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Arpitha Kodiveri is a scholar of international justice and Assistant Professor of political science at Vassar College. She received her doctorate in law from the European University Institute as a Hans Kelsen Fellow and an LLM from UC Berkeley as a Fulbright-Nehru Fellow. Kodiveri's work focuses on the role of climate litigation in redressing claims of loss and damage among the front-line nations of the global South. She previously worked as an environmental lawyer supporting Adivasi and forest-dwelling communities in India.
 
For issue #111 of The Internationalist, Kodiveri examines the fragmented approach of international environmental law and argues for a synergistic jurisprudence that addresses biodiversity and climate crises together, moving beyond specialized litigation silos to foster more coherent global responses.

Introduction

The recent conference of parties on the convention of biological diversity concluded in Cali, Colombia with a few important developments: an agreement on an institutionalized mechanism for the involvement of indigenous voices in shaping decisions and the start of a possible global biodiversity fund. However, the narrative surrounding the CBS COP 16 was an all too familiar one where the biodiversity crisis did not receive as much attention globally as the climate crisis. 

Science tells us that the triple planetary crisis of climate change, biodiversity loss and pollution are intertwined. Addressing the climate crisis also requires careful attention to biodiversity loss. However, the evolution of international environmental law is fragmented by creating silos in how these crises are legally addressed.

In an article, Harro Van Asselt calls for strategies to synergize these fragmented legal arenas of international biodiversity law and climate law to have a more coherent response to the triple planetary crisis. There have been efforts to read the Rio conventions namely UN Framework Convention on Climate Change (UNFCCC) and Convention on Biological Diversity (CBD) and the UN Convention to Combat Desertification (UNCCD), together or to build bridges across these efforts. The legal and policy linkages between biodiversity and climate are many and range from the impact of fossil fuel expansion on both ecological crises, the need for finance from the developed countries to address both biodiversity and environmental loss, and the need to conserve biodiversity to yield better climate outcomes. Yet, interestingly, the world of litigation is responding by creating more specific genres like climate and biodiversity litigation.

In this essay, I examine why contemporary developments in global environmental litigation efforts are moving in the direction of creating more specialized genres as opposed to building synergies by examining cases that deal with the complex issues of biodiversity and climate jurisprudence.

Benefits of Silos?

In a recent blog post Laura Hildt speaks to the potential rights leap in biodiversity litigation based on a recent complaint filed by BUND in Germany where the failure of the state to address the biodiversity crisis impacts the exercise of human rights like the right to life and freedom. The blog speaks of the challenges associated with pure biodiversity litigation, which unlike climate litigation, does not have clear binding international legal limits to govern conservation such as the Paris agreement and the 1.5-degree Celsius mark. This case also comes at a time when previous climate litigation has thrown open new possibilities, like in Germany where the Klima Seniorinnen case expanded locus standi to allow NGOs to bring cases before the courts. 

In the present case being brought by BUND, the scientific evidence being used speaks to the need for the biodiversity crisis to be dealt with as seriously as the climate crisis. As seen in the complaint below :

"Contributing to functioning ecosystems, biodiversity provides a number of essential services for living organisms, such as ensuring the resilience and stability of ecosystems, regulating the climate, pollination in food production, keeping air and water clean, enabling soil formation and protecting against natural disasters such as floods and erosion." 

Referring to IPBES reports to elucidate this point, there is a scholarly move ‌to recognize types of litigation and boxing them into genres of climate and biodiversity. I argue that the creation of these genres offers a possibility for biodiversity litigation to ride the ongoing successful wave of climate litigation and the possibility it provides for adopt associated strategies to inform and shape the future of biodiversity litigation.

In a recent climate judgement in India in M.K. Ranjitsinh & Ors. v. Union of India & Ors. the Supreme Court was faced with the difficult question of considering the priorities of renewable energy alongside the conservation of an endangered bird, the Great Indian Bustard. The case initially began with the legal claim by a concerned citizen about the conservation of GIB who was under threat due to the power lines in the area. This was a genre-bending experience where what initially can be classified as biodiversity litigation went on to become a judgement concerned with climate change. 

The judgement, however, artificially pits these competing crises in a way that creates a jurisprudence of conflict where a choice has to be made between biodiversity conservation and addressing climate change through renewable energy. Environmental lawyer Ritwick Dutta aptly asks the question, “So, how do you balance your commitments to the Paris Agreement with those under the Convention on Biological Diversity?” in a case where to address climate change it dilutes protections for the critically endangered bird. This is an instance where climatizing the biodiversity problem takes away from biodiversity conservation and there is thus a need to have silos where these issues are dealt with if not in isolation of each other and in a way that they are equally prioritized. 

Towards a jurisprudence of synergies 

In a synergistic jurisprudence, where the ecological crisis is legally dealt in tandem with and not against the other, avoids a jurisprudence of disconnect that specialized silos can create. 

There are interesting examples in existing climate litigation where the biodiversity crisis is read with the climate crisis. For instance, the recent advisory opinion by the International Tribunal for the Law of the Seas (ITLOS) identified that Green House Gas emissions were having disastrous impacts on marine ecosystems where it states:

"The introduction of carbon dioxide (a type of anthropogenic greenhouse gas emissions) and heat (an example of thermal energy) into the marine environment causes climate change and ocean acidification, which “results or is likely to result in such deleterious effects as harm to living resources and marine life,….etc,” as illustrated in Article 1.1 (4) of UNCLOS. "

Similarly, in a case being brought by a non-profit organization Notre Affaire à Tous which is a legal proceeding against the French state for inadequate action on climate change speaks to the irreversible nature of ecological loss from climate change and the need for it to be compensated. The complaint reads: 

"...ecological damage is an objective loss, distinct from any personal repercussions.Its characterization presupposes the meeting of two cumulative conditions: on the one hand, 'non-negligible' damage and, on the other, damage 'to the elements or functions of ecosystems or to the collective benefits derived by man from the environment'."

In all cases discussed in this essay, there is a lot of discussion about the convergence of the climate and biodiversity crises. The ITLOS advisory opinion and the Notre Affaire à Tous are instances where it shows possibilities for developing a jurisprudence of synergies that can provide a holistic basis to legally address the triple planetary crisis rather than further reinforcing legal fragmentation.

The question that the courts, including the International Court of Justice, will now have to deliberate upon is the state obligations and responsibility under international law to address the climate crisis along with other ecological crises.

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