Faculty of Law

– International law is a door opener for national climate change cases

“International law is arguably helping domestic courts deal with the exceptionality of climate change in access to justice matters,” says Esmeralda Colombo at The faculty of Law, University of Bergen. She recently delivered her PhD thesis on the subject. Read interview with Colombo here.

Esmeralda Colombo. Climate litigation.
Climate change litigation is a defining feature of contemporary society. The number of climate change cases is growing rapidly worldwide, with more than 1,550 lawsuits in 39 jurisdictions, says researcher Esmeralda Colombo.

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What are the main discoveries in your PhD thesis?

My doctoral dissertation inquires whether and how international law can contribute to domestic courts’ reasoning when individuals and NGOs seek access to justice in climate change matters. My main finding is that, in some respects, international law is arguably helping domestic courts deal with the exceptionality of climate change in access to justice matters, thus enhancing the tools of access to justice. In particular, I found three existing directions in climate change litigation. The first direction is evidence-based decision-making, manifested in the fact that domestic courts have increasingly shaped an evidence-based judicial process. As a result, in climate change adjudication, such an evidence-based turn is infusing policy making, judicial decisions, and business decision-making with demands for enhanced transparency.

A second direction touches on embryonic, albeit significant, affirmations of duties within the business and financial sectors, many of which have long lingered in legal black holes in international law. As a result, a suite of sources drawn from international, national, regional, and transnational law sources have converged in upholding some circumscribed private entities’ obligations in climate change matters.

A third direction concerns methodology, or how judges make decisions. From a time when the most authoritative interpretation would win over competing explanations, notably precedents, the analysis shows that, in climate change litigation, where precedents are often lacking and problems are exceptional, authority seems to veer toward what Hannah Arendt once called persuasion through arguments. As a result, no party to the adjudication process is entitled to a priori deference and no interpretation is dictated by logic or the law. Instead, all parties and the judge are called upon to equally persuade through arguments, and to ground their arguments in evidence.

How is international law suitable for national climate litigation?

International law has long been deployed in domestic courts. But social mobilization against dangerous climate change through litigation is relatively novel and international law was not applied to national climate litigation until recently. From my research, I found that the first court decision applying international law is Urgenda. Urgenda was filed in 2013 as a class action brought by more than 800 individuals and a Dutch NGO against the Dutch government for more ambitious climate policy. It was first decided in 2015 by the District Court of the Hague and confirmed on appeals and at the Supreme Court as a victory for the climate and peoples’ access to climate justice. International law is suitable for national climate litigation because it infuses the legal process with normative standards for the protection of global human rights and ecocentric interests. Such standards are general and flexible, allowing courts to adapt national law to the exceptional challenges posed by climate change. 

What are typical challenges in the application of international law in national courts?

The typical challenge to the application of international law in national courts is that courts are in principle not obliged to apply domestic law in light of international law. Domestic courts apply international law not out of obligation, but rather to better assess climate change matters in light of all relevant legislation, including international law. There also exists pressure from below to the application of the Paris Agreement in courts of law since the political process has proved often too slow and less than optimal. A further challenge lies in the uncertainties within the choice and normative content of international climate law provisions.

How has the number of climate litigations developed from the first case?

Climate change litigation is a defining feature of contemporary society. The number of climate change cases is growing rapidly worldwide, with more than 1,550 lawsuits in 39 jurisdictions. This number includes lawsuits against climate protection measures, but most litigation is intended to protect the climate system. The first climate lawsuit was filed in the 1980s in the United States, but we have witnessed an upswing of cases in the last three years, with cases almost doubling.

How can international law play a role in mediating among climate science, law and politics?

I think international law can play a fundamental role in mediating among climate science, law and politics. So far, domestic courts have applied international law to render climate protective decisions, rather decision than aim to protect the status quo of inefficient climate policy. In truth, courts have also applied climate science to mandate climate mitigation objectives upon states and, most recently, businesses. But while applying international law has not generated much controversy, applying climate science to reach a binding decision was attacked by some as an effort to “sideline democracy.” International law can possibly depoliticize and democratize the use of climate science in courts of law. In particular, by underscoring that the reports of the Intergovernmental Panel on Climate Change are referred to in the international climate regime, courts can justify their use and interpretation of climate science. In turn, applying climate science as it is encased in the international climate regime can equip our society with more evidence-based tools of climate action.

What is the link between law and politics in climate change litigations?

The analytical claim that I made in my dissertation is that international law has a role to play in the national judicial process, allowing for the establishment and standardization of access to climate justice for individuals and NGOs. Consequently, the title of my thesis refers to reloading access to justice for enhanced effectiveness through international law. But challenges remain. The pandemic has vividly displayed the inequalities and unsustainability of the economic system we have built, becoming not only a tragic moment in public health but also a moment of political crisis. One of the last sections of my dissertation is called “Renovating Politics”. I follow Thomas Mann’s definition of politics as the art of the possible, an art mediating between morality and power. Politics can and should strengthen the law on access to justice in at least two ways. A first suggestion lies in ensuring that politicians limit the use of resources by each legislature and by economic actors in a way that climate policies be equally shouldered and future generations would be able to live in a healthy planet, according to planetary boundaries knowledge. Unfortunately, politics does not seem to be moving in the direction of equality. A second suggestion lies in rethinking power sharing as prods and pleas, rather than the separation of power principle. Through prods and pleas, domestic courts can “nudge” the political branches or economic actors to act on climate change. Politics may be moving in this direction as some countries require policy makers to integrate climate change in all activities. Similarly, some countries are requiring of corporations to be duly diligent in their business activities and relations, and be accountable in court if they are not. I think this direction gives hope for a more sustainable and innovative future.