This chapter turns from the legal to the sociolegal to offer a different lens through which to consider the phenomenon of climate change litigation. By drawing on theoretical approaches in the study of legal mobilization, this chapter sheds light on some of the social and political dynamics of climate change litigation. I suggest that situating climate change litigation in its social and political context is useful in gaining a more holistic understanding of what is at stake when individuals and groups turn to the courts as part of their efforts to address the climate crisis. Drawing on the contributions to this volume, this chapter (1) shows how legal mobilization theory can be helpful to practitioners and scholars interested in understanding, explaining, and assessing climate change litigation in practice, and (2) highlights some of the ways in which studying climate change litigation can shape our conceptual and empirical understandings of processes of legal mobilization more generally.

Chapter 5 analyzes Eye in the Sky, a 2016 film on drone warfare, to illuminate popular culture’s role in scripting us into being as spectator-consumers while legitimizing the counterterror state’s discounting of life through necropolitical law. The gripping plot, stellar performances, and dazzling displays of technology distract us from, first, the de-democratizing and dehumanizing concealments and erasures that accompany drone warfare and, second, the remaking of lawful authority through a dramatization of the (highly contested) principle of international law known as “the responsibility to protect.” In the process, the film renders visible a particular set of actors, narratives, and questions, while concealing and erasing others, thereby legitimizing drone warfare and valorizing its actors, institutions, practices, and technologies. As text, Eye in the Sky is an instance of the “cultural sensibility … in which killing the enemy of the state is an extension of play” (Mbembe 2019: 73). Given the official secrecy accompanying drone warfare and the film’s convincing incorporation of “fact” into its “fiction,” Eye in the Sky amounts to a compelling representation of the necessity of drone warfare as enacted by lawful military actors with the aim of securing civilians worldwide.

This chapter examines the role that the Indian judiciary has played in advancing climate action and environmental governance. This chapter traces the judiciary’s contributions through a few landmark judgements and its relationship to varieties of environmentalism in India. India’s environmental movement, and the lawyering that supports it, oscillates between environmentalism of the poor and exclusionary conservation, where the human rights of forest-dwelling and other local communities are often violated. Moreover, though the judiciary in India has been a site of progressive environmental jurisprudence, it has nonetheless produced jurisprudence that violates the human rights of vulnerable communities. The judiciary is very often left to choose between the two competing strains of environmentalism and responding to the needs of development. These pressures, I argue, will shape the decisions the judiciary is likely to make in the context of climate change. Yet, this chapter ultimately argues that courts can play an important role in climate change governance if they adopt a more sensitive approach to questions of climate justice.

This chapter examines the role that stories and narratives can play in the development of climate litigation strategies. Part I covers an introduction to thinking on narratives, the way they work to support or challenge the status quo, and some helpful definitions. Part II looks at some examples of successful reframings of narratives in campaigns. Part III draws on the existing literature on narratives in climate litigation to highlight some dominant narratives that are problematic and some new narratives that are being deployed. This chapter concludes with a suggested checklist for considering narratives in climate litigation strategies and case work and pointers to additional resources and networks.

We all share a common interest in preserving the well-being of our planet. But the changing climate does not affect us in the same ways, at the same pace, or to the same degree. This is because of where we live, but also due to our respective levels of wealth and income, our physical and mental disabilities, the colour of our skin. We can’t address climate change without contending with issues of difference and inequality. It’s precisely because those least responsible for climate change will suffer its most severe impacts –within cities and regions and across the globe – that an approach which takes account of that imbalance is essential. Applying an equality lens to climate litigation is not just the right thing to do; it’s also more effective. By underscoring the ways in which climate change is a reflection of unjust power relations, a focus on equality makes it more likely that policy will attend to climate change’s causes and help ensure that the most culpable bear the greatest costs of redress. While some cases should advance the universal rights of everyone to a sustainable climate, litigation through an equality lens offers distinctive political, strategic, and jurisprudential advantages.

