Abstract
Climate change presents the single greatest threat to humans and the natural world. International climate negotiations have so far proven unable to effectively address the crisis. The Paris Agreement, adopted in 2015, set a long-term goal of keeping global temperature rise ‘well below 2 °C above pre-industrial levels’ while pursuing efforts to limit it to 1.5 °C. The world is not, however, on track to meet this goal. Against this backdrop is a rise in climate change litigation at the national, regional and international level. This chapter focuses on the role of national courts in developing international law and protecting human rights and the global environment. Through the lens of national climate change litigation, in particular the Urgenda litigation in the Netherlands and the Thomson case in New Zealand, the chapter highlights that international courts and tribunals are by no means the only site of international law activity and evolution: indeed, in respect of international climate change law, national courts could be said to be at the forefront of international legal development.
Both authors contributed equally to the chapter, and the views expressed are their own.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
Paris Agreement, 12 December 2015, UN Doc. FCCC/CP/2015/L.9, Annex, entered into force 4 November 2016, Article 2(1)(a).
- 2.
IPCC 2018, p. 6.
- 3.
UN Secretary-General Antonio Guterres, UN Climate Press Release on the launch of Initial NDC Synthesis Report prepared by the UNFCCC, 26 February 2021, UNFCCC. Available at https://unfccc.int/news/greater-climate-ambition-urged-as-initial-ndc-synthesis-report-is-published.
- 4.
Tzanakopoulos 2016a.
- 5.
District Court of The Hague, Urgenda Foundation v The State of The Netherlands, Judgement, 24 June 2015, ECLI:NL:RBDHA:2015:7196 (English translation); The Hague Court of Appeal, Netherlands v Urgenda Foundation, Judgment, 9 October 2018, ECLI:NL:GHDHA:2018:2610 (English translation); Netherlands Supreme Court, State of the Netherlands (Ministry of Economic Affairs and Climate Policy) v Stichting Urgenda, Judgment, 20 December 2019, ECLI:NL:HR:2019:2007 (English translation).
- 6.
New Zealand High Court, Thomson v Minister for Climate Change, Judgment, 2 November 2017, [2017] NZHC 733.
- 7.
See further Sect. 20.4 below.
- 8.
- 9.
- 10.
If the relevant rule refers exclusively to State-to-State relations on the international plane, then they are described as ‘outward-looking’. If, conversely, the international rule prescribes, proscribes, or enables certain conduct on the domestic plane, i.e., within the State’s domestic jurisdiction, then the relevant rules can be termed ‘inward-looking’. Tzanakopoulos 2016b. See also: Tzanakopoulos and Tams 2013.
- 11.
Tzanakopoulos 2016a, para 15. Note, however, that this may be more the case in some States than in others. The Report notes: ‘A recent study by a member of this Study Group demonstrates that citations to domestic case law in international law textbooks and in judgments of many international courts and tribunals come overwhelmingly from Western liberal democratic States in general and from a handful of those States in particular.’
- 12.
Constantinides 2012, p. 267.
- 13.
Tzanakopoulos 2016a, para 16.
- 14.
Ibid.
- 15.
D’Aspremont 2012, p. 143. D’Aspremont explains: ‘If international law is not the ‘law of the land’ because it has not been incorporated, it may still yield effect in the domestic legal order if domestic judges interpret national law by drawing on international law.’
- 16.
Tzanakopoulos 2016a, para 29.
- 17.
Bodansky and Brunnée 1998, pp. 14.
- 18.
Roberts 2011, p. 62.
- 19.
- 20.
Article 31(3)(b). This provision provides that ‘any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’.
- 21.
Statute of the International Court of Justice, 26 June 1945, entry into force 24 October 1945, Article 38(1)(d).
- 22.
PCIJ, Case concerning certain German interests in Polish Upper Silesia (The Merits), Judgement, 25 May 1926, Series A No 7 (emphasis added).
- 23.
Tzanakopoulos 2016b. In terms of the sources of international law, see Article 38 of the ICJ Statute.
