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Nordisk Miljörättslig Tidskrift
Nordic Environmental Law Journal
2017:2
www.nordiskmiljoratt.se
Nordisk Miljöräslig Tidskrift/Nordic Environmental Law Journal 2017:2
ISSN: 2000-4273
Redaktör och ansvarig utgivare/Editor and publisher: Gabriel Michanek
Webpage hp://www.nordiskmiljora.se/omtidskriften.asp (which also includes writing instructions).
25
The Quest for Cosmopolitan Justice in Climate Matters
Esmeralda Colombo*
Abstract
At a time when climate litigation is soaring world-
wide, some recurrent paerns among legal systems
allow for a brief reection on cosmopolitan justice.
In a recent strand of cases (Urgenda, Leghari, Juliana
v. Unites States and Earthlife), dierent courts have
reached climate-protective rulings by applying
constitutional provisions, along with international
principles and treaty norms. Until the rst case
was rendered in 2015, such interpretive technique
was unprecedented in the eld of climate change
litigation. Yet, it appears to be well-founded in in-
ternational law, instrumental for its enforcement
and replicable across legal systems. None of the
cases reviewed are nal, yet they all appear to have
precipitated a process of public reasoning at the
national and international levels, as well as policy
change under some circumstances. While access
to justice is notably absent from the international
climate change regime, individuals and NGOs are
currently vindicating it before national courts.
Part I. Introduction
“Fiat iustitia et pereat mundus”. Let justice be
done though the world may perish. There must
be something inherently human in the idea of
justice, bound to a calling entrenched in the hu-
man nature, entwined with a drive to act that
would not be worthy in a world uerly deprived
of justice. A host of values and ideals might re-
place justice in the old Latin adage. We all ac-
knowledge the importance of saying the truth,
but what about: let the truth be done though the
world may perish? Justice might still hold more
poignancy than the truth. Whilst the truth is a
choice of men within the four corners of their
soul, a choice to renovate in societal life, justice
appears to relentlessly linger in the community
of men by foreshadowing the possibility that
we—as a body politic—aain some level or high-
er level of coexistence, that we as a citizenry act
for more and for a just world.
Albeit its Latin wording, the adage did not
emerge until probably the 16th century.1 Accord-
ing to some, its use originated from Ferdinand
I, successor to Charles V. Yet, its revival in the
Perpetual Peace by Immanuel Kant (1795) projects
the moo within the scope of moral and political
philosophy, and for the incremental shaping of a
pacied legal order.
In the present essay, I tentatively address
the quest for justice from an international law
perspective. Leaving aside the traditional notion
of international law as regulative of inter-state
relations (jus gentium as termed in the Perpetual
Peace), I would rather espouse the looking glass
of a ius cosmopoliticum, characterizing individu-
als and states as equal actors and international
law as one of the sources applicable to prospec-
tive dierences. Under examination is the erup-
tive problem of justice related to climate change.
Rather than purporting new avenues of regu-
lation and novel treaties to be drafted, I would
rather take international law as a given and
1
H. Arendt, Between Past and Future: Eight Exercises in
Political Thought (Penguin 1977), 224.
* Esmeralda Colombo is a research fellow at the Univer-
sity of Bergen in Norway. The author wishes to thank
the editorial commiee of and an anonymous reviewer
for Nordisk Miljöräslig Tidskrift. The author extends
her sincere thanks to Prof. Jørn Øyrehagen Sunde for his
encouragement and comments, as well as to Prof. Sig-
rid Eskeland Schü for her excellent observations. The
author may be contacted at esmeralda.colombo@uib.no.
Nordisk miljörättslig tidskrift 2017:2
Nordic Environmental Law Journal
26
emphasize the prong of the justiciability of the
rights therefrom derivable on the part of individ-
uals, either acting on their own or represented
by NGOs.
After briey considering the ‘legalization’
and ‘judicialization’ of international climate
change law (Part II), I would turn to specic ju-
dicial instances opposing individuals and NGOs
to their own governments in climate change mat-
ters (Part III). None of the decisions under con-
sideration is nal, still all cases appear to have
triggered unprecedented media resonance and
a public reason process, at both the national and
international levels. After considering the emer-
gence of similar cases in other legal systems (Part
IV), I conclusively appraise the main functions,
potential and shortcomings of this trend of cli-
mate change litigation (Part V). I conclude by
arguing that the mechanism applied by national
courts in the cases under examination is bene-
cial to the enforcement and legitimacy of inter-
national law, and ultimately to the protection
of the climate. Yet, some limitations are notably
outstanding.
The present essay is based on a number of
assumptions and limitations. My purpose is to
consider the quest for justice from the viewpoint
of the strategic use of international law in do-
mestic courts. The selected realm of application
is international climate change law, even though
a host of principles relevant to international en-
vironmental law more generally would come
into play. Most of the claims are directed to the
forum state, namely the state where the action is
brought, and entail limits on the state’s territorial
sovereignty over its resources. One of the claims
concerns the no-harm principle as related to the
obligations of enterprises. All in all, international
law appears to oer a repository of rights where
to ground either claims or complaints pertaining
to climate change maers.
Part II. From Legalization to
Judicialization
I herein aim to clarify some assumptions of the
cosmopolitan outlook adopted in the present
essay. At the end of the present paragraph, I
conclude by holding that international law has
evolved as much as to include the individual as
one of its actors, rather than merely a subject. As
an actor, both individually and within a collec-
tive capacity (e.g. civic associations, NGOs), the
individual has increasingly been able to limit
the sovereignty that the state has long wielded
over its natural resources. In a recent turn, such
limitation of sovereignty appears to concern also
the possibility for individuals and NGOs to hold
enterprises accountable in court for damages
caused through legal conduct contributing to cli-
mate change, against the idea that all permied
actions shall go unchecked in climate maers.
As classical sociology was bound to study
the ‘national society’ owing to its origination in
the aftermath of the Franco-German war of 1870,
2
so was international law predestined to revolve
around the international aairs of a world made
of nation-states due to its crystallization in the
16
th
and 17
th
centuries. The Western origins of the
international community are usually traced back
to the Peace of Westphalia in 1648, which intro-
duced the principles of religious equality and the
equality of states into the practice of internation-
al law.3 Absent its demise, sovereignty is clearly
epitomized in one of the current principles of
international environmental law, namely the
principle of permanent sovereignty over natural
2 U. Beck, ’Cosmopolitan Sociology – Outline of a Par-
adigm Shift’ in M. Rovisco and M. Nowicka (eds), The
Ashgate Research Companion to Cosmopolitanism (Ashgate
2011) 18.
3 W. Preiser, ’History of the Law of Nations. Ancient
Times to 1648’ in R. Bernhardt (ed), Encyclopedia of Public
International Law: History of International Law, Foundations
and Principles of International Law, Sources of International
Law, Law of Treaties, vol 7 (Elsevier 1984) 156.
