-in-climate-change-legislation-and-litigation-WEB.pdf. For the impacts of the Paris Agreement on climate litigation trends and activity, see United Nations Environment Programme (UNEP) and the Columbia Law School – Sabin Center for Climate Change Law, The Status of Climate Change Litigation – A Global Review, at 4, 8–9 (2017), available at http://columbiaclimatelaw.com/files/2017/05/Burger-Gundlach-2017-05-UN-Envt-CC-Litigation.pdf.

11 As of May 2019, 1,023 cases have been identified in the United States. See Joana Setzer & Rebecca Byrnes, Global Trends in Climate Change Litigation: 2019 Snapshot, Policy Report, at 2, box 1, Grantham Res. Inst. (July 2019), available at http://www.lse.ac.uk/GranthamInstitute/wp-content/uploads/2019/07/GRI_Global-trends-in-climate-change-litigation-2019-snapshot-2.pdf. For a comprehensive listing and categorization of the claims put forward in U.S. climate cases, see The Columbia Law School – Sabin Center for Climate Change Law & Arnold & Porter Kaye Scholer LLP, U.S. Climate Change Litigation, at http://climatecasechart.com/us-climate-change-litigation.

12 These cases are tracked on the LSE Grantham Research Institute on Climate Change & the Environment & The Columbia Law School – Sabin Center for Climate Change Law, Climate Change Laws of the World, at www.lse.ac.uk/GranthamInstitute/climate-change-laws-of-the-world.

13 See generally Osofsky, William C.G. Burns & Hari M., Overview: The Exigencies that Drive Potential Causes of Action for Climate Change, in Adjudicating Climate Change: State, National, and International Approaches 1 (William C.G. Burns & Hari M. Osofsky eds., 2009); Osofsky, Hari M., The Continuing Importance of Climate Change Litigation, 1 Climate Law 3 (2010); Lin, Jolene, Climate Change and the Courts, 32 Leg. Stud. 35 (2012); Osofsky, Hari M. & Peel, Jacqueline, The Role of Litigation in Multilevel Climate Change Governance: Possibilities for a Lower Carbon Future?, 30 Envtl. & Planning L.J. 303 (2013); Giulio Corsi, A Bottom-Up Approach to Climate Change Governance: The New Wave of Climate Change Litigation, 57 ICCG Reflection 2 (Oct. 2017), at https://issuu.com/iccg/docs/57_climate_change_litigation_giulio.

14 Rajamani, Lavanya, Ambition and Differentiation in the 2015 Paris Agreement: Interpretative Possibilities and Underlying Politics, 65 Int'l & Comp. L. Q. 493 (2016) (explaining the endorsement of a bottom up approach in the Paris Agreement as opposed to the top down model of its predecessor treaty, the Kyoto Protocol (id. at 502), and the Paris Agreement's “bounded self-differentiation model” which permits parties to choose “their own contributions and tailo[r] these to their national circumstances, capacities and constraints” (id. at 509–10)).

15 The literature is vast. For an introduction, see Burns & Osofsky, supra note 13; Lisa Heinzerling, Climate Change in the Supreme Court, 38 Envtl. L. 1 (2008); Chris Hilson, Climate Change Litigation in the UK: An Explanatory Approach (or Bringing Grievance Back), in Fabrizio Fracchia & Massimo Occhiena, Climate Change: La Risposta del Diritto, at 421 (2010); Lin, supra note 13; Ruhl, David Markell & J.B., An Empirical Assessment of Climate Change in the Courts: A New Jurisprudence Or Business As Usual?, 64 Fla. L. Rev. 15 (2012); Daya-Winterbottom, Trevor, Country Report: New Zealand – the Legitimacy of Climate Change: Buller Coal in the Supreme Court, 5 IUCNAEL EJournal 231 (2014); Jacqueline Peel & Hari M. Osofsky, Climate Change Litigation: Regulatory Pathways to Cleaner Energy (2015).

16 Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007).

17 Urgenda v. Netherlands, Case No. 200.178.245/01, The Hague Court of Appeal, Oct. 9, 2018. An unofficial translation of the case from the Dutch original is available at https://www.urgenda.nl/wp-content/uploads/ECLI_NL_GHDHA_2018_2610.pdf. The Government of the Netherlands is appealing the decision to the Supreme Court. See Government of the Netherlands Press Release, State to Bring Cassation Proceedings in Urgenda Case (Nov. 16, 2018), at https://www.government.nl/latest/news/2018/11/16/state-to-bring-cassation-proceedings-in-urgenda-case.

18 The trial hearing in this case is yet to take place. For a history of the proceedings, see Our Children's Trust, Details of Proceedings, at https://www.ourchildrenstrust.org/federal-proceedings.

19 For a notable exception, see Climate Change Liability: Transnational Law and Practice (Richard Lord, Silke Goldberg, Lavanya Rajamani & Jutta Brunnée eds., 2012). This volume includes chapters assessing national laws in several Global South countries (China, India, Indonesia, Egypt, Kenya, South Africa, Brazil, and Mexico). However, the chapter assessments document no or few climate change cases in these jurisdictions in the pre-Paris Agreement period. For another early contribution to the literature on climate litigation in Global South countries, see Jolene Lin, Climate Change Litigation in Asia and the Pacific, i n Research Handbook on Climate Change Mitigation Law (Geert Van Calster, Wim Vandenberghe & Leonie Reins eds., 2014). See also Joana Setzer & Lisa C. Vanhala, Climate Change Litigation: A Review of Research on Courts and Litigants in Climate Governance, 10 WIREs Climate Change 4 (2019), noting “a first comprehensive study focused on Global South climate litigation is yet to be published.”

20 The term “Global South,” as well as interchangeable terms such as the “Third World,” is one of contested scope and content. See, e.g., R.P. Anand, International Law and the Developing Countries: Confrontation or Cooperation? 120 (1987); Elena Fiddian-Qasmiyeh & Patricia Daley, Conceptualising the Global South and South–South Encounters, in Routledge Handbook of South-South Relations, at 1 (Elena Fiddian-Qasmiyeh & Patricia Daley eds., 2019); John Toye, Is the Third World Still There?, in The Developing World: An Introduction to Development Studies Through Selected Readings, at 1 (Anna Farmar ed., 1988); Joyeeta Gupta, Changing North-South Challenges in Global Environmental Politics, in Handbook of Global Environmental Politics, 97 (Peter Dauvergne ed., 2d ed. 2012). In this Article, while cognizant of the wider debate about the North-South categorization, our understanding of the distinction aligns with the developed/developing country divide that is widely applied in international environmental and climate law scholarship, and which underpins the UNFCCC’s differentiation between Annex I (developed countries and former Soviet Union states) and non-Annex I (developing country) parties. Accordingly, major emerging economies such as China, India, Brazil, and South Africa are included in our analysis as part of the Global South. See similarly Benjamin J. Richardson, Yves Le Bouthillier, Heather McLeod-Kilmurray & Stepan Wood, Introduction: Climate Law and Developing Countries, in Climate Law and Developing Countries: Legal and Policy Challenges for the World Economy, at 1 (Benjamin J. Richardson, Yves Le Bouthillier, Heather McLeod-Kilmurray & Stepan Wood eds., 2009); Sumudu Atapattu & Carmen G. Gonzalez, The North-South Divide in International Environmental Law: Framing the Issues, in International Environmental Law and the Global South, at 1 (Shawkat Alam, Sumudu Atapattu, Carmen G. Gonzalez & Jona Razzaque eds., 2015).

21 Christopher B. Field et al., Summary for Policymakers, in Climate Change 2014: Impacts, Adaptation, and Vulnerability. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change, at 3, 6 (2014). See also, UNFCCC, United Nations Framework Convention on Climate Change, Climate Change: Impacts, Vulnerabilities and Adaptation in Developing Countries, 5 (2007), available at https://unfccc.int/resource/docs/publications/impacts.pdf.

22 This prospect has given rise to a significant body of United Nations resolutions and reports on the topic of human rights and climate change, detailing the impacts of climate change on human rights protections and noting the particular vulnerability of women, children, and the poor in developing countries. See, e.g., Annual Report of the United Nations High Commissioner for Human Rights and Reports of the Office of the High Commissioner and the Secretary General: Report of the Office of the United Nations High Commissioner for Human Rights on the Relationship Between Climate Change and Human Rights, UN Doc. A/HRC/10/61 (Jan. 15, 2009); John H. Knox, Report of the Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, UN Doc. A/HRC/31/52 (Feb. 1, 2016).

23 Consistent with our understanding of the Global South, explained note 20 supra, Asia for these purposes encompasses South Asia, Central Asia, and China, Africa encompasses the Middle East, and Latin America includes countries in the Caribbean.

24 The Leghari case, supra note 2, is one such example. Others are discussed in Part III infra.

25 See Paris Agreement, supra note 1, Art. 4(1) and (2) (on emissions reduction and mitigation measures), Art. 7(1) (establishing “the global goal on adaptation”).

