In this article, we are delighted to share the runner up entry from our law undergraduate essay competition 2022-2023, written by Nurisabela Amira Shah, law undergraduate at the London School of Economics. Nurisabela’s essay shares her thoughts on the potential for the law to provide significant long-term solutions to the urgent concern of climate change, discussing focus areas for lawyers at both the local and international level.

Let’s keep the climate emergency at the forefront of legal debate, news and practice. In due course we will publish a grand summary of the ideas in all of the submitted essays.

What difference can lawyers make in tackling the climate emergency?

Due to its dynamic and ubiquitous nature, the law has great potential to provide significant long-term solutions to the urgent concern of climate change. Oxford Dictionaries defines the climate emergency as “a situation in which urgent action is required to reduce or halt climate change and avoid potentially irreversible environmental damage resulting from it”. In a world suffering from the irreversible impacts of rising temperatures and abnormal weather patterns, it is vital that lawyers contribute to tackling the climate emergency and reduce the environmental damage already inflicted onto the planet. The responsibility of lawyers is crucial: the legal profession’s unique, distinct roles of advising, litigating, and legislating can lead to positive advances in the fight against climate change. 

This essay will discuss two areas that lawyers can engage in to tackle the climate emergency on a local and international level. Locally, lawyers can advise clients on avoiding environmental harm in their operations and engage in different climate conscious initiatives. On an international level, lawyers can support the establishment of ecocide as an international crime.

Local level: legal advice, climate literacy and advocacy

The legal expertise and advisory role performed by lawyers places them in an advantageous point to mitigate the consequences of the climate crisis on a corporate level. Therefore, one way lawyers can tackle the climate emergency is through engaging in climate conscious legal practice. For example, the Law Society’s Climate Change Resolution provides solicitors with guidance on how to provide legal services, which take into consideration climate change[1]. This includes advising clients on how to attain targets in a sustainable way, helping to understand possible environmental liabilities or risks associated with inaction, and informing clients on the benefits of disclosing information to shareholders on potential climate risks and opportunities within their transactions, operations, and supply chains[2]. 

Lawyers can also be involved in incorporating climate clauses into the drafting of contracts, reflecting the businesses’ move towards environmental or net zero policies. Notably, climate clauses were created by the Chancery Lane Project (TCLP), which include investment clauses and various other legal agreements. These clauses can significantly impact precedents: if a company decides to set achieving net-zero as its goal, lawyers can assist through using TCLP’s clauses, which details solutions to accomplish this, and help to establish a carbon neutral corporate culture by incorporating carbon neutral solutions into precedents and drafting[3].

We can exemplify how incorporating climate clauses can tackle climate change by using Vodafone as an example. To reach their goal of carbon neutrality, Vodafone is reducing their carbon footprint by decarbonising its supply chain. This has led to the inclusion of environmental compliance clauses into procurement contracts, comprising of two categories of clauses applied according to a supplier’s environmental risk profile: those with a low risk are given lighter clauses, whereas those with a greater risk have more onerous clauses imposed onto them with burdensome obligations and the threat of severe repercussions if the contract is breached[4].

Furthermore, to ensure that the next generation retain the same vigour towards tackling the climate crisis, the current generation of lawyers should highlight the importance of climate literacy. This may include training lawyers on practical net zero lawyering and helping them understanding the Paris agreement.

Additionally, lawyers can become more involved in alternative forms of climate change litigation such as engaging in dispute resolution and pro-bono within their country. By doing so, this will enable affordable access to justice for those negatively affected by the climate crisis, providing protection for victims, and awarding them appropriate compensation.

International level: ecocide

Another way lawyers can mitigate the impact of climate change is by advocating for ecocide to become an international crime. Higgins (2010) defines ecocide as the “destruction of ecosystem(s) of a given territory” to the “extent that peaceful enjoyment by the inhabitants of that territory has been or will be severely diminished”[5]. By making ecocide a criminal offence, this will ensure that corporations and governments are held responsible for serious harm inflicted against the environment. Lawyers could advise member states to the International Criminal Court (ICC) to amend the Rome Statute, by proposing a draft for ecocide law as an amendment[6]. If there is a two-thirds majority in favour of the amendment at the next assembly of the ICC, a review for the adoption of ecocide and subsequently, it can be made a criminal offence in countries where it is ratified.

Nevertheless, ecocide has its limitations: under the ICC statute, only individuals can be prosecuted, leading to scapegoating within corporations; as not all countries are members of the ICC, states such as the USA and China, who are the largest polluters, would fall through the net of criminalisation; and the ICC struggles with the crimes already under its jurisdiction, and therefore, introducing ecocide may overburden the ICC[7]. 

Despite these limitations, we cannot disregard the potential positive impact ecocide will have in countering climate change. Successfully amending ecocide into the Rome Statute would demonstrate how the work of international lawyers could create a global legislation that addresses the pertinent environmental concerns of the international community. It will ensure that corporations and governments act in environmentally conscious ways due to the threat of legal enforcement and will serve as deterrence from harming fragile ecosystems. For example, the transboundary nature of climate risks and harms, such as oil spills and air pollution, means that accountability will be restricted by jurisdiction. However, the introduction of universal jurisdiction alongside ecocide will ensure that individuals are justly prosecuted regardless of where they committed the crime. 

In conclusion, lawyers have the potential to make significant advancements in mitigating the impact of climate change. The aforementioned practices and proposals exemplify the increasing ethical obligation of lawyers to reaffirm businesses, clients, and the government’s commitment to taking initiative in countering the climate emergency. Environmental goals include carbon neutrality and lawyers can effectively achieve this through transparent advising, informing clients of climate risks in their pursuits or conduct of business, and integrating climate-conscious clauses into contracts.

Footnotes

[1] The Law Society, “Creating a climate-conscious approach to legal practice” (The Law Society, 28 October 2021) accessed 18 February 2023

[2] ibid

[3] Practical Law Environment, GC100. “Journey to net zero for in-house legal teams” (Thomson Reuters, 22 July 2021) accessed 20 February 2023

[4] ibid

[5] Polly Higgins, Eradicating Ecocide: laws and governance to prevent the destruction of our planet (Shepheard-Walwyn Publishers Ltd 2015) 61-92

[6] Stop Ecocide International, “Making Ecocide A Crime” (Stop Ecocide International, 2019) accessed 21 February 2023

[7] Rachel Killean, “The Benefits, Challenges, and Limitations of Criminalizing Ecocide” (The Global Observatory, 30 March 2022) accessed 22 February 2023