Climate Justice and the Right to Solidarity

Cecilia Bailliet (ed), Research Handbook on International Law & Solidarity Climate Justice and the Right to Solidarity Usha Natarajan Abstract We live in a world where the richest twenty per cent consumes eighty per cent of resources and creates ninety per cent of waste. There are no incentives for the rich to change their behavior because the consequences of their pollution are borne largely by the poorer eighty per cent. Inequality on such a scale is systemic; it is structured and enabled through, among other things, international law. In such a situation, working in solidarity provides hope for the majority of the world left behind by the development choices of the rich. Climate justice movements cooperate transnationally to compel the rich to cease economic exploitation and greenhouse gas emissions. Combatting powerful entrenched interests, increasing numbers of environmental justice activists face assassination, forced disappearance, retaliatory litigation, incarceration, criminalization, vilification, and more. A right to solidarity entails protecting such movements and activists. More than this, such a right acknowledges the need to cede space to cultures and traditions long ignored and silenced in international law, so that more sustainable and equitable ways of living together can emerge. In this sense, the right to solidarity can help create a discipline that does not just claim to be international but that is truly international. Keywords: climate change, international law, solidarity, Third World Approaches to International Law (TWAIL), environmental justice. 1. Introduction We live amid ecological change at a scale unprecedented in human history. Anthropogenic climate change (climate change caused by human influences as opposed to by natural processes) is caused by increased greenhouse gases in the atmosphere from activities such as burning fossil fuels and changing land use patterns. Climate change is occurring alongside other interrelated environmental transformations, including the biggest disruption to the Earth’s nitrogen cycle in two and a half billion years,1 and a mass extinction of species for the first time in sixty-six million years.2 When it comes to the climate, the last time there was this much carbon dioxide in the atmosphere was three and a half million years ago.3 While our planetary history evidences cyclical recurrence of such events, in the past nature played the dominant causal role whereas this time colossal human injustice is at the heart of the matter. The lifestyles of today’s wealthy few are sustained not only by increasing economic 1 W Steffen et al, ‘Planetary Boundaries: Guiding Human Development on a Changing Planet’ (2015) 347(6223) Science 1259855. 2 T Pievani, ‘The Sixth Mass Extinction: Anthropocene and the Human Impact on Biodiversity’ (2014) 25(1) Rendiconti Lincei 85-93. 3 M Willeit el al, ‘Mid-Pleistocene Transition in Glacial Cycles Explained by Declining CO and Regolith Removal’ (2019) 5(4) Science Advances eaav7337. 2 Natarajan – Climate Change and the Right to Solidarity (Draft Chapter, February 2023) inequality but the systemic collapse of ecosystems.4 The richest twenty per cent consumes eighty per cent of the world’s natural resources and generates over ninety percent of its pollution and waste.5 For most people, the poorer eighty percent, their grossly unequal access to natural resources is compounded by also bearing the brunt of the pollution generated by the rich.6 Climate change is but one example of such widespread environmental injustice. Disparities on such a scale are not happenstance, they are systemic. Globalized capitalism ensures the profligately wealthy not only stay rich but get richer.7 As the impact of climate change is borne largely by others, there is no immediate incentive for the rich to change their behavior.8 For these reasons, those wanting to stem climate change are necessarily also concerned about climate justice and place their hopes on international cooperation. Injustice lies at the root of anthropogenic climate change and can only be overcome through increasing solidarity and cooperation among the poor majority on the frontlines of environmental harm. Such solidarity could transform international law from being a longstanding tool for protecting the interests of the rich and powerful towards becoming a means for enabling global justice. In this context, it is beneficial to articulate the principle of solidarity more explicitly and fully within international law as proposed by Obiora Chinedu Okafor, the Independent Expert on human rights and international solidarity, within the Draft Declaration on International Solidarity. Articles 55 and 56 of the Charter of the United Nations as well as the United Nations Declaration on the Principles of International Law concerning Friendly Relations and Cooperation among States recognize international cooperation and solidarity as fundamental principles underlying the endeavor of international law.9 As someone from the Global South, I have also found this to be true on a personal level. International law was created by Europeans to disempower the peoples of the South and steal our land, labor, and resources. It was only through Third World solidarity – through struggle and strategic alliances – that many contemporary international legal principles were achieved, such as the right of all peoples to selfdetermination, the right to development, the doctrine of permanent sovereignty over natural resources, the common heritage of mankind, the prohibition of apartheid and racial discrimination, and the principle of common but differentiated responsibilities for the global environment.10 For someone like me who is part of the Third World Approaches to International Law or TWAIL movement,11 this type of solidarity is central to why I am an international lawyer. 4 5 6 7 8 9 10 11 M Lawson et al, Public Good or Private Wealth (Oxfam 2019); ES Brondisio et al (eds), Global Assessment Report on Biodiversity and Ecosystem Services (IPBES 2019). UNDP, Human Development Report 2019; Human Development Report 2007-8; Human Development Report 1998 (OUP). U Natarajan, ‘Environmental Justice and the Global South’ in S Atapattu et al (eds), Cambridge Handbook of Environmental Justice and Sustainable Development (CUP 2021). D Hardoon, An Economy for the 99% (Oxfam 2017). Preceding paragraphs are abridged with permission from U Natarajan and K Khoday, ‘Environment’ in J d’Aspremont & J Haskell (eds), Tipping Points in International Law: Commitment and Critique (CUP 2021) 132-148. UN General Assembly, Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations , 24 October 1970, UN Doc A/RES/2625(XXV). For an explanation of the usage of the term ‘third world’, see U Natarajan, ‘TWAIL and the Environment’ in A Philippopoulos-Mihalopolous & V Brooks (eds), Research Methods in Environmental Law (Elgar 2017). TWAIL is a network of international law scholars and practitioners committed to the interests of the peoples of the Global South. For its political commitments see BS Chimni, ‘Third World Approaches to International Law: A Manifesto’ (2006) 8 International Community Law Review 3. For a description see JT Gathii, ‘The Promise of International Law: A Third World View’ (2021) 114 ASIL Proceedings 167. For contemporary TWAIL scholarship, see The TWAIL Review at <www.twailr.com> accessed 24 February 2023. Page 2 of 17 Natarajan – Climate Change and the Right to Solidarity (Draft Chapter, February 2023) Climate change is symptomatic of intensifying global systems of oppression and inequity. The building of transnational solidarity movements is the only hope for hundreds of millions of peoples mired in poverty across the Global South, daily suffering indignity and death, unwept and ignored, amid their increasingly uninhabitable environs. Only by coming together can they force the wealthy and powerful to stop destroying the global environment. The turn to the rule of law is an inevitable and important part of such movements because it can provide an enabling environment to nurture and develop such transnational solidarity, it holds out the promise of equal application regardless of differences in wealth and power, and it is an avenue for ensuring consistently just outcomes in the long term. In this context, the turn to international law represented in the Solidarity Draft Declaration is about more than international cooperation. Rather, it is a demand for justice on the global scale in the same vein as the Third World international law achievements mentioned in the previous paragraph. Accordingly, the Draft Declaration conceives the right to solidarity as, among other things, the right of all peoples to participate meaningfully and contribute to the international order. This introductory part is followed by an exploration in Part 2 of the importance of international solidarity for addressing climate change, not only because climate change is the legacy of an extremely unequal world but because climate change demands a solidarity that goes beyond our species towards a more holistic understanding of existence. Part 3 analyzes how international laws on climate change have incorporated notions of international solidarity, most formatively through the concept of sustainable development and the principle of common but differentiated responsibilities for the global environment. It traces this history with a view to understanding why such laws have failed to provide climate justice. Part 4 concludes that contemporary efforts to articulate more fully a right to international solidarity are crucial given the failures of international climate law and the concomitant rise in climate justice movements globally. An alarming increase in the numbers and severity of attacks on environmental defenders worldwide provides a stark reminder that solidarity is the only means for ensuring a future for the majority of peoples. 