Esmeralda Colombo:
The Quest for Cosmopolitan Justice in Climate Matters
27
resources. Even though the landmark resolution
adopted by the UN General Assembly on 14 De-
cember 1962,4 generally viewed as an expression
of customary international law, bestows such a
right onto “peoples and nations,” the principle
itself is often regarded as a prerogative of the
nation-state and a potential hurdle to environ-
mental protection.
At rst glance, the principle of permanent
sovereignty over natural resources appears to al-
low each state a wide leeway in the management
of its natural resources, even to the expense of
its own peoples. One of the few limits imposed
by general international law to the principle of
territorial sovereignty dwells with the prohibi-
tion to cause damages on areas beyond the state’s
national jurisdiction.5 Still, the conduct of every
state should comport with the “principles and
rules of international law,”6 including its treaty
obligations.
Notwithstanding the host of treaties aimed
to reign in sovereign powers—a phenomenon
known as ‘legalization,’ biodiversity indicators
are constantly declining and the international
community is often regarded as failing to en-
force existing regulation and address the most
crucial environmental challenges of our time.
7
The weight of environmental depletion, often
4
Permanent Sovereignty over Natural Resources, GA
res. 1803 (XVII), 17 UN GAOR Supp. (No.17) at 15, UN
Doc. A/5217 (1962).
5 A. Nollkaemper, ’Sovereignty and Environmental Jus-
tice in International Law’ in J. Ebbesson and P. Okowa
(eds), Environmental Law and Justice in Context (CUP 2009)
255. For a detailed discussion on the principle of sover-
eignty over natural resources and the responsibility not
to cause damage to the environment of other states or to
areas beyond national jurisdiction, see P. Sands and oth-
ers, Principles of International Environmental Law (3rd edn,
CUP 2012) 190–200.
6 Legality of the Threat or Use of Nuclear Weapons Advisory
Opinion, ICJ Reports 1996, 226, para 22 (International
Court of Justice).
7 See, inter alia, UNEP, Global Environment Outlook 5 (rst
published in 2012) 134.
coupled with distributive injustice, has been
especially perceived in the changing of the cli-
mate ever since last century. Individuals have
incrementally started to hold their respective
governments, and even enterprises, accountable
for either insucient action or inaction, rst by
relying on domestic law, and most recently by
deploying international law principles and treaty
norms. The recent strand of climate cases deploy-
ing international law appears to scrape the prin-
ciple of territorial sovereignty in that individu-
als and NGOs counteract ineective legalization
and enforcement, both at the national and inter-
national levels, with a new type of litigation.
This new type of litigation appears to be
framed as a form of private enforcement of in-
ternational law in domestic courts. Such a means
of enforcement is not a novel one, having found
articulation in international law literature in the
1930s.8 Among the interpretive techniques avail-
able to the judiciary, indirect application—also
called the consistent interpretation of national
law with international obligations—has been
considered the preferred one by national courts,9
besides being also the less politically controver-
sial. Indeed, it relies on the presumption that
the legislator intends to comply with its inter-
national obligations. Its deployment for reasons
of environmental protection usually posits that
the joint application of international law and na-
tional law can aain beer protective results than
sole national law in the chosen maer of applica-
tion. With specic reference to the climate eld,
this mixed fuel of international law and national
law started in 2015 with a type of domestic liti-
gation that spearheaded the application of con-
stitutional law, tort law, environmental law and
8 G. Scelle, Précis de Droit des Gens: Principes et Systémati-
que – Pt.2 (Sirey 1934) 10–12.
9
A. Nollkaemper, National Courts and the International
Rule of Law (OUP 2011) 165.
Nordisk miljörättslig tidskrift 2017:2
Nordic Environmental Law Journal
28
procedural law, along with treaty norms, inter-
national customs and principles.10
Besides being endorsed within inuential
soft law documents,11 such technique conforms
with what is considered to be the most eec-
tive avenue of enforcement of international law,
namely its internalization and domestication.
12
The concocting of this mixed fuel scenario has
taken place within the form of transnational
law litigation, already known to be wielded for
the advancement of human rights in domestic
courts.
13
The specic type of litigation is trans-
national due to the derivation of claims of rights
from a body of ‘transnational’ law,14 namely do-
10 Even though this form of judicialization is novel for
its use of international law, it appears to fall within the
‘classic’ eld of public interest litigation, which emerged
in the 1950s in the United States and later spread to a
number of countries. The main objective of public inter-
est litigation is to precipitate social change through the
judicial enunciations of norms and a novel application
of remedies. For a list of the distinctive traits of public
law litigation, see A. Chayes, ’The Role of the Judge in
Public Law Litigation’ (1976) 89 HarvLRev 1281, 1302.
On the theory and structure of public interest litigation,
see H. Hershko, Public Interest Litigation: Selected Issues
and Examples, hp://www.worldbank.org/publicsector/
legal/index.htm, last visited 7 December 2017, 7–11. Cf.
the early use of international law on the part of the US Su-
preme Court for the protection of individual rights from
government infringement in D. Sloss, ’Polymorphous
Public Law Litigation: The Forgoen History of Nine-
teenth Century Public Law Litigation’ (2014) 71 Wash Lee
Law Rev 1757, 1808, 1821–1822, 1825–1827.
11 With specic reference to climate change, prominent
scholars and practitioners advocated the joint application
of human rights law, national environmental law and, to
a lesser extent, tort law. See Oslo Principles on Global Cli-
mate Change Obligations, hp://globaljustice.macmillan.
yale.edu/sites/default/les/les/OsloPrinciples.pdf, last
accessed 16 August 2017.
12 A. M. Slaughter, ’International Law in a World of Lib-
eral States’ (1995) 6 EJIL 503, 534.
13
H.H. Koh, ’Transnational Public Law Litigation’ (1991)
100 Yale LJ 2347, passim.
14 Ibid. See ibid also the ve features characterizing
transnational public law litigation. See also H.H. Koh,
’Civil Remedies for Uncivil Wrongs: Combaing Terror-
ism through Transnational Public Law Litigation’ (1987)
22 TexInt’l LJ 169, 194–195.
mestic and international, private and public law,
which is invoked in a single action.
As is often the case in transnational litiga-
tion, the new strand of climate cases that I am to
review has been staged in domestic courts. Most
notably, it has pied individuals and/or NGOs
against the forum state. A recent turn in this line
of cases, featured in a German case, appears to al-
low individuals and NGOs to judicialize climate
change maers against enterprises with some
use of international law principles.
