27 May 2024
A Small But Important Step
While no advisory opinion can solve the climate crisis, the ITLOS decision does provide an important push for action, both globally and at the national level. It cleared the way for the ICJ’s forthcoming opinion on climate change, demonstrating how a clear and solid line of arguments can be developed. Although the ICJ may decide differently due to variations in the questions posed and treaties interpreted, it is unlikely to diverge significantly from the ITLOS narrative or reject its findings on related topics. Continue reading >>
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16 May 2024
Upgrading Environmental Rights
In Community of La Oroya v. Peru the IACtHR for the first time found a violation of the autonomous right to a healthy environment in a non-indigenous context related to the long-lasting environmental contamination of a community by toxic substances. La Oroya lays foundational principles that will likely shape the content and direction of environmental and climate change litigation and jurisprudence in the Americas. This historic judgment provides a robust basis for anticipating how the Court will handle the specification of environmental rights within the climate emergency and how it may accordingly inform States’ human rights obligations. Continue reading >>
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17 March 2024
Tort Law and New Zealand’s Corporate Greenhouse Gas Emissions
In February 2024, the New Zealand Supreme Court overturned the previous strike outs in the case of Michael John Smith in tort against seven major New Zealand companies in the dairy, energy, steel, mining and infrastructure sectors. Smith asserts that the respondents are engaging in conduct that affects him and others, and has put them into legal connection with one another in ways that enable appropriate remedy. This is heartland common law territory.  Even though the climate change problems we are now grappling with may be new ones, the centuries-old practices and traditions of the common law are a part of New Zealand’s constitutional heritage and structure. Litigation is a legitimate vehicle for members of the population to engage the law in the face of harm or threats to individuals’ rights and well-being. Continue reading >>
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01 February 2024
Milieudefensie v ING: Climate Breakdown and Banks’ Duty of Care
There is a trend towards climate lawsuits against companies based on their alleged duty of care not to emit more than a certain amount of greenhouse gases (GHGs). Currently, there are four such cases before courts in Germany, all of which have been unsuccessful so far. On 19 January 2024, Milieudefensie, a Dutch environmental group, initiated legal proceedings against the Dutch Bank ING, for the first time raising the issue of whether financial actors have such a duty of care. This case represents a significant milestone in the worldwide effort to transform the financial sector and curb its seemingly endless appetite for financing fossil fuels. In light of these proceedings, I argue that the German courts have adopted an imprecise understanding of what the duty of care entails and that an appropriate application of this duty can increase the accountability of financial actors. Continue reading >>18 January 2024
Leading the Way
There is little doubt that climate change in all its facets is one of the most pressing global issues of our time. Increasingly, we see international and regional treaty bodies addressing it. Much has been written about ongoing procedures in front of the International Court of Justice, the International Tribunal for the Law of the Sea, and the European Court of Human Rights (ECtHR). However, other regional developments, such as the African Commission’s study on the impact of climate change or the request for an advisory opinion on the climate emergency to the Inter-American Court of Human Rights (IACtHR) have regrettably received less attention. As we have submitted an amicus curiae to the latter proceeding, we want to contribute to its prominence and present the core arguments of our intervention to the Court. In particular, we highlight the nexus between climate change and forced displacement from a complementary protection perspective. Continue reading >>
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19 November 2023
Undermining the Energy Transition
Australia is confronted with three multi-billion dollar investment treaty claims from a mining company. The basis for two of the claims is a judgment from the Queensland Land Court, in which the court recommended that no mining lease and environmental authority should be granted to a subsidiary of the claimant for its coal mine. The investment treaty arbitration serves as another illustration of how the international investment protection system poses a threat to an urgent and just energy transition. In this blog post, I explain the background of the investment treaty claim, the decision of the Queensland Land Court, and argue that the Court’s decision is an important precedent for the connection between coal, climate change, and human rights. Continue reading >>
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20 April 2023
Intersectionality in Climate Litigation
The ECtHR held a hearing in the case KlimaSeniorinnen v Switzerland. It is one of the first gender-based climate cases worldwide. The case offers novel perspectives on a range of issues. Crucially, it highlights new potential avenues for standing in human rights cases and pinpoints how age, health, gender, and climate change intersect. Continue reading >>10 March 2023
The Imaged
A Basic-Law Monument and Some Buckets of Ink-Black Paint Continue reading >>
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21 November 2022
Die umweltrechtliche Verbandsklage lernt Auto fahren
Der Europäische Gerichtshof hat in der causa Klagebefugnis von Umweltverbänden (wieder einmal) gesprochen. Anerkannten Umweltverbänden darf es demnach nicht unmöglich gemacht werden, EG-Typgenehmigungen des Kraftfahrtbundesamtes gerichtlich überprüfen zu lassen. Das Urteil lehrte der umweltrechtlichen Verbandsklage nun das Autofahren, bereitet ihr aber gleichzeitig den weiteren Weg des Erwachsenwerdens. Denn im Besonderen hat der Gerichtshof über die Justiziabilität der Genehmigung von knapp fünf Millionen Fahrzeugen entschieden. Im Allgemeinen aber über die Justiziabilität sämtlicher staatlicher Entscheidungen, die möglicherweise gegen Umweltrecht verstoßen. Continue reading >>
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