2. Solidarity for Climate Justice International cooperation is essential for responding to climate change. By their nature, environmental problems pay no attention to imagined sovereign borders. Additionally, environmental concerns are interrelated, with climate change interacting with biodiversity loss, ozone depletion, toxic pollution, ocean acidification, desertification, deforestation, atmospheric pollution, and other environmental imbalances. These complex interactions are not yet fully understood by climate scientists despite vast improvements in climate science in recent years.12 In such a situation, international cooperation is essential for concerted, holistic, and effective responses to environmental crises. Piecemeal attempts to address environmental concerns have merely moved problems around the world,13 and sometimes inadvertently created new environmental problems.14 12 13 14 Steffen et al (n 1). See further Natarajan (n 6). For example, ozone-depleting substances were successfully replaced by chemicals that were harmless to the ozone layer, because companies producing replacement chemicals had economic incentives for ensuring a swift transformation. This change was lauded for some years as an environmental law success story. Unfortunately, the replacement chemicals turned out to be highly potent greenhouse gases, hundreds of times worse for climate change than carbon dioxide. Thus, the international law regime for ozone has since endeavored to replace these chemicals as well, with climate-friendly chemicals this time. Page 3 of 17 Natarajan – Climate Change and the Right to Solidarity (Draft Chapter, February 2023) Over and above cooperation, international solidarity is crucial for surviving large scale environmental change.15 Contemporary environmental crises such as anthropogenic climate change are not caused by human disruption to the natural order. Rather, these crises are the consequence of human hierarchy and injustice structured globally by the dominant legal order.16 As mentioned in the introduction, we live in a world where the richest 20 per cent of humanity consumes 80 per cent of all resources and creates 90 per cent of all waste. This statistic encompasses all resources and waste, including the consumption of fossil fuels and emission of greenhouse gases but also all other forms of resource consumption and pollution of the atmosphere, water, and land, including highly toxic and persistent pollutants. When it comes to climate change, the United Kingdom with a population of 66 million emits as much carbon dioxide as Nigeria, Pakistan, Morocco, and Peru with a combined population of 475 million. The 39 million people within just one state in the United States, California, emit more carbon dioxide than the 880 million people living in the fifty poorest countries in the world. And two states in the United States, Texas and New Jersey with a combined population of 37 million, emit as much carbon dioxide as the 1 billion people in Sub-Saharan Africa.17 Inequality on such a scale is systemic and structured globally through, among other things, international laws and institutions. The good news is that environmental problems – from deforestation to desertification, from climate change to the extinction of species – can be solved by changing the behavior of the richest 20 percent of humanity. 80 percent of people are not destroying the environment. The bad news is that this 20 percent refuses to change their behavior even when international laws require them to do so. While these laws will be examined in Part 3, for the purposes of this Part it suffices to observe that there are insufficient incentives for the rich to change their behavior because the consequences of their actions are almost entirely borne by the poor majority. The poor contribute very little to climate change but are on the frontlines of environmental harm because of their vulnerable geographic locations, their lack of resources and regulatory capacity to protect themselves, the ongoing extraction of their natural resources and labor to fuel an unequal global economy, and the systemic transfer of pollution from the rich to the poor.18 While the richest 20 percent continue to inflate their resource-intensive lifestyles, with the very richest looking towards colonizing other planets for when this one is rendered uninhabitable, the poorest lack access to the minimal necessities for life such as clean air, water, and food and are powerless to do anything about their rapidly degrading environment.19 In such a situation, transnational solidarity is the only hope for the majority left behind by the development choices of the rich. 15 16 17 For a discussion of the distinction between cooperation and solidarity in the context of climate justice, see A Williams, ‘Solidarity, Justice and Climate Change Law’ (2009) 10 Melbourne Journal of International Law 493. U Natarajan, ‘Who Do We Think We Are?’ in U Natarajan & J Dehm, Locating Nature (CUP 2022). World Resources Institute, ‘Global Historical Emissions’ (6 February 2020) <https://www.wri.org/blog/2020/02/greenhouse-gas-emissions-by-country-sector> accessed 24 February 2023; Choose Energy, ‘How Much Carbon Dioxide Does Your State Produce?’ <https://www.chooseenergy.com/data-center/carbon-dioxide-by-state/> accessed 24 February 2023: 2016 CO emissions: United States 4.9 Gt; Sub-Saharan Africa 770 Mt; Texas 653 Mt; UK 380 Mt; California 361 Mt; LDCs 310 Mt; Pakistan 170 Mt; New York State: 164 Mt; New Jersey 111 Mt; Nigeria 110 Mt; Morocco 63 Mt; Peru 56 Mt. UNDP, Human Development Report 2019 (OUP 2020); US Census Bureau, ‘Population Data’<https://www.census.gov/popclock/> accessed 24 February 2023: 2016 Population: Sub-Saharan Africa 1 billion; Least Developed Countries (LDCs) 880 million; Pakistan 212.2 million; Nigeria 195.9 million; United Kingdom 66.65 million; California 39.5 million; Morocco 36.03 million; Peru 31.99 million; Texas 29 million; New Jersey 8.8 million. Natarajan (n 6); K Khoday, Environmental Justice: Comparative Lessons in Legal Empowerment (UNDP 2014). Global Commission on Adaptation & World Resource Institute, Adapt Now: A Global Call for Leadership on Climate Resilience (GCA 2019). 2 18 19 Page 4 of 17 Natarajan – Climate Change and the Right to Solidarity (Draft Chapter, February 2023) Acting in global solidarity to stem climate change now will be easier than trying to address it later. Over time, climate change causes existing problems to snowball and proliferate into new problems, because climate change does not occur on a blank slate but rather in a world already riven by deep inequality. To take an example from the Middle East and North Africa, the region I have lived in for the last fourteen years, most states in the region are not big contributors to climate change. Yet the Intergovernmental Panel on Climate Change has predicted that North Africa and the Levant will face some of its worst consequences.20 It does not help that the region is already the most water scarce in the world;21 and it can expect longer, more severe, and unpredictable droughts as well as more desertification.22 From Yemen where water scarcity is at emergency proportions, to Palestine where people struggle to access clean water under the longstanding Israeli occupation, to Syria where cycles of drought are becoming more protracted, to the Sudan where herders fight over diminishing rangelands, climate change exacerbates the region’s political and economic challenges, aggravating existing conflict and instability.23 The region is also vastly energy unequal. While it contains vast oil and gas reserves and many Persian Gulf states have some of the highest per capita carbon-footprints in the world, in parts of the Arab world such as the Sudan and Somalia most of the population lacks regular access to basic fuels24. Many Arab states are also food insecure, with a disproportionately large part of household incomes in many Arab homes devoted to food.25 As climate change contributes to the fluctuating of global food prices, this creates instability in the region. Indeed, these issues played a role in fomenting the Arab uprisings and continue to play a role in regional instability. 