Strategic litigation as a tool to advance climate change adaptation? Challenges and Prospects

Abstract

The present contribution aims to investigate the challenges and potential of strategic litigation as a tool to advance climate change adaptation. More specifically, the contribution addresses the following two research questions: (i) why is strategic litigation on climate change adaptation currently underdeveloped as compared to mitigation litigation?; (ii) how and to what extent can this litigation develop in the future and contribute to advancing climate change adaptation? Section 2 starts by addressing the current challenges of litigating adaptation. The section traces the development of the international climate change regime, which sees the priority of mitigation over adaptation, highlights the paucity of legally binding national frameworks on adaptation, and stresses the difficulties of measuring and evaluating (lack of) progress in adaptation at both national and global levels. All these factors hamper litigation opportunities. Section 3 illustrates how litigation on adaptation could develop in the future. The section proposes three types of strategic litigation cases on adaptation. Notably, a distinction is made between: (i) targeted adaptation cases, (ii) systemic adaptation cases, and (iii) transnational adaptation cases.

Keywords: climate change adaptation, climate change litigation, strategic litigation, human rights, international climate change law