Climate Justice – New Challenges for Law and Judges

For an overview of past and upcoming events of this project, please click here.

ELI Members who are interested in actively contributing to the development of this project are invited to join the project's Members Consultative Committee (MCC). Kindly contact the ELI Secretariat if you would like to join the MCC of this project or if you have any questions concerning the project.

Quick Facts

Project Type: Principles
Procedure: Regular
Adopted: CD 2021/32
Project Period: December 2021–Summer 2023

Background

More action is necessary and urgent concerning climate change. While specific legal rules exist, like the rules in the Paris Agreement, they might not be sufficient; moreover, their implementation by judges seems often questionable from a rule of law perspective.

Climate change problems are of cross-border nature, and the courts must address extra-territorial issues as well as questions related to both private international law and public international law. Furthermore, the courts must deal with a multilevel system of law, ie national, EU, and international law. In addition, the interface and overlap between specific international and EU climate change law, national and international public law, national and international private law, and criminal law, pose crucial methodological challenges for courts. They must find a balance between these different fields and levels of law.

The risk we are already experiencing is that different methodological approaches can result in legal uncertainty to the detriment of citizens’ legitimate expectations under the rule of law. The question is whether courts can find common ground for improved judicial cooperation in their methodological approaches to climate change problems in order to ensure improved legal certainty at European level. Similarly, while legislators may have ideas for new statutory rules for individuals, private entities and public administration, they need to understand what problems might exist and arise at the level of implementation, especially by courts.

Aim

This ELI project aims to explore new challenges for judges relating to climate justice and to develop Principles on the most pressing issues including: extra-contractual liability remedies, access to justice (who may have the right to stand and subject to what requirements?), and how should judges should balance the interests of individuals, both those under climate threat and those who benefit from traditional constitutional rights (eg the right of ownership). The Principles that will be drafted will be in respect of the liability of: (a) States; (b) companies with special operating licenses; and (c) companies without special operating licenses.

Outcome

The project aims to develop Principles for Climate Justice that are workable in practice. The goal is to provide an overview of different sources of law that courts, in particular national courts in Europe and the Court of Justice of the European Union, may apply in questions relating to climate justice with particular focus on liability of States and companies in internal and transboundary situations. The Principles will cover the following areas:

  • Locus Standi
  • The role of international climate change law in domestic legal systems and in the EU legal system
  • Human rights, national and international public law
  • Extra-contractual liability
  • Private international law
  • The role of courts and potential democracy deficits

Project Reporters

  • Henrik Andersen
  • Alberto De Franceschi

Project Team Members

  • Larisa Alwin
  • William Boyd
  • Tim Eicke
  • Pasquale Fimiani
  • Stijn Franken
  • Mateusz Grochowski
  • Amy Sander
  • Christina Voigt
  • Gerhard Wagner
  • Marc-Philippe Weller

Advisory Committee Members

  • Başak Başoğlu

  • Josef Drexl
  • Eva-Maria Kieninger
  • Maria Rosaria Maugeri
  • Lavanya Rajamani
  • Evelyne Terryn
  • Rolf H Weber
  • Gabriel de Jesus Tedesco Wedy
  • Grzegorz Wąsiewski
  • Aneta Wiewiórowska-Domagalska (Assessor)

Members Consultative Committee

  • Elena Marinică

  • Sebastian Schwamberger
  • Albertas Šekštelo
  • Irina Zlătescu

Observers

  • The Association of European Administrative Judges (AEAJ) (represented by Anders Bengtsson and Matthias Keller)
  • United Nations Commission on International Trade Law (UNCITRAL) (represented by José Angelo Estrella Faria)