26 An example is Greenpeace Indonesia and Others v. Bali Provincial Governor, 2/G/LH/2018/PTUN.DPS (Denpasar Admin. Ct., Jan. 24, 2018), filed in Indonesia's Administrative Court in 2018 challenging a coal-fired power plant approval, which is closely modeled on South Africa's first climate case Earthlife Africa Johannesburg v. Minister of Environmental Affairs and Others, High Court of South Africa, Gauteng Division, Pretoria, Case no. 65662/16, 2017. Both cases are discussed further in Part III infra.

27 See discussion at II.A infra.

28 Nachmany, Fankhauser, Setzer & Averchenkova, supra note 10, at 13.

29 Rajamani, supra note 14, at 502.

30 Details of the case are available from the website People's Climate Case, at https://peoplesclimatecase.caneurope.org. The case was conceived by the Climate Action Network, which is Europe's largest coalition of nongovernmental organizations (NGOs) working on climate and energy issues, with over 150 organizations' members in more than thirty European countries, representing over 1,700 NGOs. Further, a German NGO, Protect the Planet, is bearing all the costs related to the legal case. The petitioners claim that the EU's 2030 emissions reduction target is inadequate to safeguard their fundamental rights of life, health, occupation, and property. They are asking the European General Court to mandate that the EU lawmaking institutions take more stringent measures of climate protection to safeguard their fundamental rights as well as the global environment. On May 8, 2019, the European General Court issued an order denying the applicants’ standing: Case T-330/18 Carvalho & Others v. European Parliament and Council, Order of the European General Court, May 8, 2019, at 14, paras. 47–50. On July 11, 2019, the applicants’ filed an appeal of the General Court's decision to the European Court of Justice.

31 This is one element of a broader movement for South-South cooperation on climate issues being supported by the United Nations. See, e.g., United Nations Action Plan on South-South Climate Cooperation (2017–2021), at www.unsouthsouth.org/south-south-cooperation-action-plan-for-climate-change-engagement-strategy-2017-2021.

32 Greenpeace Indonesia and Others v. Bali Provincial Governor, supra note 26.

33 In the Indonesian Center for Environmental Law's report on the litigation, it refers to the Centre for Environmental Rights as its “South African partner.” See Indonesian Center for Environmental Law, Fighting to Keep a Dirty Power Plant Out of a Tropical Paradise (June 28, 2018), at https://icel.or.id/en/fighting-to-keep-a-dirty-power-plant-out-of-a-tropical-paradise.

34 For further discussion, see Jennifer Hadden & Lorien Jasny, The Power of Peers: How Transnational Advocacy Networks Shape NGO Strategies on Climate Change, 49 Brit. J. Pol. Sci. 637 (Mar. 20, 2017); Margaret E. Keck & Kathryn Sikkink, Activist Beyond Borders, Advocacy Networks in International Politics 240 (1998).

35 See Jacqueline Peel & Hari M. Osofsky, A Rights Turn in Climate Change Litigation?, 7 Transnat'l Envtl. L. 37 (Mar. 1, 2018). Where rights arguments are raised, Global North courts interpreting these rights have sometimes taken a narrow approach to their relevance to climate change. See, e.g., Greenpeace Norway v. Government of Norway, Case No. 16-166674TVI-OTIR/06 (Oslo Dist. Ct. Jan. 4, 2018) (Nor.), available at https://secured-static.greenpeace.org/norway/Global/norway/Arktis/Dokumenter/2018/Judgement%20-%204.%20jan%202017%20-%20Oslo%20District%20Court%20stamped%20version.pdf (unofficial translation provided by Greenpeace). The decision of the Oslo District Court is being appealed to the Norwegian Supreme Court. See Greenpeace International Press Release, Greenpeace and Nature and Youth Take the Norwegian Government to the Supreme Court (Feb. 5, 2018), at www.greenpeace.org/international/press-release/14527/greenpeace-and-nature-and-youth-take-the-norwegian-government-to-the-supreme-court.

36 For an early, insightful contribution on this issue, see David B. Hunter, Human Rights Implications for Climate Change Negotiations, 11 Ore. Rev. Int'l L. 331 (2009).

37 Examples include cases such as Massachusetts v. EPA, 549 U.S. 497 (2007) in the United States; Thomson v. Minister for Climate Change Issues, CIV 2015-485-919 [2017] NZHC 733 in New Zealand; Plan B Earth et al. v. Secretary of State for Business Energy and Industrial Strategy & Anor [2018] EWHC 1892 in the United Kingdom; Urgenda v. Netherlands, supra note 17, in the Netherlands; and the People's Climate Case, supra note 30, in the EU.

38 Gill, supra note 2, quoting an interview with Mr. Leghari.

39 The extent to which the Global South docket currently comprises mitigation cases, as opposed to those focused on adaptation and climate damage, was a surprising finding of the research given the lower emissions profile of many countries of the Global South and their relatively greater vulnerability to climate change impacts compared with countries in the Global North. See, e.g., Glenn Althor, James E. M. Watson & Richard A. Fuller, Global Mismatch Between Greenhouse Gas Emissions and the Burden of Climate Change, 6 Nature: Sci. Rep. 20281 (Feb. 5, 2016) (Finding that twenty of the thirty-six highest emitting countries are among the least vulnerable to negative impacts of future climate change whereas eleven of the seventeen countries with low or moderate emissions, are acutely vulnerable to negative impacts of climate change. These most vulnerable countries are largely small island nations and African countries in the Global South.).

40 See Kim Bouwer, The Unsexy Future of Climate Change Litigation, 30 J. Envtl. L. 483 (2018); Geetanjali Ganguly, Joana Setzer & Veerle Heyvaert, If at First You Don't Succeed: Suing Corporations for Climate Change, 38 Oxford J. Legal Stud. 841 (2018); David Markell & J.B. Ruhl, An Empirical Assessment of Climate Change in the Courts: A New Jurisprudence or Business as Usual, 64 Fla. L. Rev. 15 (2012); Jacqueline Peel, Hari M. Osofsky & Anita Foerster, Shaping the “Next Generation” of Climate Change Litigation in Australia, 41 Mel. U. L. Rev. 793 (2017).

41 Lawsuits raising issues of climate change first emerged as a phenomenon in the United States in the early 1990s. See David Markell & J.B. Ruhl, An Empirical Survey of Climate Change Litigation in the United States, 40 Envtl. L. Rev. 10644 (2010).

42 Massachusetts v. EPA, supra note 16.

43 Elizabeth Fisher, Climate Change Litigation, Obsession and Expertise: Reflecting on the Scholarly Response to Massachusetts v. EPA, 35 L. & Pol'y 236, 239 (2013).

44 For a clear articulation of this approach, see Hari M. Osofsky, Is Climate Change “International”?: Litigation's Diagonal Regulatory Role, 49 Va. J. Int'l L. 585 (2009).

45 Jacqueline Peel, Lee Godden & Rodney J. Keenan, Climate Change Law in an Era of Multi-level Governance, 1 Transnat'l Envtl. L. 245 (2012).

46 This is the objective of the UNFCCC, supra note 1, Art. 2.

47 City of Los Angeles v. Nat'l Highway Traffic Safety Admin., 912 F.2d 478, 481 (D.C. Cir. 1990).

48 Markell & Ruhl, Business as Usual, supra note 40, at 38. The Sabin Center U.S. Climate Change Case Chart, supra note 11, confirms the continuation of this pattern with over one-third of the U.S. cases in the database concerning challenges under federal or state environmental impact assessment laws.

49 Markell & Ruhl, Business as Usual, supra note 40, at 39.

50 In their 2012 article, Markell and Ruhl recorded zero adaptation cases. See id. at 30. Such cases have since begun to emerge but still constitute only a small number of overall U.S. climate claims, with only fifty-nine such claims listed in the Sabin Center database, supra note 11.

51 See Massachusetts v. EPA, supra note 16, 549 U.S. at 522 (interpreting § 202(a)(1), Clean Air Act, 42 U.S.C. § 7521(a)(1).

52 The Sabin Center database, supra note 11. The database categorizes cases by the claims they make, hence a particular lawsuit may be included under several categories.

53 Markell & Ruhl, Business as Usual, supra note 40, at 27.

54 Id. at 26.

55 Id.

56 Id. at 26–27.

57 This includes a broader approach to what amounts to litigation. For instance, Hilson, supra note 15, encompasses both cases that result in a judgment as well as those that do not progress that far but still involve court action or end in a settlement. The Sabin Center's U.S. climate change case chart, supra note 11, also treats the notion of litigation broadly, noting “[t]he term ‘cases’ in the U.S. chart comprises more than judicial and quasi-judicial administrative actions and proceedings. Other types of “cases” contained in the chart include rulemaking petitions, requests for reconsideration of regulations, notices of intent to sue (in situations where lawsuits were not subsequently filed), and subpoenas (at http://climatecasechart.com/about/).

