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Thalia Viveros Uehara
School for Global Inclusion and Social Development
University of Massachusetts Boston
May 2022

Addressing Health Crises through Courts?

Climate Litigation in Latin America, the Right to Health and Vulnerable Populations

Ph.D. Dissertation Proposal

(Co-Founder, Social and Economic Rights Associates)

Content

1. The Problem

2. Research Questions

3. Conceptual Framework

4. Relevance

5. Methodology

6. Validity and Ethical Considerations

7. Limitations

The Problem

1

Climate Change is causing Health Crises

Image: Simulated change in annual mean temperature at 1.5°C global warming (IPCC, 2022).

The world is warming, and the climate will likely continue to change.


Even in a low emissions scenario, there is at least a greater than 50% likelihood that global warming will reach or exceed 1.5°C in the near-term (2021-2040) (IPCC, 2021).

Climate change has adversely affected the physical and mental health of people globally (IPCC, 2022).


In all regions, extreme heat events have resulted in human mortality and morbidity. Health services have been disrupted by extreme events such as floods (IPCC, 2022).


Globally, climate-sensitive food-borne, water-borne, and vector-borne disease risks are projected to increase under all levels of warming.


Poverty and inequality result in disproportionate exposure and impacts for the most vulnerable groups (IPCC, 2022).

Latin America's poverty and inequality

exacerbate
health vulnerability to climate change

Climate change is increasing morbidity, mortality, and disabilities (IPCC, 2022).

209 million people living in poverty (ECLAC, 2021).

Highly unequal access to quality health care

While Argentina and Uruguay stand above the regional average of 2 doctors per 1000 population, Honduras and Guatemala have the lowest number of physicians per 1000 population at or below 0.5 (OECD and The World Bank, 2020).


Brazil’s Amazonian North has 1.1 medical doctors per 1,000 inhabitants, compared to 2.8 per 1,000 in the richer Southeast (Scheffer, 2015).


Changing climatic patterns are facilitating the spread of the chikungunya virus, dengue, and Zika as significant public health challenges in some countries (IPCC, 2022).


Extremely long dry spells become more frequent and increase the number of fires, thereby aggravating the incidence of respiratory and cardiovascular diseases (IPCC, 2022).


In the southeast of Brazil, for instance, droughts have impacted the well-being of over 40 million people (IPCC, 2022).

Courts are gaining prominence as the last hope against inaction by states

Image: Global GHG emissions and projections for meeting the 1.5°C Paris Agreement goal

(Climate Action Tracker, 2021)

By 2017, 164 countries globally had enacted climate change regulations (Nachmany et al., 2017).

The Kyoto Protocol, which set binding emission reduction targets for high-income countries, was adopted in 1997 and entered into force in 2005.

  • Since 2015, the number of climate litigation cases has increased, especially those which rely on human rights as a legal basis.
  • The new Latin American constitutionalism (NLAC) gives preponderance to the role of courts in advancing social transformation.
  • Now it is the third world region where most human rights-based climate cases have been brought (after Europe and North America).

Future Generations v. Ministry of the Environment and Others

  • Adjudicated in 2018 by the Colombian Supreme Court
  • It ruled in favor of the plaintiffs (a group of children and youth) and mandated the defendants (several Ministries of the Colombian government and state and local authorities) to protect the Amazon by enforcing both mitigation and adaptation actions.

The state of present research does not pay necessary attention to how courts could replicate social and health inequalities by failing to account for the socioeconomic context in which climate litigation unfolds.

Research Questions

2

How do health crises emerge within, and how are they tackled by courts through, domestic climate litigation in Latin America?

How do plaintiffs' profiles, opportunity structures, resources, motives, objectives, arguments, and legal bases of their claims relate to existing and emergent health concerns of vulnerable populations?

VARIABLES

VARIABLES

How do courts' profiles, accessibility, resources, arguments, and legal bases of their judgments relate to existing and emergent health concerns of vulnerable populations?

