Litigating Climate Change through International Law: Obligations Strategy and Rights Strategy
TLDR
In this article, the authors argue that the current structure of the UNFCCC makes it substantially impossible to bring a claim against individual states regarding their specific measures against climate change, and they question 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.Abstract:
Litigation 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.read more
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References
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Journal ArticleDOI
Policy: Climate advisers must maintain integrity
TL;DR: The global climate target is being watered down in the hope of getting any agreement in Paris, but the possibility of using ‘ratcheting mechanisms’ keeps hopes alive of more-ambitious policies, but such systems are unlikely to achieve the desired outcomes.
Journal ArticleDOI
‘Dynamic Differentiation’: The Principles of CBDR-RC, Progression and Highest Possible Ambition in the Paris Agreement
TL;DR: The Paris Agreement has struck a careful balance between the need for ambitious and effective climate action and for fair effort sharing among parties based on differentiation as mentioned in this paper, which is reflected in three complementary ways: first, on a principled basis, reflecting common but differentiated responsibilities and respective capabilities (CBDR-RC), in the light of different national circumstances; secondly, in particular on mitigation, finance and transparency; and thirdly, on the basis of the principles of progression and highest possible ambition, which represent new and dynamic aspects of differentiation.
Posted Content
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TL;DR: The Paris Agreement as discussed by the authors represents a course away from the top-down approach and rigid differentiation among parties reflected in the Kyoto Protocol, toward a bottom up and flexible approach focused on collective long term goals and principles.
Journal ArticleDOI
The Paris Agreement and the Gradual Development of a Law on Climate Finance
TL;DR: In this article, the authors discuss the changes to the field of climate finance law contained in the Paris Outcome, consisting of the Paris Agreement treaty text and the COP Decision adopting the treaty.
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