Acknowledging the exponential growth and global dimension of climate litigation, this introductory piece to this Special Section starts by situating this phenomenon in the context of the scholarly debate on polycentric and multi-level climate governance. It highlights both the strategic use of climate litigation as a tool to establish responsibilities and push for a more ambitious mitigation and adaptation agenda, but also as an opportunity to better understand the role of courts in public policy governance. The second part of the article then proceeds to discuss the main findings arising from the various contributions grouped in this section, and concludes by arguing that further research is needed in order to properly understand the role and contribution of climate change litigation to transnational climate governance.

The Federal Constitutional Court (FCC) in Germany has issued a landmark ruling with regard to climate change. It opens its jurisprudence for a new dimension of human rights: The intertemporal guarantee of freedom. It argues that the legislature has violated fundamental rights by failing to take sufficient precautionary measures today for the time after 2030. The emissions allowed in the Federal Climate Change Act until 2030 will nearly exhaust Germany’s remaining CO2 budget. After 2030, drastic legislative measures, which curtail nearly all activities that emit CO2, might be necessary. If emission reductions are delayed until 2030, the costs of climate protection will increase for future generations, and with it the risk that emission reductions will only be possible at the price of serious losses of freedom. Therefore, the legislature needs to act now and take the time after 2030 into consideration. The order might eventually influence climate change litigation in other areas of the world. The article will demonstrate the main arguments of the FCC order. The combat of climate change is an international task, which cannot be solved by Germany alone. The FCC takes this fact to some extent into account. It argues for international cooperation to combat climate change. Unfortunately, it does not fully evolve a jurisprudence which takes the core principle of common but differentiated responsibility (CBDR) seriously and addresses the questions of equity. The CBDR principle is one of the core principles which should solve the North-South divide and which should bring together the efforts of rich as well as poor countries to combat climate change. It is enshrined in the Paris Agreement. The FCC engages with this principle on the surface but misses the opportunity to truly and deeply engage.

The German Federal Constitutional Court’s climate decision provides a nuanced acknowledgment of climate change’s constitutional relevance. In this Article, the author critically assesses how the Court innovatively sought to capture the intergenerational equity dimension of climate mitigation through a combination of negative and positive duties stemming from constitutional law. The Article demonstrates how despite progressive findings on intergenerational equity and the innovative invocation of negative duties, the operative part of the decision turned out to be rather limited. Because of remaining uncertainties about the allowable national carbon budget, the Court was unable to require the legislator to enact a stricter reduction path. The author argues that the Court could have narrowed remaining uncertainties, without engaging in judicial activism, by adopting an international and constitutional minimum approach to calculating the national budget and by adjusting the burden of proof. Finally, the Article highlights how the German legislator, by going beyond what was required by the Court “trapped itself” on an ambitious reduction path, opening opportunities for future constitutional complaints.

The recent decision by the German Constitutional Court in Neubauer et al. versus Germany has been attracting considerable attention around the globe. The Court ordered the German legislature to correct and to significantly tighten up existing climate law provisions, to increase the ambition of these provisions, and to strengthen future mitigation pathways. Several commentators have hailed it as an example of what is possible when the judiciary steps in to fill gaps in global climate governance as a result of governments failing to act or acting inadequately. In this article, I explore the extent to which the Court in Karlsruhe has innovatively managed to embrace a holistic planetary view of climate science, climate change impacts, planetary justice, planetary stewardship, earth system vulnerability, and global climate law, within the context of a human-dominated geological epoch, to guide its reasoning and findings. My proposal is that courts will have to increasingly follow a planetary perspective that is grounded in the Anthropocene context when adjudicating matters related to global disruptors such as climate change. This decision offers a first, and important, example of a promising new paradigm that I term planetary climate litigation.

