The role of litigation in fighting the climate crisis

What is climate litigation? How is it used to hold governments to account? What is the role of legal justice in trying to achieve climate justice? Marta Schaaf, director of the program on climate, economic and social justice and corporate accountability at Amnesty International, and Iain Byrne, international human rights lawyer at Amnesty, join Gavin and Jessamy to discuss using the law to achieve climate justice and their hopes for COP27.

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Transcript

This transcript was automatically generated using speech recognition technology and may differ from the original audio. In citing or otherwise referring to the contents of this podcast, please ensure that you are quoting the recorded audio rather than this transcript.

Jessamy: Hello and welcome to The Lancet, boys. It's November 2022, and I'm Jessamy Bagenal. I'm here with my co host Gavin Cleaver. COP 27 started on November 6, 2022. The World Health Organization has described it as our last chance to achieve a healthy future for humanity. The Lancet released its annual climate countdown report, this year entitled Health at the Mercy of Fossil Fuels.

The message is clear. Governments and companies continue to prioritize fossil fuels over a healthy future, despite climate commitments. Rapid, holistic action is the only route to ensuring a just and healthy future. One mechanism to instigate action is through climate litigation. We discussed what climate litigation is, how it's working, and why it helps, with Marta Schaeth, Director of the Programme on Climate, Economic and Social Justice and Corporate Accountability at Amnesty International, and her colleague Ian Byrne, an international human rights lawyer.

We hope you enjoy the episode. As always, you can find us on our Twitter handles at jessamynbaganol and at gavinkleber.

Gavin: Marta, Ian, thank you so much for joining us on the Lancet Voice today to talk about climate litigation. Perhaps, Marta, you could tell us a little bit about your role at Amnesty and what it involves. 

Marta: Thank you for having us. I'm the director of the program on climate, economic and social justice and corporate responsibility at Amnesty.

This includes our work on climate justice, economic and social rights, which is where the, the right to health, the right to education, housing, et cetera, um, and corporate accountability. So, we have a business and human rights team that works on that, and I've been in this position since July, so I'm still somewhat new, but thrilled to be here.

Gavin: Thank you, Marta. And Ian, welcome to the podcast as well. Perhaps you could tell us a little bit about your role at Amnesty and your background 

Iain: as well. Uh, yeah. Hi, and again, thanks for having me on this. So I'm a human rights lawyer. I've worked at Amnesty coming up to 11 years. Before that, I worked for a decade at a small litigation NGO, uh, doing a range of different things.

In my current job, I research and provide legal and policy advice on economic and social rights. Um, and I'm sort of been looking particularly at the just transition angle of the climate crisis. Um, and I think, you know, we should always call it a climate crisis. Um, so obviously being amnesty, we have to look at not just the environmental impact and how they impact on people.

Uh, but also the measures that governments are taking to mitigate and adapt and making sure that they also don't result in human rights violations and leaving people behind. 

Gavin: We're here today to talk about climate litigation, which I suppose is a phrase that might seem relatively new or unfamiliar. Yeah.

Perhaps, Marty, you could just kind of give us a really broad overview of what climate litigation is, what purpose it serves, you know, the current field of play, I suppose. 

Marta: You know, broadly defined, climate litigation is litigation relating to climate change, um, typically focused on lessening carbon emissions or improving adaptation measures.

Um, but it can also be focused on reducing regulation regarding carbon. So in other words, it can be good or bad. We're of course, interested in the good kind of climate litigation that seeks to reduce carbon emissions. Um, and improve the regulatory environment. Climate litigation has been growing over the past 10 to 15 years as a way of advancing action on climate change.

And within the overall family of climate litigation, the number of strategic litigation cases is also rising. At Amnesty, we focus on strategic litigation that uses human rights law as the source of law, and strategic litigation seeks to affect an improvement or a change beyond the immediate situation of the parties to a particular case.

So, to have a broader outcome than just the case itself. There are also many other NGOs and think tanks besides Amnesty that study or spearhead climate litigation, some as their primary mission. So they've all been, you know, doing a fantastic job laying the groundwork for our work in countries all over the world.

That said, the majority of cases are from the Global North, but the number of cases in the Global South is growing. And these cases are typically brought against governments, usually by NGOs or individuals. But it is widening scope. So we see more cases targeting the private sector as well. And depending on the jurisdiction and the time frame we're talking about the various analyses that I've seen say that find that the percentage of cases that have favorable outcome seems to hover around 50 percent so between 40 and 60 percent having some.

positive finding from a climate crisis perspective. 

