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The heat of democracy and climate justice
Will the people’s exercise of their constitutional right lead to a government that will ensure their right to life?
Ashok Lavasa 18 Apr 2024

From April to May this year, about 980 million Indian voters will brave a torrid summer to take part in the world’s biggest elections to exercise their right to vote. The Indian Meteorological Department (IMD) forecasts that most part of India will face above-normal maximum and minimum temperatures in April, May and June.

For India, 2023 was the second warmest year in 122 years – the warmest being 2016, the year that followed the signing of the Paris agreement when governments of 196 countries pledged their nationally determined contributions. The climate accord as meant to deliver the world from the catastrophic consequences of climate change. Eight years later, the United Nations secretary general was compelled to talk of “global boiling”. Alarm bells are ringing louder, bringing to fore the interplay between the right to life of humans and the constitutional right of citizens to make a political choice in a democracy.

As around 2 billion voters in 64 countries (plus the European Union), representing almost half the world’s population, go to the polls in 2024 to elect new governments, suits are being decided by courts contributing their might to the clamour for climate action. Eight of the world's ten most populous nations – Bangladesh, Brazil, India, the United States, Indonesia, Pakistan, Russia, and Mexico – are among those participating in the regular ritual of electing governments. These eight countries represent about 31% of the world’s total annual CO2 emissions, or 37% cumulatively, as per 2022 data. The question is whether the exercise of their constitutional right will succeed in electing governments that will ensure their right to life.

In a landmark decision on April 10, in a case filed by the Senior Women for Climate Protection group that claimed older women were most vulnerable to extreme heat, the European Court of Human Rights pronounced that protection from climate impact is a fundamental human right and that Switzerland “had failed to comply with its duties” to combat climate change and meet emissions targets. The court noted that the European Convention on Human Rights guarantees people “effective protection by the state authorities from the serious adverse effects of climate change on their lives, health, well-being and quality of life”.

'Ruined childhoods'

In 2023 a court in the US state of Montana held that states were violating the people’s constitutional right to clean environment by allowing fossil fuel development, echoing an older, somewhat similar verdict by a court in the Netherlands. There is also a lawsuit against the Norwegian government alleging it violated human rights by issuing new licences for oil and gas exploration in the Barents Sea beyond 2035.

Courts in Australia, Brazil, Peru, and South Korea are also considering human rights-based climate cases. This notwithstanding the fact that the European Court of Human Rights rejected the plea of six youths aged 11 to 24 years from Portugal who sued 32 countries, including France, Germany, Ireland, Portugal, and the United Kingdom, over climate inaction, alleging that their governments have “ruined childhoods” due to inadequate climate change responses, rendering their right to life, prohibition of inhuman treatment and right to privacy and family life ineffective and void.

They presented evidence that policies adopted by the 32 nations would not yield emission cuts sufficient to halt the current pace of extreme climate events and that their current policy trajectory would actually cause global temperatures to rise by 3 degrees Celsius this century.

Another case asserted that France's refusal to take more ambitious climate measures and sought an assessment of whether insufficient government action can amount to a violation of the right to life by exposing people's homes to climate risk.  Like the case filed by the Portuguese youths, the case was also dismissed on technical grounds.

India’s Supreme Court in early April proclaimed that climate change directly impacted the right to life, asserting that climate change and human rights are interconnected, and that environmental degradation disproportionately affects marginalized communities and exacerbates inequalities. It said India should prioritize clean energy initiatives, as citizens had a right to be shielded from the detrimental effects of the climate crisis, especially in the case of indigenous tribes and other neglected communities facing food and water shortages.

It is evident that most governments have not grasped the gravity of the challenges posed by climate change, resulting in litigation aimed at forcing governments to do more to ensure global warming is limited to 1.5 degrees Celsius above pre-industrial levels, in line with the aspirational goals of the Paris agreement. The judgments cited above signal a major shift in climate litigation and underscore the urgency of addressing the climate crisis and could set a precedent for cases across the world. The rulings’ effectiveness, however, hinges on elected governments’ willingness to implement robust climate policies.

Public pressure

Meanwhile, the importance of public pressure and activism to hold the governments accountable cannot be overstated. This could compel nations to take action to combat climate change and safeguard the rights of the present and future generations. “The European Court of Human Rights stopped short of ordering the Swiss government to take any specific action, underscoring that relief from the Swiss government ‘necessarily depends on democratic decision-making’ to enact the laws necessary to impose such a remedy,” said Richard Lazarus, a professor at Harvard Law School who specializes in environmental and natural resources law.

Whether these judgements prove to be a turning point will depend on the seriousness with which the democratically elected governments take up the complex challenge of climate action. It will also depend on the ability of the courts to pass orders for specific action and to find ways of enforcing their orders. The death and destruction that global warming is causing, the loss of biodiversity and the extinction of species that we are rapidly witnessing, and the extremities of unpredictable weather patterns we are suffering, all have the potential to disturb ecology and threaten the existence of those most vulnerable.

The leaders who thrive on popular support because of the constitutional right people exercise in their favour, owe to the people their right to life. Given that climate change is not a problem confined by political or geographic boundaries and does not restrict its adverse consequences on those who caused it, the need for collaborative action is paramount. The irony is that there would be few things in the world where the consensus on concrete collaborative action is inversely proportionate to the consensus on the magnitude of the collective problem that humanity faces.

The further irony is that people proudly exercise their right to vote to elect governments that do not respect their right to life.

Ashok Lavasa previously served as India’s election commissioner, finance secretary, environment, forests and climate change secretary, and civil aviation secretary. He was also vice-president of the Asian Development Bank from August 2020 to August 2023.

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