Climate Litigation in the Global South: Constraints and Innovations

Abstract

Cases involving climate change have been litigated in the courts for some time, but new directions and trends have started to emerge. While the majority of climate litigation has occurred in the United States and other developed countries, cases in the Global South are growing both in terms of quantity and the quality of their regulatory outcomes. However, so far climate litigation in the Global South has received scant attention from the literature. We argue that climate litigation in the Global South opens up avenues for progress on climate change in these highly vulnerable countries. We first highlight capacity constraints within Global South countries to provide context to the approach to climate litigation in the Global South – how these cases push the climate litigation agenda forward by linking climate change and human rights, and often addressing climate change indirectly, integrating it into other environmental matters in spite of the significant constraints experienced in these countries. Drawing upon Legal Opportunity Structures (LOS) approaches, we identify two factors that are contributing to this increased activity and initial positive outcomes: access to justice in conjunction with the existence of progressive climate and environmental rights legislation, and judicial opportunism, which combined pave the way to innovative climate litigation outcomes.

Keywords: Climate change litigation, Global South, Human rights, Legal Opportunity Structures

JEL Classification: K32, K33