Advancing Climate Justice through Creative Lawyering: Lessons from the Global South

The Global South, encompassing much of the developing world, stands at the forefront of experiencing the devastating impacts of climate change. As highlighted during the recently concluded 29th Conference of the Parties (COP29), developing countries are advocating for increased support and funding to both mitigate and adapt to the rapidly changing climate. Furthermore, the most vulnerable and marginalized populations are increasingly seeking legal remedies through courts and other tribunals to protect their rights and fight for climate justice.

These themes were central to the two-day Asian Regional Summit and Philippine National Conference on the British Institute of International and Comparative Law (BIICL) Global Toolbox on Corporate Climate Litigation, organized by the BIICL and the University of the Philippines College of Law in July 2024. The University of the Philippines College of Law, with its rich legal history, hosted discussions on what is arguably the defining issue of this generation. Multidisciplinary experts from across the region convened to exchange ideas on climate litigation in the Global South. Importantly, the conference underscored that climate change, its effects, and the resulting disputes are of grave concern throughout Asia and the Pacific, with courts playing a central role in this ongoing and evolving struggle.

Corporate climate litigation is on the rise in Asia and the Pacific, presenting significant risks that businesses must consider, including potential liabilities of directors. Moreover, climate change is unequivocally a human rights issue, with increasingly dangerous impacts disproportionately affecting those already vulnerable and marginalized within society. Acknowledging the current climate crisis and emergency is imperative, necessitating urgent action not only from governments but also from other stakeholders, including businesses and corporations.

Throughout the event's insightful exchange of ideas, it became evident that lawyers play a critical role in corporate climate litigation. Even with well-crafted laws, accessible and fair remedies through courts and tribunals, and expert judges applying a "climate lens," these efforts are futile if cases are not brought forward. Therefore, for corporate climate litigation to serve as an effective tool in the pursuit of climate justice, lawyers must engage in what can be termed "creative lawyering" for climate change and climate justice.

Creative lawyering means innovative legal thinking that explores the wide range of remedies available for climate litigation. It involves applying lessons from successful strategic litigation in human rights and environmental justice, among others, to the context of climate change. The rich case law and jurisprudence from the Global South serve as valuable sources of lessons and best practices for creative lawyering.

Over the years, this legal arsenal of remedies has evolved in both court and non-court strategies and interventions. At the international level, various tribunals, treaty bodies, and courts are increasingly utilized to clarify international obligations on climate change and to hold states and other actors accountable. Countries in Asia and the Pacific have supported the request for an advisory opinion of the International Court of Justice regarding the legal obligations of states concerning climate change. Additionally, youth from the region have joined petitions with the Committee on the Rights of the Child (CRC) addressing the impacts of climate change on child rights.

At the national level, various remedies have emerged through adversarial, inquisitorial, lobbying, and advocacy efforts. The right to a clean and healthy environment, along with principles of intergenerational responsibility and equity, have been upheld by judiciaries in the Asia-Pacific region, beginning with the landmark case of Oposa v. Factoran in the Philippines. This precedent has been supported by numerous public interest litigation cases in India and other South Asian countries, all holding governments and other actors accountable for environmental harm and damage. Although these cases are not directly climate-related, they provide foundational support for the development of climate jurisprudence.

These developments have led to significant climate cases from the Global South that are shaping the emergence of corporate climate litigation. In Leghari v. Pakistan, the country's first climate change case, the court sided with a farmer's petition highlighting the government's failure to implement its own climate policies, thereby violating his right to a dignified life. In EarthLife Africa Johannesburg v. Minister of Environmental Affairs and others, the South African Supreme Court halted a proposed coal-fired power plant on the grounds that environmental impact assessment laws require consideration of climate impacts. The Philippine Commission on Human Rights was petitioned by Greenpeace Southeast Asia and others to examine the climate liabilities of major carbon emitters. In Colombia, the rights of the Colombian Amazon were recognized in the case of Friends of the Earth v. Ministry of Environment, acknowledging its contributions to global climate change adaptation and mitigation.

Creative lawyering necessitates that lawyers immerse themselves in the root causes of climate change. It requires direct engagement with policymakers at the highest levels of government and, importantly, with those on the front lines of climate change in various parts of the world. Despite the daunting challenges presented by the escalating impacts of climate change, there is hope that future advocates in climate litigation will be more creative, more passionate, and even more determined to push the boundaries of law for climate justice. The duties of lawyers and advocates for justice demand nothing less.

Author:

Atty. Gregorio Rafael P. Bueta is an international legal practitioner and consultant specializing in environmental, climate, and sustainability law. Based in the Philippines, he has worked with organizations like the Asian Development Bank, UN agencies, and the World Bank, focusing on judicial reforms, ESG strategies, and climate policies across Asia. Atty. Bueta lectures on environmental and climate law at Ateneo de Manila University School of Law and is pursuing an LLM in Environmental Law at Vermont Law School. A member of IUCN's World Commission on Environmental Law, he has expertise in energy policy, waste management, and corporate sustainability initiatives. He is also a member of the International Expert Group (Philippines) of BIICL's Global Toolbox on Corporate Climate Litigation.