Bönnemann, Maxim

Krakau, Meike

Saiger, Anna-Julia

English

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Introducing the Symposium onComparative Climate Litigation inNorth-South PerspectiveAnna-Julia Saiger, Maxim Bönnemann,Meike Krakau2022-03-21T10:00:41“We are dealing with core, indeed, high policy-making”. Last week, in overturningthe ground-breaking Sharma decision, Justice Allsop of the Australian FederalCourt made this crucial statement. This decision has been perceived by many asa setback for climate litigation, both in Australia and beyond. Sharma concerned afinding by a single Federal Court judge that the Federal Minister for the Environmentowed children a duty of care when considering whether to approve a mining project.On appeal, all three justices of the Full Court found that such a duty did not exist.Justice Allsop in particular emphasised that “the natural places for the developmentof such policy and the making of decisions as to the implementation of such policyis the Executive branch of government, and Parliament”. This article of faith wasnonetheless expressed reluctantly, with Allsop J leaving no doubt that at stake inthese decisions is “the risk of catastrophe for the world and humanity”.From the perspective of a common law tradition, such a delineation between lawand politics seems unremarkable. It is not for courts to decide on issues where thereis scope for political disagreement, but for the democratically elected legislature orthe executive. And yet the appeal decision leaves us with a bitter aftertaste. If thecatastrophe we face is one “for the world and humanity”, isn’t it time to rethink someof our core beliefs regarding institutional roles and the role of the judiciary? If currentinstitutional arrangements fail when addressing the global climate catastrophe, aren’twe in dire need of alternative approaches when thinking about the role of law andcourts?We as editors of the forthcoming symposium neither can nor want to provideanswers to these questions here. Instead, we argue that we should look to theGlobal South for lessons when reflecting on the role of law and institutions in tacklingthe climate crisis.Looking SouthIt is only recently that comparative law has begun to pluralize its epistemicfoundations and reflect on its eurocentric heritage. For much of its history,comparative law has neglected or marginalised the Global South. Whileneighbouring disciplines have long established that there are areas in which “theoryfrom the South” provides privileged insights into global problems and their solutions,comparative law is only slowly acknowledging the highly innovative contributionsof Southern courts and scholarship. More recently scholarship has interrogated adistinct “Constitutionalism of the Global South” and argued for a “Southern Turn”- 1 -in comparative law. Classic areas for pioneering judgments by Southern courts arefor instance socio-economic rights, rights of nature, or access to justice. Many ofthose judgments are not only innovative contributions to the global legal canon,but hold valuable lessons for the jurisdictions of the Global North. Many societaland regulatory questions that courts in the Global North are dealing with today –rising inequality, institutional failure, or questions of religious pluralism – have kepttheir Southern counterparts busy for many decades. In this way “looking South” is apromising avenue for many legal comparative endeavours.This blog debate builds on this insight and extends this focus to the questionof climate litigation. As has been recently observed by Joana Setzer and LisaBenjamin, climate litigation cases in the Global South are growing – but still receivetoo little attention. This shortcoming is all the more lamentable as industrialisedcountries from the Global North bear the main responsibility for historic and presentgreenhouse gas emissions, while many countries from the Global South areespecially vulnerable to the adverse effects of climate change. A comparison of howcourts in these latter States deal with legal questions relating to climate change,therefore, touches upon the concept of climate justice. Our aim is twofold: First, thisblog debate assesses and compares specific tools, constraints, and topics that relateto climate litigation – both in South-South and South-North comparison. Second, thisdebate interrogates which specific features of climate litigation in the Global Southmight move the global debate on climate litigation further.The Debate AheadThe articles to be published over the coming days span a wide range of geographicalregions and substantive themes. They extend to, amongst other, questions ofadaptation litigation, the right to health, indigenous and First Nations climate litigationin Anglophone settler-colonial states and the question of what the European Courtof Human Rights could learn from courts in the Global South. All contributions will becross-posted on Verfassungsblog and Völkerrechtsblog, with a number of blog poststo be developed into full journal articles for a special issue of Verfassung und Rechtin Übersee / World Comparative Law.In an additional lunch talk on Thursday, March 24, 2022, 2:00-3:00 p.m. (CET),we will discuss with Sam Bookman from Harvard Law School the constitutionalimplications of the rights turn in climate litigation and its growing success in termsof distribution, power, and democracy. You can register for the talk (“What happenswhen you win? The constitutional dimensions of rights-based climate litigation”) withinfo@verfassungsblog.de.- 2 -

Introducing the Symposium on Comparative Climate Litigation in North-South Perspective

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Introducing the Symposium on Comparative Climate Litigation in North-South Perspective

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