Constitutional Law

The Power of Rights-Based Climate Change Litigation

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My law review article exploring the influence and impact of rights-based climate change litigation has now been published in the Case Western Reserve Journal of International Law, and the full article can be downloaded from SSRN. The abstract is posted below:

An increasing number of legal challenges to government climate change policies are being advanced on the basis that states are violating the human rights or constitutional rights of applicants. A number of high-profile cases in Europe have upheld such claims and ordered governments to adjust their policies. But questions remain regarding how effective such rights-based cases may be in the effort to enforce climate change law obligations or encourage government responses to the crisis. This Article explores how such rights-based cases may exercise greater influence than is typically understood.

After explaining briefly the relevant human rights and climate change law, this Article examines in some detail a sample of rights-based climate cases that reflect a common pattern of features that provide the basis for such an explanation. The cases illustrate the incorporation of both international human rights law norms, and international climate change law obligations and standards, which are used to assess the legitimacy of government climate change policy. The courts increasingly rely upon the science of climate change institutions and the arguments and doctrines developed by foreign courts and international tribunals, including new doctrines for rejecting typical “drop in the ocean” causation and justiciability arguments traditionally relied upon to dismiss climate change cases.

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International Law in Ukraine and Japan’s New Strategy at AALS

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This year’s AALS Conference in San Diego, in the first week of January, was a good one! It was a pleasure to both moderate a fantastic panel on how the war in Ukraine is impacting international law, and to speak on another panel on the significance of Japan’s new National Security Strategy, which is a marked departure from its traditional position, and arguably inconsistent with the constitutional constraints in Art. 9, on the use of force and maintenance of armed forces.

Canada’s ‘Royal Prerogative’ Allows it to Wage War Without Parliamentary Approval

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(Published in The Conversation, Oct. 24, 2022).

Questions are being raised again about how the Canadian government makes decisions to use force or participate in armed conflicts, prompted by reports that special forces units of the Canadian Armed Forces were operating on the ground in Ukraine.

While ostensibly deployed strictly for “training purposes,” such involvement can lead to more direct engagement in an armed conflict.

The decision to engage in armed conflict is one of the most consequential decisions a government can make. Who is involved in the decision-making, and what conditions or principles govern that process? Even more importantly, how should these decisions be made?

As a recent report suggests, the Ukrainian deployment has rekindled interest in these questions on Parliament Hill. But there should be a broader public discussion and debate.

Most Canadians would be surprised to learn that the prime minister and the cabinet have a far more unfettered power under the so-called royal prerogative to take the country to war than most other western democracies.

Early limits on war-waging powers

The modern idea that the power of the executive branch to wage war should be limited can be traced back at least as far as the Glorious Revolution in 1688, when English parliament placed constraints on the king’s ability to raise and maintain an army.

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New Podcast on the Laws of War

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In mid-July I launched a new podcast series called “JIB/JAB – The Laws of War.” It will feature conversations with experts in the various legal regimes that govern aspects of the use of force and armed conflict — namely, the jus ad bellum, jus in bello, international human rights law, constitutional war powers, and some others in the margins — focusing on both their recent work, and how it may relate to recent events. I am hoping to strike a delicate balance wherein it will be of interest and value to both experts and non-experts (including students) alike. For more information and to peruse the episodes already up, check out the website at http://jibjabpodcast.com — or subscribe on most podcast platforms.