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ITLOS Ruling: The Evolving Landscape of Climate Litigation

The UN Global Climate Litigation Report -2023 Status Review shows that Climate litigation is emerging as a powerful tool, shifting the fight against the climate crisis. The litigation cases rose from 884 in 2017 to 2,180 in 2022. This report underscores a growing trend: people are increasingly turning to courts to hold actors accountable and drive change as pressure mounts on Governments and private sector entities who are increasingly challenged and held to account by women, children, NGOs and Indigenous communities. The legal landscape is shifting, bolstering efforts to combat climate change through the courts. Both the United Nations Human Rights Council and the United Nations General Assembly have now recognized the right to a clean, healthy, and sustainable environment.

A blurred picture of a female judge
In Court

In May 2024, the International Tribunal for the Law of the Sea (ITLOS) –  a key body under the United Nations, issued a landmark ruling. It states that countries have a legal obligation to protect the ocean from harmful greenhouse gas emissions. The request had been submitted to the Tribunal by the Commission of Small Island States on Climate Change and International Law (“the Commission”) on 12 December 2022. This landmark development provides a powerful legal foundation for climate litigation, empowering individuals and communities to hold governments and corporations accountable for environmental harm. This brings into focus the importance of an international environmenal law and the need to define the jusrisdiction of implemtanbting any rulings from frameworks like ITLOS, Inter-American Court of Human Rights and the International Court of Justice.

A man wiearing ablack shirt and face cap holding a megaphone in  a protest
A Climate Change Protest

Landmark rulings are emboldening citizens, NGOs, and even climate-battered countries to take legal action against governments and fossil fuel producers. This surge in climate litigation marks a pivotal year, with key cases set to be heard around the world. These legal battles represent a growing front in the fight against climate change.

We have seen an accelerating wave of climate litigation in national and sub-national courtrooms since we started tracking this seven years ago,” says Andrew Raine, Deputy Director of the Law Division at the United Nations Environment Programme (UNEP). “This year is particularly significant as litigation has also recently started – for the first time – in international courts and tribunals.”

The island nation of Antigua and Barbuda is the front of pushing for this agenda to fall through.

A powerful statement came from the representative of Antigua and Barbuda, speaking on behalf of several island nations. He painted a grim picture of the devastating consequences of climate change for his country. These include intensifying hurricanes, prolonged droughts, unpredictable weather patterns, rising sea levels, and ocean acidification.

Despite these challenges, Antigua and Barbuda remains committed to tackling climate change. The representative emphasized his government's active participation in international forums. He strongly advocated for an international investigation into climate change. In his view, such an investigation, led by the International Court of Justice, would be crucial to understand the complex legal implications of climate change across various aspects.

a forzen and flooded picture with houses submerged

The fight for climate action is going beyond traditional political channels. A diverse array of groups are taking their cases to courts and tribunals. Island nations like Antigua and Barbuda, often working together through coalitions like the Alliance of Small Island States, are leading the charge.  Even major cities like Paris and Brussels are using legal action to push for change.  Civil society groups are also playing a crucial role, with a notable example being Swiss seniors who successfully argued in the European Court of Human Rights that worsening heatwaves due to climate change threatened their health. Indigenous Peoples are another powerful voice, increasingly seeking legal recourse to protect their cultures, traditional ways of life, and access to food and water, all under threat from the climate crisis.

Over time, Environmental law scapehas taken new shape- becoming stronger with 159 countries recognizing the right to a clean, healthy, and sustainable environment. Even though the UNEP recomendations state that :

further research is required regarding environmental rule of law and the role of gender; The applicability of environmental rule of law in areas beyond national jurisdiction, such as oceans, poles and space; Challenges of emerging technology, including gene editing, microplastics and nano plastics, commercial fusion energy; Environmental rule of law in fragile and conflict-affected settings; and the issue of civil disobedience, which becomes ever more relevant as policies stagnate and environmental crisis worsen.

Zachary Phillips is a Crown Counsel within the Attorney General’s Chambers of Antigua and Barbuda and a member of the country’s delegation to the UN Framework Convention on Climate Change (UNFCC), a global agreement to counter the climate crisis has believes legal victories like this from ITLOS will help bolster more concrete action and negotiations from small countries who are severly impacted with climate change.

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