- 24.
- 25.
Alebeek 2013, p. 563.
- 26.
- 27.
Tzanakopoulos 2016b, p. 239.
- 28.
Tzanakopoulos and Tams 2013, p. 536. The word ‘agent’ is used in a broad sense, denoting a capacity to influence processes, in this case: processes of legal development.
- 29.
Burger and Gundlach 2017, p. 8.
- 30.
See Setzer and Byrnes 2020.
- 31.
See the proceedings initiated by ten families against the European Union in General Court, Carvalho and Others v Parliament and Council, Order, 8 May 2019, Case No T-330/18, ECLI:EU:T:2019:324 and the proceedings initiated by Portuguese children against 33 Member States of the Council of Europe in September 2020 <https://youth4climatejustice.org/>.
- 32.
See e.g. the communications initiated by individuals and groups against States before UN human rights treaty bodies. There has been one climate-related decision issued to date with respect to States’ non-refoulement obligations: HRC, Ioane Teitiota v New Zealand, 7 January 2020, CCPR/C/127/D/2728/2016. See also the pending communication filed with the UN Committee on the Rights of the Child on 23 September 2019 Sacchi et al v Argentina et al (Communication to the Committee on the Rights of the Child). A communication has also been filed by Torres Strait Islanders in 2019 with the Human Rights Committee against the Australian government for alleged infringements of their rights under the ICCPR. See <https://ourislandsourhome.com.au/#about>.
- 33.
Osofsky and Peel 2013, p. 213.
- 34.
Burger and Gundlach 2017, p. 10.
- 35.
Setzer and Byrnes 2020, p. 4.
- 36.
- 37.
Ibid., p. 4.
- 38.
Ibid., p. 14.
- 39.
Ibid., p. 9.
- 40.
- 41.
These cases are defined in Sect. 20.4 below.
- 42.
For example, UK Supreme Court, R (on the application of Friends of the Earth Ltd and others) (Respondents) v Heathrow Airport Ltd (Appellant), Judgment, 16 December 2020, [2020] UKSC 52.
- 43.
For example, Supreme Court of Norway, Natur og Ungdom et al v The Government of Norway (Arctic Oil), Judgment, 22 December 2020, Case No HR-2020-846-J.
- 44.
For example, Land and Environment Court of New South Wales, Gloucester Resources Limited v Minister for Planning (Rocky Hill), Judgement, 8 February 2019, 2019 NSWLEC 7.
- 45.
For example, Lahore High Court, Ashgar Leghari v Federation of Pakistan, Order,4 April 2015, Case No WP No 255012015. To date, there are very few cases regarding States’ obligations with respect to climate change adaptation.
- 46.
In some proceedings, which are not considered here, litigants have invoked international law, but the case has been struck out at the initial stages without consideration of international law. For example, US Court of Appeal for the Ninth Circuit, Juliana v United States, 17 January 2020, No 18-36082 SC No 6:15-cv-01517-AA. Alternatively, the court has upheld the claim but has not referred to international law. For example, Supreme Court of Ireland, Friends of the Irish Environment CLG v The Government of Ireland (Irish Climate Case), Judgment, 15 November 2020, Appeal No. 2015/19.
- 47.
Bodansky et al. 2017a, p. 10. See also Chapter 1.
- 48.
Bodansky et al. 2017a, p. 355.
- 49.
United Nations Framework Convention on Climate Change, 1 July 1992, 1771 UNTS 107, entered into force 21 March 1994 (UNFCCC).
- 50.
Kyoto Protocol to the United Nations Framework Convention on Climate Change, 12 March 1998, 2303 UNTS 162; entered into force 16 February 2005. The Kyoto Protocol set internationally binding targets for developed country parties for the period 1990–2012 to reduce GHG emissions. The Doha Amendment, which extended the Protocol, only passed into force on 31 December 2020.
- 51.
