Asmaa Khadim, Margaretha Wewerinke‐Singh, Jannemieke Ouwerkerk, Miranda Boone
{"title":"Guest editorial: Courts as an arena for societal change: An appraisal in the age of “environmental democracy”; In this issue","authors":"Asmaa Khadim, Margaretha Wewerinke‐Singh, Jannemieke Ouwerkerk, Miranda Boone","doi":"10.1111/eulj.12495","DOIUrl":"https://doi.org/10.1111/eulj.12495","url":null,"abstract":"","PeriodicalId":501574,"journal":{"name":"European Law Journal ","volume":"71 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-04-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140806666","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}
Following the landmark Urgenda case, European social movements and legal networks have increasingly turned to courts to compel governments to more ambitious mitigation policies. The rapid proliferation of Urgenda‐like cases in the most diverse European jurisdictions, makes a compelling case to investigate the motivations and goals animating European climate litigators, especially when facing high legal barriers. While timely legal analyses of high‐profile climate litigation abound in the literature, an emerging body of research has focused on the genesis of climate cases , their strategies, and societal impacts. To contribute to this latter thread, the article investigates how legal barriers and considerations, and social movements' motivations and goals,have shaped a diverse range of legal strategies in high‐profile climate lawsuits inspired by Urgenda in Europe. The article shows that courts might turn into very different arenas to pursue social change, in which actors elect cautious or daring strategies, depending on the legal system and tradition they refer to, but also their vision and objectives.
{"title":"‘Foot in the Door’ or ‘Door in the Face’? The development of legal strategies in European climate litigation between structure and agency","authors":"Carlotta Garofalo","doi":"10.1111/eulj.12494","DOIUrl":"https://doi.org/10.1111/eulj.12494","url":null,"abstract":"Following the landmark <jats:italic>Urgenda</jats:italic> case, European social movements and legal networks have increasingly turned to courts to compel governments to more ambitious mitigation policies. The rapid proliferation of <jats:italic>Urgenda</jats:italic>‐like cases in the most diverse European jurisdictions, makes a compelling case to investigate the motivations and goals animating European climate litigators, especially when facing high legal barriers. While timely legal analyses of high‐profile climate litigation abound in the literature, an emerging body of research has focused on the genesis of climate cases , their strategies, and societal impacts. To contribute to this latter thread, the article investigates how legal barriers and considerations, and social movements' motivations and goals,have shaped a diverse range of legal strategies in high‐profile climate lawsuits inspired by <jats:italic>Urgenda</jats:italic> in Europe. The article shows that courts might turn into very different arenas to pursue social change, in which actors elect cautious or daring strategies, depending on the legal system and tradition they refer to, but also their vision and objectives.","PeriodicalId":501574,"journal":{"name":"European Law Journal ","volume":"4 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-04-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140804782","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}
The transnational movement of climate activists is resorting increasingly often to acts of civil disobedience. Upon being prosecuted for those acts, climate activists across various jurisdictions are starting to plead the general criminal law defence of necessity. The present article takes the cases in which that defence was pleaded before Swiss courts as a case study to analyse the legal questions raised by the ‘climate necessity defence’, conceptualised as an instance of climate litigation. The article hence situates the Swiss cases within a broader framework, trying to draw interpretive insights from international environmental law and climate science, as well as the transnational case‐law on the climate necessity defence. The article's overarching submission is that a broad interpretation of the defence, tending towards accepting its applicability, is more in line with the current legal thinking on environmental matters than a restrictive interpretation rejecting a priori climate necessity claims.
{"title":"The necessity defence in (the Swiss) climate protest cases: Democratic contestation in the age of climate activism","authors":"Paolo Mazzotti","doi":"10.1111/eulj.12497","DOIUrl":"https://doi.org/10.1111/eulj.12497","url":null,"abstract":"The transnational movement of climate activists is resorting increasingly often to acts of civil disobedience. Upon being prosecuted for those acts, climate activists across various jurisdictions are starting to plead the general criminal law defence of necessity. The present article takes the cases in which that defence was pleaded before Swiss courts as a case study to analyse the legal questions raised by the ‘climate necessity defence’, conceptualised as an instance of climate litigation. The article hence situates the Swiss cases within a broader framework, trying to draw interpretive insights from international environmental law and climate science, as well as the transnational case‐law on the climate necessity defence. The article's overarching submission is that a broad interpretation of the defence, tending towards accepting its applicability, is more in line with the current legal thinking on environmental matters than a restrictive interpretation rejecting <jats:italic>a priori</jats:italic> climate necessity claims.","PeriodicalId":501574,"journal":{"name":"European Law Journal ","volume":"19 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-04-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140804751","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}
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.
