European Law Journal最新文献

In recent years, the US and the Netherlands have been on opposing sides of the spectrum regarding climate litigation. Dutch courts, in several revolutionary climate cases, have been an arena of societal change, whilst climate claims in the US have been largely unsuccessful. In a way this difference seems strange, because the US judiciary has the power of constitutional review, whilst the Dutch judiciary does not. Against that background, this paper extensively compares the doctrines of judicial competence regarding political questions in both jurisdictions. As a comparative framework, this paper uses three judicial phases, namely: the institutional phase, the substantial phase, and the remedial phase. Climate litigation reveals that the Dutch doctrine of judicial competence is focused on the substantial and remedial phases, which has allowed it more freedom in reviewing climate litigation. On the other hand, climate litigation reveals that the US doctrine of judicial competence is focused on a strict institutional phase, dominated by the Political Question Doctrine (PQD). The main contribution of this paper to the constitutional debate is that climate litigation reveals fundamental differences in doctrines of judicial competence. This is not only an important takeaway for future climate litigation, but also, in terms of the Radbruch formula, for other potential gaps between the executive and justice.

The article explores the difficult balance of interests in the Italian field of seabed mining. In recent years, the regions, bearers of the local communities' social demands, claimed greater attention to sustainability, while the State almost always privileged productivity. The Constitutional Court always took an attitude of self-restraint, basically adhering to State reasons. Given this starting point, it is not entirely certain that the European Court of Justice's 2022 ruling, which included the environmental interest alongside economic concerns, will bring concrete developments. Indeed, although environmental protection falls under constitutional principles from 2022, there is a complex framework of interests involved in the sector, from which political power suffers above all. Consequently, the reception of social demands makes the effort of only the Court insufficient. The Italian case thus illustrates some of the constraints that can weigh on courts, especially constitutional courts, in their ability to constitute an arena of societal change.

In recent years, children across the globe, such as Greta Thunberg and Kelsey Juliana, are seen at the front line of efforts to hold governments accountable for environmental damage. In the Philippines, the case of Oposa v. Factoran gave legal standing to minors and unborn generations invoking their constitutional right to a balanced and healthful ecology. The Philippine Supreme Court based its decision on intergenerational equity—a principle stating that every generation has an obligation to protect the environment for the next.

Representation of future generations in courts is not a new concept, nor is it unique to the Philippines. By examining national laws, treaties and conventions and court decisions by both domestic and international courts, this article aims to show how intergenerational equity has been widely recognised by almost all countries globally as evidence of state practice and opinio juris.

This article argues that the principle of intergenerational equity is ripe for consideration as customary international law and discusses how domestic and international courts and tribunals have been instrumental in establishing such and recommends that children and unborn generations be given legal standing as a necessary consequence.

The Rights of Nature (RoN) concept is an evolving theory in environmental law. It advocates that natural objects be respected and allowed to exist, thrive and flourish for themselves and not for utilitarian purposes. However, attempts to apply the rights often result in litigation. The outcomes of these cases have grave implications for the impact of the RoN concept on the development of jurisprudence and environmental protection, which will further determine its acceptance or rejection by the international community. An examination of some key cases reveals some positive developments that can enhance the implementation of the concept, but it also demonstrates that there are some challenges in the approach adopted by the courts. The article concludes that the RoN can be a jurisprudential tool to enhance environmental protection only where, in addition to well-written constitutional and legislative provisions, court decisions in these cases are of practical consequences.

This article explores how judicial approaches to science relate to the procedural legitimacy of rulings in cases where the plaintiffs seek a change in a government's overall climate policy. It reviews challenges in court interaction with climate science and compares two prominent cases: Urgenda v. The State of the Netherlands and Neubauer et al. v. Germany. The selected lawsuits yield comparative interest in aiming for changes in national climate policies and emission mitigation targets, involving the same kind of evidence (Assessment Reports by the Intergovernmental Panel on Climate Change) but resulting in partially opposing decisions. The analysis reveals that scientific inputs informed courts about climate change risks and mitigation measures. It also suggests that differing approaches to scientific reports influenced contrasting decisions regarding mitigation targets. Finally, it provides insights into how engagement with evidence might impact judgments' legitimacy from a procedural perspective.

Few studies address climate litigation and climate forced mobility together, and the link between climate litigation and internal forced climate displacement remains poorly addressed. This article aims to participate in filling this void. We focus on climate displacement litigation argued before regional human rights courts (the Inter-American Court) and national human rights protection bodies (the Mexican Commission) to determine the adequacy of each from the perspective of potential litigants. We address institutional, procedural and positive law within the context of water scarcity. We find that while institutional and procedural aspects reveal the potential of the Inter-American Court in ruling on climate displacement cases, the application of the positive obligations doctrine by the Mexican National Human Rights Commission is more disaggregated and a priori suitable to ground the course of action of potential litigants.

Access to justice in the EU is to be assured via both the CJEU and national courts through direct and indirect action procedures. Following this, the main argument developed throughout this analysis is that the CJEU differentiates the revision standard when interpreting the obligations of EU institutions and those of Member States. It is concluded that this kind of interpretation maintains the limitations to access to justice for individuals in the EU (the ‘incurable’), even when faced with the attempt to overcome this restrictive interpretation in the specific case of strategic climate litigation (‘curing the incurable’). The specific case of strategic climate litigation is used as an example to illustrate the negative consequences of limitations to access to justice for individuals in the EU. In conclusion, it is assessed whether there are any other ‘real cures’ for this deadlocked situation and what the rationale is behind these double standards.

Over the seven decades of its existence, the European Court of Justice (ECJ) has performed well as a conflict-solving institution. From the existing literature, it becomes less clear however to what extent it served as an effective agent for societal change. Obtaining clarity on this issue seems imperative in the current day and age, considering the gargantuan challenges of accelerating climate change and environmental degradation: if the ECJ generally manages to ‘deliver’, at least some further progress could realistically be expected on this front also. The present article conducts an examination reviewing the experiences in the green domain from a comparative perspective, seeking to discern possible patterns and draw common inferences. Thus, it aims to expose how and when judges prove successful in recalibrating the conduct or opinions of real people in actual practice. Those insights may well inform future progress in different fields—the ecological as much as anywhere.

Trends in the Argentine courts indicate a judicial preference towards flexibility in light of possibly serious environmental consequences, particularly in relation to mining. Through a liberal interpretation of constitutional provisions where collective environmental rights are threatened, the courts have expanded access to justice, leading some to view the Argentine judiciary as “interventionist” or “political”. However, judicial decisions emphasise compliance with constitutional mandates without necessarily encroaching on policy-making realms. The constitutionalisation of environmental rights has had a strong influence on the judiciary's approach, but in combination with other factors, particularly civic mobilisation, institutional changes and an evolving public ethos on environmental protection. Proactive judicial engagement with the full extent of its powers to ensure that policy-makers meet their constitutionally mandated obligations can compel policy-makers to address sustainability issues and rethink strategies. This positioning of the judiciary as a catalyst for more effective environmental governance offers useful insights for European courts.