  • Profiles
  • Opportunity Structures
  • Resources
  • Motives
  • Objectives
  • Arguments
  • Legal Bases

  • Profiles
  • Accessibility
  • Resources
  • Arguments
  • Legal Bases

Gloppen's framework to analyze what drives the litigation process

Gloppen, S. (2008). Litigation as a Strategy to Hold Governments Accountable for Implementing the Right to Health. Health and Human Rights, 10(2), 21–36.

VARIABLES

QUESTION

QUESTION

VARIABLES

  • Profiles
  • Opportunity Structures
  • Resources
  • Motives
  • Objectives
  • Arguments
  • Legal Bases

  • Profiles
  • Accessibility
  • Resources
  • Arguments
  • Legal Bases

How do plaintiffs' profiles, opportunity structures, resources, motives, objectives, arguments, and legal bases of their claims relate to existing and emergent health concerns of vulnerable populations?

How do courts' profiles, accessibility, resources, arguments, and legal bases of their judgments relate to existing and emergent health concerns of vulnerable populations?

Conceptual Framework

3

Law, Sociology, and Development Studies

Socioeconomic Dimension

Legal

Dimension

CLIMATE JUSTICE

RIGHT TO HEALTH

POVERTY

LITIGATION

SOCIAL EXCLUSION

RIGHTS-BASED CLIMATE LITIGATION

NEW LATIN AMERICAN CONSTITUTIONALISM

HEALTH CRISES

The concept of “health crises” denotes a coupling urgency: the urgency arising from the severity of climate change (what is sometimes referred to as the “climate crisis”) and the urgency posed by widening social inequalities (which the COVID-19 pandemic unfortunately exacerbated) (Atwoli et al., 2021).


The concept thus mirrors the high level of health vulnerability that stems from the combined effect of climate impacts, poverty, and social exclusion.

VULNERABLE POPULATIONS

The reference to “vulnerable populations” connotes individuals and groups who, because of their deprivation of essential functionings and subjection to systems of oppression, do not have access to the instrumental opportunities for attaining the highest attainable standard of health (Parry et al., 2019).

It is a fundamental human right enshrined in several international treaties.


It obliges states to respect, protect, and fulfill the highest attainable standard of health, particularly for vulnerable groups. By encouraging their participation in all health-related decision-making, and proscribing discrimination, it interconnects with and attempts to address issues of inequality between and within countries.


Its normative component includes the essential attributes of availability, accessibility, acceptability, and quality, which should inform health care system reforms in the face of climate change threats.

The concept of climate justice emerged ground up from the climate movement (Tokar, 2019).


It shines a light on the role of inequality in distributing the responsibility for climate destabilization and defining people’s health vulnerability to climate change (Jafry et al., 2019).


For example, due to their consumption levels, high-income countries and populations emit more carbon dioxide as compared to nations and people living in poverty. While the former bear the brunt of the responsibility for today’s climate change, on the latter fall the impacts of climate change disproportionately (Bruckner et al., 2022).

A human condition that comprises the deprivation of capabilities (lack of the possibilities that enable a person to lead a flourishing life) (Sen, 1999; Nussbaum, 2003).


It is a multidimensional phenomenon for whose eradication the assurance of health’s determinants, such as health care and clean environments, is essential.

The dynamic, multi-dimensional processes driven by unequal power relationships operating across economic, political, social, and cultural dimensions at different levels, including individual, household, group, community, country, and global (Popay et al. 2011).

“Actions contested in court,” which imply a claim, a dispute or conflict, and the use of a specific institution—the court—to resolve the conflict or dispute (Friedman, 1989).

Denotes the reconfiguration of constitutional law that several Latin American countries set in motion during the 1980s and 1990s.


Through a series of constitutional reforms aimed at including social rights provisions in their constitutions, these states made their domestic constitutional law more compatible with international human rights law on social and economic rights—which set the expectation on courts to deliver the social transformation that the ordinary political systems seemed unable to provide (Couso, 2006).


