International climate justice and mitigation obligations: procedural and systemic challenges

Abstract

This study analyzes the emerging field of international climate justice through the jurisprudence of the ECtHR, the IACtHR, and the ITLOS regarding obligations to mitigate climate change. It first examines the difficulty of establishing jurisdictional links with States. Before regional human rights courts, the diffuse causal chains and transboundary nature of climate change complicate both the overcoming of territorial boundaries and the determination of standing. At the interstate level, the study explains States’ preference for non-judicial mechanisms. However, the recent advisory opinion of ITLOS—enabled by a controlled circumvention of the principle of consensual justice—may pave the way for increased judicialization. Despite institutional and procedural differences, all three tribunals have affirmed the existence of autonomous mitigation obligations that go beyond the commitments under the Paris Agreement. While the Agreement is recognized as relevant, it does not operate as lex specialis nor limit the scope of other conventional sources, which generate their own obligations subject to judicial review.