Chapitre 3. Un droit vivant pour repenser les sujets et les objets du droit climatique.

Abstract

While the climate convention, adopted in 1992, is only slowly being incorporated into positive law, important steps were taken between 2024 and 2025 with one ruling and three opinions from the European and Inter-American Courts of Human Rights, the International Tribunal for the Law of the Sea (ITLOS), and the International Court of Justice, which clarified the legal obligations of states with regard to climate action. In doing so, the four jurisdictions have confirmed their role as “living instruments” with a part to play in responding to the “existential challenges” facing “the human race.” They have thus created new legal entities, with GHGs being “substances” and “energy” within the meaning of maritime law, and the climate system moving from the status of an unidentified legal entity to the category, created for the occasion by the International Court of Justice, of a global commons or indivisible global asset. Without achieving legal personality, humanity has changed its face, now being understood in generational terms. The IACHR has innovated radically by insisting on an intersectional approach and making nature a collective subject of public interest.