26 The Global North, as the biggest contributor to climate change, should take responsibility for its unsustainable development pathways and the far-reaching and devastating consequences all over the world through working in solidarity with the Global South towards common goals for stabilizing the global environment. The trends in environmental degradation of the Arab region are not unrelated to the vast population movements that are occurring. The region has the largest forcibly displaced population in the world. 27 This was already the case before the Syrian conflict, and since then the challenge has grown exponentially with displacements not only from Syria but from Lebanon, Libya, Palestine, and Yemen. The region has borne almost the entire responsibility for these displaced populations, with most remaining within their home states and those who manage to leave confined for the most part to neighboring and nearby states. Furthermore, the region hosts displaced populations from the Sahel, the Horn of Africa, and West Asia, moving through the Middle East and North Africa in search of refuge in Europe and beyond. The 1951 UN Refugee Convention, one of the first international human rights treaties, commits in its preamble and text 20 21 22 23 24 25 26 27 Intergovernmental Panel on Climate Change, IPCC Fifth Assessment Report (IPCC 2014). UNDP Regional Hub for Arab States, Transformation Towards Sustainable and Resilient Societies – Ecosystem Resilience for SDG Achievement and Human Security in the Arab Region (UNDP 2018); K. Khoday, ‘Climate Change, Peace and Security in the Middle East’ (Medium, 31 October 2019) <https://medium.com/@UNDPArabStates/climate-change-peace-and-security-f5a290b6d28c> accessed 24 February 2023. B Cook et al, ‘Spatiotemporal Drought Variability in the Mediterranean over the Last 900 Years’ (2016) 121(5) JRU Atmospheres 2060. UNDP (n 21). UNDP, Sustainable Energy Access for Crisis Recovery: Renewable Energy Solutions for Crisis-Affected Communities in the Arab Region (UNDP 2022). FAO Regional Office, Near East and North Africa – Regional Overview of Food Security and Nutrition (FAO 2019). See further U Natarajan, ‘Climate, Conflict and International Law in the Middle East and Beyond’ (2021) 114 ASIL Proceedings 160. UNHCR, Global Trends (UNHCR 2021). Page 5 of 17 Natarajan – Climate Change and the Right to Solidarity (Draft Chapter, February 2023) to international cooperation and burden-sharing. The Convention termed it burden-sharing but the preferred contemporary term is responsibility-sharing in recognition that asylum-seekers are not a burden on their host societies but rather people exercising their right to seek and enjoy asylum. Despite this international law obligation to share the responsibility of providing refuge to those in need, 83 percent of refugees are hosted in the Global South, with 22 percent in the world’s poorest countries.28 When the numbers of displaced peoples become so large that they overflow into the Global North, as has been happening over the last decade, there has been uproar and increased investment in border policing and the externalization of border controls in Europe, North America, and Australasia. While oftentimes African, Arab, Asian, and Latin American asylumseekers are described as hordes, floods, or swarms, in fact they are but a small proportion of those in dire need that are endeavoring to exercise their human rights. The majority are being helped by the poorer nations of the world, with those least able to do so often being the most welcoming and generous. The richer parts of the world should be called upon to show their solidarity in the interests of stability and prosperity and, more importantly, in the interests of accountability and responsibility. The suffering wreaked by systemic global economic and environmental injustice is the root cause of mass and protracted displacement; and this in its turn has spurred armed conflict, discrimination, and human rights abuses, leading to further displacement. Thus, as the Independent Expert on human rights and international solidarity points out, it is important to draw on a philosophical notion of solidarity based not only on a sense of charity but also on a sense of obligation.29 The median estimate is that 200 million people will be displaced by climate change,30 and it is evident that these movements have begun across the Horn of Africa, North Africa, and the Levant.31 While the rich may believe they can forever evade the consequences of their actions by building taller walls, both literal and metaphorical, an infinite deferral of accountability and responsibility may be unrealistic in the era of climate change. Thus, it is advisable for the Global North to act in solidarity now to redress the root causes of displacement, rather than investing in futile attempts to evade the oncoming storm. Solidarity among the rich and powerful to protect and grow their own interests has been effective and unbreakable, as can be seen for example in coordinated lobbying by fossil fuel, mining, agriculture, and pharmaceutical industries. Their actions have included systematically undermining solidarity among the underprivileged and marginalized through criminalizing their organizations, protests, and movement-building; as well as fracturing and sabotaging transnational alliances among environmental justice movements, Indigenous and Tribal organizations, Peasant and small farmer associations, food sovereignty coalitions, and so on. In acknowledgement of the Janus-faced nature of the right to solidarity, the Draft Declaration places the right to solidarity within the broader context of the aims of international human rights law. More importantly, the risk of unintended consequences is minimized by identifying the normative standards and purposes of a right to solidarity, as it is a right denied to some more than others. A final point when considering the need for solidarity in the context of climate justice is that environmental problems such as climate change expand conventional notions of solidarity within 28 29 30 31 Ibid. O Okafor, ‘International Solidarity’ in K De Feyter et al (eds), Encyclopedia of Law and Development (Elgar 2021) 154. O Brown, ‘Migration and Climate Change’, IOM Migration Research Series No 31 (IOM 2008). Khoday (n 21). Page 6 of 17 Natarajan – Climate Change and the Right to Solidarity (Draft Chapter, February 2023) Western thought. While the French revolution demanded solidarity between citizens, and Kant envisioned solidarity amongst all humanity,32 environmental change points to the existence of a deeper solidarity. Climate justice does not only require that people treat each other better. More fundamentally, it demands a recognition of the inextricable link between the way people treat each other and the way we treat nature. After all, humans are neither separate from nor superior to nature. We are intertwined within the web of existence. The human body, mind, and spirit is composed entirely of the air, water, food, minerals, and energy we take in and that we return. Given the inextricability of the human experience from the ‘environment’, it becomes unsurprising that a society characterized by colonization, genocide, slavery, apartheid, racism, and patriarchy has also decimated the natural world, perceiving in nature (including human nature) not an underlying unity but competition. Just as people treat animals as slaves to the human appetite, caged to our physical, emotional and entertainment needs, and sacrificed to our scientific research, people similarly see each other as no more than service providers whose labor is surplus or replaceable under the onslaught of globalized capitalism. Rather than treating existence as a challenge to be controlled and subdued to limitless human egotism, more sustainable ways of life perceive the wellbeing of others and nature as an inseparable part of