Per una teoria civilistica del danno climatico. Interessi non appropriativi, tecniche processuali per diritti trans-soggettivi, dimensione intergenerazionale dei diritti fondamentali

For a civil law theory of climate damage. Non-appropriative interests, procedural techniques for trans-subjective rights, intergenerational dimension of fundamental rights.

Abstract

The ‘intertemporal’ dimension of fundamental rights conceptually justifies an autonomous legal framing of the so-called ‘climate damage’. This paper aims to investigate, in the light of ‘constitutional civil law’, the issue of liability for ‘climate change’ damage, going beyond the classic reference to ‘environmental change’ damage, and identifying to this end a more meaningful remedial apparatus. The inherently intergenerational nature of the problem is reflected in the protection of the fundamental interests of future generations; (in)appropriable interests that claim, on the part of the jurist, the identification (and subsequent application) of adequate and reasonable remedies. Emphasized, in this respect, is the limitation of the legal instruments traditionally used to cope with environmental issues, while the natural regulatory vocation of private law, together with the peculiarity of the subjective legal situations involved, makes it possible to place the right to climate protection within the category of so-called trans-subjective rights, imposing its enhanced protection on both the substantive and procedural sides.