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147 results

Page 1 of 8

  • 9 - The Farmer or the Hero Litigator?

  • from Part II - Legal Strategy in Rights-Based Climate Litigation
  • Edited by César Rodríguez-Garavito, New York University
  • Book:
    Litigating the Climate Emergency
    Published online:
    10 November 2022
    Print publication:
    03 November 2022, pp 187-205
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  • Summary

    This chapter seeks to fill a lacuna in our developing understanding of Global South climate litigation concerning how such litigation emerges. The focus is the different, prototypical modes of legal action in the Global South and how they are shaped by particular actors, including local activists, global nonprofit foundations, and lawyers. We propose a theoretical framework to explain these modes and their implications for the emergence of climate litigation in the Global South. The overarching objective of our enquiry is to provide insights for both scholars and practitioners about the key drivers that make climate litigation more or less likely, as well as the conditions that support or obstruct the emergence of climate litigation in developing countries.

  • Recipe for Success?: Lessons for Strategic Climate Litigation from the Sharma, Neubauer, and Shell Cases

  • Jacqueline Peel, Rebekkah Markey-Towler
  • Journal:
    German Law Journal / Volume 22 / Issue 8 / December 2021
    Published online by Cambridge University Press:
    19 January 2022, pp. 1484-1498
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  • The urgency of the global climate problem has prompted an increasing turn to the courts to accelerate action. While still a relatively new phenomenon, “strategic” climate cases have been on the rise since 2015. Litigants in these cases aim to produce ambitious and systemic outcomes. However, with both time and resources limited, how might we best discern which cases have the greatest prospects of achieving cut through in the policy and public debate, and accelerating climate action? This Article contributes to developing literature evaluating the “recipe for success” in strategic climate claims. It provides a comparative analysis of three recent, high-profile wins in climate cases from Australia—Sharma—, Germany—Neubauer—, and the Netherlands—Shell—, examining their commonalities to give insight into the ingredients for successful strategic climate litigation. Our analysis shows how the three cases combine careful, strategic planning, with legal imagination and innovation to generate outcomes that heighten their capacity for broader impact. Evaluating the success of these types of prominent climate cases provides important guidance for future case design.

  • 7 - ‘Next Generation’ Climate Change Litigation in Australia

  • from Part III - Domestic Law and Domestic Adjudication
  • Edited by Jolene Lin, National University of Singapore, Douglas A. Kysar, Yale University, Connecticut
  • Book:
    Climate Change Litigation in the Asia Pacific
    Published online:
    06 November 2020
    Print publication:
    29 October 2020, pp 175-206

  • Summary

    Since the conclusion and entry into force of the Paris Agreement and the high-profile Urgenda case, possibilities for exploring new avenues of strategic climate change litigation in Australia have received considerable attention. To date, most Australian cases have involved administrative challenges to projects under environmental laws to have climate change impacts taken into account. While this ‘first generation’ of cases has achieved significant results, there is increasing interest in taking forward a ‘next generation’ of cases that have a broader focus on holding governments and corporations directly accountable for the climate change implications of their actions. This chapter explores the contours of next-generation climate change litigation in Australia, including the drivers for these lawsuits and the potential legal avenues by which they might be brought. Rather than abandoning first-generation challenges — which have targeted Australia’s principal sources of greenhouse gas emissions such as coal-fired power stations and coal mines — we argue that the most fruitful strategy for future climate change litigation in Australia is one that continues to advance lower risk cases building from existing litigation, while simultaneously attempting novel approaches.

  • 11 - Climate Change Adaptation Litigation: A View from Southeast Asia

  • from Part III - Domestic Law and Domestic Adjudication
  • Edited by Jolene Lin, National University of Singapore, Douglas A. Kysar, Yale University, Connecticut
  • Book:
    Climate Change Litigation in the Asia Pacific
    Published online:
    06 November 2020
    Print publication:
    29 October 2020, pp 294-328

  • Summary

    Climate change poses serious adaptation challenges for countries in Southeast Asia, including how climate change impacts will be managed under environmental and planning law frameworks. At the same time. in Southeast Asia, climate change litigation involving questions of adaptation planning is at a nascent stage. There is also little research and scholarship on climate change legal developments in this part of the world. This chapter aims to evaluate prospects for adaptation-focused climate change litigation in Southeast Asia. It considers three key Southeast Asian jurisdictions – the Philippines, Malaysia and Singapore – which illustrate differing levels of receptivity to such cases given their existing legal frameworks and litigation cultures. With climate litigation in general at an early stage in these jurisdictions, this chapter attempts to draw lessons for further development of this body of case law from the more developed climate adaptation jurisprudence in neighbouring Australia. The chapter concludes with an assessment of the necessary preconditions for growth of climate adaptation litigation in the Southeast Asian region.