Climate litigation in the Global South is a novel and increasingly prominent phenomenon that prompted a first wave of scholarly work examining and systematizing its main features. Despite the rigour that these academic accounts apply to assessing the main legal arguments of both litigants and courts, they fail to address the possible tensions between climate justice and the consequences of a domestic court decision in developing nations that did not substantially contribute to the climate crisis. This piece aims to fill that gap by using case law from the Global South to examine challenges around remedies, which will underscore the tensions between climate justice and litigation. Thereafter, this piece, drawing from international norms, advocates for the recognition of a duty of international cooperation, which can inform future courts’ orders in climate cases in both the Global North and the Global South. This normative exercise provides the basis to reconcile climate litigation in the Global South with climate justice, two reputed allies.

While climate litigation is not new, a recent surge of cases have particularly strategic ambitions. This use of litigation to achieve strategic goals mirrors the longtime use of litigation by human rights advocates to achieve policy change. But even as climate litigators increasingly incorporate substantive human rights arguments, they have paid limited attention to how the human rights community has used litigation as a tool. This is a missed opportunity. The human rights community has spent decades debating the role of strategic litigation in affecting lasting change, reflecting on its role and relationship with other activism, and identifying how to minimize the risks of litigation and maximize its impact. Climate litigators can use and build on these lessons on the most effective use of litigation when facing problems with deep social, economic, and political roots. This paper outlines the links: it identifies the emergence of the next generation of climate litigation involving strategic ambition; outlines the debates on strategic litigation within the human rights community; and considers how the lessons from those debates apply to climate litigation.

In July 2020, in a country in which courts consistently defer to the executive, the Irish Supreme Court invalidated the government’s climate strategy. The National Mitigation Plan had outlined some vague measures, deferred most action, and acknowledged that short-term emissions would increase. NGO Friends of the Irish Environment argued it was ultra vires and that it violated the rights to life, bodily integrity, and a healthy environment. In an important victory for climate activists and litigants, the Supreme Court upheld the ultra vires claim and quashed the Plan, requiring the government to produce another. But this success was overshadowed by the court’s retrogressive and gratuitous findings which narrowed the existing doctrine on standing, essentially rejected the relevance of human rights provisions, and denied the existence of a derived right to a healthy environment. The judgment raises questions as to whether climate litigants should pursue a narrower range of grounds and how litigants might approach standing and the right to a healthy environment in future. It highlights the urgency of making strategic use of regional and international mechanisms in addition to domestic courts and the need for litigants to be upfront about the necessity of innovative legal reasoning in climate cases.

Chapter 4 shows how the October 2019 killing of ISIS leader Abu Bakr al-Baghdadi became a platform for President Trump’s visual and verbal consolidations of necropolitical law. Announcing the killing at a press conference held at the White House Diplomatic Reception Room, Trump positioned himself in front of a portrait of America’s first president, George Washington, visually asserting Trump’s lineage in an always already necropolitical state, built, as it is, on the racialized pillars of territorial appropriation, genocide, and slavery. With the many flags of the US armed forces flanking Trump like an honor guard, the visuals of Trump’s announcement encode the two bodies of president/commander-in-chief, foregrounding the military as a key actor in the state’s implementation of necropolitical law. Chapter 4 shows how Trump used the occasion, first, to deepen the necropolitical separations animating necropolitical law and, second, to stage himself as the White, male, militarized hero central to spectacles of imperialism. Chapter 4 demonstrates how normalizing the necropolitics of imperialism past and present fosters the discounting of life legitimized by necropolitical law.

As the climate crisis intensifies and becomes acutely visible, promising responses have been developed by scientists, advocates, and scholars around the world. Mobilizations such as #FridaysforFuture and Extinction Rebellion are converging with Indigenous peoples’ movements and other social justice movements to convey the urgency and the scale needed for climate action. Reports by the Intergovernmental Panel on Climate Change, informed by developments in attribution science, establish more precise links between greenhouse gas emissions, extreme weather events, and human impacts.1 In the meantime, collaborations between scientists and journalists have drawn the broader public’s attention to detailed information about the magnitude of planet-warming emissions associated with the activities of major fossil fuel companies.2

This chapter seeks to fill a lacuna in our developing understanding of Global South climate litigation concerning how such litigation emerges. The focus is the different, prototypical modes of legal action in the Global South and how they are shaped by particular actors, including local activists, global nonprofit foundations, and lawyers. We propose a theoretical framework to explain these modes and their implications for the emergence of climate litigation in the Global South. The overarching objective of our enquiry is to provide insights for both scholars and practitioners about the key drivers that make climate litigation more or less likely, as well as the conditions that support or obstruct the emergence of climate litigation in developing countries.

