By Karen C. Sokol. Full Text.
Climate-driven geophysical and geopolitical shifts are putting increasing pressure on international law and global governance. One window into the challenges and opportunities presented by these ongoing disruptions is provided by a surge of “climate-accountability” cases, which argue that governments and corporations are responsible for addressing climate risks or repairing climate harms. This Article fills a gap in the literature by providing the first theoretical account of the structural role of courts in global governance in these cases and a typology of their functions. The panoramic perspective that I take shows that two extraordinary worldwide shifts are underway: historic applications of many existing, non-climate laws to the facts of our cli- mate-disrupted reality and the emergence of a decentralized yet coherent transnational judicial component of global climate governance, which heretofore had been largely confined to the United Nations Framework Convention on Climate Change regime.
On one hand, the literature on climate cases has yet to pro- vide a theoretical account of their role in global governance structures, instead taking more narrow views by assessing trends, analyzing decisions, developing new arguments, and evaluating the effect of the litigation on governmental and corporate actors. On the other hand, the international law literature on courts’ roles in international governance has yet to engage with climate cases, which, I argue, have distinctive aspects that can be accounted for only with a new theory.
My theoretical account serves two main purposes. First, it provides a conceptual framework for examining the litigation from a global governance perspective. To do that, I start, in contrast to current writing on the litigation, by focusing courts rather than climate. Drawing on decades of scholarship on international and domestic courts’ roles in international law and governance, as well as on international relations and political science, I show that climate litigation has made courts a part of global climate governance and develop both a theory of their governance role—which I call “responsibility-differentiation”—and a typology of its functions. As a result, I build on and provide a bridge between two strands of scholarship—that on courts in international law and governance broadly and that on climate litigation.
Second, I use my theoretical account to offer recommendations for how the litigation should be approached in light of the pathological geopolitical dynamics that have thus far dominated international climate governance. It can—and should—be used to name and help correct, rather than further entrench, the historical injustices of the climate crisis.