58 Chris Hilson, Climate Change Litigation: A Social Movement Perspective, at 2 (Apr. 2010), available at https://ssrn.com/abstract=1680362 or http://dx.doi.org/10.2139/ssrn.1680362.

59 Id. at 3.

60 One of the examples Hilson discusses is R (Friends of the Earth and Help the Aged) v. Secretary of State for Business, Enterprise and Regulatory Reform; Secretary of State for Environment, Food and Rural Affairs (2) [2008] EWHC 2518 (Admin), a UK judicial review action to force the government to meet its fuel poverty targets. There was little mention of climate issues in the judgment, but the press releases highlighted the concerns raised by energy efficiency measures, thereby providing the bridge between climate change and fuel poverty.

61 Id. at 3.

62 Navraj Singh Ghaleigh, Six Honest Serving-Men”: Climate Change Litigation as Legal Mobilization and the Utility of Typologies, 1 Climate L. 31 (2010). Lin advances a similar “theoretical framework” for understanding climate cases, based on analysis of supranational and Australian decisions. Lin uses the categories of “Pressing for Regulation”; “Regulating the Regulatory Response”; and “Articulating Marginalized Concerns,” noting “[w]hat distinguishes these categories is the motivation behind the litigation suit.” See Lin, supra note 13, at 36.

63 Ghaleigh, supra note 62, at 45. See also Hilson, supra note 15 (discussing “proactive” versus “reactive” litigation where the latter involves criminal proceedings brought against climate change activists involved in alleged unlawful direct action).

64 See Markell & Ruhl, supra note 40. See also Tim Stephens, International Courts and Climate Change: “Progression,” “Regression” and “Administration,” in In the Wilds of Climate Law 53, at 54 (Rosemary Lyster ed., 2010) (discussing the analogous category of “regressive” proceedings in international climate law meaning those “which may be invoked to prevent states, or groups of states, from adopting national or international climate policies that could interfere with other norms such as those relating to trade liberalization”).

65 Ghaleigh, supra note 62, at 44.

66 Markell & Ruhl, supra note 40, at 65–70. See also Peel & Osofsky, supra note 15, ch. 7.

67 Peel & Osofsky, supra note 15, at 8.

68 Id. at 9.

69 Id.

70 Id.

71 In our own writing we have also adopted these framings in analyzing Global North case law. The above discussion is thus not intended as criticism but is merely designed to show how prevailing definitions and typologies are linked to a particular jurisdictional context.

72 See the first systematic review of key literature on climate change litigation over the past twenty years by Joana Setzer & Lisa C. Vanhala, supra note 19, in which they show that there were only a few articles published on the topic of climate change litigation in the early 2000s but there has been a marked increase in scholarship on this topic since then. They argue that one driver for this pattern may be high-profile judgments such as Massachusetts v. EPA, supra note 16, and the 2015 Urgenda decision, supra note 17, in the Netherlands.

73 Fisher, supra note 43.

74 However, see Jacqueline Peel & Hari M. Osofsky, Sue to Adapt?, 99 Minn. L. Rev. 2177–250 (2015).

75 Bouwer, supra note 40, at 1.

76 Id.

77 Id.

78 Id. at 2.

79 The Commission concluded its public hearings in December 2018 but, as at the date of writing, had not issued its findings. See further Commission on Human Rights of the Philippines Press Release, CHR Concluded Landmark Inquiry on the Effects of Climate Change to Human Rights; Expects to Set the Precedent in Seeking Climate Justice (Dec. 13, 2018), at http://chr.gov.ph/chr-concluded-landmark-inquiry-on-the-effects-of-climate-change-to-human-rights-expects-to-set-the-precedent-in-seeking-climate-justice.

80 This case is discussed in Part III infra.

81 The petitioners are Greenpeace Southeast Asia, the Philippine Rural Reconstruction Movement, Mother Earth Foundation, the Philippine Movement for Climate Justice, and ten other national organizations. See Greenpeace Petition, Requesting for Investigation of the Responsibility of the Carbon Majors for Human Rights Violations or Threats of Violations Resulting from the Impacts of Climate Change (May 6, 2016), available at https://storage.googleapis.com/planet4-philippines-stateless/2019/05/5a38951a-5a38951a-cc-hr-petition_public-version.pdf. The Sabin Center for Climate Change Law, Our Children's Trust, the Centre for International Environmental Law and ClientEarth submitted amicus briefs, available at www.business-humanrights.org/en/amicus-briefs. The world's leading climate science, policy, and legal experts, including Richard Heede, who is the principal investigator of the Carbon Majors Project, appeared as witnesses in the hearings by the Commission on Human Rights of the Philippines. See Greenpeace Press Release, World's Top Climate Experts to Testify in Landmark Investigation into Fossil Fuel Companies (Aug. 28, 2018), at https://www.greenpeace.org/international/press-release/18188/worlds-top-climate-experts-to-testify-in-landmark-investigation-into-fossil-fuel-companies.

82 See Grantham Research Institute on Climate Change and the Environment, Climate Change Laws of the World, supra note 12. A search was performed on the litigation database for all years and countries, excluding the United States, which is not covered by this database.

83 Nachmany, Fankhauser, Setzer & Averchenkova, supra note 10, at 13.

84 Id., Appendix 2, at 24.

85 Public Prosecutor's Office v. Oliveira & Others, (2008) 0215494-3 (Brazil).

86 Nachmany, Fankhauser, Setzer & Averchenkova, supra note 10, at 13.

87 See, for example, the Ministry of Environment prosecutions against Selatnasik and Simpang, PT Merbau Pelalawan Lestari, PT Bumi Mekar Hijau, PT Jatim Jaya Perkasa, and MoEF v. PT Waringin Agro Jaya, discussed in online Appendix, Table 1, infra.

88 Nachmany, Fankhauser, Setzer & Averchenkova, supra note 10, at 11–12.

89 LDCs – 47 countries listing, see UN Office of the High Representative for the Least Developed Countries, Landlocked Developing Countries and Small Island Developing States, at http://unohrlls.org/about-ldcs.

90 Nachmany, Fankhauser, Setzer & Averchenkova, supra note 10, at 12. The relative lack of specific climate laws in the Global South may also reflect directions under international climate laws, such as the UNFCCC and Paris Agreement, for developed countries to “take the lead” on global climate action.

91 See Global Legal Action on Climate Change v. The Philippine Government, filed 2010, pending before the Supreme Court of the Philippines.

92 Rules of Procedure for Environmental Cases (A.M. No. 09-6-8-SC), Part III Special Civil Actions, Rule 7 Writ of Kalikasan.

93 Tseming Yang, The Implementation Challenge of Mitigating China's Greenhouse Gas Emissions, 20 Geo. Int'l Envtl. L. Rev. 681–88 (2008) (pointing out that the placement of climate policy within the jurisdiction of the NDRC suggests that “climate change policies are first and foremost seen as economic development policies” and arguing that many of the measures in the National Climate Change Program (2007), such as those promoting energy efficiency and conservation, are taken primarily with a view toward energy security and costs, and only secondarily with a view toward reducing environmental impacts, especially climate change). Moreover economic growth supplies an important source of legitimacy for the Chinese Communist Party's rule. See André Laliberté & Marc Lanteigne, The Issue of Challenges to the Legitimacy of CCP Rule, in The Chinese Party-State in the 21st Century: Adaptation and Reinvention of Legitimacy (André Laliberté & Marc Lanteigne eds., 2007).

94 David Stanway, China Shake-Up Gives Climate Change Responsibility to Environment Ministry, Reuters (Mar. 13, 2018), at www.reuters.com/article/china-parliament-environment/china-shake-up-gives-climate-change-responsibility-to-environment-ministry-idUSL3N1QV23P; Dimitri De Boer, Will the New Chinese Ministerial Structure Help the Environment?, ClientEarth (Mar. 21, 2018), at www.clientearth.org/will-new-chinese-ministerial-structure-help-environment.

95 Yue Zhao, Shuang Lyu & Zhu Wang, Prospects for Climate Change Litigation in China, 8 Transnat'l Envtl. L. 349 (published online May 29, 2019), available at https://doi.org/10.1017/S2047102519000116).

96 See Tien Ming Le, Ezra M. Markowitz, Peter D. Howe, Chia-Ying Ko & Anthony A. Leiserowitz, Predictors of Public Climate Change Awareness and Risk Perception Around the World, 5 Nature Climate Change (2015) 1014 (finding that about 40% of adults worldwide have not heard of climate change, and this figure rises to more than 65% in some developing countries like Egypt and Bangladesh).