Gavin: And is, is this a relatively new way of approaching, um, or I guess say tackling government inaction on climate change? I 

Marta: think it's developed significantly over the last 15 years, but I think Ian might also be able to provide sort of some insights into the broader context for strategic litigation as a strategy more generally for human rights realization and how climate fits into that.

Iain: Yeah, thanks, Marta. Um, I mean, definitely, I think it's grown exponentially. Um, you know, there are people that monitor this stuff and I think, you know, there's hundreds, if not thousands of cases being brought around the world because obviously people see, uh, litigation as we all do sometimes, uh, as the only means of securing justice and accountability, you know, if you can get, uh, a court order to compel a government or corporation, uh, to do something, obviously that can be quite a powerful.

They don't always comply sadly. And there are a number of cases, you know, positive decisions, uh, that are still waiting to be complied with. And of course that depends on a whole range of factors, the rule of law, uh, the ability, obviously of companies to escape. Uh, liability, but I think within that, then if you look at how human rights litigation has evolved, I mean, I think it's true to say, certainly if you look at what we call the kind of super national human rights litigation, or you've gone through your domestic system and you go to say, the European court of human rights, which we have for real in this region, or the African courts of human rights, or some of these UN, uh, committees, and we can talk maybe about a couple of the cases that are quite prominent, uh, in those bodies.

It is true to say. It's come quite, it's a bit like amnesty. We've come quite late to the party on making that link, I think, between human rights and climate, but as we know, that is so important for people to understand that pre Paris agreement and COP, states already, already had a lot, they already had these obligations, and of course, amnesty, either through litigation or through our advocacy, campaigning, our research.

We are seeking to hold the states to account, to make that leg that Marta has talked about, that's already been there. And to, and to make, you know, governments aware and people aware that this is not just some desirable add on, that actually this is fundamental to government's international legal obligations.

We know sadly that governments tend to increasingly ignore those human rights obligations, but it's our job to continue holding their feet to the fire. 

Jessamy: So can you maybe give us some kind of examples of some of these cases and particularly then How they fed into making a change or forcing people to do things in a different way 

Marta: in terms of the outcomes of climate litigation cases.

Some of the outcomes are, for example, a binding order that the government must do X, Y or Z create climate goals. Have more extensive climate regulations, make reforms to their environmental impact assessments or other procedures, make investment in new infrastructure for adaptation purposes and protection purposes such as, uh, in coastal areas.

In, in the case of private sector actors, there can be a stronger regulatory environment that's mandated as a result of climate litigation. Um, particular project may be delayed or denied, so that's a very clear outcome, or there could be damages to pay. As, as Ian said, this issue of implementation is really important.

Um, and, and the timeframe for litigation often quite long. So I think there's increasingly attention to this issue of, okay, we've had this 5, 10 year case. Now we've had a decision, what impact is it actually going to make on governmental behavior and the behavior of private actors and the lives of people and their, their ability to enjoy all of their human rights.

I think it's an important area for research, but also for potentially subsequent litigation or other efforts at accountability, right? The government committed to do something as a result of climate litigation and that has gone unrealized. Um, in terms of particular impacts of a particular case, most of the cases I know about our fight recent and so it's hard to say what the follow up has been.

Do you have any examples? Yes. 

Iain: Well, I, I would say, I mean, I, I think there's two things to be important and I think when you, when you do any litigation, because sometimes you win, sometimes you lose, uh, you know, litigation is a risky endeavor and, um, I think even just filing a case, uh, initially, um, it shows agency and I'll come on to talk maybe about a couple of the cases about agencies of young people, of indigenous people, that they've actually got this agency to, to take.

These powerful governments and corporates to court, and then even if you lose or you don't win on every argument. Uh, you know, you, you still raised awareness, uh, often about the case. You know, you've got, you've got the story into the media. Uh, people are aware of that. And I mean, I can talk about a couple of the cases.

I mean, one of the most successful ones, uh, recently was in fact, the first real case that was successful before UN body, uh, was a case taken by some indigenous people, Islanders. In the toy island straight. So, you know, a series of small islands that's actually comes under Australian, uh, control. Um, and they bought this case, uh, against Australia on a, on a number of different issues.

