The power of the Paris Agreement in international climate litigation

Abstract

AbstractClimate litigation has reached the international level with several requests for advisory opinions from international courts and tribunals, and human rights treaty bodies addressing climate change‐related human rights violations. The Paris Agreement will likely be relevant in many of these and other cases to come, whether directly in disputes about its application or interpretation, or indirectly in informing the interpretation of other international agreements, such as the European Convention on Human Rights (ECHR) or the United Nations Convention on the Law of the Sea (UNCLOS). It could also inform the due diligence standard contained in customary international environmental law. This article first examines normative elements of the Paris Agreement that may become relevant in the interpretation of other international norms. It then identifies some potential entry points of legal influence of these elements in the interpretation and application of other international law, especially the ECHR and UNCLOS. The article argues that the legal influence of the Agreement goes above and beyond the ‘legal fold’ in which it was adopted and can inform the interpretation of other international treaties and norms. ‘Paris‐aligned’ interpretation, taking into account the diligence standards contained in the Agreement, could impact on the contemporary understanding of international law more generally. Such interpretation might be necessary to avoid undermining the relevance of the Agreement. Importantly, it suggests that Paris‐aligned interpretation of other international treaties can provide a positive feedback loop towards effective implementation of, and compliance with, the Paris Agreement. Eventually, such Paris alignment may enhance legal consistency between diverse parts of international law and break down fragmented silos.