  • Transnational Climate Litigation: The Contribution of the Global South

  • Jacqueline Peel, Jolene Lin
  • Journal:
    American Journal of International Law / Volume 113 / Issue 4 / October 2019
    Published online by Cambridge University Press:
    26 June 2019, pp. 679-726
    Print publication:
    October 2019
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  • Since the conclusion of the Paris Agreement, climate litigation has become a global phenomenon, casting courts as important players in multilevel climate governance. However, most climate litigation scholarship focuses on court actions in the Global North. This Article is the first to shine a light on the Global South's contribution to transnational climate litigation. Analysis of this experience is essential if transnational climate jurisprudence is to contribute meaningfully to global climate governance, and to ensuring just outcomes for the most climate-vulnerable.

  • 12 - Litigation as a Climate Regulatory Tool

  • from Part IV - Legitimacy of Outcomes: Performance, Effects (and Side-Effects)
  • Edited by Christina Voigt, Universitetet i Oslo
  • Book:
    International Judicial Practice on the Environment
    Published online:
    15 April 2019
    Print publication:
    18 April 2019, pp 311-336

  • Summary

    Courts are forums for strategic lawsuits addressing climate change mitigation and adaptation. Advocates' turn to courts has been encouraged by uncertainty on implementation of international treaties and inadequacy of government and business efforts to curb emissions to avoid dangerous levels of global warming. Court actions on such issues have grown exponentially since the mid-2000s. Globally, climate change litigation has been brought in eighteen countries across six continents. How effective is that as a tool for better regulation of climate change risks? What world impact have cases had on policy, social norms and business practices? Are the overall impacts of such litigation positive, or mitigated by anti-regulatory litigation or government backlash? Are the legal avenues and actors targeted in such litigation right for to achieve transformative change? Such litigation is seen as an expanding area of adjudication across the world. The regulatory impact of cases in leading jurisdictions such as the US and Australia is assessed, with the lessons that it offers for interested groups or individuals doing so strategically.

Principles of International Environmental Law
  • 4th edition
  • Philippe Sands, Jacqueline Peel
  • With Adriana Fabra, Ruth MacKenzie
  • Published online:
    07 August 2018
    Print publication:
    01 March 2018
  • This new and fully updated edition of Principles of International Environmental Law offers a comprehensive and critical account of one of the fastest growing areas of international law: the principles and rules relating to environmental protection. Introducing the reader to the key foundational principles, governance structures and regulatory techniques, Principles of International Environmental Law explores each of the major areas of international environmental regulation through substantive chapters, including climate change, atmospheric protection, oceans and freshwater, biodiversity, chemicals and waste regulation. The ever-increasing overlap with other areas of international law is also explored through examination of the inter-linkages between international environmental law and other areas of international regulation, such as trade, human rights, humanitarian law and investment law. Incorporating the latest developments in treaty and case law for key areas of environmental regulation, this text is an essential reference and textbook for advanced undergraduate and postgraduate students, academics and practitioners of international environmental law.

  • 15 - Environmental Information and Technology Transfer

  • from Part III - Techniques For Implementing International Principles And Rules
  • Philippe Sands, University College London, Jacqueline Peel, University of Melbourne
  • With Adriana Fabra, Universitat de Barcelona, Ruth MacKenzie, University of Westminster
  • Book:
    Principles of International Environmental Law
    Published online:
    07 August 2018
    Print publication:
    01 March 2018, pp 682-734

  • Summary

    INTRODUCTION

    Improving the dissemination of scientific and technological knowledge, whether in the form of information on the environment or technical know-how on the best ways to deal with environmental problems, is a well-established objective of international environmental law. Information, including scientific expertise, is widely recognised as a prerequisite to effective national and international environmental management, protection and cooperation. The availability of, and access to, information allows preventative and mitigation measures to be taken, ensures the participation of citizens in national decision-making processes, and can influence individual, consumer and corporate behaviour. Information also allows the international community to determine whether states are complying with their legal obligations. Technical assistance, provided especially to developing countries, and wider dissemination of state-of-the-art technologies, including ‘clean technologies’, are likewise seen as central to international environmental law implementation efforts.

    This chapter considers international rules regarding the dissemination of environmental information and clean technologies. The period since the first edition of this book has seen many significant developments in both areas, reflecting the increasing emphasis on effective implementation of international environmental obligations. In the field of environmental information these include the 1998 Aarhus Convention, which establishes a Europe-wide regime for access to environmental information, public participation, and access to justice in environmental cases; the Aarhus Convention's 2003 Protocol on Pollutant Release and Transfer Registers; and several other agreements such as the 1998 Chemicals Convention, the 2000 Biosafety Protocol, the 2001 POPs Convention, the 2010 Nagoya Protocol and the 2015 Paris Agreement, which include prominent commitments to ensuring appropriate flows of information and the dissemination of scientific information and expertise. Arbitral tribunals, including those in the trade field, have also demonstrated an increasing acceptance of the importance of transparency and the public availability of information, with a trend to greater transparency for proceedings concerning international environmental matters.