Bodansky et al. 2017a, pp. 17–19. The authors contend that ‘legal bindingness’ is a ‘recurring theme’ of the UN climate regime, reasoning that ‘[t]he potentially high costs of climate change action, combined with the deeply discordant political context in which the climate regime has evolved, have led to considerable innovation in developing legal instruments and provisions of varying degrees of normative force’ (footnotes not included).
- 52.
See Sect. 20.2.1.
- 53.
As well as the State of Palestine, Niue, Cook Islands and the European Union (197 parties in total). See UNFCCC– Status of Ratification <https://treaties.un.org/Pages/ViewDetailsIII.aspx?src=IND&mtdsg_no=XXVII-7&chapter=27&Temp=mtdsg3&clang=_en> (accessed 1 November 2020).
- 54.
UNFCCC, above n 49, Article 2.
- 55.
Ibid., Article 3.
- 56.
Ibid.
- 57.
Ibid., Article 4. In particular, Article 4(2)(b) provides that developed countries will communicate policies and measures ‘with the aim of returning individually or jointly to their 1990 levels these anthropogenic emissions of carbon dioxide and other greenhouse gases not controlled by the Montreal Protocol.’
- 58.
Ibid., Article 4(2)(a). ‘Developed countries’ refers to those countries listed in Annex 1 of the Convention—i.e. OECD countries and ‘countries that are undergoing the process of transition to a market economy’ (former Soviet and Socialist countries).
- 59.
Kyoto Protocol, above n 50, Article 3.
- 60.
Ibid., Article 3(1).
- 61.
Doha Amendment to the Kyoto Protocol, adopted 8 December 2012, CN.718.2012. TREATIES-XXVII.7.c.
- 62.
See https://unfccc.int/process/the-kyoto-protocol/the-doha-amendment Accessed 1 November 2020.
- 63.
Paris Agreement, above n 1, Article 2(1).
- 64.
Ibid., Article 4(1).
- 65.
Ibid., Preamble.
- 66.
Ibid.
- 67.
Ibid., Article 4(4).
- 68.
Bodansky et al. 2017b, p. 213.
- 69.
Paris Agreement, above n 1, Article 3.
- 70.
Ibid., Article 4(2), (3) and (9).
- 71.
Ibid., Article 4(2).
- 72.
- 73.
Bodansky et al. 2017b, p. 213.
- 74.
Ibid., pp. 213–214.
- 75.
Ibid., p. 17. The authors note one of the recurring themes in international climate change law is the legal bindingness, or otherwise, of its obligations.
- 76.
As noted in the Urgenda decision of the Supreme Court: ‘Partly in view of the serious consequences of dangerous climate change mentioned above in 4.2, it is not possible to accept the defence that a state does not have to take responsibility because other countries do not comply with their partial responsibility… If, on the other hand, this defence is excluded, then each country can be effectively held accountable for its share of emissions and all countries are most likely to make an effective contribution, in accordance with the principles set out in the Preamble of the UN Climate Convention cited above,’ para 5.7.1 (emphasis added). See also paras 5.8 and 8.3.4.
- 77.
Wegener 2020, p. 18.
- 78.
Wegener 2020, p. 35 (emphasis added).
- 79.
For an account of the barriers that face litigants—whether individuals, communities or States—in utilising international dispute resolution mechanisms to pursue responsibility in the context of climate change, see Bodansky et al. 2017a, pp. 288–289. The authors note at p. 289: ‘[g]iven the weaknesses of international dispute settlement procedures – in particular, the lack in most cases of compulsory jurisdiction or enforcement authority – international adjudication is unlikely to provide effective relief, either in reducing emissions or compensating victims.’ See also: Verheyen and Zengerling 2016, p. 429: ‘The main constraints for climate change litigation before the ICJ are the narrow access provisions—only States may be parties in contentious proceedings—and the limited willingness of States to accept the ICJ’s jurisdiction or bring cases before the ICJ on a case- by-case basis’.
- 80.
There are exceptions. For example, see the argument made by the claimants in the recent communication filed with the UN Committee on the Rights of the Child against five State Parties to the UN Convention on the Rights of the Child (p. 91 of the CRC Complaint Sacchi et al v Argentina et al).
