Abstract:

The climate justice Tribunals are now adopting and implementing these various ADR methods, enabling it to play a vital role in assessing their efficiency from the perspective of the stakeholders. This study is trying to focus on how these affected communities, corporations, and governments are seeing these tribunals’ ability and capability to settle and resolve disputes efficiently and making the polluter accountable for their actions.

As we look at these popular and recent cases like the “Ende Gelände Tribunal, the Turtle Island Sacred Sites Protection Project, and the Hague Declaration Tribunal”, they help us study a number of points of views that were ignored all these years but are now being addressed to and are being protected. Even with an increase in the community participation and using approaches that help them, still these affected communities often speak about problems related to power imbalances, irresponsible behaviours, and lack of proper implementation and outcomes. While many businesses may view this approach of alternative dispute resolution (ADR) as a softer and subtle way to settle disputes or may see it as an opportunity to promote and build public relations, still a lot of concerns are being raised regarding the accuracy of these methods and also to what extent are they effective. Even though the Governments see these tribunals as tools to build public relation on one hand, on the other they see these tribunals as threats, because if given proper powers they can cause a lot of power imbalances globally.

These methods promote peaceful resolution of disputes and raise awareness about the same, but still they still have a long way ahead before these methods can be fully identified as effective and are strongly able to hold the polluters responsible.

Keywords: Environmental Justice; (ADR); Effective Assessment; Climate changes Climate Justice Tribunals.

Introduction:

The establishment of these climate justice tribunals was a crucial step in response to these global environmental issues relating to climate change. These are an extra set of legal courts, that aim towards resolving issues related to environmental degradation, climate changes, and social inequalities. Their fundamental goal is to understand that these vulnerable communities, who in particular have been neglected more often have larger number of climate-related impacts, and they are in an urgent need to be identified and compensated for the losses that they have beard. These climate justice tribunals are the only platforms or forums where these neglected communities can voice there concerns but providing valid evidences of harm and ask or demand the governments, business and other institutions to make amends and compensate them.

These tribunals have these special features as they use new and creative forms of ADR to resolves these climate related disputes. They use methods like group discussion, conducting virtual webinars, collaborating with various NGO’s, that are working towards the same goal to create, a community or a forum, where people can speak their concerns and also at the same time can raise awareness about the current climate related issues and help create a structure where they global communities are coming together to combat these offenders that are polluting and effecting the climate largely. Now with the use of mediation, restorative justice, arbitration, and other such ADR processes, they are hoping to empower all the disadvantaged communities, and promote meaningful and healthy debate among stakeholders, in order to achieve fair results in the face of such complex and intricate concerns pose as a threat to the climate.

Research Methodology:

The research done on this paper is done using secondary sources, like Newspapers, journals, book, and websites to gather latest information on this topic of research.

Review of Literature:

Numerous of such climate justice tribunals and other quasi-judicial bodies have been and are still being established to handle and resolve many challenges related to the violations caused against the human race and the climate and as well as environmental wrongs. Being a major part of such existing legal

structures, these tribunals have given the impacted parties a forum where they can demand for compensation to the damages caused and can demand there right to justice. (Voigt, 2019)¹

These climate justice tribunals are using many creative techniques to solves disputes and are trying to give a more flexible and inclusive way to settle the conflicts that are related to climate changes.(Menkel-Meadow, 2019)²

The creative methods of ADR that these tribunals are using are trying not make them as complex and time consuming like the traditional litigation process. Because if these methods of dispute resolution are not quick and easy then there will be similar drawbacks as they are in the existing legal methods.(Dixon & Kukreja, 2019)³

Also, these tribunals are now able to instil in the neglected communities a sense of trust and understanding where they not that the stakeholders involved will be held accountable.(Rahman,2016)⁴

Recent studies show these dispute resolution processes as an important tool for these sudden arising problems of climate changes at these methods are well equipped to deal in substantive manner and they encourage a healthy and intellectual discussions among the stakeholders.(Smith et Al’s research from 2023)

Principles of Climate Justice:

Fairness: The whole process is as transparent as it can get ad this helps the justice provided to be fair and just . As the whole road map to make such decision is so clearly visible that, being biased is not an option here.