Several civil society groups and organizations committed to social change in the region have consequently mobilized through strategic litigation as a central means to address exclusion (von Bogdandy et al., 2017)

Cases brought before administrative, civil, criminal, or constitutional courts that explicitly (1) mention climate change law, policy, or science as argumentative factors and (2) invoke human rights as states’ legal obligations.


Relevance

4

Academic

  1. Research on Litigation
  2. Development and Climate Change Studies
  3. Human Rights and Climate Change Law

Practical

  1. Civil Society and Public Interest Litigants
  2. Judges

  • It has been mainly concerned with climate litigation in high-income countries.
  • It has not yet systemically studied human rights in climate change litigation in the light of the new Latin American constitutionalism.
  • It has not concentrated on the implications of any specific human right in climate litigation other than the right to a clean and healthy environment.

  • It calls attention to the role of inequality patterns in driving people’s vulnerabilities to the impacts of climate change.
  • It brings in the concepts of intersectionality and climate-social justice to the understanding of the social and health dimensions of climate change.
  • This project expands the understanding of how inequality surfaces and operates within the climate litigation process.

  • It has been concerned with how human rights and climate change law overlap and whether it is possible to enhance their integration.
  • However, the study of the interplay of the right to health and climate change law in domestic courts in the Latin American context is still a lacuna within this set of academic work.

Provide tools to use climate change lawsuits to protect public health.

Expand current interpretative spaces to consider and redress the health concerns of the most vulnerable individuals and groups.

Methodology

5

Transdisciplinary multi-methods approach

+ info

+ info

Why Transdisciplinarity?

Complexity

Grasps the complexity of the problems

Diversity

Considers the diversity of perceptions

+ info

Links abstract and case-specific knowledge

Abstract & specific

Promotes the common good

+ info

Common good

(Leavy, 2011)

01

02

03

04

It grasps the socioeconomic complexity behind how the climate change litigation phenomenon in Latin America interacts with human health.

It expands the view on climate change litigation beyond the current scholarship’s legal focus by bringing in the life experiences of plaintiffs, judges, and the researcher.

It applies connecting concepts (climate justice and the right to health) to concrete climate litigation cases.

It helps better understand the role of courts in expanding the most vulnerable population´s opportunities to be healthy amidst a changing climate.

03

02

04

Qualitative Multi-Methods Approach

All domestic climate change lawsuits filed to date across Latin American countries (>20)

Basic Content Analysis

Six case studies (two cases per country; three countries)

01

Doctrinal Analysis

Six case studies: two interviewees per case (n=>12)

Interviews

Six case studies

Contextual Analysis

DATA
ANALYSIS

DATA
ANALYSIS

DATA
ANALYSIS

DATA COLLECTION

DATA COLLECTION

DATA
ANALYSIS

  • Administrative, civil, criminal, and constitutional law cases and delves into the manifest content of their documentation.
  • Databases
    1. AIDA’s climate litigation platform
    2. The Grantham Research Institute on Climate Change and the Environment
    3. The Sabin Center for Climate Change Litigation
    4. The Global Health and Human Rights database

  • Through a deductively generated code list, based on Gloppen’s analytical framework, this method will assess the claims formation and adjudication stages of the litigation process.
  • It will also situate the protection of vulnerable populations from an intersectional perspective.

  • The Most Similar System Design (MSSD) as a logic of comparative inquiry (Andreassen, 2017): The selection of cases will strive for homogeneity in terms of the cases’ procedural requirements.
  • Cases belonging to the same type of action–administrative, civil, criminal, or constitutional law cases.
  • Data collection of the content analysis method will help inform the selection of these case studies.

  • It will illuminate the formal and material intersections between the right to health and climate change law by contrasting how they overlap in the written sources of law, claims, and judgments, particularly on the protection of the most marginalized groups.
  • It will draw attention to the conceptual spaces in which the right to health and climate justice overlap, including both concepts’ focus on inequalities within and between countries.

The interviews will enquire about the factors beyond the written law (knowledge, references, possibilities, and constraints) influencing how courts deal with the health crises in climate litigation (as per Gloppen’s analytical framework).