- 81.
As at June 2021, national courts have issued final judgments in several ‘systemic mitigation’ cases, ranging from courts of first instance to apex courts. They include: German Federal Constitutional Court (apex court), Neubauer and Others v Germany, Order of the First Senate of 24 March 2021, 1 BvR 96/20, 1 BvR 78/20, 1 BvR 288/20, 1 BvR 96/20, 1 BvR 78/20; Council of State (apex court), Commune de Grande-Synthe v France, Judgment, 19 November 2020, Case No 427301; Administrative Court of Paris, Notre Affaire à Tous and Others v France, Judgment, 3 February 2021, N°1904967, 1904968, 1904972, 1904976/4-1; Court of First Instance of Brussels, VZW Klimaatzaak v Kingdom of Belgium & Others, Judgment, 17 June 2021; Supreme Court of Ireland (apex court), Friends of the Irish Environment CLG v The Government of Ireland (Irish Climate Case), above n 46; Colombian Supreme Court (apex court), Future Generations v Ministry of the Environment and Others “Demanda Generaciones Futuras v Minambiente”, Judgment, 4 April 2018, Case No 11001 22 03 000 2018 00319 00. For a full list, see Maxwell et al. 2022 (forthcoming).
- 82.
For an overview of systemic mitigation cases at the national-level, see: https://www.urgenda.nl/en/themas/climate-case/global-climate-litigation/.
- 83.
District Court of The Hague, Urgenda Foundation v The State of The Netherlands, above n 5, para 4.43.
- 84.
Ibid.
- 85.
The Court indicated that, under Dutch constitutional law, treaties and principles of international law are not directly enforceable against the State by individuals unless the instrument is ‘binding on all persons’ and that this test was not satisfied in the case of the UNFCCC at para 4.42. See Constitution of the Kingdom of the Netherlands, Article 93: “Provisions of treaties and of resolutions by international institutions which may be binding on all persons by virtue of their contents shall become binding after they have been published.”
- 86.
District Court of The Hague, Urgenda Foundation v The State of The Netherlands, above n 5, para 4.43.
- 87.
Ibid., para 4.63.
- 88.
Ibid., para 4.76.
- 89.
See e.g. ibid., para 4.66: ‘when it became a signatory to the UN Climate Change Convention and the Kyoto Protocol, the State expressly accepted its responsibility for the national emission level and in this context accepted the obligation to reduce this emission level as much as needed to prevent dangerous climate change’ (emphasis added);
- 90.
See e.g. ibid., para 4.79: ‘in view of a fair distribution the Netherlands, like the other Annex I countries, has taken the lead in taking mitigation measures and has therefore committed to a more than proportionate [sic] contribution to reduction.’
- 91.
See e.g. ibid., para 4.79.
- 92.
See e.g. ibid., para 4.57.
- 93.
See e.g. ibid., para 4.58. The precautionary principle was particularly significant in the Court’s determination that the State has a duty of care to reduce GHG emissions in the short-term in order to mitigate climate change (see paras 4.64, 4.65).
- 94.
The Court of Appeal did not, however, overrule the District Court’s ruling with respect to the duty of care in tort.
- 95.
Supreme Court of the Netherlands, Press Release (online, 13 September 2019) https://www.rechtspraak.nl/Organisatie-en-contact/Organisatie/Hoge-Raad-der-Nederlanden/Nieuws/Paginas/Advice-to-the-Supreme-Court-Court-of-Appeal-judgement-in-the-climate-case-Urgenda-can-be-upheld.aspx”.
- 96.
See Netherlands Supreme Court, State of the Netherlands (Ministry of Economic Affairs and Climate Policy) v Stichting Urgenda, above n 5, paras 5.4.1–5.5.3.
- 97.
Ibid., para 5.4.1.
- 98.
See Footnote 97.
- 99.
