“Nothing has changed from previous years really. The leaders will say ‘we’ll do this and we’ll do this, and we will put our forces together and achieve this’, and then they will do nothing. Maybe some symbolic things and creative accounting and things that don’t really have a big impact. We can have as many COPs as we want, but nothing real will come out of it.”
Swedish climate activist Greta Thunberg was right in acknowledging that the 2021 United Nations Climate Change Conference, also referred to as “COP26”, failed to live up to most global expectations of world leaders who have been called upon to do more to fight the warming of our planet. Many activists, journalists, and individual citizens have cited the lack of specifics around how governments will meet their set targets, and expressed frustration at the ineffectual platitudes given at the conference without mechanisms to hold nations to account for the promises they are making.
Notably, Queen Elizabeth II weighed in on her opinion of the conference, albeit accidentally, over a hot-mic conversation. She noted that:
“It’s really irritating when they talk, but they don’t do.”
It doesn’t require much effort to see how this has played out before, when recalling the dismal failures of particularly wealthy nations to come even remotely close to meeting their targets from the famed Paris Climate Agreement. One might argue that we must start somewhere, and that big changes, especially those that severely impact economics and special financial interests, do not happen over a few days. Unfortunately, the matter of fact is that we do not have time for change to take longer. This is not a knee-jerk reaction to a few ‘fringe scientists’. Governments must act now in order for future generations to have a fighting chance of living on this planet. It is abundantly clear that everyone on Earth is affected by the decisions made at these global climate summits. However, there are some communities that have been affected for years, and are now paying the most extreme price for the failures of our world leaders to halt the warming of our planet and subsequent loss of biodiversity. These communities are the migrant and refugee populations, and indigenous people in remote locations all over the globe.
Breaking down the issue of climate-caused refugees
It is arguable that many migrations around the world are due to climate change either directly, or indirectly. The catalyst of the migrant crisis stems from a fairly obvious place: land. As droughts, commercial agriculture, and deforestation ravage fertile land in places nearest to the equator, that fertile land becomes scarce. Local communities and farmers are forced out of their home villages because the need to earn a living wage becomes overwhelming and key to basic survival. A secondary consequence of fertile land scarcity is local feuds, and sometimes outbreaks of violence. There is a clear link between violence and places near the equator that are currently affected by climate change more severely than the global north. Where there is disruption to the basic human need of living off the land, there is desperation to fulfil this need, forcing families and communities to do whatever they can to survive in the places they call home. This could include involvement in violence or unsavoury lines of work out of necessity. Alternatively, communities flee their homes, undertaking extremely perilous journeys across deserts and seas, with many paying the price of their lives in exchange for a basic right to survive. Lastly, and perhaps most importantly, Western countries must realise the very large and direct role that colonialism has played in the exploitation of not only natural resources, but of humans too, within vulnerable communities around the world. This exploitation has taken the form of diamonds being extracted by a select few European imperialists in South Africa, paying local miners a very minute sum for extraordinarily harsh working conditions. The same can be said for the genocide committed by European settlers against indigenous people of North America to make use of their land for settlement and exponential economic growth. The most recent examples of such exploitation are rarely of individual sovereign nations, but rather in the special interests of large corporations, such as Texaco, a subsidiary of Chevron, for discharging ‘produced water’ into the water supply of an Ecuadorian farming community, who used the water for drinking, fishing, and bathing.
Case Study: Lago Agrio Indigenous Residents (Led by Steven Donziger) v Texaco
This case is by no means straight-forward in terms of the subsequent events that have unfolded from the initial class-action lawsuit, but the injustices against the indigenous people of Lago Agrio are quite clear. In 2002, some 30,000 farmers and indigenous people of the Lago Agrio area, led by lawyer Steven Donziger, were seeking compensation for pollution and ill health effects caused by Texaco drilling in the Lago Agrio oil fields, an area commonly referred to as the “Amazon Chernobyl”. In 2011, a provincial Ecuadorian court found Chevron guilty, awarding the complainants with $18 billion in damages. This decision was fortified by three appellate courts, including Ecuador’s highest court, the National Court of Justice, although the damages were reduced to $9.5 billion. Chevron, to evade the payments to the complainants, ushered all of its assets out of Ecuador. The facts surrounding the case are undoubtedly murky, but the inequitable bargaining power is clear. Steven Dozinger is now imprisoned on a misdemeanour charge, and the indigenous people of Lago Agrio have not seen a cent of their awarded compensation and are still enduring extreme suffering from a large corporation’s pollution of their life source. This is one of the innumerable examples around the world of how exploitation by a corporate behemoth is driving vulnerable communities from their homes. We can infer from their words, and sometimes actions, that global executives consider efforts to halt climate change as incongruous with exponential economic growth. If they indeed act upon these ideals, they are acting in a way that is incompatible with the freedoms given to all people under the Universal Declaration of Human Rights, specifically under articles 1, 2, 3, 5, and 25. Because these corporate interests hold great responsibility when it comes to their direct and indirect emissions, the global expectation largely seems to support the ideology that these corporate executives should be the ones responsible for implementing change to scale back their emissions. Cynically speaking, it is difficult to imagine many executives doing what is right for the future of our planet if the cost of this is anything lower than exponential growth. This is when governments must step in, both legislatively and judicially, to ensure that businesses do not place selfish pursuits ahead of global stability. What is happening now as many governments are failing to act accordingly? A case out of the Netherlands displays one such scenario.
Litigation as a tool for accountability
Despite avalanches of setbacks experienced by litigants like Steven Dozinger in pursuing large corporations for their environmental impacts, as well as the voided confidence in world leaders to make tangible change at climate summits, activists and individuals have found a bit more success in the public law domain. UNEP’s Global Climate Litigation report shows that within four years (2017-2020), the number of cases brought to court has nearly doubled, reaching 1550 cases filed in 38 countries by July 2020. Positively, courts are increasingly ruling in favour of those fighting for more environmental accountability. A landmark case which highlights this is Urgenda Foundation (on behalf of 886 individuals) v The State of the Netherlands (Ministry of Infrastructure and the Environment). In 2013, the Urgenda Foundation filed a lawsuit against the Dutch government. They argued that the government’s failure to reduce the country’s carbon dioxide emissions, in advice established by leading climate scientists, was endangering their human rights as set by national and European Union laws. The initial ruling in 2015 required the government to meet an emissions goal of a 25% reduction in 1990 levels by 2020. This decision was upheld in the Dutch Supreme Court of Appeals, maintaining that the reduction in emissions was required for the Dutch government to protect the human rights of its citizens. This case is the first successful tort case against a government on the grounds of a breach in human rights.
Conclusion: Nexus between the Courts, Politics, and Corporate Interests
As we search for expedient solutions to climate change, the overwhelming conclusion is that it must be a collective effort. The three channels of the courts, our governments, and economic interests have immense power, whilst each also has clear limits to those powers. The courts are limited to the available legislation under which the filings for human rights cases for climate justice can be brought. Our governments, if democratically elected, arguably have the most power, and are only limited by the citizens who elect them into power. They also cannot impose restrictions so detrimental that the markets are thrown into disarray. Corporate interests probably have the least legal power, and yet they seem to hold a lot of ‘back-channel’ power. This can take the form of lobbyist groups, sweetheart deals, and intimidation. It is fundamentally crucial that large corporations are transparent with their global environmental impact. The government and courts need to walk the delicate line of balancing what is best for the environment without imposing restrictions so severe that investors pull out of the global markets. None of these channels can act alone. All need to be equally engaged to successfully deescalate the rapid inertia toward global mass migrations, mass poverty, and extinction.
