Testing the boundaries of subnational diplomacy: the international climate action of local and regional governments

Since the 1990s, a number of local and regional governments around the world have started to engage in a real international or ‘paradiplomatic’ climate agenda. While the multilevel governance approach has advanced the examination of the actors and levels involved in climate governance, there is within this body of literature a limited consideration of the legal capacity of non-state actors to act across scales. This article addresses this gap and examines the potential limitations imposed on subnational diplomacy by international and domestic legal orders. The article draws upon the example of Brazil where, despite constitutional limitations on the involvement of subnational governments in international relations, paradiplomacy has been termed ‘federative diplomacy’ and institutionalized within the Ministry of Foreign Affairs and within the Presidency of the Republic. The article shows that the diplomatic activity of local and regional governments is still constrained by international and domestic legal frameworks. If cities and regions are to help in addressing the inadequacies of the international climate regime, then domestic and international legal frameworks will need to further accommodate subnational diplomatic activities

Global trends in climate change litigation: 2022 snapshot

Climate change litigation continues to grow in importance year-on-year as a way of either advancing or delaying effective action on climate change. In 2022, the Intergovernmental Panel on Climate Change (IPCC) recognised the role of litigation in affecting “the outcome and ambition of climate governance”. The latest edition of our annual report on global trends in climate change litigation takes stock of developments over the period May 2021 to May 2022, and draws on a number of recent case studies from around the world. It also identifies areas where climate litigation cases are likely to increase in the future. The goal in these reports is to help readers understand the ways in which the law is being used as a tool to advance a variety of often inconsistent climate-related agendas. Legal practitioners may use the law to advance climate action, or, less frequently, seek to challenge the way in which climate policy is designed or implemented or to deter policymakers from implementing more restrictive measures on private parties responsible for greenhouse gas emissions

Climate litigation in the Global South: constraints and innovations

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 in the quality of their strategies and 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 in addressing climate change in highly vulnerable countries. We first highlight some of the capacity constraints experienced in Global South countries to provide context for the emerging trend of strategic climate litigation in the area. In spite of significant constraints experienced, the strategies adopted by litigants push the climate litigation agenda forward as a result of their outward-looking objective of combating ongoing environmental degradation, and, on a doctrinal level, the way in which they link climate change and human rights. Bearing in mind the limitations resulting from the selective nature of the cases examined, we draw upon Legal Opportunity Structures (LOS) approaches and identify two reasons for innovative cases and outcomes in Global South strategic climate litigation: (i) how litigants are either overcoming or using procedural requirements for access to environmental justice, and (ii) the existence of progressive legislative and judicial approaches to climate change. The strategies and outcomes from these judicial approaches in the Global South might be able to contribute to the further development of transnational climate change litigation

Climate change litigation in the Global South: filling in Gaps

New scholarship has identified trends, constraints, and opportunities for climate litigation in the Global South. While countries in the Global South tend to experience a lack of capacity within government agencies, civil society, and the judiciary, the Global South is not a homogenous group. Where climate litigation has been identified, the judiciary is often implementing government policy prescriptions in the absence of detailed climate legislation or filling enforcement gaps. But there are also a number of countries where climate litigation is not taking place or where gaps exist between ongoing litigation and traditional definitions of climate litigation. The scholarship is yet to further explore the relationship between climate legislation and litigation in the Global South, in particular in circumstances where ripe policy and legislative conditions for climate litigation exist. Taking into account different regional and national experiences, this essay explores that relationship

Climate litigation to protect the Brazilian Amazon: establishing a constitutional right to a stable climate

In recent years, climate cases to combat illegal deforestation in the Amazon have begun to be brought before Brazilian courts. We focus on a lawsuit filed by the Institute of Amazonian Studies against the Brazilian state. The lawsuit seeks not only an order to compel the federal government to comply with national climate law but also the recognition of a fundamental right to a stable climate, for present and future generations, under the Brazilian Constitution. We argue that this case both exists in the context of a transnational movement, as it draws from existing rights-based cases, whilst also trying to develop this movement. This lawsuit seeks to establish that a stable climate system is critical to the protection of other fundamental rights. We consider what it means to seek a constitutional right to a stable climate through courts within the wider context in which national governance systems are constitutionalizing climate change commitments

