Anthropogenic climate change, climate litigation and judicial activism: towards an emerging consensus for the protection of human rights and future generations regarding a healthy and sustainable environment

Abstract

The objective of this study is to present the current state of what has been called climate litigation in defense of human rights in the context of the latest scientific advances, as well as by virtue of current regulatory, jurisprudential, and doctrinal developments on the matter. Whether an international human right to a healthy and sustainable environment can be deduced from the interaction between international environmental and human rights obligations assumed by States, and even whether we can speak of an autonomous right. Likewise, whether there are possibilities to enforce compliance directly or indirectly through the application of general environmental principles, in particular, those of precaution and due diligence. Nature as a possible holder of rights, future generations or rights and their framing in the notion of «potential victim» of intertemporal risk, the existence of global or collective obligations and the individual responsibility of States, are some of the issues that will be developed and that are pending final judicial resolution.Prior to these questions, it is necessary to analyze, even briefly, certain judicial trends that have caused judicial activism in defense of common legal rights in different areas, including action against climate change.