In accordance with the canonical sources of the right of legal claim,the targets of judicial review,and the intensity of judicial review intervention policies,lawsuits that directly and indirectly activate the functio...In accordance with the canonical sources of the right of legal claim,the targets of judicial review,and the intensity of judicial review intervention policies,lawsuits that directly and indirectly activate the function of human rights protection amid climate risks can be divided into the following categories:climate change lawsuits based on international human rights law,climate change lawsuits based on the domestic constitution,and judicial review of administrative procedures.Due to the singularity of the legal status and force of international human rights law,its“direct applicability”and“explanatory applicability”limit its function in protecting human rights;Climate change lawsuits based on domestic constitutions have the identification of basic right of claim,the judgment of basic rights and function,and the scope of state obligations as the judgment process.Factors such as the difficulty in right typification caused by the integration of climate law and interests,the expansion of discretionary and administrative power in legislation under the context of risk prevention,and the functional boundary of the judicial system cause the dysfunction of the dichotomous review standard of positive rights and negative rights.Procedural rights represent an important dimension of climate-related human rights.With the standardization of administrative procedures on addressing climate risks,the courts are gradually reinforcing decision-making authorities’obligation of due diligence through judicial review of risk decision-making procedures,thus indirectly guaranteeing the realization of tangible human rights.展开更多
Climate change lawsuits represented by strategic litigation have become a new force to promote global climate governance. Among them, using the norms and theories of human rights law to present litigation claims, cond...Climate change lawsuits represented by strategic litigation have become a new force to promote global climate governance. Among them, using the norms and theories of human rights law to present litigation claims, conduct legal reasoning, and form human rights-based argumentation has been one of the most successful strategies for climate change lawsuits. The Paris Agreement marked a major watershed for human rights-based argumentation in climate change lawsuits: Before the signing of the Agreement, human rights-based argumentation in climate change lawsuits remained in its trial stage;since the signing of the Paris Agreement, as a litigation strategy, it has become more flexible and diversified, as its relationship with climate governance is becoming increasingly complicated. The uncertainty of climate legal obligation and the process of legalization of climate targets have fostered new dimensions for human rights-based argumentation: Shifting from an accountability logic to a litigation strategy, from international law to domestic law, from holding governments accountable to holding enterprises accountable. There are micro, medium, and macro paths to clarify the human rights-based argumentation, all leading to truly integrating human rights perspectives and ideas into a nation’s specific process of climate governance and valuing and leveraging the value of human rights-based argumentation as a tool, so as to achieve the goal of climate governance.展开更多
文摘In accordance with the canonical sources of the right of legal claim,the targets of judicial review,and the intensity of judicial review intervention policies,lawsuits that directly and indirectly activate the function of human rights protection amid climate risks can be divided into the following categories:climate change lawsuits based on international human rights law,climate change lawsuits based on the domestic constitution,and judicial review of administrative procedures.Due to the singularity of the legal status and force of international human rights law,its“direct applicability”and“explanatory applicability”limit its function in protecting human rights;Climate change lawsuits based on domestic constitutions have the identification of basic right of claim,the judgment of basic rights and function,and the scope of state obligations as the judgment process.Factors such as the difficulty in right typification caused by the integration of climate law and interests,the expansion of discretionary and administrative power in legislation under the context of risk prevention,and the functional boundary of the judicial system cause the dysfunction of the dichotomous review standard of positive rights and negative rights.Procedural rights represent an important dimension of climate-related human rights.With the standardization of administrative procedures on addressing climate risks,the courts are gradually reinforcing decision-making authorities’obligation of due diligence through judicial review of risk decision-making procedures,thus indirectly guaranteeing the realization of tangible human rights.
基金achievement of the 70t h batch of Post-doctoral Science“Judicial Governance of Carbon Peaking and Carbon Neutrality Compliance from the Perspective of China-US Competition”(2021M702103)。
文摘Climate change lawsuits represented by strategic litigation have become a new force to promote global climate governance. Among them, using the norms and theories of human rights law to present litigation claims, conduct legal reasoning, and form human rights-based argumentation has been one of the most successful strategies for climate change lawsuits. The Paris Agreement marked a major watershed for human rights-based argumentation in climate change lawsuits: Before the signing of the Agreement, human rights-based argumentation in climate change lawsuits remained in its trial stage;since the signing of the Paris Agreement, as a litigation strategy, it has become more flexible and diversified, as its relationship with climate governance is becoming increasingly complicated. The uncertainty of climate legal obligation and the process of legalization of climate targets have fostered new dimensions for human rights-based argumentation: Shifting from an accountability logic to a litigation strategy, from international law to domestic law, from holding governments accountable to holding enterprises accountable. There are micro, medium, and macro paths to clarify the human rights-based argumentation, all leading to truly integrating human rights perspectives and ideas into a nation’s specific process of climate governance and valuing and leveraging the value of human rights-based argumentation as a tool, so as to achieve the goal of climate governance.