97 This is analogous to the co-benefits approach that is widely propounded, particularly in the Global South, where for most policymakers, alleviating poverty, securing energy supplies and reducing air pollution take priority over mitigating climate change. See, e.g., Paul G. Bain, et al., Co-benefits of Addressing Climate Change Can Motivate Action Around the World, 6 Nature Climate Change 154 (2015); Benjamin Spencera et al., Case Studies in Co-benefits Approaches to Climate Change Mitigation and Adaptation, 60 J. Envtl. Plan. & Mgmt. 647–67 (2017); Jethro Pettit, Climate Justice: A New Social Movement for Atmospheric Rights, 35 IDS Bull. 102 (2009) (describing how in the Global South “climate change has emerged primarily as a sustainable development issue, whose solutions are seen as inseparable from larger issues of poverty, trade and globalisation”).

98 Oliveira, supra note 85.

99 See Peel, Osofsky & Foerster, Shaping the “Next Generation” of Climate Change Litigation in Australia, supra note 40.

100 Hannah Hoag, Air Quality to Suffer with Global Warming, Nature News, Springer Nature (June 22, 2014), at https://www.nature.com/news/air-quality-to-suffer-with-global-warming-1.15442. See also, Barry S. Levy & Jonathan A. Patz, Climate Change, Human Rights and Social Justice, 81 Annals Glob. Health 310–22 (2015); Fred Pearce, Rivers in the Sky: How Deforestation Is Affecting Global Water Cycles, YaleEnvironment360 (July 24, 2018), at https://e360.yale.edu/features/how-deforestation-affecting-global-water-cycles-climate-change.

101 See, for example, the case of Indonesia, where it is widely recognized that the country has a good set of laws in place but enforcement has been poor, leading to worsening environmental problems. There are myriad reasons for poor enforcement including corruption. See Special Report on Indonesia, A Deep-Rooted Habit, The Difficulty of Battling Graft, Economist 12–13 (Sept. 12, 2009); Ex-Riau Governor Gets 14 Years Over Logging Permit, National Games Corruption Cases, Jakarta Globe (Mar. 12, 2014). Local bodies struggle for authority in the face of incomplete decentralization processes. See, for discussion, Keith Andrew Bettinger, Political Contestation, Resource Control and Conservation in an Era of Decentralization at Indonesia's Kerinci Seblat National Park, 52 Asia Pac. Viewpoint J. 252–66 (2015). There are also problems of powerful vested interests engaging in unbridled natural resources exploitation. See Paul K. Gellert, Rival Transnational Networks, Domestic Politics and Indonesian Timber, 40 J. Contemp. Asia 539–67 (2010).

102 National Green Tribunal Act, 2010, No.19, Chapter III, Art. 14, Ministry of Law and Justice, The Gazette of India Extraordinary (June 2, 2010, India).

103 Fisher, supra note 43, at 239.

104 For an example, arguing that it is “only in light of legal culture that climate change jurisprudence in the European Union can be explained,” see Sanja Bogojević, EU Climate Change Litigation, the Role of the European Courts, and the Importance of Legal Culture, 35 Law and Pol'y 184 (2013).

105 Article 15 of the Paris Agreement provides only for a “facilitative” compliance mechanism that is to be “non-adversarial and non-punitive:” Paris Agreement, supra note 1, Art. 15(2).

106 The efforts by Tuvalu and Palau to bring a contentious case or seek an Advisory Opinion from the International Court of Justice come closest to an international climate case. For a discussion of the prospects of an international case of this kind, see Philippe Sands, Climate Change and the Rule of Law: Adjudicating the Future in International Law, 28 J. Envtl. L. 19 (2016). There have also been cases or claims before other international bodies that indirectly raise climate-relevant issues, for example, disputes concerning renewable energy subsidies before World Trade Organization and investment arbitral tribunals. For discussion, see Joanna I. Lewis, The Rise of Renewable Energy Protectionism: Emerging Trade Conflicts and Implications for Low Carbon Development, 14 Glob. Envtl. Pol. J. 10 (2014); Annette Magnusson, Climate Disputes and Sustainable Development in the Energy Sector: Bridging the Enforceability Gap, in International Arbitration in the Energy Sector (Maxi Scherer ed., 2018). There have also been cases concerning the European Union Emissions Trading Scheme (EU ETS) decided by the European Court of Justice. For discussion, see Bogojević, supra note 104. Other international law dispute settlement mechanisms and their application to climate disputes have been explored in the scholarship (see particularly, Burns & Osofsky, supra note 13) but are subject to jurisdictional and other limits.

107 See, for example, the case of Lliuya v. RWE AG, discussed in Will Frank, Christoph Bals & Julia Grimm, The Case of Huaraz: First Climate Lawsuit on Loss and Damage Against an Energy Company Before German Courts, in Loss and Damage from Climate Change: Concepts, Methods and Policy Options, ch. 20, 475–83 (Reinhard Mechler, Laurens M. Bouwer, Thomas Schinko, Swenja Surminski & JoAnne Linnerooth-Bayer eds., 2019); and a Micronesian claim against a Czech power station, discussed in Andrew Burke, Federated States of Micronesia v Czech Republic: Greenhouse Emissions as Transboundary Pollution, 14 Asia Pac. J. Envtl. L. 203 (2011).

108 The Carbon Majors Petition, for example, involves extraterritorial application of human rights law. See further discussion in Part III infra. On “transnational” climate damage claims, see generally Michael Byers, Kelsey Franks & Andrew Gage, The Internationalization of Climate Damages Litigation, 7 Wash. J. Envtl. L. & Pol'y 264 (2017) and discussion of the limited classically transnational claims in Maria L. Banda & Scott Fulton, Litigating Climate Change in National Courts: Recent Trends and Developments in Global Climate Law, 47 Envtl. L. Rep. 101 (2017).

109 Osofsky, The Continuing Importance of Climate Change Litigation, supra note 13; Lin, supra note 13.

110 A good example is Urgenda v. The Netherlands, where it was clear that the non-governmental organization involved wanted to have a precedent that could serve as a transferrable “template” for similar cases elsewhere. Notably, shortly after the Hague District Court issued its decision, a similar suit was filed in Belgium. It is even arguable that the Hague court understood the transnational implications of its decision. An English language translation of the judgement was made available to the public almost as soon as the original Dutch judgment was issued.

111 For example, UK NGO, ClientEarth, issued letters to fourteen of the UK's biggest pension funds, including British Airways Pensions and the BP Pension Fund, urging them to consider how they manage and report on climate risks as part of an effort to mobilize global institutional investors to address climate change. See Jennifer Thompson, Shell Pension Fund Challenged to Disclose Response to Climate Risk, Fin. Times (London), at 2 (Oct. 8, 2018).

112 An example would be the Sierra Club's Beyond Coal campaign, at https://content.sierraclub.org/coal.

113 An example would be the People's Climate Case, supra note 30.

114 See Lin, supra note 13, at 38. On the indirect impacts of climate change litigation, see also Peel and Osofsky, supra note 15, ch. 2.

115 Lin, supra note 13. See also Peel, Osofsky & Foerster supra note 40.

116 Osofsky, The Continuing Importance of Climate Change Litigation, supra note 13, at 11.

117 Id. at 13.

118 Id. at 15.

119 Id. at 27.

120 See generally Dan Bodansky, Climate Change: Transnational Legal Order or Disorder?, in Transnational Legal Orders 287 (Terence C. Halliday & Gregory Shaffer eds., 2015); Veerle Heyvaert, The Transnationalization of Law: Rethinking Law Through Transnational Environmental Regulation, 6 Transnat'l Envtl. L. 205 (2017); Louis Kotzé and Caiphas Soyapi, Transnational Environmental Law: The Birth of a Contemporary Analytical Perspective, in Research Handbook on Fundamental Concepts of Environmental Law 82 (Douglas E. Fisher ed., 2016).

121 Gregory C. Shaffer & Dan Bodansky, Transnationalism, Unilateralism and International Law, 1 Transnat'l Envtl. L. 31, 32 (2012).

122 Heyvaert, supra note 120, at 211–12.

123 Jolene Lin, The Emergence of Transnational Environmental Law in the Anthropocene, in Environmental Law and Governance for the Anthropocene 329, 331 (Louis J. Kotzé ed., 2017).

124 Gregory C. Shaffer, Transnational Legal Ordering and State Change, in Transnational Legal Ordering and State Change 7 (Gregory C. Shaffer ed., 2012).

125 Thijs Etty et al., Transnational Climate Law, 7 Transnat'l Envtl. L. 191 (2018).

126 Thijs Etty, et al., Transnational Dimensions of Climate Governance, 1 Transnat'l Envtl. L. 235, 236 (2012). For example, the predecessor instrument to the Paris Agreement—the 1997 Kyoto Protocol to the UNFCCC—is often viewed as a failure, at least in terms of its capacity to bring about needed reductions in global greenhouse gas emissions. See Amanda M. Rosen, The Wrong Solution at the Right Time: The Failure of the Kyoto Protocol on Climate Change, 43 Pol. & Pol'y 30 (2015); David G. Victor, The Collapse of the Kyoto Protocol and the Struggle to Slow Global Warming (2004). Others attribute problems with the Kyoto Protocol to the failure of the United States to ratify the treaty and point to high levels of compliance with its provisions by parties, and its measurable impact in reducing emissions. Igor Shishlov, Romain Morel & Valentin Bellassen, Compliance of the Parties to the Kyoto Protocol in the First Commitment Period, 16 Climate Pol'y 768 (2016); Nicole Grunewald & Inmaculada Martinez-Zarzoso, Did the Kyoto Protocol Fail? An Evaluation of the Effect of the Kyoto Protocol on CO 2 Emissions, 21 Env't & Dev. Econ. 1 (2015).

