Pub Date : 2023-12-14DOI: 10.1163/24686042-12340106
Yumeno Grace Nishikawa
Since climate change was recognised as a global concern, there has been a growing number of climate-related cases around the world. While the development of climate litigation in Japan is often overlooked in the academic literature, Japanese citizens in fact have instituted four lawsuits that all aim to stop the construction and operation of coal-fired power plants, as the use of coal in the power generation sector is primarily responsible for the total emissions of greenhouse gases in Japan. Accordingly, this article aims to introduce the recent climate-related cases and to show how human rights-based concepts are utilized with the intention of incorporating environmental claims. More specifically, the development of the concept of personal rights (Jinkaku-ken, 人格権) is discussed, primarily by examining the arguments made in the tort law-based climate cases.
{"title":"Japanese Climate Litigation and the Development of Personal Rights","authors":"Yumeno Grace Nishikawa","doi":"10.1163/24686042-12340106","DOIUrl":"https://doi.org/10.1163/24686042-12340106","url":null,"abstract":"\u0000Since climate change was recognised as a global concern, there has been a growing number of climate-related cases around the world. While the development of climate litigation in Japan is often overlooked in the academic literature, Japanese citizens in fact have instituted four lawsuits that all aim to stop the construction and operation of coal-fired power plants, as the use of coal in the power generation sector is primarily responsible for the total emissions of greenhouse gases in Japan. Accordingly, this article aims to introduce the recent climate-related cases and to show how human rights-based concepts are utilized with the intention of incorporating environmental claims. More specifically, the development of the concept of personal rights (Jinkaku-ken, 人格権) is discussed, primarily by examining the arguments made in the tort law-based climate cases.","PeriodicalId":29889,"journal":{"name":"Chinese Journal of Environmental Law","volume":"164 2","pages":""},"PeriodicalIF":0.8,"publicationDate":"2023-12-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139002357","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-12-14DOI: 10.1163/24686042-12340110
Lea Main-Klingst, Hermann E Ott
Constitutional obligations can bind the authorities of a state not only in relation to their own citizens but also to people living abroad. The extent of this ‘extraterritoriality of human rights’ has been the subject of much debate. Recent decisions by German courts, in particular the Constitutional Court, have begun spelling out the reach of this obligation for German authorities. In 2020, citizens from Bangladesh and Nepal turned to the Constitutional Court, submitting a complaint, alongside German individuals, on the insufficient and weak climate policy of the German government. As part of its subsequent landmark decision, the Constitutional Court surprisingly upheld the admissibility of the complaints by non-German nationals living outside of Germany. The Court confirmed that greenhouse gas emissions emanating from Germany could potentially give rise to a duty to protect people abroad from the adverse effects of climate change, based on the fundamental rights protection provided under the Basic Law. However, the Court dismissed the complaints on substantive grounds. It established that – should extraterritorial obligations exist – these would differ from domestic obligations in both content and standard of review. Yet, the Court fell short in establishing a suitable standard for assessing a breach of the duty to protect in an extraterritorial context.
