Edinburgh, October 31st, 2021… The Prime Minister of Antigua and Barbuda – current Chair of the Alliance of Small Island States (AOSIS) – and the Prime Minister of Tuvalu today signed an historic accord that opens the way for ground-breaking litigation before international courts. This offers a novel legal path to address the severe damage to Small Island States caused by climate change.
The Agreement establishes a Commission of Small Island States on Climate Change and International Law, creating a body for the development and implementation of fair and just global environmental norms and practices. The Commission is also authorized to request advisory opinions from the International Tribunal for the Law of the Sea (ITLOS) on the legal responsibility of States for carbon emissions, marine pollution, and rising sea levels.
Membership in the Commission is open to all Small Island States whose leaders have long complained about the absence of effective mechanisms for States most responsible for climate change to compensate for the resulting loss and damage.
At the signing ceremony in Edinburgh, the Prime Minister of Antigua and Barbuda, Gaston Browne, explained that: “Small Island States’ emission of greenhouse gases is negligible, but they bear the overwhelming burden of its catastrophic effects, including persistent destruction, repeated costs of rebuilding and huge debts to finance resilience. This injustice must end. We insist that those States most responsible for this dire situation respect their legal obligations to stop global warming and to provide compensation to its victims. The time for empty promises is over.” Prime Minister of Tuvalu, Kausea Natano, stressed that: “For us, climate justice is a matter of survival. Rising sea levels, extreme weather events, the decline of marine resources – these threaten our very existence. We see better than anyone else what is being done to our beautiful planet. It is time to put words into action, to save Small Island States, and to save the world from impending disaster.”
The legal counsel to the Commission, Professor Payam Akhavan of Massey College, University of Toronto, and Member of the Permanent Court of Arbitration at The Hague, said that: “Small Island States are the canary in the coalmine of climate catastrophe. Their fate is a warning to all humankind that the disastrous consequences of global warming are happening now, not in a distant future. The fundamental principle of international law not to cause harm to others has now taken on an unprecedented dimension. This historic initiative to pursue climate justice should be welcome by all who care about the future of our planet.”
The long awaited first trial for the murder of renowned Indigenous environmental defender Berta Cáceres was set to open on 17 September 2018 in Tegucigalpa, Honduras. Cáceres’ assassination in 2016 was one in over 130 targeted killings of environmental defenders in Honduras since the 2009 coup d’état, including various members of her organization, the Civic Council of Popular and Indigenous Organization of Honduras (COPINH). Her case has become emblematic of this tragic state of affairs, and of the struggles facing human rights activists around the world.
Two and a half years into the process to prosecute eight men accused of carrying out Berta’s murder, lawyers for her family made what was likely a painstakingly difficult decision to request the recusal of the three-judge Tribunal hearing the case. This drastic step, taken on the day the trial was set to begin, alleges abuse of authority and obstruction of justice by the judges, in part for failing to sanction prosecutors for withholding evidence.
The victims’ lawyers submitted several other constitutional injunctions before the hearing, one of which requested that the public have greater access to the trial through a live audio transmission of the proceedings; a request that had been previously denied. The court rejected this request once again on Friday.
It is no surprise that live streaming is important to the victims in this case. Beyond a mere technical issue, diversified access to judicial proceedings lies at the heart of the concept of open justice — the idea that courts should be open, public, and accessible — and meaningful victim participation.
Honduran legislators have acknowledged the importance of open justice by guaranteeing the right to a public trial and providing some victims legal standing before the court. Honduras has also incorporated international treaties into national law through its constitution. These treaties oblige States to hold public, open trials in adequate facilities. According to the UN, the purpose is to ensure “the transparency of proceedings” and to provide “an important safeguard for the interest of the individual and of society at large.”
Before her murder, Berta was recognized around the world and throughout Honduras for her work to protect the Gualcarque River, sacred to the Lenca people, from a hydroelectric project. These same people will be deeply affected by the outcome of the trial and deserve access to the courtroom. There is also a massive transnational solidarity movement of environmental and human rights activists who are closely following this public-interest case.
Unfortunately, the Tribunal will record audio of the trial as a matter of protocol, but not for public diffusion. It is unclear when, if ever, the public would have access to the trial recordings. The inability to hear what is going on in the courtroom in real-time substantially decreases the value of a recorded hearing by impeding contemporaneous observation and participation by victims and the public. This is especially important after the first day of trial proved there were insufficient seats for many members of Berta’s community, who were forced to wait outside.
Providing overflow rooms can help rectify this inaccessibility, but there are many legitimate reasons why victims may be unable to physically attend court, including travel costs, safety concerns, psychological trauma, and the inability to adjust schedules to an unpredictable judiciary. A live broadcast would ensure access for the greatest number of people.
A live transmission is also easily attainable with advances in technology. Countries like Mexico, Brazil, Guatemala, Canada, the United Kingdom, South Africa, and India, have all moved towards live broadcasting proceedings that are in the public interest. This practice is also prevalent at the Inter-American Court, the European Court of Human Rights, and various international criminal tribunals.
The Tribunal’s failure to take steps to provide overflow rooms or allow live streaming must be viewed in the larger context of this case. In addition to allegations of abuse of authority and withholding evidence, lawyers for the victims, members of the media, and the victims themselves have been repeatedly attacked and targeted in highly dangerous smear campaigns aimed at criminalizing and intimidating them.
The day the trial was set to begin, a prominent freelance journalist for the Guardian, and the only English-language reporter covering the trial on the ground, Nina Lakhani, was targeted online in a smear campaign by a fake group with alleged links to the Honduran intelligence, which falsely claimed she was involved in violent insurgency. Lakhani was previously targeted after publishing an article in which a former soldier claimed that Berta’s name had appeared on a U.S.-trained special forces hit list. At the hearing, three security guards informed her that the courtroom was closed to the public before she was eventually allowed to enter.
The Honduran judiciary had an opportunity last week, with the world watching, to demonstrate its willingness to ensure open courts and meaningful access to justice. Live streaming the court proceedings would have gone a long way towards greater transparency and public confidence in a judiciary facing serious allegations of misconduct. Sadly, the Tribunal failed to act.