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The 11 nations heralding a new dawn of climate constitutionalism

The 11 nations heralding a new dawn of climate constitutionalism

Environmental constitutionalism has become a widespread phenomenon: this is where environmental rights and obligations are incorporated into national constitutions. But now a group of nations is taking things further, adopting ‘climate constitutionalism’ and thereby placing themselves at the forefront of expressing climate concerns in the language of constitutional rights, as this commentary explains.

One hundred and fifty countries around the world had taken action on environmental constitutionalism as of 2017 and now ‘climate constitutionalism’ is seeing this trend evolving to address the global threat created by the climate crisis. Broad environmental protections in national constitutions have already been used in climate litigation in some countries (see, for example, the case of Neubauer v. Germany), and this creative use of litigation and judicial power may well develop further in countries where this is possible.

Identifying climate constitutionalism

To date, much analysis of climate constitutionalism has focused on such judicial action. Less widely discussed are the emerging efforts of constitution-makers around the world to ensure that constitutions drive and reflect the need for climate action.

In an attempt to fill this gap, the Grantham Research Institute has partnered with the Edinburgh Centre for Constitutional Law to conduct a comprehensive mapping of climate-relevant constitutional provisions included in the Institute’s Climate Change Laws of the World database.[i] So far, we have identified 11 jurisdictions that have included a dedicated climate constitutional provision or ‘climate clauses’. They are: AlgeriaBoliviaCôte d’IvoireCubaDominican RepublicEcuadorThailandTunisiaVenezuelaVietnam and Zambia.

The review identified a set of characteristics regarding the climate clauses and their constitutions, although inferences should be drawn hesitantly, if at all, owing to the law of small numbers and in the absence of more contextual research.

From a regional perspective, Latin America has about 45 per cent and Africa about 36 per cent of countries with a climate clause while Europe and North America have none. Most constitutions with climate clauses are recent – 63 per cent have been passed within the past 15 years. Of the 11 climate clauses, 82 per cent are in the main texts and the remaining 18 per cent within the preambles. The majority of the climate clauses, 82 per cent, relate to both mitigation and adaptation and resilience.

Most climate-related provisions are broad

Most climate constitutional provisions identified are broad, stating a commitment to tackle climate change or achieve an aspirational climate scenario. This includes the provisions from Algeria, Cote d’Ivoire, Ecuador, Zambia and Vietnam. Algeria’s constitution, for instance, recognises a concern about the effects of climate change, as well as a pledge to act, and Cote d’Ivoire’s provision expresses the country’s commitment to contribute to climate protection.

Some constitutions, such as Venezuela’s and Vietnam’s, include protecting the climate alongside other natural resources. In others, climate is considered with respect to specific sectors or issues. For example, in the constitutions of Bolivia and Cuba, climate is explicitly referenced in the provisions related to rural development; in the Dominican Republic in the provisions on territorial ordering; and in Thailand with respect to national reforms regarding water management.

Few climate-related provisions contain actionable duties

In terms of the obligations, few climate clauses establish specific, actionable state duties to tackle climate change. Ecuador’s provision lists a set of climate actions to be adopted: “The State shall adopt adequate and cross-cutting measures for the mitigation of climate change, by limiting greenhouse gas emissions, deforestation, and air pollution; it shall take measures for the conservation of the forests and vegetation; and it shall protect the population at risk” (article 414 of the Constitution of Ecuador). The Zambian constitution requires the State “to establish and implement mechanisms that address climate change”, although there are no details regarding implementation.

Rights-based provisions are relatively scarce

Finally, despite potential connections between constitutional protection for climate, and environmental rights, only two constitutions explicitly connect their climate provisions to environmental rights. Tunisia’s constitution guarantees all citizens the right to participate in the protection of the climate, while Venezuela’s provision connects the individual and collective right to a healthy environment to the state’s fundamental duty to ensure the population “develops in a pollution free environment in which […] climate […] receives special protection”.

None of the constitutions reviewed recognise the right to a stable climate per se, or the temperature targets of the Paris Agreement and/or reports by the Intergovernmental Panel on Climate Change. Nor are there provisions relating to ‘just transitions’, a commitment to independent, evidence-based advice, or guaranteed consultation with stakeholders.

These 11 constitutions are the first to articulate climate considerations in the language of constitutional rights. The variety of forms in which they do this highlights the way in which such concerns are incorporated in a fragmented manner. None of the provisions reviewed contain reference to systematic climate action, either in terms of climate science or in ensuring that national actions contribute to constraining warming to safe global temperature limits.

Constitutions are becoming less uniform and climate change clauses will need to reflect this

The current global order is changing from one of Western dominance to one of deep pluralism. Mainstreaming climate change within constitutions will therefore need to be conceived as more than simply an extension of the previous generation of environmental constitutionalism. Climate clauses will have to both reflect general standards of good governance and resonate with the cultural ethos of the society within which they are embedded.

Prevailing constitutional design philosophies will also need to adapt and expand for more general reasons than the issues of culture that are emerging as core considerations for constitutionalism in a changing world. An institutional framework established by or anchored in a constitution must be capable of meeting the multifaceted policy challenges of climate change. In addition to the protection of individual rights by judicial process, the institutional framework must be able to balance societies’ competing democratic interests represented in executives and legislatures, as well as technical expertise.

A more complex form of climate constitutionalism is starting to emerge

Recent developments indicate an emerging trend of constitutional reform and constitution-making in which climate considerations are being explicitly foregrounded. The Chilean Constitutional Convention declared a climate emergency on 4 October 2021, and approved statutes of the convention to consider the climate emergency in its principles and rules. Similarly, the International Climate Councils Network, launched in November 2021, aims to create an institutional framework in which climate policy amounts to credible commitments to people from different communities, international partners and markets. These principles are likely to be closely connected to future constitution-making processes.

Such developments suggest that a more complex and potentially robust set of mechanisms by which climate action is advanced by a fuller set of constitutional channels could be on the horizon.

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