This study examines how the climate litigation approach builds pathways to face climate emergency. In light of recent jurisdictional developments, this article underlines the links between legislation, litigation, and public policies to trace ways, progress and obstacles to face it. Those emergent dynamics contribute to build a lasting and sustainable climate change legal regime. Intertwining the different climate disputes in the world and the progress made through the elaboration of different climate laws allow to have a panoramic visibility on this new mode of climate governance which appears in filigree today all over the world and especially in France.

This article covers the recent trends in climate change litigation in India, capturing the peculiarities of the Indian judicial system that lend it the will, ability, and credibility to accommodate emerging principles of climate change laws within the law of the land. While tracing the historical underpinnings of judicial activism, environmental considerations, and strength of democratic institutions, this Article discusses some of the current developments in climate change case law in the country. Finally, in showcasing an increasing and immersive trend towards the inculcation of international principles of environmental law, this article establishes the dichotomy between an active judicial system applying international environmental principles at the domestic level and the roadblocks in terms of climate litigation in the recent times.

Climate change has become a household term. As the climate crisis grows increasingly pressing, climate litigation has proven instrumental as a driver for change. Brazil is an important jurisdiction for climate matters: It is the sixth largest global greenhouse gas emitter, responsible for 3.2 percent of global emissions,1 and home to the largest extension of the Amazon rainforest. Climate litigation has been gaining traction, but it is still far less frequent than environmental litigation at large. Against the backdrop of the state and trends of climate litigation in the country, this article explores theoretical and practical avenues to further expand the strategic deployment of climate cases in Brazil. First, it analyzes how climate claims can be construed with arguments that are impervious to the political question doctrine. Second, it explores possibilities of bringing claims against private entities, challenging more granular obligations arising out of Environmental, Social and Governance (ESG) frameworks. Third, it discusses the role of lawyers in bridging theoretical and practical gaps, namely those between environmental law and climate law, between scientific experts and courts, and between international and domestic climate change regimes.

The urgency of the global climate problem has prompted an increasing turn to the courts to accelerate action. While still a relatively new phenomenon, “strategic” climate cases have been on the rise since 2015. Litigants in these cases aim to produce ambitious and systemic outcomes. However, with both time and resources limited, how might we best discern which cases have the greatest prospects of achieving cut through in the policy and public debate, and accelerating climate action? This Article contributes to developing literature evaluating the “recipe for success” in strategic climate claims. It provides a comparative analysis of three recent, high-profile wins in climate cases from Australia—Sharma—, Germany—Neubauer—, and the Netherlands—Shell—, examining their commonalities to give insight into the ingredients for successful strategic climate litigation. Our analysis shows how the three cases combine careful, strategic planning, with legal imagination and innovation to generate outcomes that heighten their capacity for broader impact. Evaluating the success of these types of prominent climate cases provides important guidance for future case design.

Climate litigation has become a permanent fixture in the climate law and policy landscape. Across jurisdictions, climate litigation takes different shapes, with actions based on administrative, civil, or criminal law. An increasing number of cases incorporate human rights, leading to courts inter alia imposing more onerous mitigation obligations on governments and private actors in light of human rights provisions. Several landmark cases in this domain have come from European jurisdictions and have been argued with reference to both the European Convention on Human Rights (ECHR) and the European Union’s Charter of Fundamental Rights. An analysis of case law from the European Member States shows that the emerging picture is one of the Charter playing a secondary role to the ECHR. Based on this jurisprudential analysis, this article reflects on the future role of the Charter in climate litigation, and by extension, in shaping environmental human rights.

The interaction between immunities and jurisdiction is complex. One lacuna is whether the international legal principle of state immunity is a rule or principle in its own right or an exception to a pre-existing jurisdiction. In the context of international arbitration disputes, this distinction is significant. States have been relying on immunity to exclude the jurisdiction of national courts to support the international arbitral process. This Article argues there is now a growing set of common and consistent practice according to which state immunity operates as a rule or principle lex specialis to a more general set of rules or principles governing the enforcement jurisdiction of national courts.