127 See UN Environment, Emissions Gap Report 2018, United Nations Environment Programme 5 (Nov. 2018) (finding that pathways reflecting parties’ current emission reduction commitments put the world on track for around 3°C warming by 2100 with warming continuing thereafter, and that if the ambition of these commitments is not increased significantly before 2030, exceeding the 1.5°C goal can no longer be avoided). See also IPCC, 2018: Summary for Policymakers, in Special Report: Global Warming of 1.5°C (2018). According to the IPCC, global warming is likely to reach 1.5°C between 2030 and 2052 if it continues to increase at the current rate. Id at 6.

128 Thomas Hale, “All Hands on Deck”: The Paris Agreement and Nonstate Climate Action, 16 Glob. Envtl. Pol. 13 (2016).

129 Paris Agreement, supra note 1, Art. 4(1).

130 Id. Art. 2(1)(a).

131 Id. Art. 4(1).

132 Id., pmbl., Rec. 15.

133 Id. Art. 4(2). See also Rajamani, supra note 14, at 497.

134 Paris Agreement, supra note 1, Art. 13.

135 Id. Art. 14.

136 Paris Agreement, supra note 1, Art. 15. Article 15(2) provides that the mechanism “shall be expert-based and facilitative in nature and function in a manner that is transparent, non-adversarial and non-punitive.”

137 Lavanya Rajamani & Jutta Brunnée, The Legality of Downgrading Nationally Determined Contributions Under the Paris Agreement: Lessons from the US Disengagement, 29 J. Envtl. L. 537, 549 (2017).

138 Robert Falkner, The Paris Agreement and the New Logic of International Climate Politics, 92 Int'l Aff. 1107, 1118 (2016). See also Robert O. Keohane & Michael Oppenheimer, Paris: Beyond the Climate Dead End Through Pledge and Review? 4 Pol. & Governance 142, 142–43 (2016) (arguing “the Paris Agreement merely creates an opening for effective action on climate change. Political action by organized groups, domestic and transnational, will be essential to make Paris work.”). Hale, supra note 128, at 12 (arguing that there has been a shift from “a “regulatory” model of binding, negotiated emissions targets to a “catalytic and facilitative” model that seeks to create conditions under which actors progressively reduce their emissions through coordinated policy shifts”).

139 Falkner, supra note 138, at 1122.

140 Id.

141 Lord Carnwath, Climate Change Adjudication After Paris: A Reflection, 28 J. Envtl. L. 5, 9 (2016).

142 Osofsky, The Continuing Importance of Climate Change Litigation, supra note 13, at 27.

143 Id. at 5.

144 Id. at 6.

145 Other scholars have echoed this call for a focus in climate litigation analysis and scholarship on developments in a greater diversity of jurisdictions. See Joana Setzer & Mook Bangalore, Regulating Climate Change in the Courts, in Trends in Climate Change Legislation 175 (Alina Averchenkova, Sam Fankhauser & Michal Nachmany eds., 2017); Lisa Vanhala, The Comparative Politics of Courts and Climate Change, 22 Envtl. Pol. 447 (2013); Meredith Wilensky, Climate Change in the Courts: An Assessment of Non-U.S. Climate Litigation, 26 Duke Envtl. L. & Pol'y For. 131 (2015).

146 See International Bar Association, Climate Change Justice and Human Rights Task Force Report: Achieving Justice and Human Rights in an Era of Climate Disruption (July 11, 2014), at https://www.ibanet.org/PresidentialTaskForceClimateChangeJustice2014Report.aspx (stressing “the need for coordinated action—above and beyond the UNFCCC—to address the steadily growing threat of climate change” given the problem's magnitude, equity aspects and intergenerational consequences: id. at 45).

147 Markell & Ruhl, supra note 40, at 19.

148 For example, the Children's Investment Fund Foundation in the UK has funded a grant to ClientEarth for a program of strategic climate litigation in Europe and efforts to improve environmental governance and public interest environmental litigation in China. See https://ciff.org/grant-portfolio/clientearth-phase-ii.

149 Andrea Lozano Barragán et al. v. Presidencia de la República et al., Sentencia de la Corte Suprema de Justicia del 5 de abril del 2018, MP Luis Armando Tolosa Villabona, STC4360-2018, Radicación No 11001-22-03-000-2018-00319-01 (Colom.). For discussion of the case, see Paola Andrea Acosta Alvarado & Daniel Rivas-Ramírez, A Milestone in Environmental and Future Generations’ Rights Protection: Recent Legal Developments Before the Colombian Supreme Court, 30 J. Envtl. L. 519 (2018).

150 Our analysis of Africa encompassed the Middle East and our analysis of Latin America encompassed the Caribbean, but no cases were found in either region.

151 Sabin Center for Climate Change Law, Non-US Climate Change Litigation Database, supra note 11.

152 Climate Change Laws of the World Database, supra note 12.

153 For example, our case law review identified several Global South cases about projects with potential environmental impacts, such as roads or large infrastructure developments, that might have provided a forum for consideration of climate change impacts associated with transportation emissions or the removal of vegetation, but these matters were not raised or considered in any meaningful way in the judgments. See, e.g., Lahore Bachao Tehrik v. Canal Road Project, Government of Punjab, Lahore – SMC No. 25/2009 [2011] PKSC 34 (Sept. 15, 2011) (Pak.) (involving widening of Canal Road and removal of the surrounding green belt areas); Niwat et al v. Electricity Generation Authority of Thailand et al. (Xayaburi Dam case), Decision of the Thai Supreme Administrative Court (Dec. 25, 2015) (Thai.), unofficial translation available at https://www.business-humanrights.org/sites/default/files/documents/CourtDecisionXayaburi25%2012%202015ENG.pdf (involving a major dam project on the Mekong River for electricity production). We have excluded these “incidental” cases in our analysis, although recognizing that petitioners or judges in similar types of cases in the future may begin to engage with climate change issues.

154 An important resource, amongst others, was the APCEL-Yale Law School Climate Change Litigation Scholarship Workshop, June 7–8, 2018, held at the National University of Singapore. See NUS Law School website, at https://law.nus.edu.sg/about_us/news/2018/ClimateChange.html.

155 Reference to online Cases Appendix (to view supplementary material for this article, please visit https://doi.org/10.1017/ajil.2019.48).

156 These framings seem to be a genuine response to the often-superior climate justice claims advanced by those in the Global South, a perspective that is also endorsed by Global South scholars. See, e.g., Carmen G. Gonzalez & Sumudu Atapattu, International Environmental Law, Environmental Justice, and the Global South, 26 Transnat'l L. & Contemp. Prob. 229 (2017); Christopher Nyinevi, Universal Civil Jurisdiction: An Option for Global Justice in Climate Change Litigation, 8 J. Pol. & L. 135 (2015). Nonetheless, environmental advocates located in the Global South may equally be motivated by emissions reduction goals as by climate justice claims as Christopher Todd Beer has shown in an empirical study of goals and policy preferences on climate issues among Kenyan environmental NGOs. See Christopher Todd Beer, Climate Justice, the Global South, and Policy Preferences of Kenyan Environmental NGOs, 8 Glob. South 84 (2014).

157 Of the additional thirteen cases found in our survey that are not included in the global databases maintained by the Sabin Center and LSE Grantham Institute, twelve of these feature climate change “at the periphery” of the case.

158 Peel & Osofsky, supra note 15, at 104–06, for concise discussion on how mitigation-related litigation has played a key role in mainstreaming climate change considerations in environment assessment procedures. Equally, though, as the Kenyan Save Lamu case illustrates, EIA claims can feature climate change in a more peripheral role if other arguments, e.g. about the broader environmental impacts of a project and sustainable development concerns, take center stage.

159 Sabin Center U.S. Climate Change Case Chart, supra note 11. This count is by the number of different legal claims advanced rather than individual cases; hence, a case may be included under more than one category in the database as it raises different arguments (e.g., public trust claims, constitutional claims, etc.). The most notable of the U.S. rights-based cases is the Juliana case, supra note 18, which is the first U.S. case to argue a violation of constitutional rights protections on the basis of the federal government's failure to implement adequate climate policies. Other types of constitutional claims advanced in the case law concern the Dormant Commerce Clause, First and Fifth amendment rights, and the Fourteenth Amendment.

