Transnationalisation of Procedural Law through (and for) Climate Litigation: A Latin American Perspective

BERROS, MARÍA VALERIA; MÉDICI COLOMBO, GASTÓN

Buenos Aires

Congreso; 27th World Congress of Political Science; 2023

IPSA

As climate litigation multiplies around the world, processes of cross-pollination of narratives, strategies and legal grounds between jurisdictions have emerged, capturing the attention of scholars. Procedural rules, arrangements and practices that define the structure and functioning of access to justice, however, are excluded from those processes as they are mainly perceived as constrained to the jurisdiction in which they are enacted and developed. This conviction makes references to comparative procedural law mostly absent in judicial cases. Contrary to this idea, we argue that, in the context of Latin America, the ongoing implementation phase of the Escazú Agreement offers the opportunity to redefine procedural law as an element of transnational nature and interest apt to be involved in cross-pollination processes. This relates to the introduction in the Agreement of a cooperation pillar together with an institutional framework devoted to monitoring its compliance but also developing its standards. Climate litigators would be both prominent promoters and beneficiaries of this redefinition, given the complexities that the special nature of climate change -globality, inter-temporality, abstraction, etc.- entails for judicial proceedings and adjudication. Climate litigation in domestic jurisdictions would work as a laboratory for testing procedural rules and practices before the challenges that the ‘harsh’ nature of climate change poses. This would result in new useful procedural approaches that, under the auspices of the Escazú Agreement, would benefit litigation throughout the entire region. Procedural hurdles in the production of climate-related scientific evidence and the solutions some courts in the region have come up with can offer clear examples of the possibilities and limits of our approach. Our work is the result of qualitative research based on the analytical and critical study of domestic and international norms, case law and literature which allows us to introduce and defend an original thesis.