Leer en español aquí. Part two of this article is available here.
This article discusses how climate change affects our understanding of law. In the first part, I discuss the work of philosophers like Hegel and Marx, who examined the relationship between tragedy, history, and law. Next, I describe precedents of climate litigation in comparative constitutional jurisprudence and inter-state dispute settlement bodies. These bodies incorporate new legal rules and principles aimed at mitigating and preventing climate change. The second part of the article, to be published next week, analyzes the main regulatory and jurisprudential advances in international human rights law (IHRL), emphasizing the Inter-American Court’s recent advisory opinion on the subject.
Tragedy, history, law, and historicism
Rethinking law involves more than identifying new rules and principles that challenge the foundations of a legal system. Often, this exercise involves reconsidering the normative premises that were unable to prevent events that shock the human conscience at a given moment in history. For example, had it not been for the horrors of two world wars, the principle of human dignity might not have been established as a new pillar of international relations. As a result, individuals might not have attained the status of subjects of rights under international criminal law and IHRL. This process was driven by jurists such as Gustav Radbruch and legal practitioners who experienced firsthand what historian Eric Hobsbawm defined as “the Age of Catastrophe (1914-1947)”.
In Elements of the Philosophy of Right, Hegel stated that the task of philosophy, and not science, is to understand a historical process that has reached maturity. “The owl of Minerva spreads its wings only with the falling of the dusk.” In other words, a philosophical current can only interpret a historical period once that period has ended. When applied to legal science, this maxim reveals that the resurgence of natural law and critical positivism in the second half of the 20th century (as seen in the work of Ferrajoli, Alexy, and Atienza) pointed to a final synthesis in the creation, adjudication, and understanding of law that was incompatible with classical positivism.
Hegel’s work partly seeks to elucidate how tragedy operates as a factor of change in human consciousness and historical evolution. The “positive side of history” leads to a nation’s and humanity’s consciousness (Weltgeist) accessing a new level of awareness after facing a catastrophe. For example, Hegel identifies the Napoleonic Wars as the catalyst for new national consciousnesses in Europe. The Napoleonic civil code, imposed on countries invaded by the revolutionary French army, allowed part of the old continent to overcome feudal political and legal institutions. For Hegel, this is an example of the positive side of the suffering caused by decades of belligerence.
Another example of the “positive side” of a catastrophe is the Lisbon earthquake of 1755. The almost instantaneous destruction of one of the most opulent cities in Europe prompted a reevaluation of the natural and human — rather than divine — causes of such a tragedy. Why would God punish 100,000 believers so mercilessly? This natural catastrophe inspired Immanuel Kant’s definitive distinction between the natural sciences, ethics, and theology in the late 18th century. In other words, if this fateful earthquake had not occurred, Western philosophy might have remained in the premodern era for a considerable time.
Increasingly frequent tragedies resulting from climate change could transcend new constitutional rules and principles (described in the next section) and catalyze a change in how we think about law. One likely expression of this Copernican shift is recognizing Nature as a subject of rights. For many, this implies, or at least hints at, the emergence of a new, eco-centric legal paradigm.
Returning to Hegel’s legacy, his disciple Karl Marx took a diametrically opposed position anchored in the “negative side” of history. This position is summed up in the famous phrase from The Eighteenth Brumaire of Louis Bonaparte: “History repeats itself, first as a tragedy, then as a farce.” In his Critique of Hegel’s Philosophy of Right, Marx explained how thousands of peasants were imprisoned for cutting down trees for subsistence in the Black Forest region, just as their ancestors had done. Their actions were not punished under feudal law. As capitalism advanced in Prussia, private law began attributing economic value to trees, and public law enabled the state to exercise violence (later named “legitimate violence” by Max Webber) in favor of the ruling class in the aforementioned social system of production.
While it would be anachronistic to apply Marx’s ideas directly to how the law assigns monetary value to certain natural resources today, the described example contributes to an analogy with “nature-based” solutions to climate change. Carbon credits assign monetary value to CO2 captured through natural processes, thereby incorporating entire biospheres into market logic under the guise of preservation. Many climate science experts question whether a mercantilist model of environmental preservation focused on monetary compensation for CO2 emissions is an effective response or if it creates economic, political, and ethical disincentives to the transition to renewable energy sources.
I conclude this reflection with Karl Popper’s critique of Hegel’s historicism and Marx, that is, their eagerness to unveil the laws of history and its inevitable final synthesis (the absolute spirit for Hegel and communism for Marx). In The Open Society and Its Enemies, Popper explains that although both authors’ “historicism” dates back to some pre-Socratic thinkers, this tradition reached extreme levels in 19th-century positivism. This resulted in disastrous social and racial engineering in the 20th century. Indeed, totalitarian regimes indiscriminately promoted all kinds of human catastrophe under the guise of a higher purpose, whether it be the inevitable domination of the Aryan race (National Socialism in Germany) or the proletarian class (Stalinism in the Soviet Union).
