IN August 2022, a monstrous flood and torrential rains inundated an area the size of Great Britain and affected over 33 million people, a staggering number close to the population of Canada. This climate disaster is only one of the many that has hit Pakistan, an underdeveloped country with minimum resources to address the aftermath of such a crises. One would think that Pakistan is paying the price of its contribution to creation of carbon emissions, however, fact of the matter is that Pakistan produces less than 1% of the world’s carbon footprint yet is suffering the biggest consequences of climate change. I will never forget the climate-related carnage I saw after apocalyptic flooding submerged a third of Pakistan. Guterres 27 Sept 2023.
With this context in mind, which entails in reality stories of displacement, disaster, death, suffering of a magnitude beyond what can be comprehended or imagined, Pakistan seeks climate justice from the world! The answer to climate justice is found in measures that firstly, strengthen the legal regime and empower climate ligation. Secondly, climate finance is the answer to climate action. Countries that are not contributors of the excessive carbon emissions and are suffering beyond proportion to their guilt, should be compensated through climate finance, capacity building and technology development. Lastly, climate justice needs to be recognized through a legal regime that transcends states and empowers states and citizens alike to seek justice through an effective and exclusive international forum.
Climate change indicates most predominantly and alarmingly a significant increase in the average world temperature which will lead to serious impacts on the environment. Climate justice is interdependent upon the protection of human rights and it intersects with many branches of international law; however there still remains a need of a coherent binding legal regime which can provide protections and a mechanisms whereby safeguards and pre-emptive measures can be put in place to reduce the impact of man-made climate change and counteract legal avenues can be available for challenging and addressing non-compliance of acceptable standards.
At present there is an array of hard law and soft law addressing the various themes of climate management and environmental protections. The first attempts at identifying climate change and environmental issues at a global level were through the UNGA resolution 1721 passed in 1961 and more than a decade later in 1979 the First World Climate Conference was held in Geneva and it is so interesting to note that the problem faced by the world today was understood decades back with complete clarity and foresight in this world conference of nations where it was declared that: “climate variability and change” is an urgent challenge and nations were called upon to “foresee and to prevent potential man-made changes in climate that might be adverse to the well-being of humanity.”
The global stock of climate treaties continues to grow internationally and at present there are more than 1500 climate laws and policies globally, further, all signatories or ratifiers to the Paris Agreement explicitly address climate change or transitions to low-carbon economies in national laws or policies. The last decade has also seen a wave of new cases linking climate with human rights litigation and courts are increasingly playing a very important role in strengthening the legal regime around climate change. Two of the most significant climate change cases in recent years—the Urgenda case in Holland and the Leghari case in Pakistan—came from countries with widely differing legal systems. But the principle they established is universal, that effective action on climate change is a human right and thus a core responsibility of governments everywhere.
Although on paper the protections and laws look elaborate and empowering yet in reality the international legal regime is deficient in achieving the SDGs and has not been able to reduce or curtail climate deterioration thus resulting in catastrophes world over. The reasons behind the ineffectiveness of the legal framework are summarized below: There is a need for stronger linkages between international laws and domestic implementing legislation. The UK Climate Change Act is a good example and has been able to address both mitigation and adaption in the context of climate change.
Globally judges are still not fully aware of the existential threat that the climate crisis poses to humanity. In the Leghari case a pro-active approach was adopted and in the most recent judgement of Justice Jawad Hassan, of the Lahore High Court, direction was given to the Lahore Development Authority and the Environmental Protection Agency in Pakistan, to make a policy for mandatory tree plantation by housing societies and their residents. There needs to be a globally better understanding of the fact that climate change is at the root of more than one SDG and is linked entirely with every single goal. There is a dire need for an overarching legal framework to address climate change at an international level which is capacitated by a judicial forum that can provide specialized and unhindered advice on climate matters.
At a very broad level the SDGs center upon the five SDG pillars of people, prosperity, planet, peace and partnership. It does not take a legal mind to note that each of these five pillars stand on the notion of a climate safe world without which the SDG agenda cannot be achieved. An all encompassing international legal framework, judicial decisions with the valor and strength that is needed and partnerships like COP28 and SIFOCC to organize and prioritize climate finance – are the essential factors for a move towards success in the SDGs. According to the UN Climate Press Release circulated at the end of COP28, $700 million has been pledged towards the Loss and Damage Fund, $12.8bn has been pledged towards the Green Climate Fund, $188m has been pledged towards the Adaptation Fund, and $174m has been pledged towards the least developed countries and Special Climate Change Fund collectively. This is indeed a triumph for Pakistan
The SIFOCC although is the international forum for commercial courts, however, its very objectives and themes tie in closely to climate justice. Particularly, in the SIFOCCs meeting in Dubai 2023, that resolving and managing commercial disputes by judges will in turn compliment the process of climate justice. In this regard Pakistan has made notable efforts in advancing the role of mediation. In the latest reported judgement of Justice Jawad Hassan of the Lahore High Court, titled Netherlands Financiering vs Morgah Valley Limited and SECP, the court resolved a long-standing commercial dispute by way of initiating mediation between the parties.
What is the Future Direction for International Law: We need new perspectives to create climate justice. Justice will only be fair if it considers diverse perspectives and rights, only when every judgement and every legislative tool is able to stitch together the concept of climate justice as a foundation upon which fundamental rights can be secured and built. A catastrophic and ill planet cannot guarantee the life and dignity of its people, prosperity, peace, financial and economic partnerships and a breathing living world for all species. If climate disasters are not curtailed, the SDG goals and all international agendas for a better tomorrow will crumble like a castle of sand. Imaginative, ambitious and new recommendations are the need of the hour; the deficiencies of the existing legal framework around climate change need to be addressed with measures of a greater magnitude than have thus far been achieved. Following recommendations are presented as closing remarks:
An overarching international legal framework specific to Climate Justice with model laws for domestic implementation needs to be created. As Justice Antonio Herman Benjamin of the National High Court of Brazil stated, “If judges are in charge of deciding all sorts of conflicts about life, death, love, human rights and national security, it makes no sense to leave climate change outside the courtroom.” Thus it is time to include the judiciary in a scale larger than has been till now in driving climate justice as there is no other substitute. The developing countries need to take extensive measures to achieve this through capacity building, training, domestic legislation and partnerships.
On the same note as above, judicial intervention cannot only be to the extent of national courts and forums such as the COP and SIFOCC, climate justice needs to be strengthened through an international court. There is a need for an international court at par to the ICJ and ICC but specifically for the redressal of climatic issues. This will have a two fold effect, one of speedy exclusive justice and development of climate laws and secondly, for global recognition of climate justice as a matter of equal importance as the protection of human rights and fundamental freedoms. A new International Court on Climate with a majority vote decision resting with the UNGA only. As Albert Einstein once said, “We cannot solve our problems with the same thinking we used when we created them.”
—The author is an International Lawyer qualified from Switzerland; an Advocate of the High Courts of Pakistan and Founding Partner of S&S Law Associates.
Email: sibahf@gmail.com
