Abstract

One of the most stubborn criticisms of strategic climate litigation (SCL) points at the apparent lack of democratic legitimacy of court decisions. This paper argues that the ‘democratic criticism’ does not sufficiently engage with the empirical reality beyond the court room and the cyclical nature of democratic decision-making. It defends the thesis that SCL contributes – at least under certain circumstances – to democratic decision-making on climate issues in three inter-related ways: First, SCL allows for representation and participation of those that otherwise do not have a voice in public decision-making (minors, future generations, foreigners). Second, judicial review can address ‘pathologies’ of the political process (fortified vested interests; misinformation). Third, the judiciary has the important function of demanding justification for public decision-making. The paper concludes that, within the procedural boundaries of the judicial process, the judiciary fulfils in SCL a significant role in the democratic process.

Speaker

Christina Eckes is professor of European law at the University of Amsterdam. Her current research interests are the separation of powers in 21st century Europe and strategic climate litigation in Europe. Her most recent publications examine the legal and factual exceptionalism of climate litigation, climate constitutionalisation, and the normative relevance of climate science in litigation. 

Since 2022, Christina Eckes participates in two Horizon Europe projects (Red Spinel and Gem Diamond, led by Université Libre de Bruxelles). Her contributions to both focuses amongst other things on the role of climate governance in the growing dissensus on liberal democracy.