Even throughout a global pandemic, climate change continues to be a fiercely discussed topic—both politically and legally—the world over. Particularly in light of the many Covid-19 related financial aid programs (including transnational ones) and the associated economic stabilization and reconstruction plans, a sustainable climate policy and legal order should be expected to play a role for an economy that has fallen into a slump. Nevertheless, a lively discussion on how best to achieve climate protection continues to take place in already established systems such as the private law system. Here, as far as climate change is concerned, tort law appears to be the focus of these discussions. The extent to which tort law and the issue of climate change can be brought together is also increasingly being discussed in Germany. This article attempts to shed light on the questions of how tort law could contribute to the mitigation of climate change and how climate change could fit into the law of torts of the German civil law legal system.

The concept of sensitive data has been a mainstay of data protection for a number of decades. The concept itself is used to denote several categories of data for which processing is deemed to pose a higher risk for data subjects than other forms of data. Such risks are often perceived in terms of an elevated probability of discrimination, or related harms, to vulnerable groups in society. As a result, data protection frameworks have traditionally foreseen a higher burden for the processing of sensitive data than other forms of data. The sui generis protection of sensitive data—stronger than the protection of non-sensitive personal data—can also seemingly be a necessity from a fundamental rights-based perspective, as indicated by human rights jurisprudence. This Article seeks to analyze the continued relevance of sensitive data in both contemporary and potential future contexts. Such an exercise is important for two main reasons. First, the legal regime responsible for the regulation of the use of personal data has evolved considerably since the concept of sensitive data was first used. This has been exemplified by the creation of the EU’s General Data Protection Regulation (GDPR) in Europe. It has introduced a number of requirements relating to sensitive data that are likely to represent added burdens for controllers who want to process personal data. Second, the very nature of personal data is changing. Increases in computing power, more complex algorithms, and the availability of ever more potentially complimentary data online mean that more and more data can be considered of a sensitive nature. This creates various risks going forward, including an inflation effect whereby the concept loses its value, as well as the possibility that data controllers may increasingly seek to circumvent compliance with the requirements placed upon the use of sensitive data. This Article analyzes how such developments are likely to influence the concept of sensitive data and, in particular, its ability to protect vulnerable groups from harm. The authors propose a possible interpretative solution: A hybrid approach where a purpose-based definition acquires a bigger role in deciding whether data is sensitive, combined with a context-based ‘backstop’ based on reasonable foreseeability.

Some scholars assume that the content and validity of international legal norms turns upon the existence of convergent attitudes and behaviors of state representatives and other ‘international legal officials’. By converging upon the criteria for what counts as a ‘formal source’ of international law and what does not, such officials provide a ‘rule of recognition’ in relation to which the normative content of the international legal system is determined. In this Article I present two theoretical problems with this view, arguing that, depending on exactly what role this rule is intended to fulfil within international legal theory, it is either metaphysically insupportable or fundamentally at odds with the disagreements that persist in relation to the formal sources of international law. Both problems risk undermining the rationality of international legal argumentation and that any reliance upon the existence of an international rule of recognition should be eschewed as a result.

This article begins the task of outlining the impacts of the COVID-19 pandemic in relation to matters of citizenship, using what is termed a “syndemic analysis.” This type of analysis places both the pandemic and citizenship in their wider contexts. The synergistic or intersectional thinking encouraged by the characterization of the pandemic as a syndemic, which links together health, socio-economic issues, and political questions, is useful for highlighting how much more vulnerable to many of the negative impacts of the pandemic in the sphere of citizenship are those who are also more vulnerable both to catching and suffering more seriously from the virus and to experiencing negatively the externalities of the measures taken to restrict social contact by shutting down economies. While the scope of the review is relatively broad and encompasses many different domains of “pandemic life,” what emerges from the analysis are important insights into how many of the impacts of the pandemic in fact operate at the intersection of citizenship and constitutional law and thus play out in the form of changes in relation to constitutional citizenship, both as ideal and as practice. The article takes an important step towards developing the use of constitutional citizenship as a framing device for understanding citizenship as putative full membership in a given society.