Numerous scientific reports have evidenced the transformation of the earth system due to human activities. These changes – captured under the term ‘Anthropocene’ – require a new perspective on global law and policy. The concept of ‘earth system law’ situates law in an earth system context and offers a new perspective to interrogate the role of law in governing planetary challenges such as climate change. The discourse on earth system law has not yet fully recognised courts as actors that could shape climate governance, while climate litigation discourse has insufficiently considered aspects of earth system law. We posit that courts play an increasingly influential climate governance role and that they need to be recognised as Anthropocene institutions within the earth system law paradigm. Drawing on a set of prominent climate cases, we discuss five inter-related domains that are relevant for earth system law and where the potential influence of courts can be discerned: establishing accountability, redefining power relations, remedying vulnerabilities and injustices, increasing the reach and impact of international climate law and applying climate science to adjudicate legal disputes. We suggest that their innovative work in these domains could provide a basis for positioning courts as planetary climate governance actors.
Policy implications
- The concept of earth system law offers a contemporary framework for policymakers and scientists to interrogate, from a legal perspective, earth system transformations, their social–ecological impacts and how to respond to these.
- The rapidly developing area of climate litigation, with its predominantly domestic focus, has yet to consider the planetary dimensions of new paradigms such as earth system law and what these could mean for courts, climate litigation and climate governance in both conceptual and practical terms.
- Policymakers, civil society and academics should recognise the potential influential role that courts could play in further developing earth system law.
- Stakeholders in climate law and governance can expand the relevance and impact of courts for global climate governance, from their traditional categorisation as domestic actors to Anthropocene institutions that can respond to the planetary dimensions of climate governance.
Photo by EKATERINA BOLOVTSOVA