{"title":"What climate litigation reveals about judicial competence","authors":"Douwe de Lange","doi":"10.1111/eulj.12492","DOIUrl":"https://doi.org/10.1111/eulj.12492","url":null,"abstract":"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.","PeriodicalId":501574,"journal":{"name":"European Law Journal ","volume":"55 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140585787","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}
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.
{"title":"Courts as an arena of societal change? The Italian Constitutional Court's self‐restraint facing the legislator's uncertain discretion in seabed mining: A concrete counter‐example","authors":"Giorgio Cataldo","doi":"10.1111/eulj.12491","DOIUrl":"https://doi.org/10.1111/eulj.12491","url":null,"abstract":"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.","PeriodicalId":501574,"journal":{"name":"European Law Journal ","volume":"43 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-03-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140204406","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}
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.
近年来，全球各地的儿童，如 Greta Thunberg 和 Kelsey Juliana，都站在了要求政府对破坏环境行为负责的第一线。在菲律宾，"Oposa 诉 Factoran "一案为未成年人和未出生的下一代提供了法律地位，他们援引宪法赋予的权利，要求获得平衡、健康的生态环境。菲律宾最高法院的判决基于代际公平原则，即每一代人都有义务为下一代人保护环境。
{"title":"Beyond OPOSA: Courts reinforcing intergenerational equity as customary international law","authors":"Josiah David F. Quising","doi":"10.1111/eulj.12489","DOIUrl":"https://doi.org/10.1111/eulj.12489","url":null,"abstract":"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 <i>Oposa v. Factoran</i> 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.","PeriodicalId":501574,"journal":{"name":"European Law Journal ","volume":"21 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140150148","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}
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.
自然权利（RoN）概念是环境法中一个不断发展的理论。它主张尊重自然物，允许自然物为自身而非功利目的而存在、繁荣和发展。然而，试图应用这些权利往往会导致诉讼。这些案件的结果严重影响了 RoN 概念对法学发展和环境保护的影响，这将进一步决定国际社会是接受还是拒绝这一概念。对一些关键案例的研究揭示了一些积极的发展，这些发展可以加强这一概念的实施，但同时也表明法院采用的方法存在一些挑战。文章的结论是，《罗马规约》只有在以下情况下才能成为加强环境保护的法学工具：除了宪法和法律规定的完善外，法院在这些案件中的判决也具有实际影响。
{"title":"Recognising the rights of nature: How have the courts fared?","authors":"Tolulope N. Ogboru","doi":"10.1111/eulj.12490","DOIUrl":"https://doi.org/10.1111/eulj.12490","url":null,"abstract":"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.","PeriodicalId":501574,"journal":{"name":"European Law Journal ","volume":"27 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-03-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140150143","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}
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.
{"title":"Judicial approaches to science and the procedural legitimacy of climate rulings: Comparative insights from the Netherlands and Germany","authors":"Juliana de Augustinis","doi":"10.1111/eulj.12483","DOIUrl":"https://doi.org/10.1111/eulj.12483","url":null,"abstract":"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: <jats:italic>Urgenda v. The State of the Netherlands and Neubauer et al. v. Germany</jats:italic>. 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.","PeriodicalId":501574,"journal":{"name":"European Law Journal ","volume":"49 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-03-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140150147","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}
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.
{"title":"A rights‐based approach to the choice of forum in climate displacement litigation: Lessons from the Americas","authors":"Armelle Gouritin","doi":"10.1111/eulj.12486","DOIUrl":"https://doi.org/10.1111/eulj.12486","url":null,"abstract":"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.","PeriodicalId":501574,"journal":{"name":"European Law Journal ","volume":"140 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-03-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140150145","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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