individual wellbeing. Solidarity in this deeper sense is not species or place based. While greater attentiveness to each other, to the non-human world, to the environment, to the deep sea, to outer space, and so on, is an important and necessary part of such solidarity, it is insufficient unless such an outward journey is accompanied with a concomitant journey inward realizing interconnection and interdependence.33 3. Solidarity and International Climate Law Since the early days of international environmental law, its principles have gestured directly and indirectly to the centrality of international solidarity for addressing environmental crises such as climate change. The Solidarity Draft Declaration mentions the concept of sustainable development as well as the principle of common but differentiated responsibilities for the global environment. Additionally, the notion of the common heritage of humankind, the precautionary principle, the polluter pays principle, and many others, all indicate the importance of working together in a fair and equitable manner if we are to protect the global environment. Some of these principles were established in the 1970s and others in the 1990s. Yet greenhouse gas emissions have grown exponentially in this time and the impacts of climate change continue to be distributed unfairly across an increasingly unequal world. An overview of the international climate law journey so far may shed some light on why such principles have not delivered on their promise despite being grounded in notions of solidarity. This disciplinary history provides some context for understanding the usefulness of the right to solidarity in future efforts to combat climate change through international law. International law has a particular understanding of the environment stemming from western environmentalism in the 1960s and 1970s. Stirrings of environmental consciousness in these decades are attributable to two factors. First, the middle classes of Western Europe and North America began feeling the impact of industrialization: higher levels of air and water pollution, more oil spills, fears of nuclear fallout, and so on. Second, advances in western science increased public awareness about the complexity, uniqueness, and fragility of our planet. The first pictures of Earth from space were symbolic of this knowledge for western environmental movements at the time. In the United States, these decades witnessed the 1963 Clean Air Act, the 1972 Clean Water Act, and establishment of the Environmental Protection Agency in 1970. 32 33 Okafor (n 29) 154. See further Natarajan (n 16). Page 7 of 17 Natarajan – Climate Change and the Right to Solidarity (Draft Chapter, February 2023) From these domestic developments stemmed international law’s engagement with environmentalism at the 1972 Stockholm Conference on the Human Environment, usually identified as the genesis of international environmental law. In the wake of Stockholm came other summits (notably the 1992 Rio Earth Summit, the 2002 Johannesburg Summit, and 2012 Rio +20), treaties (including the Conventions on Climate Change and Biodiversity, as well as treaties on hazardous wastes, endangered species, and protecting the ozone layer, among others),34 and legal principles (such as the principle of common but differentiated responsibilities, the precautionary principle, and so on), through which means the specialization evolves and constitutes itself. While conventionally narrated as a global paradigm shift, this type of environmentalism is the product of a particular western history and culture. Such a conceptualization of the ‘environment’ is not necessarily self-evident to, or shared by, most of the world for whom the story started much earlier. Through centuries of colonialism, genocide, slavery, apartheid, and racial discrimination, western states systemically looted the natural resources of the third world to fuel western wealth accumulation. Western industrialization, fueled by an ever-expanding reliance on fossil fuels, was predicated on accessing the natural resources and labor of their colonies.35 A core tenet of the colonial enterprise was to exploit nature more efficiently.36 European Enlightenment philosophy understood the control of nature as ‘a primordial act, transforming chaos into order, imbuing the environment with human form – a divine-like act to craft a new world’.37 From the seventeenth century onward, this philosophy increasingly informed the socalled civilizing mission. Not only was nature a ‘standing reserve of resources for man to serve his development’,38 but the ‘[m]astery of nature came to be regarded as an expression of cultural superiority and the key mark of civilization’.39 Non-Europeans were incentivized to internalize these hierarchies through brute force, access to material privileges by colluding with imperial masters, and promises of dignity and salvation by mirroring western culture.40 Western understandings of progress were more systematically universalized through the decolonization process by conditioning third world independence upon a commitment to industrial development.41 While postcolonial states adopted varied stances on the spectrum between capitalism and communism, including non-alignment, societies that dared disavow industrial development altogether were denied sovereignty, as evidenced most clearly by the ongoing self-determination struggles of many Tribal and Indigenous peoples.42 Hence, colonization forever transformed the landscape of the third world, with devastating consequences for ecosystems and societies.43 Not only does much of the greenhouse gas infusing our 34 35 36 37 38 39 40 41 42 43 International Environmental Agreement Database Project hosts a catalog of laws: <https://iea.uoregon.edu/> accessed 24 February 2023. C Ross, Ecology and Power in the Age of Empire (OUP 2017); J Beattie et al (eds), Eco-Cultural Networks and the British Empire (Bloomsbury 2015). I Porras, ‘Appropriating Nature’ (2014) 27(3) Leiden Journal of International Law 641. P Fitzpatrick, Mythology of Modern Law (Routledge 1992) 10-11. Ibid 2. Ibid. U Natarajan, ‘TWAIL and the Environment: The State of Nature, the Nature of the State, and the Arab Spring’ (2013) 14 Oregon Review of International Law 177. Ibid. U Natarajan, ‘Decolonization in Third and Fourth Worlds’ in S Xavier et al (eds), Decolonizing Law (Elgar 2020). K Mickelson & U Natarajan, ‘Reflections on Rhetoric and Rage: Bandung and Environmental Injustice’ in L Eslava et al (eds), Bandung, Global History and International Law (CUP 2017). Page 8 of 17 Natarajan – Climate Change and the Right to Solidarity (Draft Chapter, February 2023) atmosphere today originate from the colonial period,44 emissions that arise in the postcolonial era are the legacy of a philosophy of violence against nature and non-western peoples. The formative role of international law in universalizing and normalizing these values and hierarchies is well-canvassed by the Third World Approaches to International Law or TWAIL movement so it need not be revisited here except to reiterate Anghie’s canonical observation that the discipline of international law emerged through the colonial encounter.45 International law originated in Europe, in the context of corporate enterprises setting out to access riches in the non-European world, through lawyers justifying such exploitation in universal terms.46 Our disciplinary evolution is intimately shaped by colonization, decolonization, and imperialism.47 The environmental consequences of such a history were that, for the third world, international environmental law was not seen as an enterprise of global solidarity heralding a new era of environmentalism in the international community. Rather international environmental law was symptomatic of the longstanding use of international law to universalize western values.48 Western states’ desire to globally regulate the harmful consequences of industrial development in the 1970s came too close upon the heels of the third world finally achieving a degree of economic independence, raising fears of ‘environmental colonialism’.49 The third world’s responses to environmental change included unsuccessful attempts to articulate different visions of development that promoted a more just international economic order,50 including forms of self-reliance that accounted for both the inner limit of satisfying human needs as well as the outer limit of planetary boundaries.51 Thus, when the first international climate laws were negotiated in 1992, third world states insisted that global solidarity could only be built on a foundational legal recognition that the rich caused climate change, that they had