Ibid., para 5.4.2. Citing ECtHR, Nada v Switzerland, Judgement, 12 September 2012 App No 10593/08.
- 100.
Netherlands Supreme Court, State of the Netherlands (Ministry of Economic Affairs and Climate Policy) v Stichting Urgenda, above n 5, ‘Advisory Opinion on Cassation Appeal of the Procurator General in the Matter between the Netherlands v Urgenda’ (Hoge Raad 2019) ECLI:NL:PHR:2019:1026, No. 19/00135, see para 2.31-2.33 regarding the role of soft law. Climate change is cited as an area of law in which soft law has often developed into hard law over the years in what is described as process of ‘crystallization’ of enforceable obligations, para 2.32.
- 101.
See Netherlands Supreme Court, State of the Netherlands (Ministry of Economic Affairs and Climate Policy) v Stichting Urgenda, above n 5, paras 5.4.1–5.4.3 and 6.3. Regarding the requirement to employ the common ground method, see paras. 5.4.2 and 5.8. For application of the method to the facts, see paras 7.2.1–7.2.11, in particular para 7.2.11.
- 102.
Ibid., para 5.4.2.
- 103.
Ibid., ECtHR, Demir and Baykara/Turkey, Judgement, 12 November 2008, App No 34503/97, which referred to: ‘The consensus emerging from specialized international instruments and from the practice of contracting States may constitute a relevant consideration for the Court when it interprets the provisions of the Convention in specific cases.’
- 104.
See Netherlands Supreme Court, State of the Netherlands (Ministry of Economic Affairs and Climate Policy) v Stichting Urgenda, above n 5, para 7.2.11.
- 105.
‘Advisory Opinion on Cassation Appeal of the Procurator General in the Matter between the Netherlands v Urgenda’ (Hoge Raad 2019) ECLI:NL:PHR:2019:1026, No. 19/00135 para 2.72. Regarding the reflex effect, see para 2.30.
- 106.
The Supreme Court judgment makes no reference to the reflex effect, but rather applies the common ground approach as developed in ECtHR jurisprudence.
- 107.
Netherlands Supreme Court, State of the Netherlands (Ministry of Economic Affairs and Climate Policy) v Stichting Urgenda, above n 5, para 5.3.2.
- 108.
Ibid., para 5.6.2 (emphasis added).
- 109.
See ibid., para 5.3.3. See also para 6.5.
- 110.
Ibid., para 5.9.1.
- 111.
See ibid., paras 6.3 and 6.5 on the ‘fair share’.
- 112.
Ibid., para 5.7.1.
- 113.
See Footnote 112.
- 114.
Ibid., para 5.7.2.
- 115.
Ibid., para 5.7.3 (emphasis added).
- 116.
Ibid., para 5.7.5.
- 117.
Ibid., para 5.7.6: The Court explains that under the ARSIWA, ‘the responsibility of each participating State is determined individually, on the basis of its own conduct and by reference to its own international obligations.’
- 118.
Ibid., para 5.7.6.
- 119.
Ibid., para 5.7.7.
- 120.
Ibid., paras 5.7.7–5.7.9.
- 121.
See Ferreira 2016.
- 122.
Netherlands Supreme Court, State of the Netherlands (Ministry of Economic Affairs and Climate Policy) v Stichting Urgenda, above n 5, para 6.3.
- 123.
Ibid., para 6.3.
- 124.
Ibid., para 6.4 (emphasis added).
- 125.
Ibid., para 7.2.1.
- 126.
Ibid., para 7.2.6.
- 127.
Ibid., para 7.2.8.
- 128.
Ibid., para 7.2.10.
- 129.
Ibid., para 7.2.5.
- 130.
Ibid., para 7.2.5. The Court determined that the State’s actions must be ‘responsible’ (as well as ‘fair’) given the risks of harm posed by climate change. See references to ‘responsible’ and ‘irresponsible’ conduct in paras 7.2.5, 7.2.7, 7.2.11, 7.4.6, 7.5.1.
- 131.
Ibid., para 7.2.10 (emphasis added).