The strand of cases is still in its infancy. Yet,
it is safe to say that the involvement of individu-
als within decision-making at a global level,
which constituted the very initial inclusion of
non-state actors within global environmental
maers, is not considered suciently satisfac-
tory. In the glaring absence of any right to ac-
cess justice within the climate change regime,
15
15 See the 1992 United Nations Framework Convention
on Climate Change, 1771 UNTS 107, Article 6(a)(ii) and
Article 6(a)(iii). The UNFCCC does not provide for access
to justice, restraining its purview to the other two pillars
of procedural environmental rights embodied by access
to information and participation in decision-making. See
also the Kyoto Protocol to the United Nations Frame-
work Convention on Climate Change UN Doc FCCC/
CP/1997/7/Add.1, Dec. 10, 1997; 37 ILM 22 (1998), Article
10(e). The Kyoto Protocol solely recognizes the right to
access information. See 2015 Paris Agreement on Climate
Change, FCCC/CP/2015/L.9/Rev.1, Article 12. In the mold
of the UNFCCC, the Paris Agreement enshrines public
participation and public access to information and omits
access to justice. As rightly noted, “even when an agree-
ment does not provide for a right to access or participa-
tion, it may nevertheless support rather than be neutral
or opposing the notion of participatory and procedural
rights in environmental maers”. Jonas Ebbesson, Partici-
patory and Procedural Rights in Environmental Maers: State
of Play (High Level Expert Meeting on the New Future
of Human Rights and Environment: Moving the Global
Agenda Forward Co-organized by UNEP and OHCHR,
Nairobi, 30 November–1 December 2009, 2009), 3. Even
when an agreement recognizes participatory or proce
-
dural rights, the term chosen might not belong to the
rights-language. In fact the notion of rights is more tai-
lored to human rights treaties than international environ-
mental law, see ibid, 3–4.
Esmeralda Colombo:
The Quest for Cosmopolitan Justice in Climate Matters
29
individuals and NGOs have lately judicialized
climate maers by vindicating their rights, the
rights of future generations and the interests of
the climate before national courts.
Part III. Novel Litigation in Climate
Change Maers
Notwithstanding the adoption and rapid entry
into force of the Paris Agreement, international
climate change policy and law has not stood out
for being particularly eective.16 For this reason,
among others, individuals have taken climate
change maers to national courts for the laer
to precipitate change. By applying international
environmental principles and treaties along with
national norms, national courts have allowed
individuals and NGOs to access courts and at-
tain climate-protective rulings. The new strand
of case law started in 2015 in the Netherlands,
and was continued through decisions by the La-
hore Green Bench in Pakistan, a District Court in
the United States and the Pretoria High Court in
South Africa. In this paragraph, I overview each
case and conclude by maintaining that some in-
terpretive features have emerged in a strikingly
similar way in all four cases, seing the stage for
a prospective eusion of the same techniques to
further national courts.
The Urgenda case is an action in tort, which
was brought to the District Court of The Hague
by the Urgenda Foundation, a Dutch environ-
mental NGO, and 886 individuals on behalf of
which Urgenda was acting. In June 2015, the
three-judge panel found the State liable of haz-
ardous negligence and enjoined it to increase the
State’s emissions reduction target from approxi-
16 The Status of Climate Change Litigation. A Global
Review, UNEP-Sabin Center for Climate Change (May
2017), http://columbiaclimatelaw.com/files/2017/05/
Burger-Gundlach-2017-05-UN-Envt-CC-Litigation.pdf,
last accessed 14 June 2017, 6–9.
mately 17% to 25% by 2020 compared to 1990.
The ruling is now on appeal.
It appears that the court in Urgenda granted
rights, both procedurally and substantively, by
indirectly applying international law, the Euro-
pean Convention on Human Rights (‘ECHR’)
and EU law. With respect to standing, the court
interpreted Urgenda’s bylaws and the Dutch
Civil Code in light of the concept of sustainable
development as enshrined in the Brundtland
Report, especially in its global and intergenera-
tional dimension; Article 2 of the UN Framework
Convention on Climate Change (‘UNFCCC’),
framing the objective of the UNFCCC; and Ar-
ticles 2 and 8 of the ECHR on the right to life
and the right to respect for private and family
life, respectively. Such an application resulted in
Urgenda’s possibility of pleading even on behalf
of future generations.
On the substantive plane, Urgenda brought
an action in tort under the theory of unlawful
hazardous negligence (Book 6, Section 162 of the
Dutch Civil Code), which was read along with
a provision in the Dutch Constitution imposing
a duty of care on “authorities to keep the coun-
try habitable and to protect and improve the
environment” (Article 21 Dutch Constitution).
Now, what do these provisions imply? The
Court developed a two-tier test: rst, by ham-
mering out the degree of discretion that pertains
to the government in the specic eld of climate
change policy, and secondly, by materializing a
minimum degree of care that the Dutch State is
to provide.
17
In both tiers, the court construed
the duty of care, as enshrined in the Dutch Civil
Code and the Constitution, in light of the objec-
tives and principles set forth in international cli-
17 On the two-tier test, see Urgenda v The Netherlands
The Hague District Court (June 24, 2015) ECLI:NL:
RBDHA:2015:7196 (original language: ECLI:NL:RBDHA:
2015:7145) para 4.52.
Nordisk miljörättslig tidskrift 2017:2
Nordic Environmental Law Journal
30
mate policy and EU legislation, due to the “na-
ture of the hazard.”18
With respect to the rst prong, namely the
degree of governmental discretion on the maer,
the court identied limits to governmental dis-
cretion in the no-harm principle, the UNFCCC
and related instruments,
19
and especially Articles
2 and 3 UNFCCC. These two provisions were
found to uphold: the principle of inter-genera-
tional equity; the principle of intra-generational
equity; the precautionary principle combined
with a cost-benet nuance;20 and the principle of
sustainable development.
21
With respect to EU
climate policy and principles, the court found
that governmental discretion was bounded due
to Article 191 of the Treaty on the Functioning
of the European Union (‘TFEU’), articulating
the principle of a level of high protection of the
environment, the prevention principle, and the
precautionary principle.22
With respect to the second prong of the test,
namely the minimum degree of care required
of the Dutch State, the court referred to positive
obligations that the Dutch State ought to full
for the protection of the environment toward the
individuals under its jurisdiction and control, ac-
cording to the European Court of Human Rights’
18 Ibid, para 4.55.
19 The Court especially recalled the Kyoto Protocol and
its Doha Amendment, which the Court acknowledges
not to be binding yet. The Netherlands is Party to both.
See ibid paras 4.42 and 4.66.
20 Ibid, para 4.58. Note that the eectiveness of the mea-
sures is evaluated worldwide.
21 Ibid, para 4.59.
22 Ibid, paras 4.60 and 4.61 referring to Article 191(1)
Treaty on the Functioning of the European Union (2009),
Ocial Journal C 326, 26/10/2012 P. 0001 – 0390 (‘TFEU’).
The court also recalls Article 191(3) TFEU, which notably
emphasizes the need for EU policy makers to take into ac-
count “the available scientic and technical information,”
among other criteria. See ibid, para 4.62.
(‘ECtHR’) case-law.
23
The positive obligations
contained in the minimum degree of care was
found to rest on immediate action through mitiga-
tion, rather than adaptation, measures.