¹Voigt, C. (2019). Climate Justice: Developing a Fair Approach to International Climate Negotiations. Journal of Environmental Law, 31(1), 7–31.

²Menkel-Meadow, C. (2019). The trouble with alternative dispute resolution: The rise of mediation and its discontents. Notre Dame Law Review, 95(3), 1137–1175.

³Dixon, J. W., & Kukreja, V. (2019). The transformative potential of restorative justice and mediation in environmental and public health disputes. Fordham Environmental Law Review, 30(2), 349–396.

⁴Rahman, A. (2016). Trust, Accountability, and the Role of ADR in Environmental and Public Health Governance. Ohio State Journal on Dispute Resolution, 31(1), 159–194.

Inclusion and Participation: These methods they promote inclusivity as they let the neglected communities to participate in the process and make their voices heard.
Human Rights: These methods they protect the rights of human like the right to life , right to health and right to sanitation, etc., as the climate and humans are interconnected and harm caused to one brings major effects on the other.
These methods they remove the veil and make the entire process transparent, as the marginalized communities are able to know that the governments, business, and other such responsible organizations are being held responsible for their part is causing such drastic changes in climate of these communities surrounding environment.

Function of Alternate Dispute Resolution:

Empowering Affected groups: This method of ADR promotes one of the main principles of natural justice and that is “Audi Alterum Partem”, which means the right to being heard. In this process, both the parties can put forwards their side of the arguments directly Infront of the decision makers. By doing so it is not only easier to understand the point of views of the parties but also the decision makers can understand the demands, concerns and also, they can request for the compensation for the damages caused in the polluters that led to a sudden climate change.
Promoting Accountability and Transparency: This method of resolving disputes ensures that the polluters are held accountable for the harms that they have caused to the environment and the people living there. The process ensure that the outcome is impartial and that there right of being heard is not infringed.
Creative Solutions: These tribunals always try to find creative and innovative solutions to find answers for the various problems related to the climate. It also encourages the parties to dispute to not repeat such offence as they see these solutions to be so amicable and not retributive in nature.
Improving Access to Justice: In this constant struggle to protect the climate and to get justice, the process of alternate dispute resolution acts as a catalyst that facilitates participation of the marginalized communities and ensure that they are being heard, as this is the only method so far which is fastest and less expensive and time consuming in comparison to the traditional ways of litigation.

ADR Mechanisms:

Mediation: It is a very thorough and structured process of negotiation facilitated by a neutral third party called as a mediator, to resolve a dispute between two or more parties. In this whole process of mediation, the mediator assists and guides the parties by talking and communication to them clearly , and by helping them in considering various other possible solutions in settling their side on interests in the dispute. To arrive at a mutually willing result, mediation plays a stronger stress on cooperation, group effort, and help building a mindset of same capacity. Mediation can be used in these climate justice courts to resolve various disputes including resource management, community rights, climate changes, and environmental degradation. It enables and provides the impacted communities, governments, and businesses with a forum where they can have discussions to curb climate related problems and find long term solutions.
Arbitration: This is a formal kind of dispute resolution techniques where the parties to dispute are represented by an impartial arbitrator or a panel of arbitrators. The awards awarded by these officials have legal binding force and the parties to dispute the obliged to abide to it. This method is used by tribunals to generally resolve disputes related to property, commercial responsibilities, etc.
Restorative Justice: The main goals of restorative justice is to resolve conflicts by making the offenders accountable, and to heal relationships and repair the damages that were caused . The tribunals do this by bringing the parties to the dispute together to discuss and resolve their disagreements and to try to come to a common base of understanding and finding remedies to resolve the disputes.
Community level Discussions: This is a very popular approach that helps raises public awareness and also strengthens the cause of environmental justice by letting various impacted groups to speak directly to the tribunals about there problem. Hence, encouraging representativeness.
Finding of facts and Conducting Investigation: In order to determine and understand the actual facts of a case and also to evaluate the adverse effects on the environment and human rights, tribunals can carry out self-regulating study, gather evidences, and call experts from various related fields hear their testimony.
Community-Based Dispute Resolution: Tribunals may enable communities to settle conflicts within their own frameworks, fostering inclusive and culturally sensitive solutions, by drawing on local customs and knowledge.
Hybrid Model: To meet the unique requirements of each case and situation, some tribunals mix components of other processes, such as public hearings with mediation sessions.
- The Okavango Delta Community Trust and De Beers (2019): These parties, concerned about the effects of diamond mining on the Okavango Delta ecology and Indigenous populations, came to a mediated agreement with the help of a neutral third party.⁵
- The Netherlands Climate Change Lawsuit (2019): Court-appointed experts mediated a dispute between environmental organizations and Shell about reductions in emissions; the mediation finally failed to reach an agreement.

