Chapter 19 looks at two landmark decisions that were issued after the submission of the full manuscript of this book for publication: the Advisory Opinion of the International Tribunal for the Law of the Sea on climate change and marine protection, and the judgment of the European Court of Human Rights in Verein KlimaSeniorinnen Schweiz and Others v Switzerland. The authors situate these decisions within the broader context of climate litigation, examining their implications for future cases and drawing connections to the themes explored in other chapters. They demonstrate how these decisions both reflect and advance emerging best practice in climate jurisprudence, potentially inspiring further innovation based on science and rigorous legal reasoning.

The Introduction introduces the central research questions of the study and summarizes the main arguments. It also lays out the research design and discusses the key concepts and how it measures them. Finally, it provides summaries of all of the chapters in the book.

Chapter 2 uses an original database on historical elections in South America to explore when and where democracy first emerged in the region. Scholars traditionally portrayed nineteenth-century elections in Latin America as farces, but in recent years historians have challenged this view. This chapter shows that many South American elections in the nineteenth century involved significant participation and competition, and a few were even free and fair. Nevertheless, authoritarian rule predominated. Most elections were non-competitive, numerous restrictions on the franchise existed, and voter turnout tended to be low in comparison to Europe and the United States. Moreover, the few democratic episodes in the nineteenth century proved to be quite brief, as the freely elected presidents were either overthrown or subverted democracy to perpetuate themselves or their allies in power. However, in the first three decades of the twentieth century, a great divide occurred. A few South American countries, namely Argentina, Chile, Colombia, and Uruguay, established democratic regimes that lasted a dozen years or more. By contrast, authoritarian rule deepened in the other six countries of the region

Chapter 3 on Attribution Science delves deeper into the science that establishes causal links between climate change, specific sources of emissions, and its impacts. The authors illustrate how these scientific developments are enhancing our ability to pinpoint the causes of climate impacts, an evolution crucial to a range of procedural and substantive issues that may arise in climate litigation. The authors also delve into specific regional impacts and showcase how attribution science has illuminated the ways in which different parts of the world are experiencing and responding to the unique challenges posed by a changing climate. This includes case studies in Africa, the Americas, Europe, the South Pacific, and Asia. The authors conclude by addressing the limitations and challenges in the field of attribution science before explaining how it is nevertheless poised to play an ever-more critical role in our collective response to climate change.

Chapter 4 examines what led to the emergence of the strong parties that helped bring about democracy in some South American countries. It shows that during the late nineteenth and early twentieth century, relatively strong national parties arose in Chile, Colombia, and Uruguay, and, to a lesser extent, in Argentina and Paraguay, but not in the other countries of the region. Two main factors shaped party development during this period. First, strong parties emerged in countries that had intense but relatively balanced religious or territorial cleavages, where neither side of a cleavage clearly dominated the other. Religious issues, in particular, generated passions that politicians could exploit to build parties. Second, strong parties tended to emerge in countries that had populations concentrated in relatively small areas without major geographic barriers. In these countries, it was easier for politicians to mount national campaigns and for party leaders to develop organizations that penetrated the entire country. These arguments are explored through comparative statistics and brief case studies of party development in all ten South American countries.

Chapter 6 on Separation of Powers offers a comprehensive exploration of how the balance of power between the judiciary and other branches of government plays out in climate litigation. The authors critically analyse key cases where these doctrines have been invoked, shedding light on how these doctrines shape the courts’ approach to climate cases. They underscore the significant variation in how this issue is dealt with across jurisdictions, acknowledging the diversity of constitutional and legal frameworks globally. Despite this diversity, the authors distil an emerging best practice where courts are increasingly recognising their crucial role in safeguarding fundamental rights and constitutional values in the context of climate change. This recognition is not a one-directional or universal trend but a nuanced evolution detectable across various jurisdictions and legal systems.