  • It will elucidate how specific national circumstances play into the trajectory climate change litigation follows.
  • Through such an analytical emphasis on particular contexts, the study will illuminate complex interrelationships within the socioeconomic dimension in which litigation unfolds (Scheppele, 2004).

03

02

04

Qualitative Multi-Methods Approach

All domestic climate change lawsuits filed to date across Latin American countries (>20)

Basic Content Analysis

Six case studies (two cases per country; three countries)

01

Doctrinal Analysis

Six case studies: two interviewees per case (n=>12)

Interviews

Six case studies

Contextual Analysis

VRU/ World comparative law

22 july

SCHEDULES

(AUGUST 2022)

15 september

DATA COLLECTION (SEPT/OCT 2022)

E-PÚBLICA JOURNAL

DATA COLLECTION (NOV/DEC 2022)

Validity and Ethical Considerations

6

Approval from UMass Boston's IRB

Reflexivity

Avoiding uncritical thinking and biases

Justice, Equity, and Inclusion

Three validity procedures

(Creswell and Miller, 2000)

  • By diversifying the project's academic references and actively citing papers from regional, non-Western, and non-English language journals, the dissertation hopes to balance the current Global North's intellectual dominance.
  • The dissertation will seek to reduce and offset the carbon emissions associated with the material input of knowledge.

  • Triangulation of findings.
  • Member checking validity procedure
  • Audit trail validity procedure

Limitations

7

Novelty of climate litigation

Focus on claims formation and adjudication stages

Access to Interviewees

Non-Public Data

Challenging recruitment process due to participants' time constraints

Databases may not contain all case documents

Data Availability

Latin America is experiencing health crises

Courts hold the potential to address the compounded effects of climate change and health inequalities

Transdisciplinary multi-methods approach

Fill gaps in current academic literature and advance practical knowledge for public interest litigants and courts

Embracing justice, equity, and inclusion

A small knowledge brick but necessary to hold up climate resilient development and just transitions

Summary

References (1/4)

Atun, R., de Andrade, L. O. M., Almeida, G., Cotlear, D., Dmytraczenko, T., Frenz, P., Garcia, P., Gómez-Dantés, O., Knaul, F. M., Muntaner, C., de Paula, J. B., Rígoli, F., Serrate, P. C.-F., & Wagstaff, A. (2015). Health-system reform and universal health coverage in Latin America. The Lancet, 385(9974), 1230–1247. https://doi.org/10.1016/S0140-6736(14)61646-9

Andreassen, B. A. (2017). Comparative analyses of human rights performance. In B. A. Andreassen, H.-O. Sano, & S. McInerney-Lankford (Eds.), Research Methods in Human Rights. A Handbook (pp. 222–252). Edward Elgar Publishing.

Atwoli, L., Baqui, A. H., Benfield, T., Bosurgi, R., Godlee, F., Hancocks, S., Horton, R., Laybourn-Langton, L., Monteiro, C. A., Norman, I., Patrick, K., Praities, N., Rikkert, M. G. M. O., Rubin, E. J., Sahni, P., Smith, R., Talley, N. J., Turale, S., & Vázquez, D. (2021). Call for emergency action to limit global temperature increases, restore biodiversity, and protect health. BMJ, 374(1734). https://doi.org/10.1136/bmj.n1734

Bruckner, B., Hubacek, K., Shan, Y., Zhong, H., & Feng, K. (2022). Impacts of poverty alleviation on national and global carbon emissions. Nature Sustainability, 1–10. https://doi.org/10.1038/s41893-021-00842-z

Creswell, J. W., & Miller, D. L. (2000). Determining validity in qualitative inquiry. Theory into Practice, 39(3), 124–130.

References (2/4)

Couso, J. A. (2006). The Changing Role of Law and Courts in Latin America: From an Obstacle to Social Change to a Tool of Social Equity. In R. Gargarella, D. Pilar and R. Theunis (Eds.), Courts and Social Transformation in New Democracies, (p. 65). Ashgate Publishing Limited.