The fact that Australia. Policies is actions was potentially violating their human rights. And they, and they sort of argued on right to life. Right to private and family life, right to culture, which of course we know is so important for indigenous people, discrimination. They won on pretty much every ground.

Interestingly, they didn't win on right to life. And I think, again, that that shows that, that some of these bodies, we, of course, you've still got a way to go to make the case. They said Australia was actually doing enough with its mitigation and adaptation that actually these people's lives were not in jeopardy.

Now, again, we might disagree with that. When you look at Australia's record, you know, recent records. Uh, one of the, you know, most polluting countries per capita in terms of coal production, et cetera. But broadly speaking, they won on some of these other grounds. And I think that, let's see again, how Australia responds to that decision, because I know as somebody who's done litigation in the UN system, It's often is very challenging to get implementation.

Um, you know, governments are happy to sign up to treaties, happy to sign up to these complaint mechanisms, but when they get an adverse ruling, it's a different story. Uh, so you sometimes that we have spent and we continue to spend years, sometimes at Amnesty, trying to get implementation of the decision.

But again, you know, if we can keep it in the public consciousness, use various avenues for political pressure. That can build momentum and sort of name and shame. So I think it was a very good example that it showed a, how the impacts happening on very vulnerable communities or communities in vulnerable situations, such as indigenous people who often struggled to have a voice.

They struggled to have an agency. Now that case was obviously taken like some of the others with the support of, uh, of NGOs, uh, pro bono lawyers sometimes, but I think it's important, both the process and the outcome as well can seed into the sense of. How can you secure climate justice? 

Jessamy: Yeah, that's so interesting.

And it, and it kind of takes me on to my next point is what's the difference between climate justice and climate litigation? Are they the same thing? 

Marta: That's a, that's a great question. And I think the word justice is used in so many different contexts. So, so when I hear the word justice, and I think in the context of climate justice, I think about an outcome where power imbalances are rectified and remedied.

So we've stopped the bad thing in this case, carbon emission and change the conditions that gave rise to that in the first place. So in the case of climate. The climate crisis, we can think about colonialism, neocolonialism, exploitative, unfettered capitalism, corporate capture, regulatory processes, materialism, disregard for the environment, dispossession of indigenous people, etc.

I think when we use the word justice in a litigation context, especially if you watch procedural on TV, and you hear about justice being served, and that means winning, it means winning a court case. And so, I think climate litigation winning doesn't necessarily advance the cause of climate justice, although we hope it does.

Amnesty will be involved in cases that take a climate justice perspective, but you can imagine a case where it doesn't. So, if cases are focusing on governmental obligations regarding admissions, for example, and the government is mandated to cut admissions. By X percent, and they do that, but they leave all of their polluting industries and low income communities of color, then that is an unjust outcome, even though they've been faithful to the letter of the decision.

But, you know, as Ian argued, or explained, the Torres Strait Islander case was brought by an affected population, which is both empowering as a process, and in terms of the outcome should favor that population. An increasing number of cases are led by children are being brought by children and use, um, an intergenerational equity argument, which in human rights is sometimes framed as indirect discrimination against children and their future.

There are also cases to hold fossil fuel companies accountable, for example, for polluting in specific communities. In short, they are not synonymous, but. We hope to, you know, we as amnesty support and push the idea that climate litigation should be a mechanism for realizing climate justice, both in the way it's undertaken in terms of process and in terms of the result of the case, in terms of what the case is seeking at the end of the day.

Jessamy: That's one way that sort of feeds into climate justice because climate justice so often is about, you know, this. This sort of disparity impact that the, the highest, you know, polluting countries are the ones that are least impacted and everywhere else. And so it's not necessarily the only way to get climate justice, but one, one way to, to sort of push that agenda 

Marta: forward.

Absolutely. It's one tool in our toolbox that needs to be there along with many other tools. 

Jessamy: Because the, the, sort of that concept of power is so crucial and, and the law is one way that, that molds and shapes power, it's a, it's a really important, it's a really important mechanism. 

Marta: Right. But can be, but neutral on its face so often, right?

So you need to be attentive to ensuring that it's wielded. in a way that benefits those who are most harmed by climate change. And Ian may have more to say on this, but you know, there's also sort of feminist critiques of litigation and other critiques that look at the law as an expression of state power and power as it is, which makes it complicated to use it as a tool for emancipation.

