FROM POLICY TO PRINCIPLE: HOW INTERNATIONAL HUMAN RIGHTS LAW IS FORGING A COOPERATIVE SEPARATION OF POWERS IN CLIMATE GOVERNANCE

Abstract

Strategic climate litigation frequently invokes human rights arguments to compel state action. This article challenges the narrative that these cases inevitably lead to a breakdown in the separation of powers. Instead, it posits that international human rights law is forging a new, cooperative understanding of the doctrine, particularly in vertical relationships between international and domestic courts. Focusing on the European Court of Human Rights KlimaSeniorinnen judgment, which was met with fierce criticism from the Swiss legislature for being judicial activism, this article argues that the Courts reasoning, while robust, actually respects the primary role of the political branches. The Court found a violation not by dictating specific policies, but by identifying a procedural and structural failure: the lack of a quantified national carbon budget. This approach pushes the executive and legislature to act within a framework set by human rights and science but leaves the choice of means to them, a principle of weak-form review. By comparing this cooperative dynamic in KlimaSeniorinnen with cases from other jurisdictions, such as South Koreas Constitutional Court and Indias Supreme Court, the article demonstrates that international human rights law can serve as a legitimating framework. It provides courts with a clear mandate to ensure the states duty to protect fundamental rights is fulfilled, acting as a cooperative partner that compels political accountability, rather than an overreaching fourth instance. The article argues that a well-articulated human rights framework can mitigate counter-majoritarian concerns and reinforce, not undermine, a healthy separation of powers.