In September 2020, six Portuguese children and young adults filed a climate change case with the European Court of Human Rights (‘ECtHR’) against thirty-three European states, comprising Europe’s major emitters. This chapter outlines the basis on which they argue that these states are violating their rights under the European Convention on Human Rights (‘ECHR’) by failing to adopt the radical measures required to safeguard their futures. In particular, it outlines how principles of shared state responsibility are invoked alongside a related general principle of law applicable in situations involving causal uncertainty and multiple wrongdoers to address the ambiguity surrounding the extent of states’ respective ‘fair shares’ of the necessary global mitigation effort. These principles are relied upon to reinforce the paramountcy of the need to achieve the 1.5°C target of the Paris Agreement to realize the rights of the youth-applicants. That various core principles of ECHR jurisprudence, including the margin of appreciation and the principle of effectiveness, support this view is further outlined. The chapter also outlines, with reference to the landmark Urgenda decision, how the approach taken by the youth-applicants in this case can reinforce the efforts of domestic climate change litigators in Europe and beyond.

Acceptance that states have obligations under human rights law to take adequate steps to address the climate crisis has grown. However, discussion of how claims in this area can be adjudicated in practice has been more limited. This article outlines possible approaches that judges and other adjudicators can take, even in jurisdictions with the strongest separation of powers doctrines and where there is not yet a developed body of law in this area. Accordingly, we focus on certain minimum or ‘core’ assessment criteria that are capable of near-universal application. In this context, the terms of the landmark Paris Agreement of 2015 are key, both in setting a global temperature goal and in requiring states to ensure that their emission reductions reflect their “highest possible ambition.” We argue that this framework, together with existing due diligence principles and international scientific consensus, can provide an objective basis for assessing a state or public body’s climate policy. To illustrate this, we refer to the arguments made by Indigenous inhabitants of the Torres Strait in a pending complaint before the UN Human Rights Committee against Australia, alleging violations of the ICCPR.

This article aims to analyze the Brazilian context for climate litigation. In situating climate litigation within the Brazilian context, we explore recent setbacks for climate justice caused by the federal government. We also understand that climate litigation should work to address racial discrimination and as such should contribute to the anti-racist struggle. Though Brazil has not yet had a paradigmatic case of climate litigation, climate litigation is nonetheless slowly gaining strength in Brazil, including through some cases currently pending in front of Brazilian Supreme Court. Most of the Brazilian cases that can be considered relevant to climate change are generic environmental and/or human rights actions that address some climate issues. Key actors currently discussing climate litigation generally believe that it would be best and safer to start with easy and “isolated” lawsuits, given that certain legal hypotheses have not yet been fully tested. Brazil’s judiciary, moreover, does not yet seem particularly concerned with climate issues. Nevertheless, the debate on climate litigation in Brazil has emerged in recent years, led notably by academia and civil society.

Human rights cases challenging government inaction on climate change have been filed throughout the world. These cases seek to enforce government obligations to respect the rights of individuals, communities adversely affected by climate change, and specific groups of vulnerable persons. An expanding body of climate change detection and attribution research supports these claims by demonstrating that climate change is occurring and causing harmful impacts and can be linked to government policies and conduct. The research is robust, supporting claims related to both mitigation and adaptation obligations. There are gaps and limitations in the research, but those constraints do not present a major obstacle to pursuing rights-based climate litigation. Attribution science is particularly well-suited to supporting community petitions that are based on collective rights, as evidence of attribution tends to be stronger when looking at impacts on a broader geographic and temporal scale. And by using attribution science to demonstrate that future climate impacts are foreseeable, litigants bolster their claims challenging governments’ failures to adapt.