24
A higher
mitigation target, the court held, comports with
the principles of inter-generational equity, pre-
caution and prevention. The court maintained
that the adequate contribution to prevent haz-
ardous climate change was an emissions reduc-
tion target of at least 25% compared to 1990
levels.25 Such emissions reduction level was the
minimum required by Urgenda and corrobo-
rated by the scientic documents prepared by
the Intergovernmental Panel on Climate Change
(‘IPCC’).26 Such a target was found to be beyond
the requirements of EU regulation on the maer,
yet economically feasible,27 also in comparison
to the national policies of the United Kingdom,
Denmark and Sweden.28 In conclusion, this is a
case of indirect application of international law
or, termed in accordance with the Dutch legal
system, a reex eect of international law in
Dutch law.29
23 Ibid, para 4.74 referring to 4.45–4.49, where the Court
recalls the positive obligations enshrined in Articles 2
and 8 ECHR.
24 Ibid, para 4.71. The court dismissed the State’s con-
tention on the eectiveness of CO2 storage and capture
mechanisms, ibid, para 4.72. See also para 4.63 for further
considerations.
25 Ibid, para 4.91. The scientic evaluation of the maer
is carried out from ibid, para 2.8.
26 See ibid, para 4.85 to retrieve Urgenda’s request, and
para 2.15 to nd consistent data from the IPCC Fourth
Report.
27 Ibid, para 4.76 on the accordance of higher mitigation
targets with the relevant international principles, and
para 4.86 on the need for the envisaged measure not to
be disproportionately burdensome for the Netherlands.
28 Ibid, para 4.82.
29 On some criticism toward the decision, see, among oth-
ers, M. Peeters, ’Urgenda Foundation and 886 Individuals v.
The State of the Netherlands: The Dilemma of More Ambi-
tious Greenhouse Gas Reduction Action by EU Member
States’ (2016) 25 RECIEL 123.
Esmeralda Colombo:
The Quest for Cosmopolitan Justice in Climate Matters
31
The second case that I am to overview was
decided by a Pakistani court. Leghari falls within
a constitutional type of litigation that a lawyer
from a farming family of Lahore brought against
the Pakistani government. With an order issued
in September 2015, the Lahore’s Green Bench
ordered the establishment of a Climate Change
Commission tasked with implementing Paki-
stan’s Climate Change Policy and Framework
for the eective enforcement of the people of
Punjab’s fundamental rights.30 The relevant leg-
islation was already in place for the period 2014–
2030, yet it was admiedly lacking implemen-
tation. The so-called climate change orders are
still ongoing and incrementally issued by Justice
Syed Mansoor Ali Shah.
As for Urgenda, the court in Leghari granted
rights, both procedurally and substantively, by
indirectly applying international law. Given the
character of a public interest litigation case, Judge
Shah established the court’s jurisdiction with-
out further analysis besides the alleged breach
of fundamental rights and the asserted claim to
protect the laer on behalf of the people of Pun-
jab. Moreover, the petitioner was not requested
to prove how specically the executive’s inertia
had/would have aected his farming family and
his own source of income. On the substantive
plane, the relevant judge found that the Pakistani
central government, due to its “lethargy” on the
climate change policy and implementing frame-
work, had violated a number of constitutionally
protected fundamental rights. An infringement
was found of the right to life (Article 9 of Paki-
stan’s Constitution), which implicitly includes
the right to a healthy and clean environment, the
right to human dignity (Article 14 of Pakistan’s
Constitution), the right to property (Article 23 of
Pakistan’s Constitution) and the right to infor-
30 Leghari v Federation of Pakistan and others, Lahore High
Court, WP No 25501/2015 (Sept 14, 2015).
mation (Article 19A of Pakistan’s Constitution).
The Green Bench read the provisions in light
of sustainable development, the precautionary
principle, the principle of environmental impact
assessment (‘EIA’), inter and intra-generational
equity, as well as the public trust doctrine.31
The content of this decision is especially
pivotal for its being issued in the jurisdiction of
a developing country, where the relevant judge
recalled the government to its duties. Such du-
ties are enhanced by the developing status of the
country itself and the disproportionate eect of
climate change on South Asia in particular.32 Not
only did the court intervene on the objectives to
be reached, but it also acted as the Rawlsian ex-
emplar of Public Reason.33 In fact, it put forward
a new discourse on the constitutional essentials
by coordinating ministries and governmental
bodies, as well as by educating them about the ef-
fects of climate change on the fundamental rights
of the people of Punjab.
The third case I am to broach is Juliana v.
United States, whereby a group of young people
and a guardian for future generations have sued
the United States and other governmental o-
cials for the alleged violation of substantive due
process rights (5th Amendment to the US Con-
stitution), specically life and liberty, by failing
to adopt measures to decrease greenhouse gas
emissions. A federal judge in Oregon, where the
case is still under adjudication, denied several
31
Ibid, para 7. The public trust doctrine is traced back
to Roman law, was adopted by common law legal sys
-
tems and has further been developed with respect to the
planetary physical system, including the climate. On this
point, see E. Brown Weiss, ’The Planetary Trust: Conser-
vation and Intergenerational Equality’ (1984) 11 Ecology
LQ 495, passim.
32 Leghari (n 30) para 4.
33 J. Rawls, ’The Idea of Public Reason Revisited’ (1997)
64 UChiLRev 765, passim.
Nordisk miljörättslig tidskrift 2017:2
Nordic Environmental Law Journal
32
motions to dismiss and a motion to strike.34 Even
though the decision hinges on procedural mat-
ters, it appears to be already notable.
By embracing the opinion rendered by a
magistrate judge,35 the US District Judge, Judge
Aiken, acknowledged the effects of climate
change on individuals as eects of a constitu-
tional magnitude and explicitly recognized the
justiciability of the issue, namely its aptitude to
being the object of judicial decisions.36 The judge
acknowledged the existence of the right to a cli-
mate system capable of sustaining human life.
She also maintained the correlative deprivation
of the right to life and liberty (5th Amendment
to the US Constitution) that results from the ab-
sence of eective action on the part of the federal
government.37 The relevant judge expressed her
awareness of the inter-generational dimensions
of the public trust doctrine, which was already
recalled by the Pakistani Court in Leghari, but did
not expound them.38
The defendants in the case later moved for a
stay of proceedings, which was denied by Judge
Aiken. While the fossil fuel industry had inter
-
vened, they later asked and obtained to be re-
leased from the case. The defendant in the case,
the federal government, led a petition for ‘writ
of mandamus’ with the Ninth Circuit Court of
Appeals, asking the Court of Appeals to issue the
writ and direct the district court to dismiss the
34 Kelsey Cascade Rose Juliana et al v the United States of Amer-
ica et al, 6:15-cv-1517-TC (Judge Aiken, Opinion and Or-
der, District of Oregon, 10 November 2016), hps://static1.
squarespace.com/static/571d109b04426270152febe0/t/58
24e85e6a49638292ddd1c9/1478813795912/Order+MTD.