{"title":"Climate Litigation, Extraterritoriality of Human Rights and the German Constitution","authors":"Lea Main-Klingst, Hermann E Ott","doi":"10.1163/24686042-12340110","DOIUrl":"https://doi.org/10.1163/24686042-12340110","url":null,"abstract":"\u0000Constitutional obligations can bind the authorities of a state not only in relation to their own citizens but also to people living abroad. The extent of this ‘extraterritoriality of human rights’ has been the subject of much debate. Recent decisions by German courts, in particular the Constitutional Court, have begun spelling out the reach of this obligation for German authorities. In 2020, citizens from Bangladesh and Nepal turned to the Constitutional Court, submitting a complaint, alongside German individuals, on the insufficient and weak climate policy of the German government. As part of its subsequent landmark decision, the Constitutional Court surprisingly upheld the admissibility of the complaints by non-German nationals living outside of Germany. The Court confirmed that greenhouse gas emissions emanating from Germany could potentially give rise to a duty to protect people abroad from the adverse effects of climate change, based on the fundamental rights protection provided under the Basic Law. However, the Court dismissed the complaints on substantive grounds. It established that – should extraterritorial obligations exist – these would differ from domestic obligations in both content and standard of review. Yet, the Court fell short in establishing a suitable standard for assessing a breach of the duty to protect in an extraterritorial context.","PeriodicalId":29889,"journal":{"name":"Chinese Journal of Environmental Law","volume":"139 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2023-12-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139001577","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-12-14DOI: 10.1163/24686042-12340112
Marcin Stoczkiewicz
This article analyses the legal discourse concerning the right to a life-sustaining climate system. The subject of analysis is the discourse around selected landmark cases in which arguments were raised about the need to protect a stable climate for the sake of protecting fundamental constitutional rights threatened by the climate crisis (Juliana v United States, Urgenda v Netherlands, Neubauer v Germany, and Hawai’i Electric Light Co.). The analysis is conducted from the point of view of the legal sources (applicable legal norms, clearly recognised constitutional rights) from which this unenumerated fundamental right is derived. This analysis allows us to assume that the right to a life-sustaining climate system is understood in legal discourse as: (i) a constitutional right derived from the right to life, liberty and property as necessary for their realisation, or (ii) a constitutional right encompassed by the right to a clean and healthy environment, or even as (iii) a constitutional right that is a predicate of all constitutional rights. In the author’s view, this right can also be understood as an unexpressed item (aspect) of the right to life.
{"title":"The Right to a Life-Sustaining Climate System: Selected Case Law","authors":"Marcin Stoczkiewicz","doi":"10.1163/24686042-12340112","DOIUrl":"https://doi.org/10.1163/24686042-12340112","url":null,"abstract":"\u0000This article analyses the legal discourse concerning the right to a life-sustaining climate system. The subject of analysis is the discourse around selected landmark cases in which arguments were raised about the need to protect a stable climate for the sake of protecting fundamental constitutional rights threatened by the climate crisis (Juliana v United States, Urgenda v Netherlands, Neubauer v Germany, and Hawai’i Electric Light Co.). The analysis is conducted from the point of view of the legal sources (applicable legal norms, clearly recognised constitutional rights) from which this unenumerated fundamental right is derived. This analysis allows us to assume that the right to a life-sustaining climate system is understood in legal discourse as: (i) a constitutional right derived from the right to life, liberty and property as necessary for their realisation, or (ii) a constitutional right encompassed by the right to a clean and healthy environment, or even as (iii) a constitutional right that is a predicate of all constitutional rights. In the author’s view, this right can also be understood as an unexpressed item (aspect) of the right to life.","PeriodicalId":29889,"journal":{"name":"Chinese Journal of Environmental Law","volume":"25 3","pages":""},"PeriodicalIF":0.8,"publicationDate":"2023-12-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138972738","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-12-14DOI: 10.1163/24686042-12340111
Eva Balounová
With climate litigation growing in importance, the aviation industry, as one of the most energy-intensive forms of consumption, has been also challenged. This article identifies five types of climate litigation concerning the aviation sector, and analyses two main arguments that have led to the dismissal of several types of cases. First, the courts have concluded that the Paris Agreement does not apply to international aviation and thus does not commit the parties to the Agreement to reduce emissions from this sector. The second argument for dismissal was the lack of the Paris Agreement’s direct effect, an argument that is raised mainly in the airport expansion cases, as these plans for expansions were often approved by the local authority. To date, only the so-called ‘climate-washing’ claims and the ‘climate-necessity’ defence cases have resulted in favourable outcomes with respect to climate action. The article notes that the climate-washing cases, including claims over carbon offsetting and fuel sustainability, are on the rise, thus drawing attention to the adequacy of the relevant regulatory instruments to ensure the decoupling of the industry from its CO2 emissions.
