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.
This paper addresses the developments in constitutional reasoning and adjudication that can be identified in cases involving climate change. The complexity and polycentricity of climate change daunt judges and forces them to develop novel interpretations of constitutional doctrines. To address this issue, the paper draws on the recent Neubauer case to explore the distinctive legal questions posed by climate change in constitutional adjudication. This research builds on a doctrinal analysis of the judgment to explore the potential developments in constitutional adjudication that may take place in other jurisdictions in similar cases of climate litigation, as well as the difficulties judges face to accommodate the disruptive features of climate change in their legal reasoning. The proposal is an invitation to constitutional scholars to evolve our legal thinking in light of climate change, as a way to sharpen our understanding of constitutional law and its role in modern societies.
Considering the recent happening happening in the global community the need to reappraise the effectiveness of public law becomes very important. Increase in violence among nations, agitation of self determination and emergency of violent non state actors all suggest that things are going wrong. Taking into cognisance, that sustainable development is a major focus of all stake holder, this paper seeks to examine, where public law scholarship may have deviated and seek a redirection so as to regain lost grounds. The paper approaches the discuss from a sociolegal prism and situates scholarship of public law as a tool to assist this much needed renavigation. It employs a doctrinal approach to analyse existing scholarship and prefer direction for a more sustainable approach.
The Common heritage of mankind designates certain spaces and their resources as belonging to mankind, the objective being to protect them from monopolization or the claim of sovereignty on the part of States and from any private appropriation. This concerns in particular the Moon and the bed of the High Seas.
This notion implies a desire for transmission to future generations and advocates a mode of governance articulated around common principles and based on the interest of mankind. However, the current and future challenges represented by these spaces and their resources are colossal and are attracting ever greater interests, whether by certains States or companies, while the Common heritage of mankind is weakened by blurred outlines and limited range.
Can the Common heritage of mankind, which aims to defend supranational interests, those of mankind, resist the logics of sovereignty and privatization that threatens these spaces and these resources ?