Research Handbook on Global Climate Constitutionalism
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Research Handbook on Global Climate Constitutionalism

Edited by Jordi Jaria-Manzano and Susana Borrás

Climate change is causing traditional political and legal concepts to be revisited. The emergence of a global polity through physical, economic and social interaction demands global responses which should be founded upon new principles and which cannot simply be modelled on traditional constitutionalism centred on the nation-state. This Research Handbook explores how to build this climate constitutionalism at a global level, starting from the narrative of Anthropocene and its implications for law. It provides a critical approach to global environmental constitutionalism, analysing the problems of sustainability and global equity which are entwined with the causes and consequences of climate change. The Handbook explores how to develop constitutional discourses and strategies to address these issues, and thereby tackle the negative effects of climate change whilst also advancing a more sustainable, equitable and responsible global society.
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Chapter 12: Environmental justice, climate justice and constitutionalism: protecting vulnerable states and communities

Sumudu Atapattu

Abstract

Described as the ‘defining human development issue of our times’ and ‘the biggest human rights issue of the 21st century’, climate change poses a grave threat to humanity. While all states are both contributors and victims at the same time, the contributions and consequences vary greatly across countries, regions and communities. People who are already in a vulnerable position due to poverty, gender and other reasons of social marginalization are more vulnerable to the consequences of climate change. Thus, climate change raises profound justice issues – those who have contributed most to the problem are not those who will be affected most by its consequences. At the same time, many developing countries badly need to ‘develop’. What does development mean in the context of climate change? The proponents of global environmental constitutionalism argue that increasing interdependence of nation states has created a certain ‘constitutionalization of international organizations’ and a degree of uniform constitutionalist principles such as human rights, state responsibility and ius cogens or erga omes norms. As we enter the Anthropocene, it is imperative to question Western society’s anthropocentrism and consumerist nature if we are to solve the biggest challenge that humanity faces: climate change. An environmental justice framing brings many of the above issues to the forefront. This chapter uses the fourfold manifestation of environmental justice proposed by Robert Kuehn as the framework: distributive justice, procedural justice, corrective justice and social justice. It uses environmental justice as an example of a concept that has entered the realm of international law and applies this in relation to vulnerable communities affected by climate change. The chapter discusses some seminal cases from South Asia, where apex courts have developed an extensive and robust jurisprudence on environmental rights. The concluding section draws on these principles and extrapolates them in relation to climate change. It also refers to some recent cases on climate change from other parts of the world which show promise for victims of climate change. It concludes by arguing that developed countries owe an ecological debt to developing countries, and that the environmental/climate justice framework provides a good starting point to address the inequities and vulnerabilities exacerbated by climate change.

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