{"title":"Climate Litigation: Targeting the Aviation Sector","authors":"Eva Balounová","doi":"10.1163/24686042-12340111","DOIUrl":"https://doi.org/10.1163/24686042-12340111","url":null,"abstract":"\u0000With climate litigation growing in importance, the aviation industry, as one of the most energy-intensive forms of consumption, has been also challenged. This article identifies five types of climate litigation concerning the aviation sector, and analyses two main arguments that have led to the dismissal of several types of cases. First, the courts have concluded that the Paris Agreement does not apply to international aviation and thus does not commit the parties to the Agreement to reduce emissions from this sector. The second argument for dismissal was the lack of the Paris Agreement’s direct effect, an argument that is raised mainly in the airport expansion cases, as these plans for expansions were often approved by the local authority. To date, only the so-called ‘climate-washing’ claims and the ‘climate-necessity’ defence cases have resulted in favourable outcomes with respect to climate action. The article notes that the climate-washing cases, including claims over carbon offsetting and fuel sustainability, are on the rise, thus drawing attention to the adequacy of the relevant regulatory instruments to ensure the decoupling of the industry from its CO2 emissions.","PeriodicalId":29889,"journal":{"name":"Chinese Journal of Environmental Law","volume":"31 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2023-12-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138973200","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-12-14DOI: 10.1163/24686042-12340113
André Rodrigues De Aquino
{"title":"The 2023 Amazon Summit – Regional and Global Relevance","authors":"André Rodrigues De Aquino","doi":"10.1163/24686042-12340113","DOIUrl":"https://doi.org/10.1163/24686042-12340113","url":null,"abstract":"","PeriodicalId":29889,"journal":{"name":"Chinese Journal of Environmental Law","volume":"97 4","pages":""},"PeriodicalIF":0.8,"publicationDate":"2023-12-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138975431","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-12-14DOI: 10.1163/24686042-12340109
Antoine De Spiegeleir
VZW Klimaatzaak v Kingdom of Belgium & Others is a climate lawsuit brought in Belgium in 2015. It was modelled on the famous Dutch Urgenda case. In this groundbreaking judicial procedure, over 60,000 plaintiffs argued that Belgian public authorities have undertaken insufficient climate action and called for its enhancement. On June 17, 2021, the Tribunal of First Instance of Brussels rendered its decision in partial favour of the plaintiffs, consolidating a climate ‘duty of care’ for public authorities. This article puts forward a succinct summary of the complaint introduced by the NGO Klimaatzaak and the main findings of the Tribunal. In doing so, it attempts to make the idiosyncrasies of Belgian federalism intelligible to an international audience. It also highlights a number of notable features of the case, including the Tribunal’s reliance on the Aarhus Convention to interpret broadly the provisions on legal standing for environmental NGOs, and a third-party intervention request introduced on behalf of over a hundred trees with long lifespans. Finally, the article focuses on an apparent flaw in the reasoning of the Tribunal in its 2021 judgment and points out what to look out for in the appeal proceedings that are ongoing at the time of writing.
