Rethinking legal and procedural rules in rights-based systemic climate change litigation: a comparative study of European countries

This PhD thesis by papers examines the extent to which climate change requires us to rethink or recraft legal doctrines and procedural rules in rights-based systemic mitigation cases in Europe. The three doctrines focused on, in each of the respective papers, are standing, justiciability, and causation. The thesis begins by contextualising and locating the research in the wider body of climate litigation scholarship before unpacking the thesis’ epistemological and theoretical stance: a stance broadly supportive of rights-based approaches. To arrive at this position, the thesis engages with various critiques of rights-based approaches to climate action. The thesis illustrates how a rights-based framing can and should be a practical and effective discourse for dealing with climate issues, but that creative scholarly thinking is required when it comes to dealing with standing, justiciability, and causation. The thesis then proceeds in three papers. The first paper investigates whether an exceptional approach to standing rules is needed in rights-based systemic mitigation cases to reconcile the gatekeeping function of European domestic and regional courts like the Court of Justice of the European Union with the complexity and urgency of the climate crisis. The paper shows that developing inclusive standing rules for rights-based systemic mitigation cases does not require (European) courts to stretch existing standing rules to breaking point but rather to engage seriously with the existing access to justice obligations and the wider purposes of the UNECE Aarhus Convention. The second paper explores the question of what role (if any) do judges already play and should judges play in reviewing the adequacy of states’ climate mitigation policies in rights-based systemic mitigation cases? It asks whether the role of judges needs to be reconceived in the era of climate breakdown? The central finding of the second paper is that judges can and should scrutinise actions of the other two branches on climate mitigation and that it is possible to do so in a manner that does not do violence to the doctrine of the separation of powers. The third and final paper examines the question of causation and the fair allocation of responsibility in rights-based systemic mitigation cases, using a climate justice framing. It looks at whether the widely accepted political theory contributions on climate justice particularly in relation to fair burden sharing, harm avoidance, and a just distribution of the remaining carbon budget can (and ought to) be incorporated or reflected in judicial reasoning on causation in rights-based systemic climate litigation. It examines if and how wider use of the European Court of Human Rights’ lenient approach to causation at the national level could be a way of overcoming causal difficulties that might otherwise extricate wealthy developed country governments that are signatories to the European Convention on Human Rights from responsibility. It also illustrates how rights-based arguments might be a way of operationalising climate justice in judicial reasoning in rights-based systemic mitigation cases in Europe. The central claim of the thesis is that each of the knotty doctrinal questions – standing, justiciability and causation – can be resolved in rights-based systemic mitigation cases without upending the existing legal order in Europe where expansive and creative interpretations of these doctrines are embraced. The value of pursuing these kinds of interpretations is that they allow fundamental rights to deliver on their emancipatory promises in the face of a worsening climate crisis.