Aiken.pdf, last accessed 16 August 2017.
35
Kelsey Cascade Rose Juliana et al v the United States of
America et al, 6:15-cv-1517-TC (Thomas M Con, Mag-
istrate Judge, Findings and Recommendations to the
District Court for the District of Oregon, 8 April 2016),
hp://ourchildrenstrust.org/sites/default/les/16.04.08.
OrderDenyingMTD.pdf, last accessed 16 August 2017.
36 Juliana v. United States (n 34), 16–17.
37 Ibid, 32.
38 Ibid.
case. The Court of Appeals is presently adjudi-
cating the maer.
The fourth and last case is Earthlife, which
was rendered by the Pretoria High Court in
March 2017.39 Dierently from the previous, this
case does not concern climate policy, but rather
a specic project. Earthlife Africa (‘Earthlife’), an
environmental NGO founded in South Africa,
led an administrative appeal and later a claim
with the Pretoria High Court, claiming that the
Director of the Department of Environmental Af-
fairs (the ‘Chief Director’) had failed to consider
the climate change impacts of a proposed coal-
red power station before granting the authori-
zation. In administrative proceedings, the Minis-
ter of Environmental Aairs (the ‘Minister’) had
amended the authorization issued by the Chief
Director and requested that the building rm
carry out a climate change assessment of the en-
visaged project. At that stage of the administra-
tive process, however, the authorization could
not have been withdrawn.40 In its decision, the
Pretoria High Court set partially aside the Min-
ister’s ruling, suspended the authorization, and
remied the maer of climate change impacts to
the Minister for reconsideration on the basis of
the climate change report.41
The maer of the case turns on the inter-
pretation of section 24O of South Africa’s Na-
tional Environmental Act (‘NEMA’), namely
South Africa’s EIA law. The laer requires that
the authorization of listed activities mandatorily
consider all “relevant factors,” among which
climate change is not mentioned.42 The Pretoria
High Court set itself to interpret section 24O(1)
39 Earthlife Africa Johannesburg v Minister of Environmental
Aairs and Others (High Court of South Africa – Gauteng
Division, Pretoria, 8 March 2017), Case no 65662/16,
hp://climatecasechart.com/non-us-case/4463/, last ac-
cessed 7 December 2017.
40 Earthlife (n 39) 41.
41 Ibid, 47.
42 Ibid, 6.
Esmeralda Colombo:
The Quest for Cosmopolitan Justice in Climate Matters
33
of NEMA with reference to its wording and pur-
pose, and in light of “its ethos and intra- and ex-
tra-statutory context.”43 It thus applied NEMA
consistently with section 24 of South Africa’s
Constitution, regarding environmental protec-
tion, as well as international law.44 The Court ap-
plied Article 3(3) of the UNFCCC, enshrining the
precautionary principle, and Article 4(1)(f) of the
UNFCCC, imposing “an obligation on all states
parties to take climate change considerations into
account in their relevant environmental policies
and actions, and to employ appropriate methods
to minimise adverse eects on public health and
on the environment.”
45
Similarly to the Leghari
court, the Earthlife court highlighted the priority
of poverty alleviation within South Africa’s cli-
mate change action.46 The judge also mentioned
the Paris Agreement, but did not apparently ap-
ply it.47
Conclusively, the court held that the deci-
sion was not “reasonable, rational and lawful”
since the authorization could not have been with-
drawn in light of the climate change assessment
of the project. Thus had Art. 24O(1) of NEMA
been violated.48
Notwithstanding some notable dierences,
all four courts accepted the judicialization of cli-
mate change maers by applying international
law and the most important law of the land, the
Constitution. The interpretive technique un-
leashed, namely the indirect application of inter-
national law, oers a glimpse of the domestica-
tion of international law sources that may occur
43 Ibid, 36.
44
Ibid, 32. The Court cites the presumption principle
enshrined in section 233 of the South African Constitu-
tion, see Earthlife (n 39) 33.
45 Ibid, 34. The NGO Earthlife also referred to the Kyoto
Protocol and the Paris Agreement, see ibid, 15.
46 Ibid, 15.
47 Ibid, 36.
48 Ibid, 40.
in the future also in further jurisdictions, be they
of a common law or civil law tradition, within a
developed or a developing country.
Part IV. Germany, Norway and Pakistan
(Again) to Follow?
The concept of inter- or trans-judicial dialogue is
renowned at the level of international and trans-
national legal scholarship. The application of the
same norms, principles and concepts in function-
ally equivalent ways by functionally equivalent
national courts not only can operate as an instru-
ment of dogmatic analysis and reciprocal legiti-
mization, but may even lead to the emergence of
international customary law. For example, the
Magistrate judge in Juliana v. United States exten-
sively quoted the Urgenda decision, specically
with regard to the justiciability of climate maers
and the carbon leakage argument.49
Yet, there may also be a dialogue among
plaintis. The concept of an inter-plainti dia
-
logue belongs to the realm of human rights liti-
gation but has steadily been spreading also to
the eld of environmental litigation. The follow-
ing cases concern litigation presently unfolding
in Germany, Norway and Pakistan. Just one of
these cases has been decided in rst instance, the
Norwegian case. The German case has been de-
cided on procedural grounds and has proceeded
beyond the pleading phase, while the Pakistani
case has not been decided yet. Still, all three cases
appear to either explicitly deploy the indirect ap-
plication of international law or implicitly refer
to international law principles, in the mold of
the cases previously illustrated (see supra Part
III). There is nothing unprincipled in the further
spreading of the techniques invoked by plaintis
and applied by the relevant judges in the strand
of cases prompted by Urgenda. Yet, plaintis and
the judiciaries should be aware of the communal
49 Juliana v. United States (n 34) 11.
Nordisk miljörättslig tidskrift 2017:2
Nordic Environmental Law Journal
34
use of the same norms and concepts in order to
avoid the fragmentation of international law and
persuasively hammer out equivalent levels of
protection, as compatible with the relevant legal
system, legal culture and culture more generally.
In July 2016, Saul Luciano Lliuya, a Peruvian
citizen, brought a claim to the District Court of
Essen, Germany, against RWE AG (‘RWE’), an
electric utility company incorporated in Germa-
ny and Europe’s biggest single emier of CO2.50
The company is allegedly contributing to the
melting of glacier Palcaraju and, consequently,
to the increasing water volume of the Lake Pal-
cacocha, located above the Andes’ city of Hua-
raz, where plainti owns property. Grounding
his claim on dierent legal theories—private nui-
sance, agency and unjust enrichment—plainti
asked the court to determine that RWE is liable
to cover the expenses for preventative measures
to protect the plainti’s property against ood-
ing from the glacier lake insofar as the plainti is
aicted with such costs.51
With a decision rendered in December 2016,
the Essen District Court dismissed the claim
without proceeding to the evidence phase of
trial, mainly due to the lack of specicities of the
claim and the complexity of the causal nexus re-
quired for the legal aribution of climate change
eects to the conduct of individual emiers.
