“Would you tell me, please, which way I ought to go from here?” asked Alice.  “That depends a great deal on where you want to get to,” said the Cat.
“I don’t much care where –” said Alice.
“Then it doesn’t matter which way you go,” said the Cat. 

Excerpt from Alice in the Wonderland

Lewis Carroll’s words speak to a resounding truth, if you are willing to care enough about problems, this commitment will lead the way forward. In the 1980s, the road to climate governance had already been bumpy when the person behind the warnings over the climate crisis – James Hansen, a US scientist, alerted the world to the dangers of the greenhouse effect. He would eventually participate in protests alongside activists to decry the lack of action to reduce planet-heating emissions. In his words, ‘’we are damned fools” for not acting upon warnings over the climate crisis, inferring the sense of disappointment for the scientists who did not communicate more clearly and for our collective failure to elect leaders capable of an intelligent response to the problem. Perhaps not much has changed when it comes to political leadership today. 

How the fight for common climate agreements unfolded

By 1992 the CBDR (Common-but-differentiated-Responsibilities) acknowledged that based on historical contributions and current capabilities, countries have varying levels of responsibility towards environmental issues. This principle of international law was introduced to make room for emerging economies to grow (with emissions considered to be a necessary outcome of economic growth) and the world had been in a whirlwind of talks to provide for economic growth and climate security at the same time. At the time, the drastic cuts of 20% of the Greenhouse gas (GHG) emissions were also proposed (Dubash 2021), however, this proved impossible to negotiate and all the efforts were completely watered down.

In 1997, the Kyoto Protocol became the first legal emissions reduction target to be set up, of course well below what was needed, but this can still be recognized as one of the first and only frameworks for action to reduce emissions. Many compromises in the process were made, especially to bring the United States on board who once again had the leverage of rejecting it. It would take 2 years for the principle of equity to be introduced as one of the most inconvenient truths for high-emitting countries. This principle granted the right to recognize the unequal use of the natural resources of the planet by previous generations and the duty to conserve the remaining resources for future generations while addressing inequality among countries, communities, and individuals in the present generation. 

Following the establishment of the Kyoto Protocol in 1997, the global efforts to address climate change continued to evolve and this culminated in the historic Paris Agreement of 2016, which marked a significant shift in climate politics. The Paris Agreement represented a turning point in climate governance, shifting the focus from domestic dynamics to broader international cooperation. This agreement not only underscored the importance of state involvement but also raised critical questions about the role of governance in addressing climate change. This changed the political narrative from understanding the dynamics within nations towards between nations (Dubash 2019). 

Fast forward to 2024 and contemporary discussions on climate governance based onthese principles delve into the complex interplay between states, institutions, and policy instruments. They address the linkages across different sectors and government levels whilst bringing in the complex politics that pushed existing fossil fuel production systems, and the discourse that relates to who could be the losers and winners in this whole equation. It is about the institutional architecture, analyzing the effects of domestic institutions and decision-making structures on climate policy instruments and its implications on climate legislation that may begin domestically, but can also lead a

systemic change on the global level with the help of ‘Nationally Determined Contributions’ (Bhavnani 2019).

The Emerging Importance of Human Rights Principles in the Legal Fight for Climate Justice 

When it comes to institutional mechanisms for ensuring climate governance, what is often undervalued, and needs to be strongly emphasized, is the proper execution of human rights principles as referenced in the Universal Declaration of Human Rights pertaining to economic, social, and cultural rights, civil and political rights as well as the Human rights conventions. 

In the past decade,progress can be seen in the way climate litigation policies have evolved. Between 2012 and 2017, the ‘proportion’ of mentions of greenhouse gas emissions that national laws or strategies have covered increased from 43% to 70% worldwide (lacobuta et al. 2018). Climate litigation since the year of the Paris Agreement in 2015  has increased by 50% as of May 2023 and in all these years the cases filed against corporate actors by civil society increased. With a positive hue, more than 50% of the climate cases have had direct judicial outcomes favorable to climate action meaning having significant impacts on climate change decision-making beyond the courtroom. 

In another study, as of 2020, the global database of climate-relevant laws and executive actions contained 1800 entries that suggest the reduction in emissions is almost equivalent to America’s worth of emissions each year (Eskander and Fankhauser 2020). The very recent example of India’s Supreme Court included the ‘protection against adverse effects of climate change’ in response to the scope of the ‘right to life’ with a significant ruling recognizing that climate change threatens ‘constitutional guarantees of equality and health’. 

© Imago/NurPhoto India’s supreme court ruling

In other words, the Supreme Court had expanded the scope of the ‘right to life’ under Article 21 of the constitution of India to include the impacts of climate change that have worsened air pollution and food security. Remarkably, the European Court of Human Rights recently ruled in favor of vulnerable women aged 65, acknowledging their increased susceptibility to health impacts from rising heat waves associated with age. This decision underscored the systemic failure to reduce greenhouse gas emissions, which posed a direct threat to a specific human right: the life and health of individuals.

Grassroots Initiatives: Catalysts for Change

“What do the forests bear?
Soil, water and pure air.”  

