A Constitutional Right to International Legal Representation: The Case of Climate Change

Abstract

Is international law, law? If it is law, then is it superior, equivalent, or inferior to domestic law? Should international law govern domestic legal decisions? If so, to what extent? These questions reveal unresolved disagreement over the proper place and role of international law, especially in the context of contained positivist, domestic legal systems. Generally, a nation’s constitution is perceived to be hierarchically superior, even in enforcing internationally recognized human rights. However, not all nations enjoy that luxury. In some nations, where climate change threatens to overwhelm the constitutional rights of their citizens, international action is indispensable to preserving and protecting constitutional rights. This Article presses the following argument: a normative shift in analyzing the impact on domestic constitutional rights of extremely vulnerable countries is quintessential to appreciate and address the scale of rights violation that climate change threatens citizens of some nations if unmitigated through effective international cooperation.

Analyzing the extent to which the constitutional right to environmental protection enshrined in a number of constitutions of foreign countries and US states are threatened by a lack of an international response to climate change, the Article focuses on the domestic and international legal remedies (or lack thereof) available to the individuals, minority groups, and entire populations most threatened by climate-related catastrophe. In particular, the Article thoroughly examines seven constitutional climate-related cases and speculates as to their potential impact in this field. In conclusion, the Article proposes incorporating constitutional rights language in an international document such as the Paris Agreement to illustrate that climate change causes a domestic rule of law problem that absolutely requires international legal intervention.

Keywords: Climate Change, Human Rights, Constitutional Law, International Law, Future Generations, Urgenda Foundation, Plan B Earth, Greenpeace Nordic Ass’n, Union for Swiss Senior Women for Climate Protection, Ali, Juliana