160 The Urgenda case, supra note 17, is a leading example here. In other European countries, there have been a total of twenty climate cases, with twelve of these involving constitutional or rights claims. See Climate Change Laws of the World database Law, supra note 12 (search conducted May 4, 2019). The regional European Court of Human Rights has also developed a substantial human rights-environment jurisprudence but to date this has not extended to cases involving climate issues. See further European Court of Human Rights, Manual on Human Rights and the Environment (2d ed. 2012); J.M. Verschuuren, Contribution of the Case Law of the European Court of Human Rights to Sustainable Development in Europe, in Regional Environmental Law: Transregional Comparative Lessons in Pursuit of Sustainable Development 363 (Werner Scholtz & J.M. Verschuuren eds., 2015).

161 This includes one of the earliest, unsuccessful, climate-related human rights claims brought by Inuit peoples in the United States and Canada to the Commission. For discussion of this petition and other examples, see Peel & Osofsky, Rights Turn, supra note 35, at 47–48, 64–65. Most recently, Torres Strait Islander peoples in Australia, supported by the NGO ClientEarth, have lodged a climate change human rights complaint with the UN Human Rights Committee, the first such “international” climate change case based on rights arguments. See ClientEarth, Human Rights and Climate Change: World-First Case to Protect Indigenous Australians (May 12, 2019), at https://www.clientearth.org/human-rights-and-climate-change-world-first-case-to-protect-indigenous-australians.

162 Nachmany, Fankhauser, Setzer & Averchenkova, supra note 10, at 15 and Appendix 2. By contrast, constitutional and rights claims in these Global North jurisdictions have been limited or non-existent. Australia has one constitutional claim out of ninety-four cases, the United Kingdom has none out of fifty-three cases, the European Union has one out of forty-one cases, and New Zealand has none out of seventeen cases. See Climate Change Laws of the World database Law, supra note 12 (search conducted May 4, 2019).

163 Constitution of the Republic of South Africa, § 24, as adopted 8 May 1996 and amended 11 October 1997 by the Constitutional Assembly.

164 The Supreme Court of India led the charge in the creation of environmental rights through judicial interpretation of existing constitutional provisions, particularly the right to life. See, e.g., Subhash Kumar v. State of Bihar et al., WP (Civil) No. 381 of 1988, D/-9-1-91 (Supreme Court of India) (India); M.C. Mehta v. India, WP (Civil) No. 12739 of 1985 (Supreme Court of India) (India); Indian Council for Enviro-Legal Action v. Union of India et al. (1996) 5 SCC 281 (India). For discussion, see Jona Razzaque, Public Interest Environmental Litigation in India, Pakistan and Bangladesh (2004).

165 Sher Singh v. State of Hp., 5 (2014) CWPIL No.15/2010 (India).

166 Id., paras. 11–19.

167 The 1987 Constitution of the Republic of the Philippines, Art. II, § 16.

168 This was the result of an initiative led by Chief Justice Puno of the Philippines Supreme Court to promote public interest litigation in the quest for environmental justice. A copy of these Rules can be found at: Rules of Procedure for Environmental Cases, A.M. No. 09-6-8-SC, 2010 (Phil.), at www.lawphil.net/courts/supreme/am/am_09-6-8-sc_2010.html. For discussion, see Gloria Estenzo Ramos, Innovative Procedural Rules on Environmental Cases in the Philippines: Ushering in a Golden Era for Environmental Rights Protection, 1 IUCN Acad. Envtl. L. e-J. (2011), at www.iucnael.org/en/e-journal/previous-issues/157-issue-20111.html.

169 Constitution of the Republic of Ecuador, ch. 7, Art. 71 (2008); Bolivia (Plurinational State of)’s Constitution of 2009, ch. V, Art. 33.

170 See Allan R. Brewer-Carías, Constitutional Protection of Human Rights in Latin America: A Comparative Study of Amparo Proceedings (2008).

171 See, Claudia Fonseca, Corte Suprema Ordena Protección Inmediata de la Amazonía Colombiana, Corte Suprema De Justicia – República de Colombia (Apr. 5, 2018), at http://www.cortesuprema.gov.co/corte/index.php/2018/04/05/corte-suprema-ordena-proteccion-inmediata-de-la-amazonia-colombiana. For discussion, see Everaldo Lamprea & Daniela García, Recent Trends in Climate Change Litigation: Colombia's Amazon and Juliana v. U.S., OxHRH Blog (Apr. 13, 2018), at http://ohrh.law.ox.ac.uk/recent-trends-in-climate-change-litigation-colombias-amazon-and-juliana-vs-u-s.

173 There have been two notable lawsuits in which the plaintiffs sought judicial intervention to enforce the defendant government's international legal obligations pursuant to the Paris Agreement. See Plan B, at https://planb.earth; Thomson v. Minister for Climate Change Issues (New Zealand), CIV 2015-485-919 (2017) NZHC 733 (N.Z.), available at www.nzlii.org/cgi-bin/download.cgi/cgi-bin/download.cgi/download/nz/cases/NZHC/2017/733.pdf.

174 Hope M. Babcock, The Public Trust Doctrine: What a Tall Tale They Tell, 61 S.C.L. Rev. 393, 396 (2009). Justinian codified the doctrine in Corpus Juris Civilis (about 529 B.C.) as follows: “by the law of nature these things are common to all mankind, the air, running water, the sea and consequently the shores of the sea.” David Takacs, The Public Trust Doctrine, Environmental Human Rights, and the Future of Private Property, 16 N.Y.U. Envtl. L.J. 711, 713 (2008). References to the public trust doctrine can be found in Chinese water law (249–207 B.C.), Islamic water law, Nigerian traditional customs, and the laws of medieval Spain and France. Charles F. Wilkinson, The Headwaters of the Public Trust: Some Thoughts on the Source and Scope of the Traditional Doctrine, 19 Envtl. L. 425, 426 (1989). See also Anne Richardson Oakes, Judicial Resources and the Public Trust Doctrine: A Powerful Tool of Environmental Protection?, 7(3) Transnat'l Envtl. L.J. 469 (2018).

175 Richardson Oakes, supra note 174.

176 M.C. Mehta v. Kamal Nath (1997) 1 SCC 388 (India).

177 Our Children's Trust, Mission Statement, at www.ourchildrenstrust.org/mission-statement.

178 The youth plaintiffs filed their complaint on August 12, 2015, but the case has yet to be heard. For a chronological report of how the lawsuit has been unfolding, see Our Children's Trust, Federal Proceedings, at https://www.ourchildrenstrust.org/federal-proceedings.

179 See, Michael C. Blumm & Mary Christina Wood, “No Ordinary Lawsuit”: Climate Change, Due Process, and the Public Trust Doctrine, 67(1) Am. U. L. Rev. 1 (2017).

180 For discussion, see Razzaque, supra note 164; Muhammad Wajid Munir, Putting Public Trust Doctrine to Work: A Study of Judicial Intervention in Environmental Justice, 4 Lums L.J. 1 (2018).

181 For example, see the preambles of the Act No. 5 of 1960, Concerning Basic Regulations on Agrarian Principles; Republic of Indonesia Law No. 7/2004 on Water Resources; Law of the Republic of Indonesia, Number 27 of 2007, Management of Coastal Zone and Small Islands and Amendment to Law No. 27/2007 (by Law No. 1/2014 dated January 15, 2014); The Law of the Republic of Indonesia, Number 41 Year 1999 Concerning Forestry; and the Law of the Republic of Indonesia, Number 26 Year 2007, Concerning Spatial Management.

182 See Joana Setzer & Lisa Benjamin, Climate Litigation – Regulatory Lessons (for the Global North) from the Global South, Transnat'l Envtl. L. (2019, forthcoming, copy on file with authors).

183 John Knox, Special Rapporteur on Human Rights and Environment, @JohnHKnox, Twitter (Oct. 9, 2018); see also Jonathan Verschuuren, Urgenda Climate Change Judgment Survives Appeal in the Netherlands, Tilburg U. Envtl. L. Blog (Sept. 10, 2018), at http://gnhre.org/2018/10/09/urgenda-climate-change-judgment-survives-appeal-in-the-netherlands.

184 Note, however, that a number of U.S. states have enshrined environmental rights in their constitutions. For discussion, see Kenneth T. Kristl, The Devil is in the Details: Articulating Practical Principles for Implementing the Duties in Pennsylvania's Environmental Rights Amendment, 28 Geo. Envtl. L. Rev. 589 (2016); Audrey Wall, State Constitutions and Environmental Bills of Rights, Council State Governments (Sept. 1, 2015), at http://knowledgecenter.csg.org/kc/content/state-constitutions-and-environmental-bills-rights. A recent decision by the Hawaii Supreme Court held that the due process clause applies to “the right to a clean and healthful environment, as defined by laws related to environmental quality.” See, Maui Electric Company, Limited (“Maui Electric”) v. Hawaiian Commercial & Sugar Company (HC&S), (2017) SCWC-15-0000640.

185 Peel & Osofsky, Rights Turn, supra note 35.

186 David R. Boyd, The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment 3 (2012).

187 Luis E. Rodríguez-Rivera, Is the Human Right to Environment Recognized under International Law? It Depends on the Source, 12 Col. J. Envtl. L. Pol'y 9 (2001).