already profited immensely from this, and thus they must shoulder the duty for fixing it for reasons of both responsibility and capacity. Indeed, international law concepts such as sustainable development and principles such as common but differentiated responsibilities articulate precisely this.52 In this sense, the origins of climate law reflect a hard won third world approach to what global climate solidarity could look like. Unfortunately, since then international law has been unable to turn these principles into action by getting the rich to reduce their greenhouse gas emissions. Under the umbrella of the 1992 United Nations Framework Convention on Climate Change (UNFCCC), climate law initially allocated strict and clear emission reduction targets to rich states through the 1997 Kyoto Protocol.53 However, the United States – the world’s biggest emitter at the time – refused to participate and this demotivated other rich states from meeting their targets. Instead, the US eventually led a movement to replace Kyoto with the 2015 Paris Agreement, which allows all states rich and poor to volunteer their own aspirational non-binding emission reduction targets.54 The result is a regime that unsurprisingly has not succeeded in reducing the emissions of rich states and peoples. Lucrative extractive industries today are responsible for 50 44 H Ritchie, ‘Who has Contributed Most to Global CO Emissions?’ (Our World in Data, 1 October 2019) <https://ourworldindata.org/contributed-most-global-co2> accessed 24 February 2023. A Anghie, Imperialism, Sovereignty and the Making of International Law (CUP 2007) Ibid; Porras (n 36). Gathii (n 11) provides a helpful entry into the large body of TWAIL scholarship that elaborates on this point. E DeLoughrey & G Handley, Postcolonial Ecologies (OUP 2011) 5-6. A Agarwal & S Narain, Global Warming in an Unequal World (Center for Science & Environment 1990). Coçoyoc Declaration, UN Doc AC2/292, Mexico (8-12 October 1974). J Galtung et al (eds), Self-Reliance: A Strategy for Development (1980). S Alam et al (eds), International Environmental Law and the Global South (CUP 2015). Kyoto Protocol to the United Nations Framework Convention on Climate Change (1998) 37 ILM 22. M Jernnas & B Linner, ‘A Discursive Cartography of Nationally Determined Contributions to the Paris Climate Agreement’ (2019) 55 Global Environment Change 73. 2 45 46 47 48 49 50 51 52 53 54 Page 9 of 17 Natarajan – Climate Change and the Right to Solidarity (Draft Chapter, February 2023) percent of greenhouse gas emissions (as well as 80 percent of biodiversity loss),55 while the poor continue to bear the brunt of climate catastrophes. Thus, in three decades of international climate law, not only has more greenhouse gas been emitted than ever before, but the US has led a concerted effort to erode the principle of common but differentiated responsibilities – a principle originally intended to serve as the foundation for global climate solidarity through providing a legal acknowledgment that climate justice matters. Although international climate law has been unsuccessful in stemming greenhouse gases, it remains an important terrain where climate justice struggles are contested, and global solidarity for climate change is articulated. For instance, in the lead up to the UNFCCC, the 1987 Brundtland Commission introduced the concept of sustainable development.56 At the time it had a relatively straightforward meaning: development that meets the needs of the present without compromising the ability of future generations to meet their own needs. Sustainable development kept economic development within the absorptive capacity of ecosystems, acknowledging systemic limits. In line with this, in the years that followed, climate scientists estimated the maximum change in global temperature that could sustain human life and calculated the remaining emissions quota to remain within this safe zone. Their calculations indicated that between 1990 and 2050 the world should reduce its overall emissions by 50 per cent. As per the principle of common but differentiated responsibilities, the United Nations advised that rich states reduce their emissions by 80 per cent by 2050.57 Not only were these obligations ignored by many rich states, in the decades that followed the concept of sustainable development lost all trace of its original meaning. Today, it is used in such a broad variety of contexts that it is routinely exploited for the purposes of obfuscation and double-speak.58 Despite its failure to control emissions, both the regulatory and symbolic aspects of climate law continue to matter a great deal to states and peoples. Third world states were cognizant that the shift from Kyoto to Paris not only meant a shift from mandatory to voluntary standards but a sharp turn away from the principle of common but differentiated responsibilities. The US argued that ‘emerging’ economies such as China and India could no longer be considered poor, hence differentiation between responsibilities of rich and poor states should be done away with, and instead all states should choose voluntary targets. But it is of course possible to address rising third world emissions without shifting to voluntary targets or diverting attention from ongoing western emissions. Almost half the greenhouse gas in the atmosphere today was produced by western states before 2000, and since then their emissions have continued to increase.59 Leading up to Paris, ‘emerging’ states proposed multiple ways to curb their increasing emissions in equitable ways. India proposed a recalculation based on per capita emissions in the past, present, and future. China suggested targets based on carbon intensity per gross domestic product. Mexico and Indonesia added that recalculations could also include projected increases of gross domestic product. Brazil recommended that rich country commitments be based on proportionality between historical responsibilities, current greenhouse gas concentration levels, and related temperature increases. Bolivia united aspects of all these approaches, dividing available emissions based on a set of indexes that considered historical responsibility, per capita ecological footprints, technological and economic capability, and development levels. 55 56 57 58 59 International Resource Panel, Global Resources Outlook (UNEP 2019). Brundtland Commission, Our Common Future (OUP 1987). UNDP, Human Development Report 2007-8 (n 5) 111. G Rist, The History of Development (Zed 2014); U Natarajan, ‘International Law and Sustainable Development’ in R Buchanan et al (eds), Oxford Handbook on International Law and Development (OUP forthcoming 2023). Ritchie (n 44). Page 10 of 17 Natarajan – Climate Change and the Right to Solidarity (Draft Chapter, February 2023) Calculation on these bases were in line with Kyoto estimates, allocating more than two-thirds of the remaining carbon budget to the global south, with the global north needing to reduce emissions drastically because it used up most of its budget.60 Ultimately, the US defeated each of these proposals as a precondition for its participation in Paris, rendering a regulatory and symbolic setback for the global solidarity that was supposed to underpin climate law as articulated in the principle of common but differentiated responsibilities. In the wake of spectacularly unsuccessful attempts to reduce emissions, international climate lawyers today increasingly focus on trying to get rich states to help poor states adapt to climate change through transferring technological and financial aid, and to get rich states to pay compensation for climate loss and damage. Rich states routinely block attempts to develop legal mechanisms for redress. For instance, reparation claims potentially arise under state responsibility for transboundary harm and the resulting loss and damage. But rich states prefer the language of aid and largesse to that of causation and responsibility. By channeling their contributions through global funds, rich states control the distribution of finance and technical know-how for climate adaptation and climate loss and damage. To make matters worse, regular assurances of scaled-up funding for climate adaptation, resilience, and loss and damage are echoed in international meetings, yet rich states are yet to deliver on the bulk of it.61 While global solidarity has been consistently undermined by the United States approach to international climate law, solidarity is also eroded through the phenomenon of disciplinary fragmentation in international law. Climate struggles usually transpire in the context of international environmental law, which aims to protect the natural