Iain: You know, we, we could get into a critical legal theory, but, um, you know, it, it, it's definitely that. And I think as Martha says, you know, I'm aware. Having done litigation across a whole range of different rights over the years, as Marta says, it is one tool in the box. It is one means. It is a means to an end of achieving the change we want to see.

Um, and often, as I said, even when you get a positive judgment. Uh, you know, you're still trying to get it enforced, uh, and enforced in a way that leads to tangible change on the ground. So, you know, we read about these interesting decisions in textbooks. Um, they're in there in, you know, sort of cases materials, but actually what was the change?

What was the change that actually led to, even with some of these groundbreaking changes, you know, Brown versus Board of Education. We know famously from the civil rights movement in the fifties. So I think from that point of view, yeah, you know, we have to put it in perspective. Sometimes we decide at Amnesty that actually litigation is not the right way to go.

You know, we have a lot of internal discussions about strategy and I'm saying this in a broader context now, not just the climate work. Um, and, uh, and obviously also making sure that we're doing nothing that's going to be counterproductive in terms of the actual people affected on the ground. So, you know, you have to, it's not the automatic go to, uh, but it's increasingly seen, I think.

Um, and it compliments a lot, you know, our work. You know, our research work, our campaigning work, it can fit into that. Um, if we can see a strategic angle, usually to support other people's cases as well, because often we're not bringing these cases ourselves at Amnesty, but we are supporting them through so called third party interventions, where we feel we're bringing something extra to the court, as we did with the Portuguese young people climate case in the European Court of Human Rights this year.

Can 

Jessamy: you just tell us about that case briefly? 

Iain: Yeah, so there's a number of cases now that are being brought, uh, to the European Court of Human Rights. I think there's, there's at least half a dozen now. And it is interesting, you know, because some actually are brought, as Marta said, by young people. Um, and one of these is this Dagostino case I'll talk about.

Some are being brought by older people. Uh, there's a Swiss case as well. And the, the, this, this Portuguese case is very interesting because it's usually you're dealing with a group of people, one person bringing a case against their own government. This case is being brought against 33 governments. And what that's saying is, it's recognizing that obviously there is a collective responsibility here for the climate crisis.

amongst all states, but of course, different levels of responsibility, historic responsibility, uh, you know, the emissions, how developed the country is, et cetera. So they're bringing this test case and it's been fast tracked to the highest court within the European Court of Human Rights, which is the so called grand chamber.

Uh, we intervened on the case. Um, it's got a number of interesting aspects. They basically argued, um, again, as they did in the UN case, the Tory Islands about impact on their private family and home life, because they say, actually, what it's doing, climate, is stopping them actually enjoying their life more fully.

They're also arguing right to life. Um, and also arguing discrimination, because I said, we are going to be the generation more impacted than people like me. Now you're the generation that's helped to contribute to this. And the other interesting angle, as I said, is this 33 cases, uh, 33 states thing where you've got this notion of so called extraterritorial obligations.

So the obligations of all these governments are obviously extending beyond their borders. And of course, with the climate crisis, we know, uh, the, the climate crisis doesn't stop at borders. Uh, emissions don't stop within your territory. So the whole idea that there is a collective Responsibility for what's been happening.

And it will be interesting to see what, how the court approaches this. We intervened on that particular technical point with, with some allies, with a coalition of academics, other NGOs to kind of a, to get the court to recognize, uh, that it needs to expand its approach to extraterritorial obligations, which is traditionally quite a conservative approach, largely linked to kind of military conflicts outside of the.

Council of Europe region, but to look at it now from a climate lens, uh, it's a challenging case. As I said, it will be interesting to see what the court, uh, does with it. Um, but if, if the fact has been fast tracked to the grand chamber, obviously suggests that the court things, a, the case is important.

There was an urgency to it. Um, and then it requires a full convening of the grand chamber. So, uh, many, many judges will adjudicate on this case. 

Jessamy: So fascinating. And I mean, you've kind of answered it in, in, in all of your answers, but maybe you could just articulate it to me. Um, I've heard lots of experts say that they think that climate litigation will become more and more important as we move forward.

