Courts, Climate Litigation, and the Evolution of Earth System Law

Numerous science reports have evidenced the fundamental transformation of the earth system due to human activities. These massive and unprecedented changes—captured today under the term Anthropocene—require a new perspective on global law and policy. The concept of ‘earth system law’ introduces a new perspective by situating law in an earth system context. To date, however, the discourse on earth system law has not fully recognized courts as key actors that could shape earth system governance. Focusing on climate governance, we posit that courts are already playing an increasingly influential role within and beyond national borders, and they need to be recognized as important Anthropocene institutions within the evolving earth system law paradigm. Drawing on several prominent climate cases in different jurisdictions, we identify and discuss five inter-related domains where this influence of courts on earth system law can be discerned: establishing accountability, redefining power relations, remedying vulnerabilities and injustices, increasing the reach and impact of international climate law, and applying evolving insights from climate science to adjudicate legal disputes. We suggest that the innovative work of the judiciary in these domains could provide a basis for positioning courts as key actors in the discourse of earth system law.

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Professor Dr Louis Kotzé is Research Professor of Law at the Faculty of Law, North-West University in South Africa. He is also Senior Professorial Fellow in Earth System Law at the University of Lincoln, United Kingdom, and currently serves as the co-chair of the Earth System Governance Network’s Scientific Steering Committee.

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