UNDERSTANDING THE CONTOUR OF THE LAND

THE OBSTACLES VULNERABLE GROUPS FACE IN CLIMATE LITIGATION IN THE GLOBAL SOUTH

Resumo

Most of the judicial systems in the global south are outdated and continue to apply principles derived from the colonial systems they were part of. These principles do not necessarily recognize the current challenges and difficulties that States face in line with climate change, protection of water sources, human rights and the environment. In addition, developing countries have integrated legal doctrines that originated in industrialized countries into their domestic legal system. This legal integration has drastically affected the autonomous development of their own legal doctrines and served as barriers to autonomous learning and legal reforms. For example, the doctrine of the corporate veil, separate corporate personality, and the stringent standard of proof have limited access to justice for vulnerable groups. In addition, even if victims have successfully attained justice in their domestic legal system, they could face limitations on enforcing court decisions through investor-State dispute settlement (ISDS) mechanisms such as international investment arbitration. Decisions taken concerning climate action or climate issues have been largely threatened under ISDS. According to UNCTAD, almost 137 ISDS claim in the mining, electricity, land tenure and water supply sectors.[1] In these cases, foreign investors have challenged public measures taken to protect the public interest and guarantee a healthy environment, public health, human rights, social inclusion, and poverty reduction. Indeed, ISDS has served as an avenue to weaken domestic courts rather than strengthen the rule of law. In this context, victims in the global south remain vulnerable to the risks of climate change, and the limitations imposed by outdated and threatened judicial systems that require major reform, including at the multilateral level. This paper will consider the historical obstacles and limitations that vulnerable groups face in climate litigation, including at the international level, and will provide some mechanisms that could be considered for strengthening their role in domestic and multilateral policy-making, including novel regional instruments as the Escazú Agreement, and the possible adoption of a legally binding instrument on business and human rights.