Conference Agenda

It is often assumed that the economic activities of individuals and private corporations are the predominant cause of climate change. This assumed factual circumstance is viewed as a challenge for international climate change law due to an alleged mismatch between the addressees of international obligations (states) and the ‘true’ sources of environmental harm. In response, international practice has relegated the role of state to that of an intermediary of international obligations or a facilitator of polycentric governance. For example, the United Nations Climate Change Regime has increasingly welcomed the contributions of private actors through NAZCA and other initiatives. In many countries, climate change mitigation laws seek to modify the incentive structures of private choices that would otherwise exacerbate climate change. This presentation argues that the assumption of predominant private sector responsibility for climate harms is both empirical wrong and legally misleading. Indeed, it is an often-neglected fact that States are directly responsible for much of the world’s greenhouse gas (GHG) emissions. A variety of State actors, including national fossil fuel companies, State-owned electricity utilities, armed forces, and other State actors in the Global North and South consume vast amounts of fossil fuels for electricity generation, transportation, and heavy industry. By some accounts, a shortlist of these state-owned entities for 59-69% of carbon majors’ emissions. The common assumption is also legally misleading because it diverts attention away from GHG emissions under state control. This, despite the state-centric nature of international climate change law. Acknowledging the state’s direct contribution to climate change and its attendant legal consequences de-problematizes the state-centricity of international climate change law and suggests less trodden avenues for state liability.

Since 2005, a wave of high-profile lawsuits alleging human rights violations in connection with the climate crisis have been filed in domestic and international courts around the world. We aim to understand the formal and informal practices through which lawyers, judges, activists, and journalists have developed, diffused, or translated legal norms in the transnational legal process at the intersections of human rights and climate justice. Drawing on semi-structured interviews, participation-observation, and systematic analysis of media coverage and legal decisions and briefs, we trace how the practices of collaboration, story-telling, learning, and legal dialogue have fostered the spread and influence of rights-based climate litigation. We also analyze the intersecting and cumulative impact of these practices and assess their potential to give rise to the emergence of transnational communities and forms of transnational legal ordering. By offering an in-depth account of the transnational emergence, evolution, and impact of rigths-based climate lawsuits, our paper generates novel insights regarding the nature and potential of litigation as a vehicle for advancing global climate justice.

Earth system law requires better aligning law to the interests of future generations and nature. International litigation on climate change is one important strategy in achieving this aim. An advisory opinion of the ICJ on climate change edges closer with Vanuatu circulating a draft UN General Assembly resolution in late 2022 and with many states signalling support. The draft resolution would request the ICJ to rule on the obligation of states under international law “to ensure the protection of the climate system and other parts of the environment for present and future generations”.

This paper argues that an advisory opinion along the lines proposed by Vanuatu would be an opportunity for the ICJ to clarify international legal obligations in a way that ensures the law is grounded in the best available science and moral principles of justice - both international and intergenerational. This could be done in a way which enhances rather than detracts from the legitimacy of the court. The argument is illustrated by focusing, firstly, on the procedural rules of the court relating to expert scientific witnesses and the possibility of amicus curiae briefs (friends of the court) which are argued to provide a vehicle for scientific experts delineating the climate impacts on both current and future generations and nature in a manner which enhances the legitimacy of the court. A second argument in the paper is that philosophical theories of intergenerational justice should be drawn on by the court in delineating international law obligations owed to present and future generations as these discourses can give precision to the rather vague international law concept of intergenerational equity, and also provide guidance as to how to balance intergenerational justice with international and intra-generational justice.

The argument rests on the proposition that the court, consistent with its statute, must both apply but also further develop international law where the law is unclear. Development of international law should be undertaken by the court consistent with its statute but also in accordance with the requirements of justice, which must include intergenerational justice and should be defined in subsistence terms of meeting core human rights to life, health and subsistence. It is further argued that the court’s effectiveness depends on it meeting the requirements of democratic legitimacy defined by requiring the court to be both impartial and responsive to the people, including future people.

Climate change affects every individual, and climate science is commonly articulated in universalist terms, in the form of highly sophisticated computer modeling. However, the assessment of the credibility of climate science expertise varies dramatically from one jurisdiction to another. Drawing insights from both comparative law and Science and Technology Studies, we explore how judges in different jurisdictions determine the credibility of scientific expertise in climate change litigation. This article examines the presentation and examination of climate change science in leading climate-related cases within economically developed democracies and proposes a typology of two distinct approaches. Judges in European countries—including the Netherlands, France, and Germany—have developed a strategy that weaves the authoritative reports issued by international scientific organizations and national public institutions into legal arguments. We label the European approach the “publicity model.” In comparison, in the United States, courts try to replicate the peer-review process in a legal setting, implying an equation between robustness and objectivity. Therefore, we label the American approach as the “objectivity model.” To handle scientific uncertainty by referring to the consensus of the scientific community, the EU judges commonly rely on the democratic representativeness of the scientific bodies, whereas the US judges stress the importance of avoiding bias and prejudice of the experts.

Climate litigation is on the rise across the world, with courts starting to play a role in shaping global climate governance. This paper focuses on a subset of climate litigation, namely anti-fossil fuel litigation, which is defined here as litigation aimed at restricting fossil fuel production with a view to achieving climate goals. Anti-fossil fuel litigation can contribute to closing the fossil fuel ‘production gap’, and ensure that a fair and effective transition away from fossil fuel production is achieved in line with the Paris Agreement’s temperature goal. Anti-fossil fuel litigation can also be seen as a mechanism through which ‘anti-fossil fuel norms’ – i.e., global moral norms aimed at accelerating the shift away from fossil fuels – can be diffused. Although climate litigation is increasingly understood as a transnational phenomenon, the rapidly expanding literature on the topic still lacks a cross-jurisdictional analysis of common themes and questions arising in the context of fossil fuel-related climate litigation. This paper will address this gap by analysing information on nearly 250 cases of anti-fossil fuel litigation from across the globe. This analysis will inform a novel typology of anti-fossil fuel litigation, which distinguishes between cases involving: misleading or false conduct by fossil fuel companies (e.g. Commonwealth v. ExxonMobil), human rights violation by fossil fuel companies (e.g. the Carbon Majors inquiry in the Philippines) and states (e.g. the Duarte Agostinho case before the European Court of Human Rights), the permitting of individual fossil fuel projects or infrastructure (e.g. Gloucester Resources Limited v. Minister of Planning); claims against fossil fuel companies for insufficient action (e.g. Milieudefensie et al. v. Royal Dutch Shell), and efforts to hold fossil fuel companies liable for climate change damage (e.g. City of New York v. BP). Based on the review of cases, the paper addresses three key legal questions emerging in the context of anti-fossil fuel litigation, namely: (1) to what extent can emissions and climate impacts be attributed to fossil fuel producers; (2) how valid is the market substitution argument, which posits that other fossil fuel producers will step in if some fossil fuels are left in the ground; and (3) does fossil fuel production violate human rights and, to the extent it does, what are states’ and companies obligations in this regard? The paper will offer preliminary answers to these questions, but also point out how litigants and courts vary in their responses to these questions.