52
50 Securing the Future (RWE AG, Report 2015) 42,
hp://www.rwe.com/web/cms/mediablob/en/2998766/
data/1904186/2/rwe/responsibility/climate-protection/
RWE-Our-Responsibility-Report-2015.pdf
51
Lliuya v RWE AG (District Court of Essen, 15 December
2016) 14/0354Z/R/rv, 2–3 of the unocial English trans-
lation available at hp://climatecasechart.com/non-us-
case/lliuya-v-rwe-ag/, last accessed 7 December 2017. See
also W. Frank, The Huaraz Case (Lluiya v. RWE) – German
Court Opens Recourse To Climate Law Suit Against Big Co2-
Emier (Sabin Center for Climate Change Law: Climate
Law Blog, 7 December 2017), hp://blogs.law.columbia.
edu/climatechange/2017/12/07/the-huaraz-case-lluiya-v-
rwe-german-court-opens-recourse-to-climate-law-suit-
against-big-co2-emier/, last accessed 7 December 2017.
52 Lluiya v. RWE (n 51).
The decision, however, was reversed in Novem-
ber 2017 by the Civil Court of Appeals of Hamm,
which maintained that a request for partial re-
fund of the expenses incurred by plainti ap-
pears to comport with the principles underlying
some of the German Civil Code’s provisions on
interference with property owner’s rights.53 The
Court thus found that evidence shall be taken
from expert opinions on several maers, among
which RWE’s percentage of contribution to the
causal nexus. According to the Carbon Majors’
Report, the plainti asserted such contribution to
be 0.47%, for a total liability of RWE in the case of
approximately 17.000,00 euros.54
Even though it does not appear that plain-
ti invoked international law, one of the lawyers
that contributed to the plainti’s legal strategy
commented the complaint as being grounded on
the no-harm principle.55 The laer is recognized
as a principle of international customary law
56
and was applied in the Urgenda decision. Ad-
ditionally, the polluter pays principle, which is
characterized as a principle of international en-
vironmental law,57 appears to have been recalled
by the Appeals’ Court when it asserted that “[i]
t is in accordance with the legal system that
even the one who acts lawfully must be liable
for property impairments caused by him.”58 It is
therefore to be seen whether such references will
53 Para 1004(1) German Civil Code.
54 R. Heede, Carbon Majors: Accounting for Carbon and
Methane Emissions 1854–2010. Methods & Results Report
(Climate Mitigation Services, 2014) 27, hp://carbon
majors.org/wp/wp-content/uploads/2014/04/MRR-9.1-
Apr14R.pdf, last accessed 7 December 2017. Lliuya v
RWE AG (Civil Court of Appeals of Hamm, 30 November
2017) I-5 U 15/17, 2 O 285/15, 1, hp://germanwatch.org/
de/download/20732.pdf, last accessed 7 December 2017.
55 W. Frank, The Huaraz Case (Lluiya v. RWE) (n 51).
56 See, inter alia, P. Sands and others, Principles of Interna-
tional Environmental Law (n 5) 196.
57 See, ibid, 228–229.
58 Lliuya v RWE AG (Civil Court of Appeals of Hamm, 30
November 2017) (n 54) para 2.
Esmeralda Colombo:
The Quest for Cosmopolitan Justice in Climate Matters
35
be more explicit in the further adjudication of the
case. If such were the case, this would be the rst
and only climate change case where the indirect
application of international law is pleaded in na-
tional courts against an enterprise for claiming
damages.
As another development of climate change
litigation, the much-acclaimed Paris Agreement
has recently entered the litigation scene. The Par-
is Agreement was invoked within a claim led in
Norway in October 2016.
59
Two environmental
NGOs brought a claim against the Norwegian
government to challenge the legality of oil and
gas licenses for deep-sea extraction in the Bar-
ents Sea. Plaintis motivated the licenses’ ille-
gality by resting on the reformed provisions of
Section 112 of the Norwegian Constitution. As
a rst theory, claimants argued that the licenses
breach the absolute prohibition, which is deriv-
able from Section 112, for the state to allow the
extraction in issue, given the damage and risk to
which the environment can be exposed.60 If such
prohibition were not absolute, a prohibition on
such activities would nevertheless result from
the application of the principle of proportionality
between environmental degradation and socio-
economic benets—maintained plaintis in the
summons. Alternatively, plaintis asserted that
the licences were invalid because of procedural
errors, specically related to the neglect of envi-
ronmental and climate considerations during the
EIA process for issuing the licenses.61
59 Greenpeace Nordic Ass’n and Nature & Youth v
Norway Ministry of Petroleum and Energy (Oslo Dis-
trict Court, petitioned led 18 October 2016), hp://
blogs2.law.columbia.edu/climate-change-litigation/
wp-content/uploads/sites/16/non-us-case-documents/
2016/20161018_3593_petition.pdf, last accessed 16 Au-
gust 2017.
60 Greenpeace Nordic Ass’n and Nature & Youth v. Norway
Ministry of Petroleum and Energy (n 59) 6.
61 See ibid, 6.
By explicitly referring to the presumption
principle, which equals the interpretive technique
of the indirect application of international law,
claimants argued that Section 112 of the Norwe-
gian Constitution should be interpreted consis-
tently with Norway’s international obligations,62
among which the precautionary principle,63 the
no-harm principle,
64
the Paris Agreement, in
particular Articles 2(1)(a), 4(1), 3 and 4(3),65 Ar-
ticles 2 and 8 of the ECHR, and Article 12 of the
International Covenant on Economic Social and
Cultural Rights (‘ICESCR’).66 The precautionary
and no-harm principles, as well as Articles 2 and
8 ECHR, have been successfully applied also in
some of the cases reviewed under Part III.
With reference to the inter-plainti prong of
the case, the summons referred to the ruling in
Urgenda,67 and one of the NGOs representatives
cited both Urgenda and Juliana v. United States in
an earlier article that he contributed to write.68
62 Ibid, 36.
63
The precautionary principle is held to unfold both a
substantive prong and a procedural prong. See ibid, 6.
See also ibid, 37. Both prongs were also applied in the
Urgenda decision, see comments by S. Roy and E. Woerd-
man, ’Situating Urgenda v the Netherlands within Com-
parative Climate Change Litigation’ (2016) 34 JERL 165,
180.
64 Plaintis analyzed the no-harm principle by refer-
ring to the principle of non-discrimination, see Green-
peace Nordic Ass’n and Nature & Youth v. Norway Ministry
of Petroleum and Energy (n 59) 37–38. See ibid, 38, where
plaintis cited Pulp Mills on the River Uruguay (Argentina
v. Uruguay) Judgment, ICJ Reports 2010, 14 (International
Court of Justice).
65 Greenpeace Nordic Ass’n and Nature & Youth v. Norway
Ministry of Petroleum and Energy (n 59) 19. See also ibid,
22, for reference to Norway’s Nationally Determined
Contribution.
