Discuss climate change is, to a large extent, understanding how the recognition of rights is evolving and changing worldwide. The idea of ​​a better and more sustainable world is only possible with regulations that are tied to the Sustainable Development Goals (SDG) proposed by the UN.

Albert Ruda, dean of the University of Girona and author of more than 125 publications, took part in the latest Seguros SURA event, 'In defense of nature'', where he spoke about the evolution of environmental protection from a legal perspective, “a phenomenon that is not exclusive to any country, but rather responds to developments that occur in various parts of the world,” the expert stressed.

According to the academic, The relationship between climate change and climate litigation is in constant flux However, there is still a major challenge ahead. “We face a huge challenge because legal systems are based on an individualistic approach when we refer to non-contractual liability,” explains Ruda. However, this phenomenon, so well known to lawyers, is a mechanism that works well when there is an individual, specific victim, identifiable by person and surname. 

She goes on to say: “This approach is anthropocentric. It assumes that there is an ‘other’, an individual who is a victim. Today we are witnessing a phenomenon of pollution and environmental destruction where the resources involved do not always affect a specific person. Often, it is a question of damage to resources that belong to all of us.”

For Albert Ruda, This poses a problem from a regulatory perspective. Climate change is something that is ignored by almost all civil codes in the world. “This means that the entire conceptual framework of the civil legal system is facing an immense challenge,” the doctor stressed. 

The expert warned that, although national legislation generally contains some regulation protecting the environment, “climate change is not on the table”; constitutions do not usually speak about this climatic phenomenon.

“To what extent do constitutions really protect the environment?” Albert Ruda asked. “They are not subjective rights, they are not accompanied by mechanisms for implementation or coercive application. And this is what is currently being seen in crisis.”

What happens in the courts

In this context, he explained, “the courts are giving content to these rules.” Climate litigation against States, administrations (to a greater extent) and companies is increasingly gaining ground in the courts. According to Ruda, most of the lawsuits are brought by NGOs “created almost exclusively to litigate in these matters.” Surely, the academic stressed, “the number of lawsuits against companies will continue to grow in the immediate future.”

What is being claimed in these disputes? In general, the government adopts greater demands for environmental protection. For Albert Ruda, a large part of the environmental problems that later lead to this type of litigation have to do with officials and politicians assuming international commitments that are then not reflected in their respective countries.

César Augusto Martínez Acevedo, Manager of Legal and Regulatory Affairs at SURA Insurance, explained that states and regulations face constant dilemmas. “Most constitutions were written at times when certain risks that are emerging today were not regulated or there was no need to do so,” he recalled.

“From this, a very interesting concept has emerged, which is called 'the evolutionary interpretation of law and constitutions'. This consists of the fact that legal operators, the Justice system, have the obligation to update and modulate, through their sentences and rulings, legislation that was obsolete and bring it up to date. That is what has been happening in the world,” added Martínez Acevedo.

This is observed in practice with legal operators and judges ruling more and more harshly and sending messages to the various market agents. “This is achieving a change in conduct and behavior that means that some actions are no longer accepted or that those who cause environmental damage refrain from doing so for fear of being sanctioned,” he said.

International treaties and climate change

“One thing is what is said outside the country and another thing is what is said at home,” Albert Ruda stressed regarding the position of various political leaders regarding these international agreements. “What is said at climate summits sometimes has little to do with the national policies that are ultimately implemented in each territory.”

Martínez Acevedo stated that “international treaties have been with us in the history of law for many centuries,” since the Middle Ages there were already treaties and agreements between countries on non-aggression, on respecting their autonomy and their cultures. “These international treaties - he stressed - have not changed much in terms of the incentives they represent. That is to say, to the extent that there are political, social, and economic incentives that lead states to comply with what they universally agree to, to that extent they will be coercive or binding,” he said.

“The truth of the matter is that many of these treaties have remained passive aspirations, especially in relation to treaties for the protection of culture, intangible heritage and the environment,” said the representative of Seguros SURA and added: “I believe that these treaties should be reconsidered in very general terms so that they represent a real incentive for states to comply with them.”

An incentive can be derived from more favorable customs and tax regulations in the world, access to financing, international reputation that leads them to position themselves in the world market and the political sphere, exemplifies Martínez Acevedo. 

The role of insurers

In a scenario like this, where states remain rather passive in the face of climate change, private initiatives have an enormous role, “mainly insurance companies, since we are moving towards a world where companies will have to end up compensating for climate change,” Albert Ruda stressed.

For Martínez Acevedo, insurance companies will always have a place and a place where there is a patrimonial or non-patrimonial risk to compensate or compensate. According to the expert, "given the proliferation of this type of judicial pronouncements where individuals and states are increasingly held responsible for any environmental damage, insurance companies will have to participate."

Now, he said, “the challenge in this participation is given by a particular situation,” and that is that the environmental risks are immeasurable and any money or compensation paid by the insurers is not comparable to the damage actually caused. “Under this scenario, insurers have a great opportunity and possibility to compete in markets that are close to insurance but are more similar to financing,” he concluded.

 “Insurers should be able to support alternative energy projects, carbon reduction, and transformation of industries or companies that are dedicated to producing polluting agents, ensuring that this transformation represents capital or resilience for the insured and those who take out these products so that they can make this transformation,” concluded the representative.

From SURA Insurance They are convinced that insurers have to finance projects and support initiatives where the risk is not the damage caused to the environment, where the risk is to guarantee a transformation of the corporate and social objects of companies so that they cause as little environmental damage as possible.