Chapter 5 shows how the development of strong parties and professional militaries contributed to the emergence of enduring democracies in Chile and Uruguay. Both countries developed strong parties during the late nineteenth century thanks in part to the geographic concentration of the population and the existence of relatively balanced cleavages. During the nineteenth century, these parties at times sought power via armed revolts, but once the military professionalized, the opposition began to focus exclusively on the electoral route to power. This occurred in the late nineteenth century in Chile, but not until the early twentieth century in Uruguay. In both countries, opposition parties pushed for democratic reforms to enfranchise their supporters and level the electoral playing field. It was not until the ruling party split, however, that the opposition managed to enact major reforms, which occurred in Chile in 1890 and Uruguay in 1917. In both countries, strong opposition parties played a central role not only in the enactment of the reforms but also in their enforcement.

Chapter 9 examines the principle of the duty of care in the context of climate litigation. The authors explore how this principle has been invoked in a growing range of jurisdictions, in different ways, to hold governments and corporations accountable for their respective contributions to climate change. By analysing judicial decisions in prominent cases such as Urgenda and Milieudefensie in the Netherlands, Neubauer in Germany, and Notre Affaire à Tous in France, the authors explore the potential of the duty of care principle to compel more ambitious climate action in pending and future cases. The emerging best practice they identify suggests a growing willingness of courts to recognise a duty of care for governments and corporations towards citizens in relation to climate change.

Chapter 5 on Admissibility delves into the factors determining whether a climate case can be heard in court. It presents a clear understanding of the criteria for admissibility and their potential implications on the trajectory of climate litigation. The chapter also delves into the interplay between domestic and international legal rules and norms and their influence on the criteria for admissibility. The author’s analysis reveals that a restrictive interpretation of admissibility criteria can present formidable access to justice barriers, particularly for those most impacted by climate change. In light of these challenges, the author’s distillation of emerging best practice highlights instances where courts and quasi-judicial bodies have interpreted admissibility criteria to ensure access to justice. Specifically, the chapter highlights cases where these bodies have considered human rights and justice imperatives in their admissibility decisions. These decisions highlight the potential for an inclusive and equitable approach to climate litigation, one that aligns with the global nature of the climate crisis and the urgent need for climate justice.

Chapter 1 lays out the central theoretical arguments of the book. It argues that three factors played a key role in the emergence of democracy in region: the professionalization of the military, the rise of strong opposition parties, and splits within the ruling party. It analyzes what led to the professionalization of the military and the rise of strong opposition parties and it shows how they led to varying regime outcomes in different South American countries. This chapter also discusses why existing theories of democratization cannot fully explain the emergence of democracy in the region

Chapter 16 on Causation explores the challenges of proving causation in an interconnected system like the climate, where multiple actors contribute to the overall impacts. The authors highlight the significance of probabilistic approaches, recognising that establishing direct causation can be challenging due to the nature of climate change and the cumulative nature of greenhouse gas emissions. In their exploration of emerging best practices, the authors underscore the growing recognition among courts of the need for nuanced interpretations of causation requirements in climate litigation. They highlight innovative judicial strategies that utilise scientific evidence and expert testimony to assess the contribution of specific actors to climate impacts, even in the absence of direct causation. They emphasise the importance of interdisciplinary collaboration between legal and scientific experts to navigate the complexities of causation in climate cases. By incorporating and further developing these emerging best practices, courts can facilitate an accurate and fair distribution of responsibilities through the cases they adjudicate.

Chapter 13 on Common but Differentiated Responsibilities and Respective Capabilities provides a critical analysis of this cornerstone principle of international climate law and its implications for climate litigation. The principle recognises the differentiated responsibilities and capabilities of countries in addressing climate change, acknowledging the historical contribution of developed nations to global greenhouse gas emissions and the greater capacity these nations possess to mitigate climate change and adapt to its impacts. The author critically analyses key cases where the principle has been raised, and assesses the legal reasoning employed by courts and tribunals that have given it a specific meaning. The author then identifies instances of emerging best practice where the principle has been interpreted and applied in ways that enhance climate justice outcomes. She notes that such instances do not yet constitute a uniform trend but they nonetheless illustrate the potential of this principle in shaping the delineation of responsibilities in climate lawsuits, considering fairness, equity, and historical responsibility.