    Over the same period, provisions regarding technical assistance and technology transfer have also become a standard feature of international environmental agreements, with growing acceptance of the linkage – first articulated in treaties such as the 1992 Biodiversity and Climate Change Conventions – between the implementation by developing country parties of their treaty commitments and the transfer of technology and know-how from developed country parties in fulfilment of their treaty obligations.

  • 2 - History

  • from Part I - The Legal And Institutional Framework
  • Philippe Sands, University College London, Jacqueline Peel, University of Melbourne
  • With Adriana Fabra, Universitat de Barcelona, Ruth MacKenzie, University of Westminster
  • Book:
    Principles of International Environmental Law
    Published online:
    07 August 2018
    Print publication:
    01 March 2018, pp 21-51

  • Summary

    INTRODUCTION

    Modern international environmental law can be traced directly to international legal developments that took place in the second half of the nineteenth century. Thus, although the current form and structure of the subject emerged in the mid 1980s, a proper understanding of modern principles and rules requires a historic sense of earlier scientific, political and legal developments. International environmental law has evolved over four distinct periods, reflecting developments in scientific knowledge, the application of new technologies and an understanding of their impacts, changes in political consciousness and the changing structure of the international legal order and institutions.

    A first period began with bilateral fisheries treaties in the nineteenth century, and concluded with the creation of the new international organisations in 1945. During this period, peoples and nations began to understand that the process of industrialisation and development required limitations on the exploitation of certain natural resources (flora and fauna) and the adoption of appropriate legal instruments. The second period commenced with the creation of the UN and culminated with the UN Conference on the Human Environment, held in Stockholm in June 1972. Over this period, a range of international organisations with competence in environmental matters was created, and legal instruments were adopted, at both the regional and the global levels, which addressed particular sources of pollution and the conservation of general and particular environmental resources, such as oil pollution, nuclear testing, wetlands, the marine environment and its living resources, the quality of freshwaters and the dumping of waste at sea. The third period ran from the 1972 Stockholm Conference and concluded with the UN Conference on Environment and Development (UNCED) in June 1992. During this period, the UN tried to put in place a system for coordinating responses to international environmental issues, regional and global conventions were adopted, and for the first time the production, consumption and international trade in certain products were banned at the global level. The fourth period was set in motion by UNCED, and may be characterised as a period of integration: when environmental concerns should, as a matter of international law and policy, be integrated into all activities and into the broader development agenda concerned with poverty eradication and improving human health.

  • 6 - General Principles and Rules

  • from Part II - Principles And Rules Establishing Standards
  • Philippe Sands, University College London, Jacqueline Peel, University of Melbourne
  • With Adriana Fabra, Universitat de Barcelona, Ruth MacKenzie, University of Westminster
  • Book:
    Principles of International Environmental Law
    Published online:
    07 August 2018
    Print publication:
    01 March 2018, pp 197-251

  • Summary

    INTRODUCTION

    This chapter describes the general principles and rules of international environmental law as reflected in treaties, binding acts of international organisations, state practice, judicial decisions and soft law commitments. The existence and applicability of ‘principles of international environmental law’ were confirmed by the arbitral tribunal in the Iron Rhine case. Such principles are general in the sense that they are potentially applicable to all members of the international community across the range of activities that they carry out or authorise and in respect of the protection of all aspects of the environment. From the large body of international agreements and other acts it is possible to discern general rules and principles that have broad, if not necessarily universal, support and are frequently endorsed in practice. These are:

  • the obligation reflected in Principle 21 of the Stockholm Declaration and Principle 2 of the Rio Declaration, namely that states have sovereignty over their natural resources and the responsibility not to cause transboundary environmental damage;

  • the principle of preventive action;

  • the principle of cooperation;

  • the principle of sustainable development;

  • the precautionary principle;

  • the polluter pays principle; and

  • the principle of common but differentiated responsibility.

    • In the absence of clear judicial authority, and in view of the conflicting interpretations under state practice, it is frequently difficult to establish the parameters or the precise international legal status of each general principle or rule. The application of each principle in relation to a particular activity or incident, and its consequences, must be considered on the facts and circumstances of each case, having regard to several factors, including: the source of the principle; its textual content and language; the particular activity at issue; the environmental and other consequences of the activity; and the circumstances in which it occurs (including the actors and the geographical region). Some general principles or rules reflect customary law, others may reflect emerging legal obligations, and yet others might have a less developed legal status. In each case, however, the principle or rule has broad support and is reflected in extensive state practice through repetitive use or reference in an international legal context.

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