66 Ibid, 38–39.
67 Greenpeace Nordic Ass’n and Nature & Youth v. Norway
Ministry of Petroleum and Energy (n 59) 4.
68 A. Melli and others, ’Norway’s Dash for Arctic Oil
Violates its Own Constitution’ The Ecologist (16 Octo-
ber 2015) http://www.theecologist.org/News/news_
analysis/2985911/norways_dash_for_arctic_oil_violates_
its_own_constitution.html, last accessed 16 August 2017.
Nordisk miljörättslig tidskrift 2017:2
Nordic Environmental Law Journal
36
The case has been recently decided by the
Oslo District Court.
69
The competent judge main-
tained that Section 112 of the Norwegian Con-
stitution, an environmental provision, confers
rights and can be invoked in the courtroom.
70
Such holding is unprecedented as Section 112
had not been tried before. Notwithstanding,
the judge found that the threshold for assessing
whether Section 112 has been breached is largely
left for the Norwegian Parliament to set.
71
The
judge bestowed wide discretion also on the Nor-
wegian government with respect to the proce-
dure for and content of the EIA that preceded the
issuance of the licenses.72 International law did
not play a large role, and ECHR law did not play
any role, in the decision as the judge asserted
that plaintis had not claried, nor substantiated
whether the licenses breached international law
69 Greenpeace Nordic Ass’n and Nature & Youth v Nor-
way Ministry of Petroleum and Energy (Oslo District
Court, 4 January 2018, 16-166674TVI-OTIR/06).
70 Ibid, 13–17. The judge, however, did not clarify what
type of right Section 112 enshrines, e.g. whether to life,
health or democratic participation – which aects the ju-
dicial level of scrutiny. B.K. Ese, ‘Dommen tvingar fram
nye klimasøksmål’ UiB Nyheter (5 January 2018) hp://
www.uib.no/aktuelt/113792/dommen-tvingar-fram-nye-
klimas%C3%B8ksm%C3%A5l, last accessed 10 January
2018.
71 Ibid, 20. It appears that the judge is preoccupied with
the democratic character of the judgment, and thus con-
fers wide discretion to the Norwegian Parliament. The
upcoming question thus revolves around the level of
discretion recognized to the government when govern-
mental action does not involve a vote in the Parliament.
Even though discretion is ultimately conferred to the
Parliament, the decision shows that the judge actually
pondered whether CO2 emissions would substantially
increase due to the licenses, but concluded that increase
would be marginal. Such conclusion is reached on the as-
sumption that the “high scenario” of CO2 emissions does
not materialize, which appears at loggerheads with the
precautionary principle. Ibid, 22. One may inquire why
the “high scenario” was not taken into account and what
the consequences may be if it does.
72 Ibid, 29–45.
and ECHR law.73 Plaintis have announced that
they will appeal the decision.74
As for the Norwegian case, the Paris Agree-
ment has been recently invoked within a claim
led in Pakistan in April 2016 by a young girl,
Rabab Ali.
75
Rabab’s father, an environmental
lawyer, led a public interest litigation case with
the Supreme Court of Pakistan alleging viola-
tions of constitutionally protected fundamental
rights,
76
in light of a number of international
principles: the principle of sustainable develop-
ment, the precautionary principle, the obliga-
tion to undertake an EIA, as well as the principle
of inter-generational equity. Moreover, a host
of conventions and instruments were recalled,
among which the UNFCCC, the Kyoto Protocol,
the Rio Declaration and the Paris Agreement.
The inuence of the victorious Leghari case is
quite apparent from plainti’s emphasis on the
principle of environmental impact assessment
and the public trust doctrine, which have been
deployed in the Leghari judgment.
Yet, the factual posture of the case is quite
specic. Among a range of acts and omissions at-
tributed to the government of Pakistan, petitioner
contested the approval of a plan to develop coal
and requested an injunction against the plan. The
73 Ibid, 28. On the reference to international law, namely
the Kyoto Protocol and the Paris Agreement, in order to
state that Norwegian oil and gas burned abroad is not
under Norwegian jurisdiction, see ibid, 18–19.
74 S.V.B. Langåker, ‘Støttar anke i klimasøksmålet
mot staten’ Framtida (7 January 2018) hps://framtida.
no/2018/01/07/landsmotet-stottar-anke-i-klimasoks
malet, last accessed 10 January 2018.
75
Ali v Federation of Pakistan (1 April 2016), Constitutional
Petition (Supreme Court of Pakistan, Islamabad), hp://
climatecasechart.com/non-us-case/ali-v-federation-of-
pakistan-2/, last accessed 16 August 2017.
76 Article 9 – Security of person and Right to life; Article
4(2)(a) – Right of individuals; Article 5(2) – Obedience
to the constitution and law; Article 14(1) – Inviolability
of the dignity of man; Article 19 – Right to information;
Article 23 – Right to property; Article 24(1) – Protection of
property rights; Article 25(1) – Equality of citizens.
Esmeralda Colombo:
The Quest for Cosmopolitan Justice in Climate Matters
37
laer is anticipated to commensurately increase
greenhouse gas emissions and displace residents
in the region, besides direct and indirect environ-
mental degradation. It was not clear why Rabab
Ali did not cite the Leghari case in the petition,
yet the type of litigation is similarly molded for
the public interest and it encompasses the joint
application of domestic law and doctrines, espe-
cially of a constitutional kind, along with inter-
national norms.77 With regard to inter-plainti
dialogue, Rabab Ali’s father worked jointly with
Our Children’s Trust, namely the NGO organiz-
ing plaintis in Juliana v. United States, in order
to prepare the case.78
All in all, the foregoing cases appear to fall
within the mold of transnational law litigation
previously alluded to. Notwithstanding some
dierences, this strand of litigation rests on the
mixed fuel of international norms, notably en-
vironmental principles and treaty norms, along
with national law. All cases came under the
spotlight of the media and apparently spurred a
public reason process among the domestic body
politic and within the international community.
Part V. Conclusive Remarks
In light of successful decisions (Part III) and simi-
larly crafted claims (Part IV), it appears that indi-
viduals and NGOs are currently issuing a clarion
call for cosmopolitan justice in climate maers.79
77 South Asian newspapers see correlations between
the Ali and Leghari cases. Z.T. Ebrahim, ’Seven Year
Old Sues Pakistan Government over Climate Change’
The Third Pole (5 July 2016), hps://www.thethirdpole.
net/2016/07/05/seven-year-old-sues-pakistan-govern
ment-over-climate-change/, last accessed 16 August 2017.
78 ELAW Bulletin, ’Children Making the Case for the
Climate’ (29 July 2016), hp://www.elaw.org/children-
making-case-climate, last accessed 16 August 2017).
