Courts and Horizontal Accountability in Climate Change Litigation

Abstract

In La Oroya v Peru, the Inter-American Court of Human Rights, in its quest to protect the “interest of future and present generations” based on the facts before it, suggested that the right to a healthy environment should have the status of a peremptory norm of general international law. The European Court of Human Rights has been at the centre of debates over its judgments, such as Verein Klimaseniorinnen Schweiz v Switzerland, where it established positive obligations with regards to climate change under Article 8 of the European Convention on Human Rights. Under the African human rights system, regional courts have long sought to hold states to account for activities of state and multinational corporations that infringe on the right to a healthy environment. These developments reveal an emergent cadre of judges that are alive to the need to develop concrete normative standards on climate change litigation. To the untrained eye, these recent decisions suggest an erasure of the Global North–South divide that has stymied climate change negotiations. Consequently, this article examines the critical role of judge-made law in the potential cross-fertilization or “judicial globalization” of a normative body of climate change jurisprudence. It adopts a comparative approach by analysing recent jurisprudence emerging from regional courts in Africa and juxtaposing them with emerging trends in other international courts.

Keywords: climate change litigation; judge-made law; horizontal accountability; peremptory norm; jus cogens; African, European and Inter-American human rights system.