And, you know, there's a strong belief there from, you know, people who are experts in health and climate, you know, lots of different people. Why is it 

Marta: going to become increasingly important? I, I think there are. Several reasons. I mean, first of all, the number of cases, as Ian said, is increasing significantly all the kind of entities that are out there to track this.

Note an increase and an increase in the number of cases brought in the Global South as well. The science is improving, so one huge challenge in climate mitigation is attribution, right? So you have to draw a connection between the source of the emissions The impact that you're alleging, um, and then state or whoever, whatever party you're alleging is responsible for that.

So it can be quite complicated when the science on climate change, for example, talks about the, the, the. Parts per million of CO2 in the air and to try to draw a line between that and any individual emitter is, is quite challenging. So Ian can correct me, but I think in the D'Agostino case that in the European court of human rights.

All of the plaintiffs are Portuguese children, and so they're trying to hold 33 governments accountable for the impact of the emissions in their environment, right? So not just the Portuguese government. So there are new strategies developing, and at the same time, the science is developing, which helps to provide the evidentiary basis for those strategies.

So I think that's one reason. In addition to this, there's increasing use of the international law regarding climate change is being strengthened. So, the UN General Assembly late this summer declared a right to a healthy environment, and this follows a UN Human Rights Council declaration, so that will be a basis for making claims moving forward.

Um, and the right to a healthy environment is also enshrined in several state constitutions, and this is a growing phenomenon. They just, uh, voted, it was actually, uh, Not passed, but voted on in Chile, um, late this summer as well. There is an effort to have the General Assembly ask that the International Court of Justice, which is the court in The Hague, issue an advisory opinion related to state obligations regarding climate change.

So this too, Assuming that this articulation of state obligations is robust would provide another basis for bringing claims in an international court. Um, there's also an effort to develop a fossil fuel nonproliferation treaty, which again would provide an additional legal basis. Um, and there's a growing area of work.

On the rights of nature. So some constitutions have the rights of nature in enshrined in them. There's a discussion now about getting the International Criminal Court to add the crime of ecocide to their statute. So I think there will be a whole other set of climate litigation there. And so there's a great podcast about that, Damages, if anyone wants to do more podcasts listening about the rights of nature.

So I think there are these. Sort of broader trends in addition to the increasing urgency of climate change, right, of the crisis. So there's the Lancet report showing the imperative of taking immediate action. So that, of course, we think also means that climate litigation, all of the tools in our toolbox will be increasingly important.

Iain: No, I think that's a very good overview. And I, you know, what Marta has articulated there, You know, we, as I said, all of this, not just the litigation, but the standard setting, uh, the very notion when I started out in human rights, which was a long time ago that we could talk about the rights of future generations, the rights potentially of nature.

And of course, we have these debates at Amnesty International, uh, as our own mandate has grown over the decades of what we've got to say about it. Um, you know, so I, you know, I think this is, it's an exciting time. If you work in this field as litigate, cause there's lots of opportunities. Are we going to win on every claim?

No. Um, are we going to have to continue to commit and be innovative and devise new strategies to, you know, learn what's worked, what hasn't worked. Um, you know, and ultimately, you know, when you go to court, uh, it is just a, uh, a group of people adjudicating and they come with their own biases, you know, their own thing.

And I think again, the fact that the European court has recognized, you know, young people, they've got. Children themselves or grandchildren that they need to respond to these types of urgent issues. Uh, they may not respond as progressively or as expansively as we want. But yeah, all of these opportunities are opening up and I think we need to exploit them as civil society.

Uh, as much as possible, 

Gavin: I have a broad follow up question on this. That's not necessarily ready to climate, but it was something that occurred to me while we were talking about the last question. We've seen in the media over the last few years, litigation, uh, I'm thinking in the sense of aimed at preventing or delaying Brexit or aimed at the deportation of migrants and preventing that is.

litigation becoming a more prominent tool for holding governments to account outside of Parliament, or has this actually always been the case and it's just now receiving more media focus because of these really prominent cases? 

Iain: Well, I, you know, I could kick off a bit of that for me. She said a UK perspective, Gavin.

I mean, it is interesting. Obviously, we've had the Human Rights Act that has been, uh, now, what, 25 years, uh, nearly, that was introduced under New Labour. And, uh, of course, you know, we, we know the narrative. That that was basically a charter for lawyers, you know, to be able to make lots of money on the back of sort of various spurious claims.

