Discourses on future generations have been of increasing interest to legal scholarship and practice in recent years. This article aims to make sense of the temporal complexities involved in those discourses. Drawing on Hans Lindahl's critical phenomenology of legal ordering, I argue that the representational dynamics within future-based climate litigation requires taking into account the fundamental strangeness of the future to the present. As such, I caution against interpretations that merely seek to include future generations as present rights-holders. Instead, the article argues that the strength of future-based climate litigation is its fundamental disruption of the normality of legal ordering. Joining hands with recent efforts in critical legal theory on the priority of obligations over rights, the article contends that in this disruption lies the possibility to effectuate a more future-oriented present: that is, a present which recognizes its asymmetrical responsibility to the future.
The intersection of international investment law and climate governance has created a structural challenge for investor-state dispute settlement (ISDS): how to balance regulatory autonomy, investor protection, and collective environmental interests. Existing approaches centred on systemic integration, proportionality, or treaty exceptions during the merits phase remain retrospective and insufficient to address the preventive and collective dimensions of climate change damage. This article proposes a procedural reorientation towards provisional measures as an under-explored yet doctrinally grounded mechanism for addressing climate-related investment disputes. Doctrinally, provisional measures, grounded in tribunals' inherent powers, embody a preventive procedural logic that allows ISDS to temporarily accommodate community interests alongside investor and state rights. Without purporting to resolve the climate-investment law dilemma, or to displace substantive adjudication on expropriation or fair and equitable treatment, such measures operate within a bounded procedurally oriented space that weighs urgency and irreversibility. By contextually interpreting the established thresholds of prima facie jurisdiction, urgency, necessity, and rights preservation, tribunals can deploy provisional measures not as exceptional remedies, but as instruments of procedural balance in climate-sensitive adjudication. In doing so, this procedural framework enables ISDS to respond to the temporal and collective realities of climate governance while maintaining its consensual legitimacy.
Environmental constitutionalism refers to the growing constitutional recognition of the environment. Given the diverse designs of constitutional environmental provisions across the world, environmental constitutionalism is construed broadly to reflect both rights and non-rights provisions related to environmental protection. The constitutional entrenchment of environmental rights is the most common expression of environmental constitutionalism. Yet, such a purely rights-based approach ignores the distinctive constitutional design formulated as non-rights directive principles. Central to this debate is the perceived appropriateness, or inappropriateness, of treatment by courts of directive principles as if they are judicially enforceable rights. By exploring the limitations of this twofold division of environmental constitutionalism into conventional rights and directive principles, this article argues that such an approach positions the enforcement of environmental constitutionalism into the binaries of courts versus legislatures. However, environmental constitutionalism should be repositioned towards a collaborative model, the achievement of which requires interactive dynamics among the legislature, the executive, and the judiciary. Through a relational perception of separation of powers, this article offers an innovative understanding of environmental constitutionalism by integrating environmental governance with the values of constitutional collaboration, within which shared responsibility for enforcement is placed among the separated powers.
Abstract The development of satellite mega-constellations promises substantial benefits but also exacerbates environmental risks, including primarily the proliferation of space debris, interference with astronomy, and effects on the atmosphere. This article explains the critical role of environmental impact assessments (EIAs) in ensuring the sustainable development of mega-constellations and argues that EIAs should be regarded as part of existing international space law. On the one hand, heightened environmental risks from space activities render EIAs increasingly relevant, if not indispensable, for implementing the obligations under Article IX of the Outer Space Treaty. On the other hand, while Article III of the Treaty enables the application of general international law on EIAs to outer space, its scope is constrained to activities that are likely to cause a significant adverse impact. The analysis also addresses the operationalization of EIAs with regard to mega-constellations by identifying the responsible state, assessing the significance of environmental impacts, articulating minimum standards, and developing appropriate mechanisms.
The institutional arrangements of multilateral environmental agreements (MEAs), notably those organized around conferences of the parties, have given rise to increasingly powerful and autonomous actors in global environmental governance. The expanding authority of these actors has outpaced the development of robust accountability mechanisms, allowing decisions that exceed mandates or undermine other regimes, often without oversight or redress. This accountability gap poses a structural risk to the legitimacy and effectiveness of global environmental efforts. We examine two potential pathways for closing this gap: (i) the Articles on the Responsibility of International Organizations, which offer a legal framework for institutional responsibility, and (ii) public accountability mechanisms that promote transparency, contestation, and learning. Each approach has limitations when applied in isolation, but their principles, if adapted to and developed for the specific institutional contexts of MEAs, could jointly inform a more coherent and layered framework of accountability. We propose institutional and policy reforms that link the legal recognition of institutional responsibilities under MEAs with embedded oversight and review mechanisms, laying the groundwork for more credible, responsive, and just global environmental governance.