- 132.
Ibid., para 7.5.1.
- 133.
Ibid., para 7.2.1.
- 134.
Ibid., para 5.3.3. Citing ECtHR, Jugheli et al./Georgia, Judgement, 13 July 2017, App No 38342/05 and No 2017/190, para 66.
- 135.
Netherlands Supreme Court, State of the Netherlands (Ministry of Economic Affairs and Climate Policy) v Stichting Urgenda, above n 5, para 7.5.1 (emphasis added).
- 136.
Ibid., para 7.5.3.
- 137.
See Footnote 136.
- 138.
Ibid., para 7.5.1.
- 139.
- 140.
Ibid., para 43.
- 141.
The claim did not, however, draw upon New Zealand’s domestic human rights legal framework.
- 142.
New Zealand High Court, Thomson v Minister for Climate Change, above n 6, para 94.
- 143.
Ibid., para 88 (emphasis added).
- 144.
Ibid., para 91.
- 145.
Ibid., para 88–94.
- 146.
Ibid., para 91.
- 147.
Ibid., para 94.
- 148.
Ibid., para 94 (emphasis added). In the present case, the Court did not go on to enforce the procedural obligation, namely to order the relevant Minister to consider whether a review of the 2050 target was required in light of the IPCC’s AR5 report. This was primarily because, following the hearing but prior to the judgment, a new national government was elected which committed to replace the target with a new zero by 2050 target.
- 149.
Ibid., para 38.
- 150.
Ibid., para 65.
- 151.
And as recognised by the IPCC in AR4 as necessary to be adopted by developed countries to have a likely chance of holding global temperature increase to 2 °C (let alone to achieve the ‘well below 2ºC’ goal of the Paris Agreement), namely 25–40% by 2020 against 1990 levels.
- 152.
New Zealand High Court, Thomson v Minister for Climate Change, above n 6, paras 133–134.
- 153.
Ibid., para 134.
- 154.
Ibid., para 133.
- 155.
Ibid., paras 133–134.
- 156.
See Footnote 153.
- 157.
Ibid., para 137.
- 158.
Ibid., para 139.
- 159.
Ibid., para 158.
- 160.
Ibid., para 159.
- 161.
Ibid., para 162.
- 162.
Ibid., para 161.
- 163.
Ibid., para 164.
- 164.
Ibid., para 166.
- 165.
Ibid., para 169.
- 166.
Ibid., para 171.
- 167.
Ibid., para 179.
- 168.
District Court of The Hague, Urgenda Foundation v The State of The Netherlands, above n 5, para 4.43.
- 169.
Ibid., para 4.43.
- 170.
See Council of State, Commune de Grande-Synthe v France, Judgment, 19 November 2020, Case No 427301, para 12.
- 171.
See Court of First Instance of Brussels, VZW Klimaatzaak v Kingdom of Belgium & Others, Judgment, 17 June 2021 (unofficial translation), p. 59.
- 172.
Council of State, Commune de Grande-Synthe v France, Judgment, 19 November 2020, Case No 427301, para 12.
- 173.
District Court of the Hague, Milieudefensie v Royal Dutch Shell, Judgment, 26 May 2021, ECLR:NL:RBDHA:2021:5339 (official translation).
- 174.
Ibid., para 4.4.27.
- 175.
See e.g. New Zealand High Court, Thomson v Minister for Climate Change, above n 6, para 38.
- 176.
As noted by Palmer QC, ‘Expansion [of the doctrine of judicial review] is slow because the judges are concerned not to overstep what is considered in New Zealand as the appropriate judicial role. What is sometimes labelled judicial activism in this field has not been evident in New Zealand and is not likely to be. Ministers have unlimited access to the legislative machinery to change the law should they feel threatened by judicial review of their actions. It is a sensitive line the judges tread. And not all judges feel familiar enough with the institutions and processes of government to have the confidence to intervene.’ Palmer 2018, p. 203.
- 177.
Winkelmann et al. 2019, para 99.
