Developing countries and countries with economies in transition have varying experiences in enforcing their national environmental law. China's judicial interpretations and legislation on environmental protection have established the rules that shift the burden of proof for causation in environmental tort litigation. However, this study of 513 court decisions from the people's courts at different levels in China shows that although the court decisions usually refer to or quote the rules that shift the burden of proof, in most cases the victim-plaintiffs still bear the liability to prove whether the causal relationship exists between the pollution and the harm. This study also finds that Chinese courts defer greatly to the evaluation report in proving causation. It suggests that the court practice of adjudicating environmental tort cases in China values more the factual causation of a pollution incident than the provisions regarding proof of causation stipulated by relevant laws. Consequently, such judicial practices hinder the effectiveness of judicial remedies for pollution victims in China.
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Fan Yang, Ting Zhang and Hao Zhang
Edited by Ed Couzens, Tim Stephens, Manuel Solis, Saiful Karim and Cameron Holley
Colonialism has challenged Aboriginal obligations and relationships to the natural world. This article describes the efforts of First Nations on the continent now known as Australia to maintain their authority and existences in the face of neoliberalism and colonialism, which the British initially inflicted and under which we still survive. The colonial policies of Australia denied our existence and at the same time attempted to demolish our languages and cultures, and to assimilate the consequences. This article asks the questions: what underpins state claims to the title to Aboriginal lands? Does Australia renounce terra nullius and the racist principles and beliefs which make up such a doctrine? And finally does Australia acknowledge and support all ‘Peoples’ as having an inherent right to self-determination, and as a component of such a right, that all ‘Peoples’ have a right to collectively care for their country and to benefit from a relationship to the land which sustains future generations of all Peoples? The possibility of a future for all life forms on earth lies in the responses states might deliver to these questions.
Edited by Evadne Grant
Cordelia Christiane Bähr, Ursula Brunner, Kristin Casper and Sandra H Lustig
As older women are particularly vulnerable to climate change impacts, a group of senior women in Switzerland founded the association KlimaSeniorinnen Schweiz (Senior Women for Climate Protection Switzerland) in order to fight for ambitious climate action by legally challenging the Swiss government's inadequate climate policies and mitigation measures. The KlimaSeniorinnen filed a legal request with the authorities, claiming that the Swiss authorities are failing to fulfil their duty to protect them as required by the Swiss Constitution and by the European Convention on Human Rights. This article provides a detailed analysis of the KlimaSeniorinnen case within the context of climate litigation worldwide. It argues that the case's human rights arguments, which are grounded in climate science, the United Nations Framework Convention on Climate Change (UNFCCC), the Paris Agreement, environmental principles and international law, are generally transferable to almost any country. Therefore, vulnerable individuals and groups can learn from the KlimaSeniorinnen litigation that there are strong legal grounds to bring human-rights-based climate lawsuits against governments and thus governments should expect more litigation if their climate actions or omissions contravene international law and violate constitutional principles.
Duncan French and Louis J. Kotzé
This chapter provides the context, a broad introduction and the essence of each of the chapters in the book.