UCLA Journal of International Law and Foreign Affairs

Symposium Keynote Speech

Climate change challenges the resiliency and integrity of social and legal systems worldwide.  Responding to climate change requires us to think systematically—and ambitiously—about how to engage the rule of law as a tool in efforts to limit the causes and consequences of climate change.  This Article highlights the important, but underexplored relationship between ongoing pressures on the rule of law and efforts to draw upon the rule of law to limit climate change.  It posits that the growth of right-wing populist, nationalist, and authoritarian movements worldwide puts pressure on the rule of law and imperils efforts to advance cooperation on climate change.  It then explores the relationship between the rule of law, climate change, and human rights and describes how, despite downward pressures on the rule of law, efforts to embrace and deepen the linkages between climate change and human rights law continue to progress at both the domestic and international level.  Ultimately, this Article argues that the rule of law is critical to addressing climate change, but the international rule of law is under pressure and even tentatively held, shared understandings of the rule of law are in question.  This uncertainty challenges the ability to leverage law, including human rights law, to achieve effective and equitable change in the climate context.

The 2016 Colombian Final Peace Agreement set up an innovative framework for the transitional justice process in Colombia.  The Agreement deals with the relevant environmental dimensions of the Colombian armed conflict, such as the historical struggle for land and its equitable distribution or illicit crops as a root cause of and means for perpetuating the conflict.  However, the Agreement says little about other conflict-environment connections, namely, how to deal with ecological degradation or destruction by war—nature as a victim—and how to seize the conservation opportunities that the conflict presented—nature as a beneficiary.  These silences were amplified by the environmental crisis triggered by deforestation in the Colombian Amazon after the armed conflict ended.  This emergency arguably boosted pioneering litigation strategies that mobilized rights-based arguments to protect fragile ecosystems and denounced deforestation as a causal mechanism of climate change.  The Justice Supreme Court's historic ruling protects future generations' rights and declares the Amazon a subject of rights.  In tandem with a foundational precedent, the Atrato River case, this Article explores how intergenerational equity and the rights of nature—founding ideas of these decisions—may turn into valuable lessons for environmental justice and present precious opportunities to fill environmental gaps in the transitional justice architecture.

Communities facing extractive industry and destructive land-use projects in Africa have appealed to the continent’s human rights bodies and subregional courts to protect their lives and livelihoods, and the environments on which both depend.  To date, most of these cases have not been considered “climate change litigation.”  But the rights they have championed and the legal decisions they have produced are vital to climate change mitigation and adaptation strategies in Africa and around the world.

Avoiding climate catastrophe requires keeping fossil fuels in the ground and leaving forests intact.  Litigation can advance those life- and planet-saving goals if it reinforces the ability of frontline communities to resist new pipelines, mining concessions, and plantations.  Courts can validate the role of communities as stewards of their lands and participants in natural resource governance, provide them the compensation they are owed for past harms, and order the restoration of their environments.  The adjudicative bodies that comprise the African human rights system have produced a rich jurisprudence that furthers these aims.  Past decisions recognizing communal rights to land tenure and resource control, participatory development, and a healthy environment establish important legal footholds for climate litigation globally.

This Article addresses the protection of the natural environment in a non-international armed conflict (NIAC) by applying international humanitarian law (IHL) and international criminal law (ICL) in a transitional justice tribunal.  In December 2016, the Colombian government and the Revolutionary Armed Forces of Colombia–People’s Army (FARC-EP) guerrilla group signed an agreement which established the Special Jurisdiction for Peace (JEP), a tribunal designed to investigate, prosecute, and punish those responsible for the most serious crimes committed during the Colombian Armed Conflict.  The agreement and the regulations of the JEP establish that this tribunal could directly apply IHL and ICL when examining crimes under investigation.  However, case law related to this subject matter is almost nonexistent.  Therefore, the JEP should create case law that can be studied and followed by other international and domestic criminal tribunals, while shedding light on the international standard on environmental protection emanating from IHL and ICL.

In this Article, we demonstrate how the JEP can effectively use IHL and ICL when prosecuting war crimes which have harmful effects on the environment.  For this purpose, Part I presents background on the Colombian Armed Conflict.  Part II describes the JEP, the generalities of its legal framework and the specifics of the use of international law by this tribunal.  Part III examines relevant domestic and international sources to explain the insufficiency of domestic law and the ability of international law to surpass those limitations.  Part IV recalls the sources of ICL and IHL related to the protection of the natural environment in NIACs.  Finally, Part V discusses recent JEP decisions related to the protection of the natural environment and some possible conduct to be investigated in the future.  We conclude by describing the benefits of the JEP’s use of international law.

Around the world, a spate of successful and pending climate change lawsuits based on human rights and constitutional claims offers new hope as a means to compel meaningful government action to reduce global warming.  This trend stands in stark contrast to environmental jurisprudence in the United States, where not a single climate-related suit has been litigated on the merits.  This Comment challenges the conventional portrayal of the U.S. judiciary as exercising restraint in rejecting such suits for lack of standing.  It argues instead that judicial activism since the 1990s usurped legislative and executive action that supported not only carbon emissions reductions specifically but also, more generally, encouraged citizen access to federal courts as a tool for achieving environmental justice and protecting natural resources.  The following comparative analysis focuses on the approach of India’s National Green Tribunal as the quintessential embodiment of three principles that serve as a counterpoint to the rigidity of contemporary U.S. jurisprudence: environmental constitutional rights premised on due process and equal protection as opposed to the Commerce Clause, public interest litigation versus strict standing, and scientific expertise versus so-called judicial generalism.  The purpose of the analysis is to demonstrate the federal judiciary’s role in making the United States a global outlier in climate change policy.  It also argues for the need to reintroduce these principles, which inspired both India’s public interest litigators and amendments to key U.S. environmental statutes in the 1970s.  A return to these three principles would offer the best hope of unlocking courthouse doors to federal climate change litigation in the United States.