But if you look at the track record over 25 years, the differences that has made in real people's lives, you know, it's, it's, it's very tangible, uh, in a, in a whole range of things to do around, um, access to, to, to certain benefits, to getting, uh, inquiries underway into, into various sort of scandals. You know, again, being creative in terms of how you can use the human rights act.

But we know at the same time that there's a lot of reactionary, uh, forces at play who deem judges to be enemies of the people, who deem lawyers, uh, to be, as I said, to be the sort of metropolitan elite, but we should all, I think, you know, care that we all have these rights now, luckily, most of the time, most people don't need to exercise those rights, although increasingly, obviously, if you look at times of austerity.

And the socioeconomic impacts that we're seeing across so many countries. Uh, you realize that actually the rights that actually often matter, you know, is my field of economic and social rights. Uh, you know, we, we started, you know, Martha started talking about, you know, right to health, right to education.

And in fact, it's very difficult to litigate on those rights, say in the UK, compared to other countries, because we haven't entrenched those in our domestic law. Um, but I think when you look at the opportunities and when you explain to people, That actually you can secure often justice for a wrong that you've suffered, or actually we can use litigation to progress society and ultimately as another means of holding government to account.

Yes, we hold governments to account every five years through a vote. Uh, although we seem to be open changing, uh, let's say the leaders of our governments, uh, very, very quickly these days without going on. So people, you know, and often it was saying that the courts were the last. sort of means of recourse that people would have to go to.

Again, if you look at the record of the European Court of Human Rights, the vast majority of claims against governments are not upheld. Again, this sort of false narrative that's going on. And again, you know, claims again about, um, you know, who has rights, you know, and it's about, you know, well, you've got to, you know, you've got to deserve the rights.

So if obviously you're somebody, um, maybe a migrant coming here, why should you have these rights, et cetera. But the whole universal nature of rights is such a powerful idea. I think we know why the modern human rights framework came into force after the second world war. We shouldn't forget that, you know, and that's a very powerful idea.

And yes, it's evolved over time. And yes, sometimes you might have a judgment that you disagree with people have gone to court, but that is the nature of democracy. That's the nature of our society. Uh, you know, and if governments want to reverse that, they can obviously do that through legislation. So I think, yeah, you're seeing, um, You know, litigation expanded a whole range of areas and often lawyers will go on so called fishing expeditions, but that's all part of seeing that where the boundaries lie.

And again, the Dagestan case, the Portuguese case, we'll see where those boundaries lie. Will the court take a very progressive attitude or will it actually not want to engage and take quite a conservative attitude? And again, does that mean then that other people have to bring other cases, taking that on board that that is the nature.

Of how litigation evolves. 

Marta: I think it's a great question. And, you know, to some extent there's a question about, you know, empirically are the number of, is litigation really increasing, are we just paying more attention to it? My, um, immediate and unresearched hypothesis, cynical hypothesis, is that it has to do with the erosion of democratic and legislative processes in so many countries.

So I, Ian alluded to this, that, um, we may be just paying more attention to it because it's perceived as a bulwark against, um, or as the, as the only way to get things done and as a bulwark against further erosion of those rights. I just 

Jessamy: wondered, you know, whether we could think more broadly about COP 27 and What your hopes are for that 

Marta: this year?

So we, I mean, we, of course, have specific asks as amnesty for a cop relating to the immediate phase out of fossil fuels, the obligation of wealthy states to increase their contributions to what's called climate finance, which refers to funding for climate mitigation. Meaning reducing emissions and adaptation, and so those commitments have, you know, are already made and wealthy countries have not delivered on them.

But in addition to climate finance, there's, as you've probably seen, increasing attention to this question of loss and damage, which is distinct from climate finance and refers to compensation or reparation. For the cost of climate change born by low income countries, which, as we mentioned, generally committed very little to carbon emissions.

So governments from low income countries all over the world have been quite vocal about it. And there's ongoing discussion about setting up a financing facility for loss and damage and a proposal by the UN Special Rapporteur on Human Rights and Climate Change has supported that that ask and who's most.

recent report to the UN General Assembly. So I think that is something to watch. Scotland, Denmark, and Wallonia have already, um, committed funding to support loss and damage, um, and remains to be seen. You know, this, of course, is expected to be a very politically contentious issue, which other wealthy states will step up.