Subnational leaders and diplomacy

Subnational diplomacy has become an increasingly important part of foreign policy and international relations. This observation concerns a state of affairs that is not necessarily obvious or given. First, by definition, subnational governments usually conduct subnational activities and address problems that affect their constituencies. Second, in many countries subnational governments undertake such an agenda without an actual legal framework authorizing such initiatives. However, with an intensified global interdependency, policy areas such as environmental protection, human rights, immigration, and trade, just to name a few, require action both at the international and territorialized levels, as many of them transcend political administrative boundaries.As a result, in the early 21st century it is possible to determine various forms of international relations conducted by subnational leaders. This activity involves direct interactions undertaken by subnational leaders and bureaucrats with other actors across borders (private, non-governmental, and governmental—national or subnational), participation in transnational networks, and/or participation in international policymaking. Because subnational governments are closer to the people and can test experimental or groundbreaking policies with less risk, oftentimes they can become pioneers of measures that can be rolled out or replicated elsewhere in the international domain. Such policy leadership is just one element of subnational engagement in the diplomatic arena whereby subnational governments move across jurisdictional levels, breaking the fixed scales in which they would traditionally operate.In the past years, scholars investigating the external relations undertaken by subnational governments have dedicated great effort to understanding the motivations for regions to go into the international arena. What these studies lack, however, is an understanding of what the implications are of subnational governments’ engagement in international relations

Environmental paradiplomacy: the engagement of the Brazilian state of São Paulo in international environmental relations

This study analyses the international environmental relations undertaken by subnational governments, a phenomenon conceptualised as environmental paradiplomacy. Research on paradiplomacy examines subnational governments’ international relations without considering their engagement with environmental issues, while multilevel governance (MLG) theory focuses on the rescaling of governance of environmental problems without addressing subnational engagement in international relations. Combining paradiplomacy studies and MLG theory, the thesis develops an original conceptual framework to investigate a leading example of environmental paradiplomacy. The conceptual framework is applied to the case of the state of São Paulo, a regional government in Brazil that, since the 1970s, has strongly engaged in international environmental activities. In contrast with other findings on paradiplomacy, the state of São Paulo engages in international relations not only as a way of challenging, but also of collaborating with the national government. The major empirical data informing the thesis was gathered through participant observation and semi-structured interviews with key figures involved with environmental governance in the state and at the national level, as well as representatives from NGOs, universities, the private sector and foreign policy-makers. The study furthers the understanding of paradiplomacy offering analytical insight into: (1) how subnational governments engage in transnational relations; (2) the reasons driving them to undertake paradiplomacy; and (3) the outcomes of their actions. It also contributes more generally to research on global environmental governance, new theoretical insights on the roles of subnational governments and the changing relationships between different levels of government in national and international policymaking

Global lessons from climate change legislation and litigation

There is no country in the world that does not have at least one law or policy dealing with climate change. The most prolific countries have well over 20, and globally there are 1,800 such laws. Some of them are executive orders or policies issued by governments, others are legislative acts passed by parliament. The judiciary has been involved in 1,500 court cases that concern climate change (more than 1,100 of which were in the United States). We use Climate Change Laws of the World, a publicly accessible database, to analyze patterns and trends in climate change legislation and litigation over the past 30 years. The data reveal that global legislative activity peaked around 2009–14, well before the Paris Agreement. Accounting for effectiveness in implementation and the length of time laws have been in place, the United Kingdom and South Korea are the most comprehensive legislators among G20 countries and Spain within the Organization for Economic Cooperation and Development. Climate change legislation is less of a partisan issue than is commonly assumed: the number of climate laws passed by governments of the left, center, and right is roughly proportional to their time in office. We also find that legislative activity decreases in times of economic difficulty. Where courts have gotten involved, judges outside the United States have ruled in favor of enhanced climate protection in about half of the cases (US judges are more inclined to rule against climate protection)

How to ensure governments stay on track to meet the 1.5°C target

The recent “global stocktake” report, discussing where the world stands on climate action, shows conclusively that governments are not on track to meet international temperature goals, while adaptation and finance actions are also lagging. Critics of the stocktake process have been sceptical about its ability to catalyse sufficiently greater ambition – but it may yet produce positive outcomes, even where policy and implementation gaps remain, argue Daniel Berliner, Ian Higham and Joana Setzer

Public prosecutors, political parties, and NGOs are paving the way for vital climate change litigation in Brazil

Though the Bolsonaro government’s approach to land-use and the environment has intensified damage to Brazil’s crucial biological communities, a growing fightback is also laying the foundations for climate change litigation that could be vital for Brazil and the wider world, write Joana Setzer (Grantham Research Institute on Climate Change and the Environment, LSE), Caio Borges (Institute for Climate and Society), and Guilherme Leal (Graça Couto Advogados)