Alek Kahn, Energy and Climate LLM Student at the University of Groningen
The 26th UN Climate Change Conference in Glasgow concluded with mixed receptions at best. Overdue improvements such as the ‘first express mention of fossil fuels’ stand in contrast to an ‘accountability problem’ on part of the parties. Even though the latter is a truism that has existed since the inception of the UN Framework Convention on Climate Change (UNFCCC) in 1992, it remains accurate. Member States are only obliged to proffer non-binding nationally determined contributions (NDC) and often avoid accountability by playing up the ambiguity and complexity of global collaboration. There is a tradeoff between participation and stringency in international environmental law treaties. Fostering global participation and awareness is undoubtedly necessary when dealing with climate change; this was the most resourceful approach in 1994. After a sense of urgency is established, however, it must be followed by actionable change. Otherwise, as evidenced by the demonstrations outside COP26, social unrest will materialize. Given that targets for 2030 put us on track for a 2.4°C temperature increase by the end of the century, it is due time for an approach that (1) deters free-riding, (2) disambiguates the metrics used to determine mitigation burdens, and (3) favors results over participation. This can be accomplished through international human rights courts.
The Court and Climate Litigation
Although there is abundant legal scholarship regarding climate law and human rights, this post will confine itself to developments related to the European Court of Human Rights (ECtHR).
In 2018, the Dutch Supreme Court ruled in Urgendathat the Netherland’s commitment to reduce greenhouse gas emissions 20% by 2020 was insufficient in light of the 25-40% range agreed upon for Annex I countries in the Paris Agreement; therefore, it was found to be incompatible with the Netherland’s obligations under Articles 2 and 8 of the ECHR Convention (the right to life and right to privacy, respectively). The Court emphasized the severe impact that climate change can have on the lives and welfare of Dutch residents. In the Dutch legal order, the Supreme Court can only review domestic legislation in light of its obligations under international law (Article 94 Constitution). Therefore, if the Supreme Court wanted to take a stance against climate change, it could only do so by adopting a broad interpretation of the temporal and substantive scope of Articles 2 and 8 ECHR. This use of the ‘living instrument doctrine’ provides a clear connection between climate change and human rights in Europe and creates a budding mechanism to directly address inadequate State behavior. Furthermore, Urgenda shifted the burden of proof to States: they must defend the permissibility of their behavior when it is in contravention of undisputed scientific evidence. Jaap Spier, Advocate General to the Dutch Supreme Court stated, “Court cases are perhaps the only way to break through the political apathy about climate change.” Although Urgenda affirms the possibility, climate justice through international human rights law still requires a stronger normative basis and international consensus.
The applicability of Urgenda is not absolute. In Friends of the Irish Environment v. the Government of Ireland  the applicants relied, inter alia, on the Urgenda judgment and corresponding ECHR rights to challenge the Irish Government’s mitigation plan. The High Court trial judge concluded that the applicants failed to establish a breach under the Convention. The refusal was backed by the McDdecision of the Irish Supreme Court , which held that domestic courts were not to declare rights under the ECHR Convention; they should follow Strasbourg’s lead (139-140). In the UK, a recent letter between PlanBEarth and the government revealed that the latter has no intention to incorporate the Paris Agreement into domestic law nor give weight to the Urgenda judgment. The distinction because of the Netherland’s monist system of incorporation and low mitigation efforts prior to Urgenda was enough for the UK to find the precedent inapplicable.
Climate advocacy in Europe is undetermined but not entirely unsuccessful. Germany ruled in Neubauer, et al. v. Germany  that parts of the Federal Climate Protection Act (KSG) were insufficient in light of their obligations under the Paris Agreement, thereby violating fundamental rights found in their domestic constitution. However, the case did not rely on Germany’s obligations under the ECHR. The Court referenced the disproportionate CO2 distribution across generations resulting in a loss of freedom. Even though the addition of non-discrimination creates a stronger nexus between climate change and human rights, it’s unclear whether Germany’s decision is truly humanitarian or whether it’s a prescient attempt to keep control within the confines of their domestic courts in light of the growing impetus to adjudicate collective behavior in international human rights courts, as discussed in the next section. Further, the normative impact of the case on the international sphere remains questionable.
