Abstract
AbstractLitigation has presented itself as a serious means to vindicate normative commitments about climate change by forcing governments to review their policy priorities. Today, the use of such litigation is not limited to the domestic arena. International law now provides the new principal avenue for such litigation. Two litigation strategies stand out: obligations strategy and rights strategy. Obligations strategy consists of bestowing an erga omnes character to existing obligations regarding the protection of the global environment, thereby providing standing for a non-injured party before international courts. Rights strategy, on the other hand, significantly increases in practice. It consists in the invocation, before national and international courts, of remedies for environmental damages through the legal categories of human rights law.This article sheds light on the potential and limits of these litigation strategies in international law. The argument builds on the specific evolution in the legal architecture of international obligations under the United Nations Framework Convention on Climate Change (UNFCCC). The current structure of the UNFCCC now makes it substantially impossible to bring a claim against individual states regarding their specific measures against climate change. The article, by referring to the history of drafting which produced the specific structure, questions the ability of these litigation strategies to remedy the lack of international consensus and to accommodate the technical intricacy of how to turn normative commitments into actual action for climate change.
Highlights
Vindicating normative commitments on environmental protection Among all global environmental problems, climate change poses unprecedented challenges to existing legal orders for its poly-centric, socio-economically, and socio-politically complex nature
Scholarship shows that international environmental law claims are more likely to succeed if they can be transposed into human rights claims, notwithstanding controversies like those on the specific right on environmental protection
Whilst there has been reluctance by international human rights bodies to directly link climate change and human rights treaties, attempts aimed at holding a state individually responsible to act in relation to climate change come to prominence in recent practice before national courts
Summary
Vindicating normative commitments on environmental protection Among all global environmental problems, climate change poses unprecedented challenges to existing legal orders for its poly-centric, socio-economically, and socio-politically complex nature. Lin, ‘Transitional Climate Litigation: the Contribution of the Global South’, (2019) 113 AJIL 679 This strategy has gained momentum in the wake of a few recent judgments by the International Court of Justice (hereafter ICJ) which allegedly opened the way to hold states responsible for environmental damages without the claimant being an injured state under the law of state responsibility. The other strategy witnessed in the current rise of litigation is what is designated here as the rights strategy, a strategy significantly increasing in practice It consists in the invocation, before national and international courts, of violations of environmental law through the legal categories of international human rights law.. The article, by referring to the history of drafting that produced the specific structure, questions the ability of these litigation strategies to remedy the lack of international consensus and to accommodate the technical intricacy of how to turn normative commitments into actual action against climate change.
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