Editorial | Volume 22 No. 8
It is my great pleasure to announce the publication of issue 22.8 of the German Law Journal. This bumper issue – delayed as a result of industrial action in the UK, my apologies – contains not one but two special sections (‘Climate Litigation’ and ‘Views from the Bench’) and a selection of excellent articles across topics united by an interest in governance at international level.
Climate litigation represents an increasingly important strategic dimension of the operation of governance and regulation at difference levels and scales, often involving state and non-state actors. For civil society, the results of such litigation comprise readily identifiable tools both for raising awareness and political lobbying, as well as for drawing more focused attention to undesirable climate-affecting behaviour on the part of public and private actors. For the courts themselves, recent rulings suggest that there is an appetite for bold and decisive action on climate issues. This important and timely special section, curated by Vanessa Casado Pérez and our own Emanuela Orlando, draws our attention to the role, features, and dynamics of climate litigation in different jurisdictions. Not only do the scholarly contributions in this section provide expert commentaries on recent landmark decisions but they also contextualise these rulings within the broader field of inter- and transnational climate justice.
Casado Pérez and Orlando’s excellent introduction to this section provides a detailed overview of each contribution, so I will restrict myself here to flagging their general subject matter. The section’s opening three articles – from Andreas Buser, Rike Krämer-Hoppe, and Louis J. Kotzé respectively – each takes different perspectives on the German Federal Constitutional Court’s decision concerning the German Climate Change Act 2019. The fourth article takes us to France, where Marta Torres-Schaub first scrutinises the Grande Synthe and Affaire du Siecle rulings then comparatively contextualises these vis-à-vis other jurisdictions’ climate justice proceedings. Contributions five and six take us to the Global South, where Eeshan Chaturvedi discusses Indian judicial activism in the context of India’s lack of comprehensive climate change legislation, and Alessandra Lehmen considers the potential of strategic climate litigation in Brazil, including the important role that lawyers can – and arguably should – play in bridging jurisdictional, scalar, and expert gaps. The final two papers of the section, by contrast, take more cross-cutting and comparative approaches: Jaqueline Peel and Rebekkah Markey-Towler’s comparative analysis of Sharma (Australia), Neubauer (Germany) and Shell (Netherlands) considers what elements are key in successful strategic climate litigation, while the section concludes with Josephine van Zeben’s discussion of the potential role of the European Union’s Charter of Fundamental Rights within EU climate litigation.
This issue’s second special section, curated by Alec Stone Sweet and Giacinto della Cananea, features their interviews with, respectively, Aharon Barak, President of the Israel Supreme Court (1995-2006); Sabino Cassese, Justice of the Italian Constitutional Court (2005-2014); and Dieter Grimm, Justice of the German Federal Constitutional Court (1987 to 1999). Coming from three of the most important jurists of our time, these ‘views from the bench’ provide enthralling and illuminating insights into inter alia the significance of the constitution and general principles, the status of international and European law within domestic constitutional law, and the role of dialogues with external courts. Hopefully the first of several such special sections within the GLJ, we invite you to savour these conversations and to anticipate more in the future.
Concluding this issue are five articles which, although eclectic, are united both by their international scope and their ostensible interest in governance. In her paper on immunities and arbitration, Satya Talwar Mouland demonstrates that the adoption of a wider definition to ‘enforcement jurisdiction’ than the one usually used in public international law – which is to say, one that induces state compliance as opposed merely to compelling state action – allows for the identification of an emergent ‘common approach’ to the scope of national court “enforcement jurisdiction” in respect of international arbitral tribunals. Mouland argues in this regard that the international legal principle of state immunity can thus be viewed as a rule lex specialis. Next, Philipp Semmelmayer contextualises his discussion of climate change in terms of international pressures, both pandemic and economic, then focuses on the role to be played by German tort law in climate litigation. Semmelmayer makes the case not only that climate change and tort law are not contradictory, as some claim, but also that the issues faced by civil law systems in this respect are not so very different from those faced by common law systems, with the conclusion that current German tort law has the potential to evolve to meet contemporary climate justice challenges. The third article, from Paul Quinn and Gianclaudio Malgieri, juxtaposes the EU’s General Data Protection Regulation (GDPR) apparent ‘means to an end’ stance against European Court of Human Rights (ECtHR) rulings that see the maintenance of separate rules governing the use of sensitive personal data as an ‘end in itself’, and queries whether the idea of sensitive data is still fit for purpose. Noting that no effort appears to have been made to provide a definition combining purposeful and context-based elements, Quinn proposes such a hybrid approach: a purpose-based interpretation of sensitive data with a relevant context-based backstop. The penultimate article of this issue provides an original spin on a classic jurisprudential debate within public international law. Alex Green critiques the contemporary reliance upon the existence of an international rule of recognition on the basis that this practice threatens the immanent rationality of the international legal system. Green suggests, instead, that lawyers committed to international legal positivism should rely explicitly upon foundational values, such as those found in the work of Lassa Oppenheim. Finally, Jo Shaw presents her wide-ranging ‘syndemic’ analysis of the impacts of the COVID-19 pandemic within the domain of citizenship. Only by studying social structural and other social contextual issues alongside the virus, Shaw argues, is it possible to understand the nature and – often asymmetric – effects of the pandemic, notably the manner in which it exacerbates existing inequalities. This necessarily affects ideas, concepts, and practices of membership, such as citizenship, and Shaw draws our attention to the ways in which many pandemic impacts play out in terms of changes in relation to constitutional citizenship.
As always, happy reading.
On behalf of the Editors-in-Chief