Litigating Climate Change through International Law: Obligations Strategy and Rights Strategy

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 for standing for a non-injured party before international courts. Rights strategy, on the other, significantly increases in practice. It consists in the invocation, before national and international courts, of violations of environmental law through the legal categories of human rights law. This article sheds light on the potential and the 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 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 history of drafting that 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 commitment into actual action for climate change