The legal apparatus of climate litigation in Europe is promising but underdeveloped. In Urgenda, the Supreme Court only held the minimum range of abatement to be binding (25%), even though it is still insufficient to reach the Paris temperature goal of 1.5°C. Further, all successful litigation has emerged from domestic courts—one at a time. Therefore, the personal incentive problem remains: why risk the competitive advantage of the domestic economy when other States benefit from decreased pollution at no cost of their own? Further, the European Court of Justice seems content to sidestep the proverbial can of worms of climate change justice by ruling that the applicants in Armando Carvalho and Others v Parliament and Council did not satisfy any locus standi criteria. Significantly, the ECtHR has the opportunity to tighten the mitigation requirements for parties to the Convention.
Portuguese Youth Case: Shifting the Burden of Proof
Duarte Agostinho and Others v. Portugal and 32 Other States  is pending before the ECHR. Six Portuguese youth applicants claim that 33 European countries violated their rights under Articles 2 and 8, as well as the prohibition on discrimination under Article 14, by failing to take adequate measures to slow global warming. When communicating the case to the defending States, the Court added the prohibition of degrading or inhuman treatment under Article 3 to the complaint. Such an inclusion, in congruence with fast-tracking the case, indicates the Court’s awareness of the significance and potential effects of a collective climate law judgment.
The ECtHR will decide whether the principles of shared responsibility found in international law can ameliorate the accountability problems found in the Paris Agreement. In their complaint, the applicants reference the view of state responsibility found in Urgenda, that is, each contributor to an internationally wrongful act should be judged individually in light of their obligations under international law (see para 9-13). Using Principle 3 of the Guiding Principles of Shared Responsibility and Article 47 of ARSIWA, there is a strong legal basis to determine State responsibility. Referencing Judge Simma’s separate opinion in Oil Platforms, the applicants state:
It is a general principle of law…that where one or more of a number of potential wrongdoers must have caused a particular harm, but there is uncertainty as to which of them in fact caused that harm, then each of those potential wrongdoers is presumptively responsible in law for the harm in question, such that the onus is on those potential wrongdoers to show that they did not cause it. (para, 26)
The fact that we are on a current trajectory to markedly exceed the 1.5°C threshold necessitates a presumptive breach of State’s current obligations. Therefore, the onus must fall on the defendants themselves to argue why their behavior is permissible. When flipping the burden of proof, the applicants wisely avoid discussing which metric should be used to determine the mitigation burden (historical contribution, capacity to mitigate, etc.) but rather focus on a salient principle of human rights law: ambiguity must be resolved in favor of the victim. Therefore, when a State begins to justify the reasonableness of its mitigation efforts, the Court must consider less favorable ways to measure the fair allocation of abatement (from the States perspective). This method will also give a normative basis for the Climate Action Tracker, according to which, none of the Council of Europe members exceed a rating of higher than ‘insufficient’. For more detailed accounts, see here and here
Climate action would be easier if the Paris Agreement defined clear burden-sharing principles from which the ECtHR and States could extrapolate emission reduction targets. I believe it is the hope of all people, especially those most vulnerable to the detrimental effects of climate change, that the ECtHR does not absorb the shortcomings of the UNFCCC. This can be avoided if the Court assesses responsibility with deference to Article 47 ARSIWA and the Principle 3 of Guiding Principles on Shared Responsibility. Portuguese Youth has the potential to address a collective action problem in a unified approach, create a normative basis to foster accountability without the need for consensus regarding each State’s fair share of burden, and make a strong statement to the rest of the world. When Jaap Spier was asked if a judge needs to be an activist to make a statement about climate change, he replied “No, it is just a matter of applying existing law, although undoubtedly not all judges will be open to this. Judges with the courage to give a ruling on this will one day be applauded, whereas those who don’t will eventually be tarred and feathered.”