As governments show signs of losing credibility for their capacity to tackle the world’s greatest challenges, could the courts offer a new sense of hope for international governance? Recent cases at the national and international level signal a new role for the judiciary in protecting global public goods. At a time of great uncertainty, courts may be the new game-changers in reshaping our institutions.
What does ExxonMobil, the giant US fossil fuels corporation, have in common with Islamic terrorist Ahmad al-Faqi al-Mahdi? On the face of it, little. Both however are the subject of judicial investigations with far-reaching implications for global governance and justice in the 21st century. In the recent case of ExxonMobil, the company is under investigation by state attorneys in New York and Massachusetts on suspicion of failing to disclose well-known risks of climate change to company shareholders. With the company’s notoriety as a supporter of climate denialism already on the public record, any covert corporate attempt to thwart strict disclosure laws on non-financial risk for shareholders could prove highly damaging. Where environmental campaigners have failed to bring the multinational corporation to account for alleged environmental crimes, it may well be that the courts succeed.
The Al Mahdi case signals another breakthrough in judicial intervention on the global cultural commons, this time by the International Criminal Court in The Hague. Known principally for its focus on crimes against humanity, the 15-year old United Nations court broke with convention in the Al Mahdi case to establish the willful destruction of cultural heritage as a war crime. Brought to the International Criminal Court at the behest of the governments of Mali and Niger, the case against the Ansar Dine terrorist Al Mahdi, who confessed to the destruction of UNESCO-protected religious and historic sites in Timbuktu, Mali, in 2012, was keenly watched in light of cultural atrocities committed by Daesh in Iraq and Syria. The Court’s judgment in August 2016 found Al Mahdi guilty of the crimes beyond reasonable doubt and sentenced him to nine years’ imprisonment.
“As one looks to the future, with governments losing trust and credibility with electorates, the roles of the legislature and judiciary – the other two pillars of constitutional governance – are coming back into focus as sites of democratic redress.”
Shortly on the heels of this precedent-setting case, the International Criminal Court broke ground again in September 2016, this time by announcing that it would henceforth include factors such as the “destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land” within its remit of criminal justice. This vastly broadened remit for pursuing claims against governments, companies or individuals by affected communities, on everything from reckless mining to land grabs, has huge implications, and a new frontier for justice seekers has opened.
There is little doubt that judgements such as the Al Mahdi case, or recent court actions on climate change such as the Dutch Urgenda and Pakistan’s Leghari cases, all represent game-changers. They have established litigation through national and international courts as the new battleground for governance of the global commons and public goods. As one looks to the future, with governments losing trust and credibility with electorates, the roles of the legislature and judiciary – the other two pillars of constitutional governance – are coming back into focus as sites of democratic redress.
Environmental lawyers and judges, in particular, have not been slow off the mark. In April 2016, a group of eminent international jurists established the Global Judicial Institute on the Environment in Brazil to promote the environmental rule of law and strengthen mechanisms for international legal redress on climate change, oceans and forests crises. Working with legislators through groups such as GLOBE International, their reach and impact can be profound and reshape public expectations of, and confidence in, democratic public institutions. At a time of great uncertainty and global challenge, confidence in a world governed by the rule of law in an independent and equitable manner is a precious, and renewable, resource.