188 For discussion, see Birgit Peters, Unpacking the Diversity of Procedural Environmental Rights: The European Convention on Human Rights and the Aarhus Convention, 30 Ox. J. Envtl. L. 1 (2018); Joshua C. Gellers & Chris Jeffords, Toward Environmental Democracy?: Procedural Environmental Rights and Environmental Justice, 18 Glob. Envtl. Pol. 99 (2018).

189 Dinah Shelton, Human Rights, Environmental Rights, and the Right to Environment, 28 Stan. J. Int'l L. 103 (1991).

190 For discussion, see Gwendolyn J. Gordon, Environmental Personhood, 43 Col. J. Envtl. L. 50 (2018); Louis J. Kotzé & Villavicencio Calzadilla, Somewhere Between Rhetoric and Reality: Environmental Constitutionalism and the Rights of Nature in Ecuador, 6 Transnat'l Envtl. L. 401 (2017); Mary Elizabeth Whittenmore, The Problem of Enforcing Nature's Rights Under Ecuador's Constitution: Why the 2008 Environmental Amendments Have No Bite, 20 Pac. Rim L. & Pol'y J. 659 (2011); Craig M. Kauffman & Pamela L. Martin, Constructing Rights of Nature Norms in the US, Ecuador, and New Zealand, 18 Glob. Envtl. Pol. 43 (2018).

191 Vitit Muntarbhorn, The Core Human Rights Treaties and Thailand, International Studies in Human Rights, Vol. 117 (2016).

192 Constitution of the Kingdom of Thailand, B.E. 2560, ch. V, sec. 58 (2017).

193 Joshua C. Gellers, Greening Constitutions with Environmental Rights: Testing the Isomorphism Thesis, 29 Rev. Pol'y Res. 523 (2012).

194 See also Astrid Puentes Riaño, Litígio climático e direitos humanos, in Litigância Climática: Novas Fronteiras para o Direito Ambiental No Brasil, at 215 (Joana Setzer, Kamyla Cunha & Amália Botter Fabbri eds., 2019) (in Portugese).

195 For discussion, see Joel Colon-Rios, The Rights of Nature and the New Latin American Constitutionalism, 13 N.Z. J. Pub. & Int'l L. 107 (Special Conference Issue – New Thinking on Sustainability, 2015); Jose Rubens Morato Leite & Marina Demaria Venancio, Environmental Protection in Brazil's High Court: Safeguarding the Environment Through a Rule of Law for Nature, 77 Sequencia (Florianopolis) 29 (2017); Julia Mattei & Larissa Verri Boratti, Constitutional Environmental Protection in Brazil: A Rights-Based Approach, in Law and Policy in Latin America: Transforming Courts, Institutions and Rights, ch. 19, p. 327 (Pedro Fortes, Larissa Boratti, Andres Palocios Lleras & Tom Gerald Daly eds., 2017); Teresa Kramarz, Using the Courts to Protect the Environment in Argentina: Accountability Pitfalls When Judges Have the Last Word, Case Stud. Envt. (2018), at http://cse.ucpress.edu/content/early/2018/06/25/cse.2017.000992?utm_source=TrendMD&utm_medium=cpc&utm_campaign=TrendMD_CSE.

196 For discussion, see Antonio Maria Hernandez, Sub-national Constitutional Law in Argentina, in International Encyclopedia for Constitutional Law, at Subnational-1 (André Alen & David Haljan eds., 2019); Maria Antonia Tigre, Implementing Constitutional Environmental Rights in the Amazon Rainforest, in Implementing Environmental Constitutionalism: Current Global Challenges 59 (Erin Daly & James R. May eds., 2018); Marcelo Buzaglo Dantas, Implementing Environmental Constitutionalism in Brazil, in Implementing Environmental Constitutionalism: Current Global Challenges, id. at 129; Ana Lucia Maya-Aguirre, Implementing Environmental Constitutionalism in Colombia, in Implementing Environmental Constitutionalism: Current Global Challenges, id. at 143.

197 Inter-American Court of Human Rights, Environment and Human Rights, Advisory Opinion OC-23/17 of Nov. 15, 2017, Requested by the Republic of Colombia. Official Summary in English Issued by the Inter-American Court, available at http://www.corteidh.or.cr/docs/opiniones/resumen_seriea_23_eng.pdf.

198 See Part III supra.

199 R (on the application of ClientEarth) v. Secretary of State for the Environment, Food and Rural Affairs [2015] UKSC 28; R (on the application of ClientEarth) v. Secretary of State for the Environment, Food and Rural Affairs [2013] UKSC 25; Case C-404/3 ClientEarth v Secretary of State for the Environment, Food and Rural Affairs [2014] All ER (D) 210 (Nov).

200 Nachmany, Fankhauser, Setzer & Averchenkova, supra note 10, at 15.

201 Id. For U.S. case law, see also Markell & Ruhl, supra note 40, at 30 (Table I, summarizing case numbers by category and claim type).

202 Peel & Osofsky, supra note 15, at 28–53.

203 Massachusetts v. EPA, supra note 16.

204 Urgenda v. Netherlands, supra note 17.

205 Thomson v. Minister for Climate Change, supra note 173.

206 Navraj Singh Ghaleigh, Economics and International Climate Change Law, in The Oxford Handbook of International Climate Change Law (Kevin R. Gray, Richard Tarasofsky & Cinnamon Carlarne eds., 2016); Bogojević, supra note 104.

207 See the various country studies and analytical chapters in Climate Change Litigation in the Asia Pacific (Jolene Lin & Doug Kysar eds., forthcoming 2020) (copy on file with the authors).

208 Pandey v. Union of India, Original Application filed in March 2017 by the plaintiff, para. III, p. 2, available at http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2017/20170325_Original-Application-No.-___-of-2017_petition-1.pdf.

209 This attention to mitigation issues in the Global South reflects the linkage of greenhouse pollution to other chronic environmental problems in developing countries, such as poor air quality in urban areas, making mitigation claims an important way of achieving co-benefits for these pressing environmental and health concerns, see note 97 supra. In addition, developing countries now make up a substantial portion of the global top ten emitters, with China, India, Brazil, Indonesia, and Mexico in this group. See Johannes Friedrich, Mengpin Ge & Andrew Pickens, This Interactive Chart Explains World's Top 10 Emitters, and How They've Changed, World Resources Institute Blog (Apr. 11, 2017), at https://www.wri.org/blog/2017/04/interactive-chart-explains-worlds-top-10-emitters-and-how-theyve-changed.

210 United Nations Framework Convention on Climate Change, Aggregate Effect of the Intended Nationally Determined Contributions: An Update, Synthesis Report by the Secretariat, paras. 7, 59, UN Doc. FCCC/CP/2016/2 (May 2, 2016).

211 Jacqueline Peel & Jolene Lin, Climate Change Adaptation Litigation: A View from Southeast Asia, in Climate Change Litigation in the Asia Pacific, supra note 207.

212 Satish Chand & Ron Duncan, Resolving Property Issues as a Precondition for Growth: Access to Land in the Pacific Islands, in The Governance of Common Property in the Pacific Region 33 (Peter Larmour ed., 2013) (arguing that security of access to land currently under communal ownership must be enhanced so as to encourage efficient use of this resource and enhance the inflow of technology and capital in such countries).

213 Jacqueline Peel & Hari M. Osofsky, Litigation as a Climate Regulatory Tool, in International Judicial Practice on the Environment: Questions of Legitimacy 311 (Christina Voigt ed., 2019).

214 Peel & Osofsky, Sue to Adapt?, supra note 74.

215 For discussion see Ganguly, Setzer & Heyvaert, supra note 40, and Bouwer, supra note 40.

216 For details of recent legislative initiatives of this kind in African countries, see Olivia Rumble, Climate Change Legislative Development on the African Continent, in Law, Environment, Africa, Vol. 38, at 33, 35–36 (Patricia Kameri-Mbote, Alexander Ross Paterson, Oliver C. Ruppel, Bibobra Bello Orubebe & Emmanuel D. Kam Yogo eds., 2019).

217 These differences contribute to different “legal cultures” that influence the role and rule of law within different societies. See David Nelken, Using the Concept of Legal Culture, 29 Australian J. Leg. Phil. 1 (2004).

218 For discussion of the state of environmental public interest litigation in China, see Cao Mingde & Wang Fengyuan, Environmental Public Interest Litigation in China, 19 Asia Pac. L. Rev. 217 (2011); Gu Gong & Ran An, Progress and Obstacles in Environmental Public Interest Litigation under China's New Environmental Law: An Analysis of Cases Accepted and Heard in 2015, 7 Climate L. 185 (2017); Richard Zhang & Benoit Mayer, Public Interest Environmental Litigation in China, 1 Chinese J. Envtl. L. 202 (2017).

