World Commission on Environmental Law

Fighting climate change: a best practice guide for Judges and Courts

The fight against climate change will require the involvement of all three ‘pillars of power’: the legislative, in designing adequate and effective laws; the executive, in implementing and administering climate-effective governance; and the judicature, for reviewing government policies, solving disputes, giving authoritative legal statements on the interpretation of laws and clarifying rights and responsibilities. In the face of the (current) general reluctance of the first two to take leadership roles in some countries, courts and judges can play decisive roles in holding governments and actors accountable for effectively addressing climate change.

Background

The project: Fighting Climate Change – A Best Practice Guide for Judges and Courts aims to deliver a freely available and well-researched guide for judges to assist them in navigating the various complex issues that frequently arise in climate change-related litigation. The aim of the guide will be to increase awareness and sensitivity among judges for climate change issues and to increase their legal climate change ‘literacy’ as well as capability and expertise. Implicitly, the guide could also serve to inform interested claimants on suitable procedural and substantive means to bring a climate-change related case to a court or tribunal.

Methodology

The project comprises two stages.

Stage one is a mapping exercise aimed at establishing an empirical basis for the project. This stage is ‘contributor-led’: all project members will complete a template to report on climate change case law in a particular jurisdiction. The template addresses key issues that commonly arise in climate change litigation, such as: the political question doctrine; scientific uncertainty; human rights; extraterritoriality; causation; and attribution. The issues addressed in the template are purposefully broad-ranging, encouraging members to identify any and all potentially scalable approaches that arise from the case(s) in question.

Stage two will then involve analysing the information received in stage one towards obtaining a clear picture of how courts are currently responding to climate change cases. On the basis of this analysis and other relevant information, best practice in regards to climate change related issues – identified by reference to a human rights-based approach – will be identified. We expect that most best practice will be of relevance to jurisdictions around the world; however, depending on the input received the guide could also cover best practice pertaining to specific regions or types of legal systems (e.g. common law or civil law).

Expected outputs and timeframes

The expected output of the project is an IUCN report titled Fighting Climate Change - A Best Practice Guide for Judges and Courts. The aim is to have a draft of this report prepared by COP26 in Glasgow (November 2021) for further comment and input. The date for the release of the final report is around mid-2022.

For more information, please contact the project coordinators Ms. Margaretha Wewerinke-Singh (m.j.wewerinke@law.leidenuniv.nl) and Ms. Sarah Mead (smead07@gmail.com).

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