- 178.
New Zealand High Court, Thomson v Minister for Climate Change, above n 6, para 88.
- 179.
Rodríguez-Garavito 2021.
- 180.
Speech of the President of the ECtHR on the occasion of the opening of the judicial year, 31 January 2020, p. 4: ‘By relying directly on the Convention, the Dutch judges highlighted the fact that the European Convention of Human Rights really has become our shared language and that this instrument can provide genuine responses to the problems of our time.’
- 181.
UN High Commissioner for Human Rights Michelle Bachelet, ‘Bachelet welcomes top court’s landmark decision to protect human rights from climate change’ (Press Release, 20 December 2019) https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25450&LangID=E. Accessed 15 January 2021. The UN High Commissioner indicated that, ‘the decision confirms that the Government of the Netherlands and, by implication, other governments have binding legal obligations, based on international human rights law, to undertake strong reductions in emissions of greenhouse gases.’
- 182.
UN Special Rapporteur on Human Rights and the Environment, David Boyd, referred to the Urgenda decision as ‘the most important climate change court decision in the world so far, confirming that human rights are jeopardised by the climate emergency and that wealthy nations are legally obligated to achieve rapid and substantial emission reductions.’ See Kaminski I, Dutch supreme court upholds landmark ruling demanding climate action (The Guardian, 20 December 2019) https://www.theguardian.com/world/2019/dec/20/dutch-supreme-court-upholds-landmark-ruling-demanding-climate-action Accessed 15 January 2021.
References
Alebeek RV (2013) Domestic Courts as Agents of Development of International Immunity Rules. Leiden Journal of International Law 26:559–578.
Bahdi R (2002) Globalization of Judgment: Transjudicialism and the Five Faces of International Law in Domestic Courts. George Washington International Law Review 555–604.
Benvenisti E, Downs GW (2009) National Courts, Domestic Democracy, and the Evolution of International Law. Eur J Int Law 20:59–72.
Benvenisti E (1993) Judicial Misgivings Regarding the Application of International Law: An Analysis of Attitudes of National Courts. European Journal of International Law 159–183.
Bodansky D, Brunnée J (1998) The Role of National Courts in the Field of International Environmental Law. Review of European Community and International Environmental Law 7:11–20.
Bodansky D, Brunnée J, Rajamani L (2017a) International Climate Change Law. Oxford University Press, Oxford, New York.
Bodansky D, Brunnée J, Rajamani L (2017b) Oxford Public International Law. Oxford University Press, online.
Burger M, Gundlach J (2017) The Status of Climate Change Litigation: A Global Review. UN Environment, Nairobi.
Constantinides A (2012) Transjudicial dialogue and consistency in human rights jurisprudence: a case study on diplomatic assurances against torture. In: Fauchald O K, Nollkaemper A (eds) The practice of international and national courts and the (de-)fragmentation of international law. Hart Publishing, Oxford.
D’Aspremont J (2012) The Systemic Integration of International Law by Domestic Courts: Domestic Judges as Architects of the Consistency of the International Legal Order. In: Fauchald O K, Nollkaemper A (eds) The Practice of International and National Courts and the (De-)Fragmentation of International Law. Hart Publishing, Oxford.
Falk R A (1963) The Role of Domestic Courts in the International Legal Order Symposium on Procedural Aspects of International Law. Indiana Law Journal 429–445.
Ferreira P G (2016) ‘Common But Differentiated Responsibilities’ in the National Courts: Lessons from Urgenda v. The Netherlands. Transnational Environmental Law 5:329–351.
Ganguly G, Setzer J, Heyvaert V (2018) If at First You Don’t Succeed: Suing Corporations for Climate Change. Oxford Journal of Legal Studies 38:841–868.
IPCC (2018) Special Report: Global Warming of 1.5°C. Summary for Policymakers.
Knop K (1999) Here and There: International Law in Domestic Courts Millennium Issue: Shaping the Parameters of International Law in the New Millennium. New York University Journal of International Law and Politics 501–536.
