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Climate litigation as a tool to tackle global warming

Climate litigation as a tool to tackle global warming

The adoption of the Paris Agreement (“PA”) in December 2015 created the opportunity to use legal instruments for climate action. To reach the strategic objective of limiting global warming to 1.5°C, the PA created obligations for States, with subsidiary obligations for different actors. Citizens and organizations are progressively ascertaining the empowerment and prerogatives it enables.

Among others, the PA identifies loss and damages (Art.8); climate education, public awareness, public participation and public access to information (Art.12); an enhanced transparency framework (Art.13), and an implementation and compliance mechanism (Art.15). Against this backdrop, a typology of lawsuits has started to emerge, including actions against governments and corporations, to hold them accountable for actions or inactions which aggravate climate change.

This process is currently incipient in the Asia-Pacific region with some level of success. Despite embryonic climate change laws in the ASEAN region, litigation is burgeoning, with an estimated 80 cases, of which 20 are still active. Petitioners have successfully applied peripheral rights to life and to a clean environment to establish their claims for climate change-related harms, as highlighted in the following cases.

Legal standing

A significant obstacle in climate lawsuits is the ability of the plaintiffs to meet standing requirements under domestic laws. A progressive jurisprudence started to emerge from the 1993 Oposa case, in which the Supreme Court of the Philippines held that “the right to a climate system capable of sustaining human life is fundamental to a free and ordered society”. The decision stands alongside a growing number of court rulings from Indonesia, Malaysia and Thailand which unlock the potential for new categories of claimants.

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