Case-study:

Issue: The effects of diamond mining on Botswana’s indigenous populations and the Okavango Delta ecology “(Okavango Delta Community Trust & De Beers, 2019)”. ADR Mechanism: A third party who is impartial facilitates mediation. Result: An agreement that addresses issues raised by the community, such as plans for mine closure, environmental protection strategies, and community development projects.⁶
‘Project to Protect Sacred Sites on Turtle Island (Ongoing)”: Problem: Preserving Turtle Island’s indigenous sacred sites from environmental degradation and development. ADR Mechanism: Customary Indigenous restorative justice procedures, such as community- driven solutions, apology circles, and discourse sessions.

⁵⁵International Tribunal for the Rights of Nature. “Home – International Tribunal for the Rights of Nature.” rightsofnaturetribunal.org. Accessed Feb 15, 2024. Okavango Delta Community Trust. “De Beers Group and Okavango Delta Community Trust reach landmark agreement.” Press Release, September 3, 2019. Available at https://www.odc.co.bw/.

⁶ Ibid

Result: An ongoing process of mending, making amends, and safeguarding holy locations that promotes environmental care and cultural respect.⁷

The Tribunal for the Hague Declaration (2020):

Problem: The climate change inactivity of the Dutch government. ADR Mechanism: Symbolic public hearings and announcements. Result: A Dutch court ruling compelling the government to expedite emission reductions was influenced by increased public knowledge and pressure, indicating the potential of symbolic judgments for public accountability.⁸

“The Tribunal Ende Gelände (2023)”: Problem: The effects of Germany’s growing coal mines on the environment and society. ADR Mechanism: Gathering testimonies, holding public hearings, and making suggestions for restitution and policy adjustments.

Result: Increased public understanding of the negative effects of coal expansion, informed policy suggestions, and amplified community voices.⁹

“The Netherlands’ 2019 Climate Change Lawsuit Against Shell”: Problem: Shell’s emissions are higher than the Dutch climate goals. ADR Mechanism: A settlement on emission reductions through mediation facilitated by a court appointment.

Result: Although a resolution was not reached, the attempt shows that mediation can be used to address corporate responsibility for climate action.¹⁰

⁷ Turtle Island Sacred Sites Protection Project. “https://nativeorganizing.org/our-work/sacred-site- preservation/” Accessed February 15, 2024.

Borrows, John. “Resurgence and reconciliation: Indigenous-led justice in Canada.” Cultural Anthropology 26.4 (2011): 672-693.