Climate Action Tracker (2021, November 9). CAT Emissions Gap. https://climateactiontracker.org/global/cat-emissions-gaps/

ECLAC. (2021). Social Panorama of Latin America 2020. United Nations Economic Commission for Latin America and the Caribbean.

Friedman, L. M. (1989). Litigation and Society, Annu. Rev. Sociol. 15, 18.

Gloppen, S. (2008). Litigation as a Strategy to Hold Governments Accountable for Implementing the Right to Health. Health and Human Rights, 10(2), 21–36. https://doi.org/10.2307/20460101

IPCC. (2022). Climate Change 2022: Impacts, Adaptation, and Vulnerability. Contribution of Working Group II to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change [H.-O. Pörtner, D.C. Roberts, M. Tignor, E.S. Poloczanska, K. Mintenbeck, A. Alegría, M. Craig, S. Langsdorf, S. Löschke, V. Möller, A. Okem, B. Rama (eds.)]. Cambridge University Press. In Press.

References (3/4)

Jafry, T., Mikulewicz, M., & Helwig, K. (2019). Introduction. Justice in the era of climate change. In T. Jafry (Ed.), Routledge Handbook of Climate Justice (pp. 1–9). Routledge.

Leavy, P. (2011). Essentials of Transdisciplinary Research: Using Problem-Centered Methodologies. Routledge.

Nussbaum, M. (2003). Capabilities as fundamental entitlements: Sen and social justice. Feminist Economics, 9(2–3), 33–59.

Nachmany, M., Fankhauser, S., Setzer, J., and Averchenkova, A. (2017). Global trends in climate change legislation and litigation. 2017 Update. Grantham Research Institute on Climate Change and the Environment.

OECD and World Bank. (2020). Health at a glance: Latin America and the Caribbean 2020. OECD Publishing.

Popay, J., Escorel, S., Hernández, M., Johnston, H., Mathieson, J., & Rispel, L. (2011). Social exclusion and health inequalities: Definitions, policies and actions. In J. H. Lee & R. Sadana (Eds.), Improving equity in health by addressing social determinants (pp. 88–114). World Health Organization.

Parry, L., Radel, C., Adamo, S. B., Clark, N., Counterman, M., Flores-Yeffal, N., Pons, D., Romero-Lankao, P., & Vargo, J. (2019). The (in)visible health risks of climate change. Social Science & Medicine, 241, 112448. https://doi.org/10.1016/j.socscimed.2019.112448

References (4/4)

Sen, A. (1999). Development as freedom (1st. ed.). Knopf.

Scheppele, K. L. (2004). Constitutional Ethnography: An Introduction. Law & Society Review, 38(3), 389–406. https://doi.org/10.1111/j.0023-9216.2004.00051.x

Scheffer, M. (2015). Demografia médica no Brasil. Departamento de Medicina Preventiva, Faculdade de Medicina da USP, Conselho Regional de Medicina do Estado de São Paulo, Conselho Federal de Medicina.

Tokar, B. (2019). On the evolution and continuing development of the climate justice movement. In T. Jafry (Ed.), Routledge Handbook of Climate Justice (p. 13). Routledge.

UN Committee on Economic, Social and Cultural Rights (CESCR). (2000). General Comment No. 14: The Right to the Highest Attainable Standard of Health. E/C.12/2000/4, Geneve.

UN Committee on Economic, Social and Cultural Rights (CESCR). (1999). General Comment No. 2: International Technical Assistance Measures. Geneve.

von Bogdandy, A., Ferrer Mac-Gregor, E., Morales Antoniazzi, M., & Piovesan, F. (Eds.). (2017). Transformative Constitutionalism in Latin America. The emergence of a new Ius Commune. Oxford University Press.

Thank You

Muchas Gracias
Tusen takk
Bedankt

Thalia Viveros Uehara
University of Massachusetts Boston
t.viverosuehara001@umb.edu