environment. However, the fossil fuels that cause climate change are regulated under a different legal regime. International law characterizes fossil fuels as natural resources, which are governed by the principle of maximizing efficient exploitation, through a mixture of private international law (international business transactions) and public international law (international economic, trade, and investment law). International environmental law focuses on mitigating the harmful environmental consequences of development through managing pollution and waste. At the same time, international economic laws encourage a type of development fueled by the increasing consumption of natural resources. When competing governance objectives are directed at an identical object, the result is regulatory dysfunction. When the two legal regimes collide, economic law inevitably prevails as it has a much deeper disciplinary history. Our disciplinary origins lie in doctrines that allowed European private actors to exploit natural resources elsewhere, whether Vitoria’s arguments for free commerce in the Americas or Grotius’ defense of the Dutch East India Company’s untrammeled pursuit of colonial labor and resources.62 The drive to economically develop in this exploitative vein has remained a propelling force of our disciplinary evolution ever since.63 Indeed, the power of private law over the public imagination overshadows the climate regime itself, which in both Kyoto and Paris turns to economic incentives for climate solutions.64 The ‘green economy’ and ‘green growth’ are our supposed salvation, with blind faith that capitalism will simultaneously solve the problems it creates. This contradiction is epitomized in ostensibly virtuous calls for more efficient use of fossil fuels, instead of directly tackling the problem of 60 61 62 63 64 Jernnas & Linner (n 54). GCA (n 19). Porras (n 36), Anghie (n 45). S Pahuja, Decolonising International Law (CUP 2011). J Hickel & G Kallis, ‘Is Green Growth Possible?’, New Political Economy (2019). Page 11 of 17 Natarajan – Climate Change and the Right to Solidarity (Draft Chapter, February 2023) overconsumption. Such approaches ultimately exacerbate climate change through by making more fossil fuels available for unlimited (albeit more efficient) use. Indeed, many so-called green solutions, from biofuels to electric vehicles, from carbon offsets to carbon trading, are creative ways to fuel economic growth but do not stabilize the climate. Whether we like it or not, economy and ecology are inextricable, as are the chains that link consumption and waste, as are natural resources and the environment. International lawyers’ ability to compartmentalize them produces convenient regulatory schizophrenia that allows environmentalism itself to be captured by pro-market forces in the untrammeled pursuit of economic growth. The segregation of environmental concerns from other aspects of public and private international law predetermines disciplinary priorities and prevents humane and orderly climate responses. To take the example that provokes perhaps the greatest fear within rich states, it is estimated that hundreds of millions of people are being displaced from the third world as a result of climate change.65 International law currently addresses population movement in such limited ways that it cannot conceive of a shift in our planet’s habitable zones. Refugee law provides international protection only for a narrow category of people who face specific extreme forms of discrimination (0.34% of the global population has refugee status).66 Everyone else crossing an international border is dependent on the discretion of host states for permission. Such a legal framework obfuscates the mass protracted displacement habitually produced by dominant development patterns so systemically destructive that they foment conflict, insecurity, inequality, drought, famine, desertification, environmental toxicity, and of course climate change.67 Yet attempts to provide redress through the Paris Agreement for those displaced by climate change, including extreme cases where entire sovereign territories are submerging, were prevented by rich states.68 Despite environmental law principles that articulated clearly what global climate solidarity could look like, attempts to realize these principles have since been diluted beyond recognition within contemporary climate law. An overview of international climate law from its origins to the present day serves to confront international lawyers with the systemic injustice we have helped to create and maintain. Climate change is not an emergency that we can react to via specialized legal regimes, extreme measures, and extrabudgetary resources. It has been a long time in the making and is the inevitable consequence of an international legal system that protects the rich and powerful from the harmful consequences of their actions. International law helps to structure a system of climate apartheid, where the privileged few can treat everything and everyone else in the world as superfluous, residual, and akin to waste. Against such a system, the language of solidarity reminds us to take responsibility for the suffering we inflict, because it is neither desirable nor possible to separate ourselves permanently from each other and from our environment.69 4. The Right to Solidarity and Climate Justice Movements The Solidarity Draft Declaration’s reference to preventative solidarity, reactive solidarity, and international cooperation are paralleled in climate law attempts to mitigate climate change, adapt to climate change, and provide loss and damage mechanisms. Sadly, so far, the poor majority on the forefront of climate impacts has not been able to depend on global solidarity on any of these 65 66 67 68 69 GCA (n 10). UNHCR, Global Trends (UNHCR 2019). I Awad & U Natarajan, ‘Migration Myths and the Global South’ (2018) 30 Cairo Review of Global Affairs 46. O Karasapan, ‘Refugees: Displaced from the Paris Agreement?’ (Brookings, 7 December 2015) <https://www.brookings.edu/blog/future-development/2015/12/07/refugees-displaced-from-the-paris-climatechange-agreement/> accessed 24 February 2023. Part 3 is revised and abridged with permission from Natarajan & Khoday (n 8). Page 12 of 17 Natarajan – Climate Change and the Right to Solidarity (Draft Chapter, February 2023) three fronts. One of the consequences of the dysfunctional international climate law described in Part 3 is that economic incentives do not operate rationally when it comes to addressing climate change. As mentioned in Part 2, the challenges of tackling climate change multiply over time, and this includes the economic costs involved. Scientists have known about anthropogenic climate change since the mid-nineteenth century.70 International organizations and laws began to explicitly engage with the issue in the late 1980s and early 1990s, with a focus on mitigating greenhouse gas emissions.71 The abject failure of reducing emissions, which were instead increasing rapidly, led to a shift in disciplinary focus by the 2000s towards helping states and peoples adapt to the consequences of a changing climate.72 And the gradual failure of adaptation, when rich states did not provide the promised financial and technical assistance to help poor states adapt, combined with continuing failure to mitigate, has led to increasing attention to climate loss and damage in recent years as a means of compensating for those aspects of climate change that cannot be adapted to.73 Adaptation is significantly more expensive than mitigation, and compensating for loss and damage is even more expensive than adaptation. As quantification of prodigious amounts of climate loss and damage proceeds apace, some climate lawyers hope that this could function as an economic incentive to work harder on mitigation efforts once more. However, as described in the previous Part, rich states have felt no legal compulsion to pay for adaptation or loss and damage, so unfortunately no economic incentives operate in favor of mitigation.74 Even amid prosperity, rich states did not deliver on their promises of technical and financial assistance. Such contributions have become even more unlikely with post-pandemic economic downturns and cost-of-living crises across many rich states. In the meantime, the global economic downturn is producing a series of debt crises across the Global South eerily reminiscent of the 1980s. The 2022 UNFCCC Conference of the Parties at Sharm el-Sheikh celebrated the establishment of a long-promised climate loss and damage fund. Decisions as to how such a fund is going to operate are as yet undetermined with discussions planned for coming