Courts as a Transformative Force in Global Climate Governance

Chinese University of Hong Kong; 8London School of Economics and Political Science (LSE); 9University of Eastern Finland

Climate litigation is becoming a popular legal strategy offered by judicial and quasi- judicial fora to adjudicate conflicts emanating from the risks and impacts of climate change. Recent decisions by courts in countries spanning the globe are suggesting that courts are getting increasingly involved in matters of climate governance. Yet, one must also recognise that judicial decisions with a positive outcome are limited, that clear patterns of positive judicial-driven change in global climate change governance are not yet forming, and that the case law is far from settled. Moreover, there is still no empirical evidence to suggest that the decisions of courts have contributed to halting or reversing climate change. Expecting courts to offer a magic cure for climate change may rightly be seen as being unfair and unrealistic; courts after all are only a small part of the burgeoning global climate governance regime which consists, among others, of civil society actors, city governments, national governments, regional and international governance arrangements, and corporations. Despite these concerns, courts play a unique and critically important role in this regime, especially insofar as they act as impartial and independent guardians of the rule of law and of justice, as mediators of conflicts, as interpreters and appliers of the law, and possibly also, as innovative norm entrepreneurs.

The recent surge in climate litigation worldwide, alongside bold decisions by some courts, raises an important question that we seek to tackle in this paper: what are the prospects of courts becoming a transformative force in global climate governance? We suggest that the transformative contribution of courts could lie at five levels: i) imposing greater public and private sector accountability; ii) redefining power relations between key climate governance actors; iii) highlighting and addressing ever-deepening climate vulnerability and justice concerns; iv) developing international climate law; and v) linking climate science with legal processes. While there may be others, we have identified these issues as key considerations when reflecting on the important role that courts play, and presumably will increasingly play, in global climate governance. More importantly, these are also considerations that shape a vision of how climate litigation can initiate and drive transformations of global climate governance. With reference to recent climate cases from around the globe, we reflect in this paper on each of these five considerations to determine what the prospects are for courts to contribute to the transformation of the global climate governance landscape.