⁸ The Hague Declaration Tribunal. “Final Verdict.” September 25, 2020. https://www.ohchr.org/en/press-releases/2024/01/un-human-rights-experts-welcome-start-icj- genocide-hearings-hague-reiterate

⁹ Ende Gelände Tribunal. “The Verdict.” November 20, 2023. https://www.ende- gelaende.org/en/press-release/press-release-01-17-2023/

¹⁰ “Milieudefensie et al. v. Royal Dutch Shell plc. Court of The Hague, June 30, 2021. https://climatecasechart.com/non-us-case/milieudefensie-et-al-v-royal-dutch-shell-plc/”

“The Hague Declaration Tribunal (2021)” had an influence on a Dutch court verdict that illustrates the possible influence of public pressure brought about by tribunals on government action. Concerns relating to long-term dedication and possible political reasons, still be existent.¹¹

Impact of Climate Justice Tribunals:

Positive Impact:

Increase in awareness: Tribunals are an open space, where the genuine experiences of those who are and were directly impacted by climate change can be discussed in detail and recorded for future needs, that is for creating awareness and also for educative purposes. Thus, increase in public awareness about the problem can stimulates and advance discussion, which can and may have a strong impact on policy changes, policy making and hold the offenders accountable.
Encourages Discussions at global level: Tribunals provide a common forum for communication and also exchange of different viewpoints by bringing together a variety of stakeholders, including different governments, businesses, and impacted communities at local, national and global level .
Hold Offenders accountable: Even though the tribunals are not vested with proper binding legal authority, they still are able to put a lot of pressure on the polluters/offenders through recommendations, public statements, and possible legal action.
Impact legal and policy frameworks: Policymakers and legal professionals can benefit from the suggestions and rulings of tribunals, which may result in more robust environmental protection and climate justice laws, rules and regulations. By doing so, they are creating a stronger framework for holding polluters responsible and safeguarding impacted communities.
Build Strong Communities: By gaining experience in methods like lobbying and bargaining, participating with the tribunals can help various communities become more powerful.

Negative Impact:

Limited Binding of Judgments/ Rulings: One of the main drawbacks of these tribunals, is that their rulings or judgments are not legally enforceable; but instead, they are totally dependent on voluntary compliance or if there is some amount of pressure created by the public.

¹¹ The Hague Declaration Tribunal. “Final Verdict.” September 25, 2020. Available at https://www.ohchr.org/en/press- releases/2024/01/un-human-rights-experts-welcome-start-icj-genocide-hearings-hague-reiterate

Representative effects: Tribunals run at a huge risk of not having any impact they had hoped for. They try to show measurable impact which can be seen in numbers, but the actual truth is far from reality. These tribunals should actually focus on brining a significant change that can actually help communities.
Limited scope and Representation: At the moment, tribunals do not handle and represent all communities or deal with diverse climate justice-related matters. Due to such lack of representation some environmental problems faced by certain communities are left out of the discussion leading to no help or justice. Which ends up raising the questions related to inclusivity and global justice.

Suggestions:

Climate justice tribunals must achieve noticeable results in addition to figurative ones if they are to have the greatest possible influence at both national and global level. This involves focusing on reparations of policies and legislative improvements, enabling the communities to hold the polluters accountable for their actions, and trying stayed connected with the legal systems for enforcement, and expansion of their reach through these specialized tribunals and also through latest digital platforms. Their capacities will also be further strengthened by embracing and promoting innovation by combining classic ADR with fresh and new strategies like community discussions and in helping them in using technology to make educated judgments and investigating about and creating awareness about legal options like climate lawsuits. In the end, putting a considerable emphasis on inclusivity, concrete solutions, and most importantly community empowerment which will help advance these tribunals to play a crucial role in the realization of global climate justice.

Conclusion:

Climate justice tribunals are facing many problems like effectiveness of their judgment, power imbalances, and the absence of a very meaningful and visible results, but they do have the capability to raise public awareness, encourage conversations, and strengthen communities. They must be well incorporated into legal systems, amendments and policy reforms must be given top priority, and innovative technology must be employed to advance and promote inclusivity in order to maximize their impact. By embracing innovation via hybrid ADR, data analysis, and legal tools like climate litigation, these tribunals can be granted stronger and implied ability to hold polluters accountable and help the community achieve wider climate justice. To ensure the success of building a more sustainable and equitable future, communities, legal experts, and legislators are required to cooperate.

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Deepali Sharma

Bennett University

“Climate Justice Tribunals and How they use ADR mechanism”