{"title":"The Belgian Climate Case: From Federalism Idiosyncrasies to Arboreal Novelties","authors":"Antoine De Spiegeleir","doi":"10.1163/24686042-12340109","DOIUrl":"https://doi.org/10.1163/24686042-12340109","url":null,"abstract":"\u0000VZW Klimaatzaak v Kingdom of Belgium & Others is a climate lawsuit brought in Belgium in 2015. It was modelled on the famous Dutch Urgenda case. In this groundbreaking judicial procedure, over 60,000 plaintiffs argued that Belgian public authorities have undertaken insufficient climate action and called for its enhancement. On June 17, 2021, the Tribunal of First Instance of Brussels rendered its decision in partial favour of the plaintiffs, consolidating a climate ‘duty of care’ for public authorities. This article puts forward a succinct summary of the complaint introduced by the NGO Klimaatzaak and the main findings of the Tribunal. In doing so, it attempts to make the idiosyncrasies of Belgian federalism intelligible to an international audience. It also highlights a number of notable features of the case, including the Tribunal’s reliance on the Aarhus Convention to interpret broadly the provisions on legal standing for environmental NGOs, and a third-party intervention request introduced on behalf of over a hundred trees with long lifespans. Finally, the article focuses on an apparent flaw in the reasoning of the Tribunal in its 2021 judgment and points out what to look out for in the appeal proceedings that are ongoing at the time of writing.","PeriodicalId":29889,"journal":{"name":"Chinese Journal of Environmental Law","volume":"268 3","pages":""},"PeriodicalIF":0.8,"publicationDate":"2023-12-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139002157","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-12-14DOI: 10.1163/24686042-12340108
Matteo Fermeglia, Riccardo Luporini
This contribution addresses the first strategic climate change litigation filed against the Italian State, the Giudizio Universale case. Giudizio Universale’s legal architecture is largely akin to other landmark cases filed in Europe, such as Urgenda in The Netherlands and Klimaatzaak in Belgium. Accordingly, Giudizio Universale is grounded on the state’s breach of international and EU obligations, the encroachment of human rights enshrined in the European Convention on Human Rights and the Italian Constitution, and the consequent attribution of domestic tort liability to the state under the Italian Civil Code. This article thus examines the main arguments raised in Giudizio Universale in light of the underlying domestic human rights and tort liability regimes. It first investigates the interplay between the breach of climate change obligations and human rights infringement as presented in the complaint to understand whether, and to what extent, Italian courts could give deference to an ‘Urgenda-style’ claim. Second, it unpacks the existing interpretation of tort liability as applied to state liability vis-à-vis its citizens by Italian courts. Third, it factors Giudizio Universale in the recent Italian Constitutional reform, which explicitly introduced the protection of the environment, biodiversity and ecosystems, as well as a reference to the ‘interests of future generations’, into the fundamental principles of the Italian Constitution. Overall, the article concludes that several limitations exist in the Italian legal system in the pursuance of strategic climate litigation against the state for its (in)action against climate change. One of the merits of the Giudizio Universale case, however, is that it challenges these limitations to provide another suitable tool for ensuring protection against the climate emergency.
{"title":"‘Urgenda-Style’ Strategic Climate Change Litigation in Italy: A Tale of Human Rights and Torts?","authors":"Matteo Fermeglia, Riccardo Luporini","doi":"10.1163/24686042-12340108","DOIUrl":"https://doi.org/10.1163/24686042-12340108","url":null,"abstract":"\u0000This contribution addresses the first strategic climate change litigation filed against the Italian State, the Giudizio Universale case. Giudizio Universale’s legal architecture is largely akin to other landmark cases filed in Europe, such as Urgenda in The Netherlands and Klimaatzaak in Belgium. Accordingly, Giudizio Universale is grounded on the state’s breach of international and EU obligations, the encroachment of human rights enshrined in the European Convention on Human Rights and the Italian Constitution, and the consequent attribution of domestic tort liability to the state under the Italian Civil Code. This article thus examines the main arguments raised in Giudizio Universale in light of the underlying domestic human rights and tort liability regimes. It first investigates the interplay between the breach of climate change obligations and human rights infringement as presented in the complaint to understand whether, and to what extent, Italian courts could give deference to an ‘Urgenda-style’ claim. Second, it unpacks the existing interpretation of tort liability as applied to state liability vis-à-vis its citizens by Italian courts. Third, it factors Giudizio