years. While the fund’s institutional form is undoubtedly an important issue, it is worthwhile considering whether it is realistic to expect contributions at anything approaching the scale required to make a difference. Given past disappointments as well as downward trends in the global economy, perhaps global climate solidarity requires different approaches toward climate financing. Some ideas worth considering include asking states to tax their fossil fuel companies for fund contributions, restructuring international financial institutions to allow for special drawing rights for low interest loans and grants for specially affected states, and most importantly debt cancellation for the Global South so that they are better positioned to invest in climate adaptation. It is important to keep in mind that global solidarity in tackling climate change entails much more than financial compensation, technological transfer, and other schemes that allow the rich to pay to keep emitting, and to profit from the destruction they have caused via the so-called green economy.75 In the long term, sustaining climate solidarity requires developing a more accurate 70 71 72 73 74 75 H Le Treut et al, ‘Historical Overview of Climate Change’ in S Solomon et al (eds), Climate Change 2007: The Physical Science Basis. Contribution of Working Group I to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (CUP 2007). UN Framework Convention on Climate Change (1992) 31 ILM 849, Kyoto Protocol to the United Nations Framework Convention on Climate Change (1998) 37 ILM 22. Report of the Conference of the Parties on its Seventh Session, held at Marrakesh from 29 October to 10 November 2001, UN Doc FCCC/CP/2001/13/Add1 (21 Jan 2002). Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts , UN Doc FCCC/CP/2013/10/Add.1 at 2/CP.19. U Natarajan, ‘Measuring the Immeasurable’ in M Doelle and S Seck (eds), Research Handbook on Climate Law and Loss and Damage (Elgar 2021). Ibid. Page 13 of 17 Natarajan – Climate Change and the Right to Solidarity (Draft Chapter, February 2023) and healthy understanding of the environment and law’s relationship to it. More than ever, international law would benefit from ceding space to cultures and traditions that have more sustainable and equitable ways of life, cultures long ignored and silenced by a Eurocentric discipline.76 The capture of international climate law by rich states and elite corporate interests over the last thirty years has not gone unchallenged. Social movements for climate justice have grown in leaps and bounds in the wake of colossal legal failure. For many decades, local communities across the postcolonial world have fought not only aggressive industrialization by their own governments, but also the conditionalities of the World Bank, and the structural adjustment policies of the International Monetary Fund. Environmental justice movements across the Global South have included not only environmentalists but in their most successful forms environmentalists have worked in solidarity with small farmers and fisherfolk, Tribal and Indigenous communities, and broader mass mobilization across the poor and working classes. Together, they opposed industries that relocated to their communities when the harmful socioeconomic and environmental impact of these industries were no longer welcome in richer areas. Environmental justice movements have demanded that environmental problems not just be shifted around, requiring genuine fairness and sustainability instead of a short-term veneer. Environmental justice movements across the Global South have opposed the export-oriented growth model pursued by postcolonial states and encouraged by international financial institutions, because this type of development exploited local natural resources and cheap labor to benefit local elites and pay international debts. The collaboration of central governments with local monopoly capital and transnational capital has been opposed by an alliance between workers, the urban poor, and environmentalists. Such movements oppose the global alliance between economic and political elites that obfuscates local needs. They are skeptical of international environmental summits that allow US negotiators to insist that emerging economies such as Brazil, China, and India play their part in tackling global environmental problems; and then Brazilian, Chinese, and Indian political elites respond in their turn with old Third-Worldist arguments that they are entitled to industrialize and pollute as much as Western states.77 Debates of this kind have characterized international environmental lawmaking for the last five decades and obfuscate the transnational unity among Southern and Northern elites that profit from the economic and ecological suffering of the masses. Grassroots environmental justice movements have the potential not only to address environmental crises but to ensure long term sustainability by contributing to radical political and legal transformation. For instance, environmental consciousness across the South has a long, rich, and varied history and for some Southern communities, including many Tribal and Indigenous communities, there is no distinction between social, economic, and environmental concerns.78 When Tribal and Indigenous communities resist mining and oil companies,79 and transnational 76 77 78 79 U Natarajan and J Dehm (eds), Locating Nature (CUP 2022). For a discussion of these dynamics, see generally M Prost and AT Camprubi, ‘Against Fairness? International Environmental Law, Disciplinary Bias, and Pareto Justice’ (2012) 25 Leiden Journal of International Law 379. GJ Coulthard, Red Skins, White Masks: Rejecting the Colonial Politics of Recognition (University of Minnesota Press 2014); J Borrows, Drawing Out Law: A Spirit’s Guide (University of Toronto Press 2010). A Chandrashekhar, ‘The Anatomy of a Fake Surrender: A Movement Against Bauxite Mining in Odisha’s Niyamgiri Hills and the State's Efforts to Circumvent It’ (Caravan, 4 August 2017) <https://caravanmagazine.in/vantage/odisha-bauxite-mining-fake-surrender-niyamgiri> accessed 24 February 2023; A George, ‘Claiming Niyamgiri: the Dongria Kondh’s Struggle against Vedanta’ (RITIMO, 18 December 2014) <https://www.ritimo.org/Claiming-Niyamgiri-the-Dongria-Kondh-s-Struggle-against-Vedanta> accessed 24 February 2023. Page 14 of 17 Natarajan – Climate Change and the Right to Solidarity (Draft Chapter, February 2023) agrarian and peasant movements oppose trade policies,80 their concerns are often holistic, effortlessly connecting cultural, livelihood, and environmental matters. Worldviews that do not separate ecology and economy are unamenable to capitalism and, while today they face an existential threat, such alternatives provide hope for imagining post-capitalist life.81 Climate solidarity entails unmaking disciplinary commitments to Eurocentrism and anthropocentrism. Human agency does not by itself shape the world and nature is not a mechanistic automaton at our service. Rather, humanity is in constant interaction within natural systems including the climate.82 More than mere academic speculation, such insights already contest dominant legal frameworks and transform them. Examples include peasant movements in Ecuador that demand the right to preserve their way of life; class actions on behalf of future generations in the Philippines; transnational tribal mobilization against extractive industries across South Asia; law reform recognizing the rights of Mother Earth in Bolivia; recognizing the legal personality of non-human entities in India, Colombia, and New Zealand; the rights of Indigenous and Tribal peoples to hunt protected species in the Arctic; climate justice demands of sinking small island states; massive environmental protests across China; international rights of nature tribunals; and Mother Earth summits held alongside international environmental law summits.83 Targeting entrenched transnational and global structures of violence that have reproduced inequality and ecological destruction for centuries, the high stakes are evidenced most starkly in the increasing murder of environmental defenders worldwide.84 Despite these risks, climate justice movements continue to grow, necessitated by environmental change looming large and inescapable. Global climate protests are increasing and show no signs of abatement. As in the past, an important aspect of contemporary environmental justice movements is cooperation between environmentalists and the rural and urban poor. This includes working in solidarity with organized labor to emphasize that climate justice entails responding to climate change in a manner that undoes rather than