Referencing Popper allows me to qualify the statement made in the introduction to this article. The point is that tragedies resulting from climate change tend to generate a new understanding of law. This conclusion is not based on a historicist approach aimed at predicting the future but rather on two current observations: 1) the scientific evidence of widespread damage to the planet’s key natural systems, which in some cases has reached the point of no return, and the threat this poses to the lives of countless species, including humans; and 2) the growing development of case law and regulations in constitutional and public international law, summarized below. I can only speculate that this development will give rise to new currents of legal philosophy that will spread its wings with the falling of the dusk.
Rethinking Constitutional Law and Public International Law
Specialized doctrine identifies a growing number of countries with constitutional provisions dedicated to climate protection. Most are open clauses that establish a commitment to achieve a desired climate scenario. In addition to being enshrined in numerous national constitutions, in October 2021, the human right to a healthy environment was recognized for the first time by the UN Human Rights Council through Resolution 48/13. In July 2022, the UN General Assembly, in Resolution 76/300, recognized the human right to a clean, healthy, and sustainable environment as universal.
According to figures from the Sabin Center for Climate Change Law, more than 3,000 legal actions have been filed worldwide to demand reparations and hold companies and states accountable for climate damage. In 2024 alone, 226 actions were filed in 60 countries.
The new legal rules and principles developed in these climate lawsuits include:
1) The judicial review of greenhouse gas emission reduction targets (GHG), due to the lack of clear progress and appropriate measures to achieve them, and the establishment of climate damages in favor of future generations when such damages are irreversible in light of available scientific evidence, in Germany.
2) The integration of the Paris Agreement into the legal system of Brazil with the status of a human rights treaty.
3) The judicial review of environmental impact studies for failure to analyze direct or indirect climate impacts in various countries in the global North and South. [¹]
4) The prohibition of misleading advertising by companies regarding the reduction and/or offsetting of GHG emissions.
5) The easing the burden of proof in climate litigation in the Netherlands;
6) The imposition of limits on GHG emissions in accordance with the Dutch state’s contribution to the Paris Agreement’s goal of keeping global temperature rise within two degrees Celsius above pre-industrial levels.[²]
7) The influence of court decisions and laws that recognize Nature as rights-bearing entity.
On May 21, 2024, the International Tribunal for the Law of the Sea (ITLOS) issued an advisory opinion requested by the Commission on the Law of the Sea. The opinion states that states party to the UN Convention on the Law of the Sea are obligated to prevent, reduce, and control maritime pollution caused by GHG emissions. The opinion emphasizes that this obligation extends beyond compliance with the Paris Agreement commitments and requires strict due diligence to reduce emissions. This includes taking into account the best available scientific evidence and the international obligation of cooperation between countries.
The most relevant jurisprudential advances in the ruling include:
1) The obligation to prevent transboundary harm to the marine environment caused by GHG emissions.
2) The duty to rigorously enforce laws and regulations or adopt international forum standards that prevent, control, or reduce GHG pollution of the marine environment.
3) The obligation to assess environmental impact, taking into account cumulative climate impacts.
4) The obligation to preserve the marine environment, emphasizing the restoration of affected ecosystems and their role in mitigating further climate damage.
5) The obligation to conserve and manage marine resources that are threatened, including those on the high seas.
Vanuatu has requested an advisory opinion from the International Court of Justice regarding the obligations of states to protect the environment and planetary climate systems for present and future generations. The opinion will also address the legal consequences of state actions that cause significant damage to these systems. According to the UN, this request is “the largest case ever brought before a global court.”
The intersection between the climate emergency and human rights has prompted significant declarations by various supranational bodies within the inter-American, European, African, and universal human rights systems. The most recent of these is Advisory Opinion 32/25, entitled Climate Emergency and Human Rights, which was published on July 3, 2025. The question of how we can rethink international human rights law in times of climate tragedy deserves its own article, which can be found here.
¹ See, for example, decisions of US courts, WildEarth Guardians v. U.S., D. C. No. 2:13-CV-00042-ABJ (10th Cir. 2017), San Juan Citizens Alliance v. Bureau of Land Management, 326 F. Supp. 3d (D. N.M. 2018), Wild Earth Guardians v. Zinke, 368 F. Supp. 3d 41 (D.D.C. 2019); Australia, Australian New South Wales Land and Environment Court, Gray v. The Minister for Planning, [2006] NSWLEC 720; South Africa, Supreme Court of South Africa, Earthlife Africa Johannesburg v. Minister of Environmental Affairs and others, Case No. 65662/16 (2017); and Chile, Supreme Court of Chile, Case “Jara Alarcón, Luis v. Environmental Assessment Service,” Case No. 8573-2019, January 13, 2021.
² Supreme Court of the Netherlands, Urgenda Foundation v. State of the Netherlands, ECLI:NL:HR:2019:2007, January 13, 2020.
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