Universale in the recent Italian Constitutional reform, which explicitly introduced the protection of the environment, biodiversity and ecosystems, as well as a reference to the ‘interests of future generations’, into the fundamental principles of the Italian Constitution. Overall, the article concludes that several limitations exist in the Italian legal system in the pursuance of strategic climate litigation against the state for its (in)action against climate change. One of the merits of the Giudizio Universale case, however, is that it challenges these limitations to provide another suitable tool for ensuring protection against the climate emergency.","PeriodicalId":29889,"journal":{"name":"Chinese Journal of Environmental Law","volume":"38 4","pages":""},"PeriodicalIF":0.8,"publicationDate":"2023-12-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139003079","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-12-14DOI: 10.1163/24686042-12340102
Maria Antonia Tigre, Otto Spijkers
{"title":"Introduction to the Special Issue on Climate Litigation","authors":"Maria Antonia Tigre, Otto Spijkers","doi":"10.1163/24686042-12340102","DOIUrl":"https://doi.org/10.1163/24686042-12340102","url":null,"abstract":"","PeriodicalId":29889,"journal":{"name":"Chinese Journal of Environmental Law","volume":"25 12","pages":""},"PeriodicalIF":0.8,"publicationDate":"2023-12-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139002946","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-12-14DOI: 10.1163/24686042-12340105
Mingzhe Zhu
Despite the absence of a framework climate law, China’s judiciary has expressed its determination to take climate change litigation seriously. This article argues that the Chinese approach to climate change litigation can be better understood within China’s climate governance paradigm. Primarily understanding climate change as a matter of development instead of a matter of environment or human rights, the Chinese government believes that mitigation and adaptation can only be achieved through a smarter development strategy. The state entrusts the power of making and implementing climate policy to the developmental and industrial departments of the executive branch, allowing them to use macroeconomic measures to transform the structure of energy and industry. If this paradigm persists, Chinese judges are unlikely to condemn carbon majors or require the adaptation of more ambitious climate goals. Instead, the judiciary will interpret statutory law or contracts in light of the state’s climate goals, with the hope of incentivizing industrial upgrades. Despite this approach’s apparent advantages of mainstreaming climate considerations, judges are facing the challenge of employing more sophisticated legal techniques and empirical expertise in respect of the energy system.
{"title":"Climate Litigation in a ‘Developmental State’: The Case of China","authors":"Mingzhe Zhu","doi":"10.1163/24686042-12340105","DOIUrl":"https://doi.org/10.1163/24686042-12340105","url":null,"abstract":"\u0000Despite the absence of a framework climate law, China’s judiciary has expressed its determination to take climate change litigation seriously. This article argues that the Chinese approach to climate change litigation can be better understood within China’s climate governance paradigm. Primarily understanding climate change as a matter of development instead of a matter of environment or human rights, the Chinese government believes that mitigation and adaptation can only be achieved through a smarter development strategy. The state entrusts the power of making and implementing climate policy to the developmental and industrial departments of the executive branch, allowing them to use macroeconomic measures to transform the structure of energy and industry. If this paradigm persists, Chinese judges are unlikely to condemn carbon majors or require the adaptation of more ambitious climate goals. Instead, the judiciary will interpret statutory law or contracts in light of the state’s climate goals, with the hope of incentivizing industrial upgrades. Despite this approach’s apparent advantages of mainstreaming climate considerations, judges are facing the challenge of employing more sophisticated legal techniques and empirical expertise in respect of the energy system.","PeriodicalId":29889,"journal":{"name":"Chinese Journal of Environmental Law","volume":"9 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2023-12-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138970974","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-12-14DOI: 10.1163/24686042-12340103
Tianbao Qin, Ben Boer
{"title":"Note from the Co-editors","authors":"Tianbao Qin, Ben Boer","doi":"10.1163/24686042-12340103","DOIUrl":"https://doi.org/10.1163/24686042-12340103","url":null,"abstract":"","PeriodicalId":29889,"journal":{"name":"Chinese Journal of Environmental Law","volume":"36 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2023-12-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138971309","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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