79 For an interesting point on climate change and cosmo-
politanism, see Beck, ’Cosmopolitan Sociology – Outline
of a Paradigm Shift’ (n 2) 24: “[…] climate change – like
ancient cosmopolitanism (Stoicism), the ius cosmopoliti-
ca of the Enlightenment (Kant) or crimes against human-
Whether national courts, especially at the apex
level, will uphold such construction of the laws
remains yet to be seen. In this conclusive para-
graph, I consider the main functions, potential
and shortcomings of the process under analysis.
Short of any predictive aempt, I conclusively
hold that the mechanism applied in the cases un-
der examination is instrumental for the ongoing
process of environmental democracy allowing
for increased access to justice, especially access
to courts, for individuals and NGOs. Moreover,
such mechanism appears potentially benecial
to the enforcement of international obligations
in environmental and climate maers, as well as
replicable across legal systems, notwithstanding
some shortcomings. The actual connes of the
practice are nevertheless to be drawn within each
legal system
Litigation may be understood to wield at
least two functions: a substantive one, which is
concerned with the victory of the case and the
aainment of substantive outcomes, and an
expressive one, lying asunder from the prize
of victory and rather hinged on shaping the
public discourse on specic issues. Each of the
analyzed cases cannot be predicted to perma-
nently consolidate in successful nal decisions.
Notwithstanding, their expressive function can
hardly be underestimated. The surge of a new
class of rights that are equally related to human
life and the climate system is being articulated
in national courts. Above the clamor of media
animosity on climate maers, individuals have
chosen to divest themselves of the role of specta-
tors and become actors, with no certain outcome
to ensue. The line of cases has positively aected
the public reason process at both the domestic
and international levels, fullling the third prong
of environmental democracy, namely access to
ity (Hannah Arendt, Karl Jaspers) – releases a ‘cosmo-
politan moment and momentum’.”
Nordisk miljörättslig tidskrift 2017:2
Nordic Environmental Law Journal
38
justice, which complements the rst two prongs
of access to information and participation in de-
cision-making.
Any judicial decision that rules
out the maer in procedural terms—before any
understanding of the substantive maers—may
become “the external power that deprives man of
the freedom to communicate his thoughts pub-
licly,” which turns out to deprive him “at the
same time of his freedom to think.”80
Anyway, no decision is necessitated to-
ward substantive results favorable to the cause
of climate change aversion. Each national judge
is indisputably situated within the moorings of
the relevant legal culture and simmering social
norms, besides a surface legal level that could in
principle be accommodated to an interpretation
coherent with international law.
81
Yet, contempo-
rary law is “generated and rened by multiple
and complex national, international and suprana-
tional motions” so that “the current legal culture–
and thus also the identity of the judiciary–is de-
veloping across, and to a certain degree totally
independent of, national borders.”82
The homogenization of national laws is not
cherished, nor invoked. If these cases turn out to
be successful, as it happened to be in the human
rights’ eld, norms will converge from “adjudi-
cations in multiple jurisdictions each reecting
the socio-political structures of its constitution,
80 Arendt, Between Past and Future: Eight Exercises in Po-
litical Thought (n 1) 230 citing I. Kant, ’Beantwortung der
Frage: Was ist Aulärung? Berlinische Monatsschrift
(1784) tr. by D. Colclasure, ‘Toward Perpetual Peace: A
Philosophical Sketch’ in P. Kleingled (ed), Toward Perpet-
ual Peace and Other Writings on Politics, Peace, and History
(Yale University Press 2000)
81
For these categories, see K. Tuori, ’Fundamental Rights
Principles: Disciplining the Instrumentalism of Policies’
in A.J. Menendez and E.O. Eriksen (eds), Arguing Funda-
mental Rights (Springer 2006), 42.
82 Supreme Court Justice dr. juris A. Bårdsen, ’Supreme
Courts and the Challenges posed by the Transnationali-
sation of Law’ (Faculty of Law, University of Bergen, 21
September 2015) 7.
while seeking to conform local practices to evolv-
ing international standards.”83
Much potential of the process under discus-
sion depends on the legitimacy of international
law. In fact, the international environmental
norms considered to be more legitimate are of-
ten the ones that courts will more likely apply.
Therefore, the legitimacy of the norm is apt to
allow for its eective enforcement.
84
In a circu-
lar spiral, however, the judicial incorporation of
principles and norms of international law is also
going to contribute to the increased legitimacy of
the norms applied.
One may note at least ve shortcomings
entrenched within the envisaged mechanism of
enforcing international law through courts and
increasingly aaining cosmopolitan justice in cli-
mate maers.
Firstly, a climate protective outcome may
be contingent on the individual willingness of
judges to apply international law.
Secondly, even national judges favorable to
the application of international law may be at
pains in deploying international environmental
treaties that are usually grounded on the aain-
ment of objectives, rather than on the implemen-
tation of specic tools. Similarly, some interna-
tional environmental principles may occur to
domestic judges as vague.
Thirdly, such a strand of litigation may trig-
ger some not always constructive discussions
on the legitimacy of national judiciaries, and the
boundaries of the separation of powers’ princi-
ple. The executive and the judiciary might char-
acterize such cases as a baleground where to
clarify the actual reach of the principle of separa-
83
M. O. Chibundu, ’Making Customary International
Law through Municipal Adjudication: A Structural In-
quiry’ (1999) 39 VaJInt’l L 1069, 1148.
84 T.M. Franck, The Power of Legitimacy Among Nations
(OUP 1990) 24.
Esmeralda Colombo:
The Quest for Cosmopolitan Justice in Climate Matters
39
tion of powers with the likelihood that relations
between the two powers be strained.
Fourthly, litigation might not be an eective
mode of enforcement due to its costs in terms of
personal and pecuniary resources.
Lastly, among the possible drawbacks,
victorious national decisions may turn to be a
backlash for international policy-making and
law-making in climate maers to a point where
negotiating states would craft international legal
norms to prevent the potential liability of States
from being assessed in national courts.
Fiat justicia et pereat mundus. In Kant’s inter-
pretation, the adage cited across this essay may
ideally lead to the political maxims based “on the
pure concept of the duty of right (..), whatever the
physical consequences may be,” rather than “the
welfare and happiness that an individual state
can expect to derive.”85 Only time will (maybe)
85
Kant, ’Beantwortung der Frage: Was ist Aulärung?
Berlinische Monatsschrift (1784) tr. by D. Colclasure, ’To-
ward Perpetual Peace: A Philosophical Sketch’ (n 79) 102.
tell what the political maxims based on the duty
of right is in climate change maers, and whether
such maxims are feasible in the long run. Yet, the
participation of individuals and NGOs through
courts appears to already fulll an ideal of justice
based on a collective duty of care. The world, in
its integrity, belongs to none sovereign power,
rather to each individual and the whole commu-
nity. More, “the growing prevalence of a (nar-
rower or wider) community among the people
of the earth has now reached a point at which the
violation of right at any one place on the earth is
felt in all places.”86 The case of climate change is
a potent reminder of such a state of interdepen-
dence.
86 Ibid, 84.
