Católica Law Review

Nota da direção

Armando Rocha, Marta Vicente — Wed, 21 Feb 2024 00:00:00 +0000

The International Tribunal for the Law of the Sea and the request for an advisory opinion on climate change and its effects: potential challenges and opportunities

Julia Cirne Lima Weston — Wed, 21 Feb 2024 00:00:00 +0000

On 12 December 2022, the Commission of Small Island States on Climate Change and International Law submitted a request for an Advisory Opinion to the International Tribunal for the Law of the Sea (ITLOS). The Commission asked the ITLOS to clarify what are the obligations of States Parties to the United Nations Convention on the Law of the Sea (UNCLOS) concerning pollution, as well as to preserve the marine environment, in relation to the effects of climate change. With this advisory opinion come challenges, yet some opportunities. The ITLOS will likely need to establish its jurisdictional basis to receive advisory opinions, as well as interpretational issues concerning the application of other rules of international law not incompatible with the UNCLOS. Yet, the advisory opinion presents opportunities to bring climate change issues closer to the Tribunal.

Protecting the territorial and resource dimension of self-determination from climate change impacts

Dave-Inder Comar — Wed, 21 Feb 2024 00:00:00 +0000

This article argues that the right of self-determination contains a ‘territorial and resource dimension’ which protects a people’s connection to territory and resources in certain circumstances. After analysing this territorial and resource dimension in the context of decolonizing peoples, peoples under some kinds of foreign occupation, and Indigenous Peoples, the article proposes that the territorial and resource dimension of self-determination should be recognized in relation to peoples vulnerable to climate change impacts, or ‘climate vulnerable peoples.’ The article discusses the possibility of breach of this territorial and resource dimension of self-determination by high-developed, high-emissions States, and the possible legal consequences associated with this breach of self-determination.

The development of the UN CRC’s approach to children and climate change: any impact on the future of youth-led climate litigation?

Enikő Krajnyák — Wed, 21 Feb 2024 00:00:00 +0000

On August 22, 2023, the UN Committee on the Rights of the Child published General Comment No. 26 on Children’s Rights and the Environment, with a Special Focus on Climate Change (GC26). This GC is remarkable for being the first one entirely dedicated to environmental and climate protection in light of the United Nations Convention on the Rights of the Child. This contribution aims to explore the role of GC26 in the practice of the Committee in light of its first – and so far, only – decision in this regard, Sacchi et al. v. Argentina et al., and positions it in the context of youth-led climate litigation which reached a breakthrough since the Committee’s 2021 decision. The article also assesses the potential impact of GC26 on ongoing and future climate change cases and points out what could be done in order to enforce the perspective of future generations in the context of climate change.

The environmental rule of law, intergenerational equity and climate litigation in Latin America

Ignacio Vásquez Torreblanca — Wed, 21 Feb 2024 00:00:00 +0000

International law, including international courts and tribunals, is undergoing important changes in their legal culture in the face of the challenges that climate change is set to pose. With this, special emphasis is placed on the transformation associated with the “Environmental rule of law,” a concept that still has significant margin for discussion, and where its new applications will form part of the fundamental debates in this field. In view of this fact, this text will focus on the installation of this legal structure in the climate debate through the principle of intergenerational equity and the extrapolation of the latter to contemporary climate disputes, especially those intergenerational disputes in the Global South and Latin America, which seek to transform and give new horizons to the international system.

Suing states for their responsibility for climate change-related damage caused by non-state actors in the European context

Mohamed Elagouz, Michiel Heldeweg, Claudio Matera — Wed, 21 Feb 2024 00:00:00 +0000

This paper seeks to answer the question: to what extent do domestic and regional courts’ decisions contribute to establish responsibility and liability of States for climate change damages caused by non-State Actors (NSAs) in the European context? It is argued that the human rights approach to the responsibility for climate change helps bridge a gap in the international climate change law in addressing the States’ obligations towards the emitting activities of NSAs. To answer this question and test this argument, this paper analysed the relevant practice of European human rights judicial bodies and performed a multi-case study analysis on rulings of three European countries (the Netherlands, Germany, and Norway) on State’s climate responsibility claims for emitting activities of NSAs. The paper concluded that the case law of the European Court of Human Rights (ECtHR) supports that the State is responsible for the climate harmful emitting activities of NSAs based on its due diligence and precautionary obligations, albeit this responsibility is limited to the State’s territorial jurisdiction. The domestic courts in the three cases considered cited difference, however. This difference can be traced to the judges’ discretion of the relationship between the State’s climate policy on the one hand and the climate change-related damage on the other.

The uncharted territory of the Bank of England’s human rights obligations – unlocking climate litigation via human rights considerations in setting capital requirements

Martina Menegat — Wed, 21 Feb 2024 00:00:00 +0000

This work provides a legal analysis on whether the Bank of England (BoE) does have an obligation to adjust capital requirements for banking institutions in light of the climate crisis. It puts forward a human rights approach to the BoE’s prudential regulation, by arguing that when it acts in its capacity of public law the BoE should abide by s. 6(1) of the Human Rights Act, which requires compliance with the rights embedded in the European Chart of Human Rights (ECHR). On this basis, this contribution critically examines the way in which the BoE complies with its human rights obligations while pursuing its goals to protect the soundness of individual institutions and the stability of the whole financial system. By moving to the construens part, it proposes to use the international “respect, protect and fulfil” framework to understand how the BoE should interpret the scope of its human rights obligations.

Forum shopping in the EU – a useful strategy in corporate climate change litigation?

Judith Spiegel — Wed, 21 Feb 2024 00:00:00 +0000

Corporate climate change litigation is on the rise, for example targeting fossil fuel and cement companies, as there are major greenhouse gas emitters. In the majority of these cases corporations are demanded to reduce their emissions of greenhouse gases or are being accused of greenwashing. Recently courts in the EU have delivered landmark decisions, and there are many interesting cases still pending. This is not surprising; EU-based companies are historically responsible for a significant part of greenhouse gas emissions. On the positive side, the EU has substantial climate ambitions and a rather climate-friendly public opinion. Furthermore, plaintiffs can benefit from a uniform and predictable set of private international law rules. These factors combined make the EU a possibly interesting venue for climate change litigation. The predominant question of this paper is therefore whether forum shopping in the EU indeed makes sense.

Uma sentença verde sem fronteiras comentário ao acórdão do tribunal constitucional alemão sobre alterações climáticas (24/3/2021)

Vasco Pereira da Silva — Wed, 21 Feb 2024 00:00:00 +0000