219 Chao Li & Yijie Lu, From the “Plaintiff” to the “Public Interest Litigation Prosecutor,” China Youth Daily (Mar. 27, 2018), at https://mp.weixin.qq.com/s?__biz=MzA4MjQ5MzIxNQ==&mid=2650487550&idx=1&sn=ae10a8452a17e60aafb9d98cb76fc781&chksm=878b708eb0fcf9989c09dc7415df1889ff6ae6a53d78b28742f568a6a312a70d9bb99f1db323&mpshare=1&scene=1&srcid=0330MrNkAPO5C5fa8OL3V0mx#rd; One Year on: Reform Pilots on Procuratorates Initiating Public Interest Litigation, NPC Observer (Nov. 8, 2016), at https://npcobserver.com/2016/11/08/one-year-on-reform-pilots-on-procuratorates-initiating-public-interest-litigation.

220 Dimitri de Boer, A New Force in China's Environmental Public Interest Litigation, ClientEarth Analysis (Feb. 25, 2019), at https://www.clientearth.org/a-new-force-in-chinas-environmental-public-interest-litigation.

221 Id.

222 People's Procuratorate of Beijing (4th Division) v. Beijing Duocai Lianyi Int. Ltd. Co.. The filing of the case is described in Yang Yonghao & Li Xinyu, Beijing: Filed the First Civil Air Pollution Litigation in the City, Procuratorial Daily (July 30, 2017) at http://www.spp.gov.cn/dfjcdt/201707/t20170730_197128.shtml.

223 Id.

224 Yue Zhao, Shuang Lyu & Zhu Wang, Prospects for Climate Change Litigation in China, 8 Transnat'l Envtl. L. 349 (published online May 29, 2019, available at https://doi.org/10.1017/S2047102519000116).

225 Zhu Yan, The Subordinate and Passive Position of Chinese Courts in Environmental Governance, in Climate Change Litigation in the Asia Pacific, supra note 207.

226 Fu Hualing & Zhai Xiaobo, What Makes the Chinese Constitution Socialist?, 16 Int'l J. Const. L. 655 (2018).

227 Environmental Protection Law of the People's Republic of China (Unofficial translation by the EU-China Environmental Governance Programme, published April 24, 2014), available at https://www.chinadialogue.net/Environmental-Protection-Law-2014-eversion.pdf. See also Zijun Zhao, State Policy or Individual Right: The Recent Development of Environmental Protection in China, Oxford Hum. Rts. Hub (Aug. 21, 2018), at http://ohrh.law.ox.ac.uk/state-policy-or-individual-right-the-recent-development-of-environmental-protection-in-china.

228 Jolene Lin & Jacqueline Peel, Climate Change Adaptation Litigation: A View from Southeast Asia, in Climate Change Litigation in the Asia Pacific, supra note 207.

229 See, e.g., Children Investment Fund Foundation, Climate Strategic Litigation Europe, at https://ciff.org/grant-portfolio/climate-strategic-litigation-europe.

230 See also Bouwer, supra note 40, at 491–93.

231 On the question of the contribution of international courts and tribunals to global environmental governance, see, for example, Tim Stephens, International Courts and Environmental Protection (2009). There has also been discussion of domestic courts and global governance generally. See, e.g., Whytock, Christopher A., Domestic Courts and Global Governance, 84 Tulane L. Rev. 67 (2009). On the contribution of the courts in tackling climate change, including potentially through “creating legal precedents thereby building a common law for the environment,” see Preston, Brian J., The Contribution of the Courts in Tackling Climate Change, 28 J. Envtl. L. 11, 15 (2016).

232 See O'Gorman, Roderic, Environmental Constitutionalism: A Comparative Study, 6 Transnat'l Envtl. L. 435 (2017).

233 Gardbaum, Stephen, Human Rights as International Constitutional Rights, 19 Eur. J. Int'l L. 749 (2008) (discussing the similarities between formulations of international human rights and domestic bills of rights). On the extension of human rights protections against environmental harm to climate change, see generally Report of the Special Rapporteur on Human Rights and the Environment, supra note 22.

234 International Bar Association, supra note 146, at 46.

235 Jessica Wentz, EPA's Use of the Social Cost of Carbon is not Arbitrary and Capricious, Sabin Ctr. Climate Change Law's Climate Law Blog (Mar. 7, 2016), at http://blogs.law.columbia.edu/climatechange/2016/03/07/epas-use-of-the-social-cost-of-carbon-is-not-arbitrary-or-capricious (discussing case law on this question in the United States).

236 Leghari, Order of Sept. 4, 2015, supra note 2, para. 6.

237 Id., para. 7.

238 Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7, paras. 514, 515.

239 Id., paras. 534–45, citing with approval The Hague Court of Appeal decision in Urgenda, supra note 17, para. 537. This decision, while focused on a science-based framing of the issues, also contains extensive discussion of the human rights obligations of the Netherlands under the European Convention on Human Rights.

240 Id., paras. 431, 514.

241 Paris Agreement, supra note 1, rec. 11.

242 Knox, John H., The Paris Agreement as a Human Rights Treaty, in Human Rights and 21st Century Challenges: Poverty, Conflict, and the Environment (Dapo Akande, Jaakko Kuosmanen, Helen McDermott & Dominic Roser eds., 2018), available at https://ssrn.com/abstract=3192106.

243 Rumble, supra note 216, at 55.

244 See the discussion at note 96 supra.

245 United Nations General Assembly, Transforming our World: the 2030 Agenda for Sustainable Development, A/RES/70/1, Oct. 21, 2015, 14; Sendai Framework for Disaster Risk Reduction 2015–2030, available at https://www.unisdr.org/files/43291_sendaiframeworkfordrren.pdf. The UN Climate Change Secretariat has produced a technical paper on integrating climate change adaptation with the Sendai Framework and SDGs: see UN Climate Change Secretariat, Opportunities for and Options for Integrating Climate Change Adaptation with the Sustainable Development Goals and the Sendai Framework for Disaster Risk Reduction 2015–2030 (2017).

246 Gloucester Resources Limited v. Minister for Planning, supra note 238, paras. 526–27, 699.

247 Thomson v. Minister for Climate Change Issues, supra note 37, para. 133.

248 Law and Policy Reform Team, Office of the General Counsel Asian Development Bank Press Release, ADB's Office of the General Counsel Launches New Technical Assistance Project to Develop Judicial Capacity for Adjudicating Climate Change Issues (Apr. 27, 2017), available at https://www.ajne.org/article/adb-office-general-counsel-launches-new-ta-develop-judicial-capacity-adjudicating-climate-change-issues.

249 Law and Policy Reform Team, Office of the General Counsel Asian Development Bank Press Release, A Climate Change Litigation Bench Book for Judges of Asia and the Pacific (Feb. 14, 2018), available at https://www.ajne.org/article/climate-change-litigation-bench-book-judges-asia-and-pacific.

250 Id.

251 Dejusticia, About Us, at https://www.dejusticia.org/en/about.

252 The State of Netherlands (Ministry of Infrastructure and the Environment) v. Urgenda Foundation, C/09/456689/ HA ZA 13-1396 (2018).

253 For details of the proceedings in this case, including U.S. government attempts to stay the trial hearings, see https://www.ourchildrenstrust.org/federal-proceedings.

254 Children's Investment Fund Foundation, A Low Carbon World will Help Secure a Healthy and Prosperous Future for Children, at https://ciff.org/priorities/climate-change. Bloomberg Philanthropies financed the establishment of the State Energy and Environmental Impact Center at New York University School of Law (NYU Law) in 2017 to help state attorneys general fight regulatory rollbacks and other actions that undermine regulation of climate change and other environmental issues. See Juliet Eilperin, NYU Law Launches New Center to Help State AGs Fight Environmental Rollbacks, Wash. Post (Aug. 16, 2017), at www.washingtonpost.com/politics/nyu-law-launches-new-center-to-help-state-ags-fight-environmental-rollbacks/2017/08/16/e4df8494-82ac-11e7-902a-2a9f2d808496_story.html?utm_term=.0bee17a4ca06.

This research was supported by a National University of Singapore-Melbourne Law School Research Partnership grant (2018–2019). A work-in-progress version of this paper was presented at the American Society of International Law Mid-Year Research Forum, Nov. 9–10, 2018 held at UCLA, Los Angeles. We are grateful for feedback on earlier drafts from Professor Doug Kysar at Yale Law School, Dean Hari M. Osofsky at Penn State Law School and School of International Affairs, Professor Alex Wang at UCLA Law School, Associate Professor Lisa Vanhala at UCL, and Dr. Joana Setzer at the LSE Grantham Research Institute on Climate Change and the Environment. We also appreciate the suggestions and criticisms offered by five anonymous peer reviewers of the manuscript. Our thanks to Carol Yuen at NUS for her assistance in formatting footnotes.

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Transnational Climate Litigation: The Contribution of the Global South

  • Jacqueline Peel (a1) and Jolene Lin (a2)

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