Exploring Transnationalism in Ground-Breaking South African and Global North Climate Litigation

Abstract

Climate litigation represents a way to battle against the worsening climate crisis. With a focus on the role of courts in transnational climate change litigation, evidence presented in this dissertation aims to uncover the scope and meaning of transnationalism in climate litigation, and to explore the system of transnational climate governance emerging from ground-breaking litigation. This dissertation proceeds from two objectives, the first of which examines how, if at all climate jurisprudence is transnational in character. Global climate litigation is a growing phenomenon, and this work analyses what the scope and meaning of transnationalism in climate litigation entails for a system of global climate governance. The second objective considers what the place of South Africa is in a system of transnational court-led governance; and how Global North judgments cognise the impacts of judgments in South Africa, if at all. To lay the groundwork for the development of a transnational analytical framework with which to reach answers to the objectives, the dissertation recognises differences in the definition of climate litigation and identifies claims that underpin transnational climate litigation. These claims include the human rights turn, the role of courts in climate governance, remedies and mitigation and adaptation-based climate litigation. Grappling with the concept of transnational climate litigation, the dissertation applies four theories of transnationalism to climate litigation, and themes from these theories enabled the development of a transnational analytical framework with which to analyse cases. The three South African cases used are Earthlife Africa Johannesburg v The Minister of Environmental Affairs and Other (Earthlife), Sustaining the Wild Coast NPC and Others v Minister of Mineral Resources and Energy and Others (Shell), South Durban Community Environmental Alliance and Another v Minister of Forestry, Fisheries and The Environment and Others (Eskom). Cases used from the Global North jurisdictions are The State of the Netherlands v Urgenda (Neth. Sup. CT) (Urgenda), Friends of the Earth Netherlands (Milieudefensie)et al v Royal Dutch Shell (Milieudefensie), and Neubauer et al v Germany (Neubauer). As the dissertation concludes, finding