Maxwell L, Mead S, van Berkel D (2022) Standards for adjudicating the next generation of Urgenda-style climate cases. Journal of Human Rights and the Environment (forthcoming).
O’Keefe R (2013) Domestic Courts as Agents of Development of the International Law of Jurisdiction. Leiden Journal of International Law 26:541–558.
Osofsky H, Peel J (2013) Litigation’s Regulatory Pathways and the Administrative State: Lessons from U.S. and Australian Climate Change Governance. Geo Intl Envtl Rev.
Palmer QC SG (2018) Can Judges Make a Difference? The Scope for Judicial Decisions on Climate Change in New Zealand Domestic Law. Victoria University of Wellington Law Review 49:191–210.
Rajamani L (2017) Elaborating the Paris Agreement: Implementation and Compliance. https://www.c2es.org/site/assets/uploads/2017/11/elaborating-the-paris-agreement-implementation-and-compliance-11-17.pdf Accessed 17 April 2021.
Roberts A (2011) Comparative International Law? The Role of National Courts in Creating and Enforcing International Law. International and Comparative Law Quarterly 60:57–92.
Rodríguez-Garavito C (2021) Litigating the Climate Emergency: The Global Rise and Impact of the ‘Rights Turn’ in Climate Litigation. In: Rodríguez-Garavito C (ed) Litigating the Climate Emergency: How Human Rights, Courts, and Legal Mobilization Can Bolster Climate Action. Cambridge University Press, UK.
Setzer J, Byrnes R (2019) Global Trends in Climate Change Litigation: 2019 Snapshot. Grantham Research Institute on Climate Change and the Environment and Centre for Climate Change Economics and Policy. London School of Economics and Political Science.
Setzer J, Byrnes R (2020) Global trends in climate change litigation: 2020 snapshot. Grantham Research Institute on Climate Change and the Environment and Centre for Climate Change Economics and Policy. London School of Economics and Political Science, London.
Setzer J, Vanhala LC (2019) Climate change litigation: A review of research on courts and litigants in climate governance. Wiley Interdisciplinary Review of Climate Change 10:e580.
Tzanakopoulos A, Tams CJ (2013) Introduction: Domestic Courts as Agents of Development of International Law. Leiden Journal of International Law 26:531–540.
Tzanakopoulos A (2016a) (Study group on) principles on the engagement of domestic courts with international law. Final Report: Mapping the Engagement of Domestic Courts with International Law. International Law Association (Johannesburg Conference).
Tzanakopoulos A (2016b) Domestic judicial lawmaking. In: Brolmann C, Radi Y (eds) Research Handbook on the Theory and Practice of International Lawmaking. Edward Elgar, Louvain.
United Nations Environment Programme (2019) The Emissions Gap Report 2019.
Verheyen R, Zengerling C (2016) International Dispute Settlement. In: Carlarne C P, Gray K R, Tarasofsky R G (eds) The Oxford Handbook of International Climate Change Law, Oxford University Press, Oxford.
Wegener L (2020) Can the Paris Agreement Help Climate Change Litigation and Vice Versa? Transnational Environmental Law 9:17–36.
Winkelmann H (C J), Glazebrook S, France E (2019) Climate Change and the Law. https://www.courtsofnz.govt.nz/assets/speechpapers/ccw.pdf Accessed 17 April 2021.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2022 T.M.C. Asser Press and the authors
About this chapter
Cite this chapter
Mead, S., Maxwell, L. (2022). Climate Change Litigation: National Courts as Agents of International Law Development. In: Sobenes, E., Mead, S., Samson, B. (eds) The Environment Through the Lens of International Courts and Tribunals. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-507-2_20
Download citation
DOI: https://doi.org/10.1007/978-94-6265-507-2_20
Published:
Publisher Name: T.M.C. Asser Press, The Hague
Print ISBN: 978-94-6265-506-5
Online ISBN: 978-94-6265-507-2
eBook Packages: Law and CriminologyLaw and Criminology (R0)