Climate litigation and separation of powers

A broad transnational movement is using litigation to challenge political inaction on climate issues. This trend is accompanied with a “humanization” of political ecology: the use of human rights to defend environmental considerations. Judiciarization and humanization, combined, raise a series of questions in terms of separation of powers. First, my contribution explains the different sides of the criticisms that consider that the climate dispute would sound the death knell of separation of powers. Second, it intends to demonstrate, from an analytical theory perspective, that this type of argument is based on a nostalgic, fantasized “separatist” conception of separation of powers. Third, my contribution clarifies the requirements actually postulated by the separation of powers, with regard to the aims pursued by his (instrumental) theory, to identify the conditions under which a judge can deal with climate cases while respecting the distribution of functions in a democratic state.