You know, countries are morally obligated to, to bear the cost for this. And I also, I think as a human rights organization. We're interested in this as part of a right to remedy that all people have, um, and which they, they will not, do not have access to and will not have access to otherwise. The prime minister of Barbados has been making a lot of interesting arguments regarding debt and the need for loss and damage and the ways that frequent climate related weather events can put countries further into debt and then just perpetuate this sort of neo colonial trap.

That low income countries are in as a result of climate change. In addition to the loss and damage, I think another really interesting thing to watch at COP 27 will be this issue of civic space, right? So as a human rights organization, we are committed to civil society involvement and in COP 27 and to the right to protest and to free speech, freedom of assembly, et cetera.

This is a challenge in Egypt already. There are many ways in which COP has already been set up to restrict the engagement and involvement of these actors. So as Amnesty, we will also be paying very close attention to what happens in terms of folks ability to speak out during COP. Um, and to recognize that human rights are indivisible.

So limitations on the right to protest relate to climate crises and people's ability to claim their rights as indivisible. Victims, the survivors of the climate crisis and to recognize that government crackdown on dissent is one way that the structures that perpetuate climate, the climate crisis and other, um, structural impediments to human rights realization persist, you know, and, and at the same time as COP, there'll also be efforts to negotiate the resolution regarding this international court of justice, um, Um, The effort to get the International Court of Justice to issue an advisory opinion on state obligations regarding climate change.

So it's not linked officially to the UNFCCC process. But it's something that will be happening at the same time calendar wise. And in the months just following COP, so I think there'll be a lot of attention on that process as a way of. Addressing some of the weaknesses that for sure will be manifested in COP.

Iain: Yeah, and I think just adding to what Marta said there, I mean, you know, just to emphasize, yes, as Amnesty International, obviously, we have a duty to look at the other human rights issues at play in a country like Egypt. Which has sadly become more and more of a festival of the last decade. But this is also caught being held in Africa.

And I think at a time that we know we have a global energy crisis, when we have a global food security crisis, you obviously getting African governments already saying, well, again, it's all very nice, uh, for you Western countries that have benefited two centuries in my own country's case, from coal production, from fossil fuel to say, well, you should phase it out.

Uh, whereas we've got some of these fossil fuels. We want to be able to utilize him to have a better quality of life and a standard of living for our people as these countries develop. So there are clearly real tensions there. And again, it does come back obviously, as Marta said at the heart of it, to equality, to the financing arm of this, of looking at the countries that have got the most historical responsibility, but also the current responsibility and the wealth to ensure that developing countries who are contributing far, far less in the in for the most part.

to, uh, global warming, that they have the means to be able to mitigate and adapt. And that's so important. So it will be interesting to see where those discussions and obviously, as Marta said, you know, we've laid it out in terms of the human rights obligations that all of these countries have got to their respective peoples and that that mustn't, that mustn't be forgotten.

So I think there are definite tensions there. We know that we won't get everything we want from COP. We saw that with Glasgow, it's very incremental progress or sometimes no progress at all. But, uh, It will be interesting to watch. 

Marta: I just wanted to add something about the just transition and that one thing we'll be fighting for a cop is to ensure that a just transition is baked into the cop.

Negotiations in so far as possible. So amnesty has, has our business and human rights team has been doing a lot of research. On, um, extractive industries related to the production of batteries, which are going to be central to, to the energy transition and trying to ensure that we don't replicate the, um, exploitative, inequitable, um, processes that gave rise to that enabled fossil fuel extraction and, and processing, right?

So to try to do it better this time, instead of building it back better, we want to create a new system that's better. Ensuring that COP just isn't about cessation of fossil fuels, but it's also about a more affirmative vision for human rights that looks forward, um, and that looks for a future that is more respectful of the rights of people all over this planet than the present that we're in now and what that means for energy production.

Gavin: That's it for this episode of The Lancet Voice. If you want to carry on the conversation, you can find Jessamy and I on Twitter on our handles at Gavin Cleaver and at Jessamy Bagonal. You can subscribe to The Lancet Voice if you're not already. wherever you usually get your podcasts. And if you're a specialist in a particular field, why not check out our In Conversation With series of podcasts, tied to each of the Lancet specialty journals, where we look in depth at one new article per month.

Thanks so much for listening, and we'll see you again next time.