reproduces existing labor inequalities.85 Faith-based organizations have also played a central role in raising global awareness 80 81 82 83 84 85 See La Via Campesina: International Peasant’s Movement <https://viacampesina.org/en/> accessed 24 February 2023. The preceding three paragraphs are revised and abridged with permission from Natarajan (n 6). J Bennett, Vibrant Matter (2010) ix. La Via Campesina, <https://viacampesina.org/en/> accessed 24 February 2023; Minors Oposa v Factoran, Philippines Supreme Court GR No 101083 (30 July 1993); Samina Luthfa, ‘Transnational Ties and Reciprocal Tenacity: Resisting Mining in Bangladesh with Transnational Coalition’ (2017) 51(1) Sociology; Ley de Derechos de la Madre Tierra, Bolivia, Ley 071 (21 December 2010); Lalit Miglani v State of Uttarakhand & others, WPPIL 140/2015 (High Court of Uttarakhand) 2017 [64]; Mohd Salim v State of Uttarakhand & others, WPPIL 126/2014 (High Court of Uttarakhand) 2017 [19]; Te Awa Tupua (Whanganui River Claims Settlement) Act, New Zealand, Public Act 2017 no 7 (20 March 2017); EU Regulation 2015/1775 on Trade in Seal Products (6 October 2015); L van Scheik et al, ‘Fighting an Existential Threat: Small Island States Bringing Climate Change to the UN Security Council’, Planetary Security Initiative Policy Brief (March 2018); Klaus Mühlhahn, ‘Can Environmental Activism Succeed in China?’ (Literary Hub, 28 January 2019) <https://lithub.com/can-environmental-activism-succeed-in-china/> accessed 24 February 2023; Rights of Nature Tribunals, <https://www.rightsofnaturetribunal.org/> accessed 24 February 2023; Peoples’ World Conference on Climate, ‘Bolivia calls for urgent high-level talks on cutting climate pollution’ (17 June 2011) <https://pwccc.wordpress.com/> accessed 24 February 2023; Peoples’ Summit on Climate Change COP20, ‘For Climate Justice and a World fit to Be Lived In’ (8-11 December 2014) <http://rio20.net/en/iniciativas/peoples%E2%80%99-summit-on-climate-change-cop20/> accessed 24 February 2023. Global Witness, Enemies of the State (30 July 2019) <https://www.globalwitness.org/engb/campaigns/environmental-activists/enemies-state/> accessed 24 February 2023. See for example, P Tomassetti, ‘Labor Law & Environmental Sustainability’ (2018) 40 Comparative Labor Law and Policy 61, P Hampton, Workers and Trade Unions for Climate Solidarity (Routledge 2015). Page 15 of 17 Natarajan – Climate Change and the Right to Solidarity (Draft Chapter, February 2023) and widespread support for climate initiatives across the global south and north.86 Nongovernmental organizations, local communities, and citizens have worked together to engage in strategic climate litigation targeting rich states, extractive industries, and their collaborators with varying degrees of success.87 Environmental justice movements often work in solidarity with present and future generations, in accordance with the prevailing definition of sustainable development, thereby helping to broaden conventional notions of solidarity.88 While environmental justice movements accommodate a wide range of ideological underpinnings, such movements increasingly prioritize a ‘process of transversalism’ as opposed to universalism, where diverse groups generate ‘cross-identity solidarities and inter-ideological hybridizations’.89 In the same way, international law can engage the diversity of legal traditions in the world so that ‘the global and local come together, not by way of synecdoche … but in a way that each interrupts and distorts the other … the local and often inassimilable aspects of culture and history … uphold a sense of alterity while still engaging a global imaginary’.90 As Puvimanasinghe observes, international solidarity ‘manifests itself through the daily actions of a range of stakeholders, including States, civil society, global social movements, corporate social initiatives and people of goodwill’.91 Thus the Solidarity Draft Declaration pushes for the right to be conceptualised in a non-State-centric way. For climate solidarity, it is particularly crucial the right is understood in a manner that curtails the limitless plunder of transnational extractive industries. Corporate power over climate law negotiations continues to grow, not only through companies lobbying rich states to protect their interests, but increasingly through direct corporate presence at the Climate Conferences of the Parties. This has become increasingly evident at meetings since the 2015 Paris Conference, which itself had a massive visible corporate presence. While energy firms vied with each other for advertising space at Paris landmarks to signal to the world how green they were during the Paris Conference, at the same time radical transnational climate justice movements were denied visas to enter France. This trend has grown in every Climate Conference of the Parties since 2015, sending the message that climate law does indeed go beyond state actors, with some non-state actors welcome at the international law-making table and others systemically silenced. The failures of international climate law have spurred climate justice activism worldwide, cooperating transnationally in concerted efforts to compel the rich to cease economic exploitation and greenhouse gas emissions. In response, powerful entrenched elites are undertaking ever more oppressive tactics with increasing numbers of environmental justice 86 87 88 89 90 91 ME Tucker, ‘World Religions and Ecology for a Flourishing Future’ (Paths to Sustainability, 15 May 2017) <https://pathstosustainability.com/2017/05/15/world-religions-and-ecology-for-a-flourishing-future-maryevelyn-tucker/> accessed 24 February 2023; C Okafor, ‘Returning to Eden: Toward a Faith-Based Framing of the Environmental Movement’ (2015) 26 Villanova Environmental Law Journal 215; R Powell, ‘Laudato Si’: Engaging Islamic Traditions and Implications for Climate Thought’ (2017) 40 Seattle University Law Review 1325; IM Porras, ‘Laudato Si', Pope Francis' Call to Ecological Conversion’ (2015) 109 AJIL Unbound 136. M Torre-Schaub, ‘Dynamics, Prospects, and Trends in Climate Change Litigation Making Climate Change Emergency a Priority in France’ (2022) 22 German Law Journal 1445. See also P Baskaran, ‘Remaking Appalachia’ (2021) 69 UCLA Law Review Discourse 106; Cinnamon P Carlarne, ‘Climate Courage’ (2022) 41 Stanford Environmental Law Journal 125. BH Weston, ‘Climate Change and Intergenerational Justice: Foundational Reflections’ (2008) 375 Vermont Journal of Environmental Law 404. A Salleh et al, ‘From Sociological Imagination to Ecological Imagination’ in J Marshall & L Connor (eds), Environmental Change and the World’s Futures (Routledge 2016). S O’Brien, ‘Articulating a World of Difference: Ecocriticism, Postcolonialism and Globalization’ (Winter 2001) 170/171 Canadian Literature 140; K Khoday & U Natarajan, ‘Fairness and International Environmental Law from Below’ (2012) 25 Leiden Journal of International Law 415. The preceding two paragraphs are revised and abridged with permission from Natarajan and Khoday (n 8). S Puvimanasinghe, International Solidarity in an Interdependent World (United Nations 2013) 188. Page 16 of 17 Natarajan – Climate Change and the Right to Solidarity (Draft Chapter, February 2023) activists facing assassination, forced disappearance, retaliatory litigation, incarceration, criminalization, vilification, and more. From fossil fuel companies hiring private gangs to assassinate environmental and human rights defenders, to host states of Climate law conferences denying access to climate protesters, the right to solidarity is crucial for protecting climate justice campaigners. The Solidarity Draft Declaration acknowledges that at the foundation of the right to international solidarity is the right to participate in peaceful activities such as strikes, rallies, and protests; to associate freely and bargain collectively; as well as the special rights of Indigenous and Tribal peoples to choose their own development pathways and collaborate internationally to this end. That is to say, the right to international solidarity is essential not only to protect those individuals and movements courageously standing up to the world’s most wealthy and powerful, but on a more fundamental level the right to international solidarity could help prevent the ongoing cultural genocide of sustainable societies decimated by the onslaught of globalized consumer capitalism. International solidarity is essential not only to prevent the extinction of such cultures but to ensure that their knowledge can on their own terms meaningfully inform the international community, thereby contributing to the realization of a genuinely international law. Page 17 of 17