The Chipko movement © CC BY SA 4.0

Grassroots initiatives, firmly rooted in principles of human rights such as community participation, environmental stewardship, gender equality, and social justice wield immense power as catalysts for driving forward legal mechanisms. The historical ‘Chipko Movement (tree hugging)’ of 1973 in Reni village, India, exemplifies the impact of the integration of these principles in environmental activism. The movement sought to stop the auctioning of forests for felling by contractors and they applied a communal approach using unique forms of activism, including folk poems and songwriting. The songs were symbolic of the forest-based culture and played a powerful role in creating an environment to mobilize support for the protests (Shiva and Bandyopadhay 1986). The extensive participation by women and women leaders, such as Gaura Devi, is an ode to the significance of advocating for forests as ‘self-renewing life-support systems’ rather than ‘economic resources’, fusing practical expertise with scientific knowledge.

What must be highlighted here is that this activism is an approach born out of the alarming signals of rapid ecological destabilization in the hills, thus leading to the villagers resorting to food imports because of declining food productivity (Shiva and Bandyopadhay 1986). In response, Chipko’s activism sought to reframe the social and ecological costs of growth-oriented forest management which claimed that the main products of the forests were not ‘timber’ or ‘resin’ but ‘soil and water’. This reframing saw soil and water conservation as essential to stabilizing the local agro-pastoral economy. This form of activism was successful in both forcing a ‘15-year’ ban on commercial green felling in the hills of Uttar Pradesh and in having a national forest policy that was more sensitive to the people’s needs and the ecological requirements of the country (ibid). 

Another important focus it brings is challenging the conventional development narrative by emphasizing the importance of non-material factors like environmental preservation. This redefines the growth narrative away from extractivism and resource exploitation

advocating for a sustainable economy that integrates ecology as a permanent aspect of development – In Bhaguna’s words ‘Ecology is a permanent economy’(Brown 2015).

Grassroots activism at the highest legal level. ‘We don’t want a seat at the table, we want that table’

In today’s climate discourse, serious momentum is building towards integrating human rights into legal frameworks, especially considering intergenerational equity and the vulnerability of small island states to climate change impacts. One such campaign – driven by law students from across the Pacific in search of a solution to the existential threat to their islands, seeks to create a legal relationship between human rights and climate change. This campaign has not only made a lot of noise on the international stage but has reached as far as  the ‘International Court of Justice’ in the Hague. 

From the Pacific to the World Court

© Pacific Islands Students Fighting Climate Change

The Pacific Islands Students Fight Climate Change (PISFCC) together with  their global alliance: the World’s Youth 4 Climate Justice (WYCJ), are united in their pursuit of  more ambitious climate action across the world. 

Following the Vanuatu government’s presentation of  the campaign’s proposal to the Pacific Islands Forum, the successful adoption of a UN resolution in March 2023 to seek an ‘Advisory opinion’ from the International Court of Justice (ICJ) soon followed.  This advisory opinion would act as legal advice and is based on human rights treaty bodies questioning:

1. How human rights obligations can be used to define States’ legal duties to reduce greenhouse gas emissions (GHGs) individually and at the global level 
2. What are the minimum actions that states can take in line with the latest scientific guidance 
3. What is the minimum level of compliance with human rights law that, if violated, could prompt action against a country.

A core role of the ICJAO (International Court of Justice Advisory Opinion) in this regard is: ‘’Providing an authoritative international guidance on what it means for states and their responsibilities in respecting, protecting, and fulfilling these obligations.’’

As of the 22^nd of March 2024, out of the 193 UN member states, reportedly 80 states have made written submissions for the advisory opinion. This is the highest number of states to ever commit to Advisory Opinion proceedings at the ICJ. What remains to be seen is the ‘progressiveness’ of the advisory opinion (AO) soon to be ruled by the court. It could serve as a pivotal tool in holding governments and corporations accountable for their role in climate change and its consequences. This AO could provide an impetus for more ambitious action under the Paris Agreement in preventing anthropogenic interference with the climate sphere. Moreover, it could renew the focus on ‘’States that are injured or specifically affected by or are particularly vulnerable to the adverse effects of climate change’’ while taking into view the present and future generations affected by the adverse effects of climate change. 

This case brings to the forefront the importance of grassroots activism and the value of a decentralized approach that allows for more flexibility, creativity, and collaboration among different actors working on climate change. 

What can drive systemic change?

The core theme mentioned above is that human rights law needs to be brought ‘systematically’ to bear on climate change responses. Looking from the perspective of how legal mechanisms work, and not being legally binding within the procedure itself, the assessment of the advisory opinion case has a ‘rights-based approach’ that gives voices to the under-represented. Both the Chipko movement and the ICJAO campaign led by the PISFCC and WYCJ, show that the voices of the marginalized (the agro-pastorals, women, and the youth) are essential to pushing the boundaries of the status quo to bring in the reform needed institutionally. Reverting to Alice in the wonderland, I would provide this variation:

“But remember, Alice, even amidst uncertainty, every step towards action holds the potential for extraordinary outcomes. With determination and collaboration, we can navigate the shores together and change the status quo’’