How the European Court of Human Rights Can Promote State Responsibility in Climate Law


The 26th UN Climate Change Conference in Glasgow ended with mixed reviews, at the very least. In need of improvements, such as the first reference to fossil fuels, are in stark contrast to the ‘accountability issue’ from the participants. While this fact has been around since the inception of the UN Framework Convention on Climate Change (UNFCCC) in 1992, it’s still valid. State parties are only required to offer non-binding, nationally agreed-upon commitments (NDC) and, often, accountability by highlighting the complexity and ambiguity of cooperation. There is a compromise between participation and rigor within international law on environment treaties. Increasing global participation and understanding is essential when it comes to dealing with the effects of climate change. It was the most effective strategy in 1994. Once a sense of urgency is established, it has to be followed by a change that can be implemented. If not, as was evident in the protests at COP26, social unrest is likely to occur. With targets set for 2030 that will see us on the verge of the possibility of an increase of 2.4degC warming rise in 2050, it’s appropriate to take a step that (1) prevents free-riding, (2) clarifies the criteria used to assess mitigation burdens and (3) favors outcomes over participation. This is possible by establishing the international courts for human rights.

The Court and Climate Litigation

While there is a wealth of legal research on the law of climate change in addition to human rights, The purpose of this article is to be limited to developments relating to the European Court of Human Rights (ECtHR).

In 2018 in 2018, the Dutch Supreme Court ruled in Urgendathat the Netherlands’ pledge to cut greenhouse gas emissions by 20 percent by 2020 was not sufficient given the 25-40% limit that was agreed upon in the case of Annex I countries in the Paris Agreement; therefore, it was ruled as incompatible obligation of Netherland under Articles 2, 8 and 9 of the ECHR Convention (the right to life and the right of privacy and right to privacy, respectively). The Court stressed the severe impacts of climate change on Dutch residents’ wellbeing and well-being. In the Dutch legal system, the Supreme Court can only review laws in the context of international regulations (Article 94 of the Constitution). So it is possible that if there was a chance that the Supreme Court wanted to take a stance against climate change, the only way to do so is to decide by adopting an expansive interpretation of the substantive and temporal range of Articles 2 and 8. of the ECHR. The “living instrument doctrine” makes explicit the connection between the issue of climate change and human rights in Europe and creates a new method to directly confront inequities in state behavior. In addition, Urgendashifted the burden of proof on States, who must prove their right to conduct even when it violates the undisputed scientific evidence. Jaap Spier, Advocate General of the Dutch Supreme Court, stated, “Court cases are perhaps the only way to break through the political apathy about climate change.” At the same time, Urgendaaffirms this possibility of climate justice; international human rights law requires a more solid normative foundation and an international consensus.

The impact of the case of Urgendais, however not an absolute fact. In Friends of the Irish Environment v. the Government of Ireland (2019), the parties relied, for example, upon the Urgendajudgment and the ECHR rights to contest the Irish government’s mitigation plan. The High Court trial judge concluded that the applicants could not demonstrate a violation under the Convention. The decision was supported by the McDdecision of the Irish Supreme Court [2009], in which it was held that the domestic courts could not declare rights per the ECHR Convention; they should follow Strasbourg’s example ( 139-140). In the UK, an upcoming letter between PlanBEarth and the British government reveals that the latter has no plans to integrate the Paris Agreement into domestic law or consider that Urgendajudgment. The distinction due to the Netherlands’ monolithic method of incorporation and the lack of measures to mitigate the effects of climate change before the Urgenda decision was sufficient to allow the UK to conclude that the precedent was not applicable.

The European climate movement isn’t precise, but it is not successful. Germany decided on Neubauer and others. (v. Germany [2021] that portions in the Federal Climate Protection Act (KSG) were insufficient to meet its obligations in the Paris Agreement, thereby violating the fundamental rights enshrined in their national constitution. However, the Court did not consider Germany’s obligations in the ECHR. The Court mentioned the uneven CO2 distribution over generations, which results in a loss of liberty. While the addition of non-discrimination has a more significant impact on the relationship between the human rights of climate change, It’s unclear if Germany’s decision is indeed a matter of human rights or if it’s a reasonable attempt to control the situation within the confines of their domestic courts, given the rising pressure to judge collective conduct in the international courts for human rights, which will be we will discuss in the next section. Additionally, the effect of the normative implications of this case in the international arena remains unclear.

The legal framework for climate litigation in Europe is promising but not fully developed. In the case of Urgenda, the Supreme Court did not hold the abatement threshold to be legally binding (25 percent); however, it’s still not enough to achieve the Paris temperature target, which is 1.5degC. Furthermore, every successful case originated in domestic courts — one at each time. So, the personal incentive issue is: why put at risk the competitive advantages of the national economy while other States can benefit from less pollution without cost to their own? Additionally, it appears that the European Court of Justice seems happy to avoid the pot of worms surrounding climate justice by deciding that the plaintiffs of Armando Carvalho and Others in v. Parliament and Council[2021were not able to satisfy any locus standi requirement. In addition, the ECtHR can enlarge the mitigation requirements for all parties of the Convention.

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