'Adjudicating the Future' symposium puts focus on courts in climate response
By Ioanna Hadjiyianni and Stephen Minas
As the international community prepares for December's Paris climate change summit, The Dickson Poon School of Law, King’s College London and partners brought together a diverse group of judges, government officials, legal practitioners and academics to discuss how courts are dealing with the complex problem of climate change.
The 'Adjudicating the Future: Climate Change and the Rule of Law' symposium was a joint initiative of the UK Supreme Court, the Foreign and Commonwealth Office, the Journal of Environmental Law and The Dickson Poon School of Law, with support from UNEP and the Asian Development Bank. Over three days, participants met at the Foreign Office, the Supreme Court and King's to exchange experiences and ideas. The event was organized by Dr Eloise Scotford and Dr Emilly Barritt from King's and Professor Liz Fisher from the University of Oxford, at the initiative of Lord Carnwarth of the Supreme Court.
The event was prompted by growing recognition that multiple aspects of climate change are coming before the courts in different areas of law and legal practice. These include planning, tort, commercial, contract and trust law, human rights and administrative/judicial review, including at the European level. Threading through the event was discussion of the ways in which climate change is disrupting areas of law and legal doctrines that are not primarily 'environmental'.
Participants were able to share unparalleled insights into how courts from different jurisdictions are grappling with the multi-level and multi-actor challenge of climate change, which transcends geographic and legal boundaries, in different ways. For example, the conference heard from one of the Dutch judges who decided the landmark Urgenda ruling in which the Hague District Court ordered the Dutch government to cut its greenhouse gas emissions, and Justice Syed Mansoor Ali Shah explained his recent ruling in the Lahore High Court establishing a climate change commission to hold the Pakistani government to its climate change policy.
The symposium included two keynote lecture sessions that were open to the public. In his keynote address in the chamber of the Supreme Court, Professor Philippe Sands QC called for the United Nations General Assembly to request that the International Court of Justice give an advisory opinion on the future climate responsibilities of states and other actors, including with respect to burden sharing. Professor Sands stressed that we have got to limit our expectations but that does not mean that we should not have any expectations or hopes about the role that international courts might play. Speaking in response, Judge James Crawford of the ICJ noted that climate litigation is very much a work in progress. He added that the ICJ had evinced a preparedness to grapple with science and not merely to parrot it. Professor Lavanya Rajamani of the Centre for Policy Research also spoke on the trajectory of the UNFCCC negotiations.
At the Journal of Environmental Law annual lecture at King's the following evening, a panel of judges shared experiences on the theme of 'Judicial Perspectives from Around the World'. Each reflected on both the responsibilities and the opportunities of court judgments. Lord Carnwath noted that it will ultimately to be up judges to sort through the legal implications of the Paris outcomes. Justice Antonio Benjamin of the National High Court of Brazil, who also chairs the IUCN World Commission on Environmental Law, predicted that the Urgenda decision would probably inspire the public interest bar in Brazil as elsewhere, while warning of the urgency of the climate challenge: ‘Imagine droughts in the Amazon ... I have seen it’.
Justice Swatanter Kumar of India’s National Green Tribunal spoke of the challenge of putting a stop to ‘illegal and unscientific’ mining while protecting people’s livelihoods, while Justice Brian Preston of the New South Wales Land and Environment Court discussed how court judgments can ‘add value’ to government decision-making.
Symposium participants were in broad agreement that climate change is increasingly an issue for the courts to deal with and cannot be left solely to intergovernmental negotiation or executive action. Participants debated the exact function of the courts and strategies for building the capacity of judicial systems regarding climate change. It was noted that the global scale of the climate problem should not discourage courts from dealing with its significant local implications. Candid exchanges on practice reform and innovative and novel institutional approaches were enriched by the diversity of positions and jurisdictions represented by those in the room.
The ‘Adjudicating the Future’ symposium did much to strengthen a network of lawyers who share in the work of crafting legal responses to climate change. The constructive discussions attested to the complementary nature of the distinct roles of judges, practitioners and legal academics in addressing both the practical and normative challenges of climate change. This event clearly demonstrated the pragmatic benefits of a direct discussion on what can be identified as ‘climate adjudication’ among different actors of the legal world. As the demands of climate mitigation and adaptation grow ever more urgent, there will be significant opportunities for lawyers to contribute to climate solutions.
The ‘Adjudicating the Future: Climate Change and the Rule of Law’ symposium hosted by King’s College London (17-19 September) was an event jointly organised by a number of organisations and designed for open and critical academic debate. The debate centred on how courts are adjudicating, and can adjudicate, on climate change-related problems that are increasingly appearing before courts. Parts of the symposium were open to the public, talks were publicised and some streamed live, and related documents have been published online.
The event remit was not to endorse particular solutions, legislative or otherwise, but in recognition of the increasing amount of climate change-related cases being brought before courts worldwide in different areas of law and legal practice.