Mixed Signals for Domestic Climate Law

The climate rulings of the Grand Chamber of the European Court of Human Rights (ECtHR) are landmark decisions. However, it is not obvious what they mean precisely for the State parties of the European Convention on Human Rights (ECHR). Have we witnessed, in Verein KlimaSeniorinnen Schweiz, a landslide victory for the activists that will revolutionize domestic climate law? Or do the two other decisions in which the Grand Chamber dismissed the applications preponderate?

Milanović has rightly pointed out that the judgment in Verein KlimaSeniorinnen Schweiz is “very sophisticated.” All three rulings contain passages that forcefully advocate climate action and a prominent role of the ECHR therein. Other paragraphs defend the sovereignty of states and the margin of appreciation for democratic decision-making. Overall, the rulings send mixed signals. This is not unusual for Grand Chamber rulings that were reached almost unanimously. They reflect a compromise among the judges. In this blog post, I will unpack the consequences of the three rulings for the domestic climate policies of the ECHR parties.

Linking Human Rights and Climate Change

First things first: In Verein KlimaSeniorinnen Schweiz, the Grand Chamber recognized positive obligations to combat climate change under the right to private and family life (Article 8 ECHR). This is the most essential message of Verein KlimaSeniorinnen Schweiz. The Court clarified that the ECHR requires States to act. This will affect the interpretation of human rights in many domestic jurisdictions. In Austria, for example, the ECHR has constitutional status. In other jurisdictions, like Germany, fundamental rights must be interpreted in an ECHR-friendly manner.

Likely, Many States Will Not Have to Tighten Their Climate Laws

It is less clear whether many ECHR parties must tighten their climate laws following the rulings. This is due to an important distinction the Court made in Verein KlimaSeniorinnen Schweiz: between the “State’s commitment to the necessity of combating climate change and its adverse effects, and the setting of the requisite aims and objectives in this respect” (para. 543), on the one side (“if” they engage in consistent climate action), and the means to implement this framework to meet the targets and commitments, the “operational choices and policies” (para. 543) (“how” they engage in climate action), on the other. While State parties have a “reduced” margin of appreciation in the first situation, it is “wide” in the second (paras. 543, 549).

The Grand Chamber focused on the former. It listed five criteria for evaluating a climate law framework (para. 550 and additional procedural criteria in paras. 553 et seq., see Bönnemann and Tigre). In essence, States must plan ahead and use a science-based methodology that quantifies GHG emissions and sets adequate intermediate emission reduction pathways and targets in line with their climate-change mitigation commitments. They have to provide evidence of compliance with GHG reduction targets and keep them duly updated. Also, they must implement these measures in good time, appropriately and consistently. Many States have planned ahead in recent years along those lines. In fact, European Union (EU) law requires EU Member States to do it, for example, under the European Climate Law and the EU Governance Regulation.

Uncomfortable Questions on GHG Budgeting

As noted by Hilson, the requirement to set a GHG budget will likely be the most problematic for States. The Court held that States must “specify” an “overall remaining carbon budget”, “or another equivalent method of quantification of future GHG emissions” (para. 550). This is connected to the global overall GHG emissions budget estimated by the IPCC, which approximately quantifies how much GHG can be emitted on Earth in the future without the average global temperature exceeding 1.5 or 2 degrees Celsius compared to pre-industrial levels, respectively. The ECtHR now requires States to estimate a national overall remaining GHG budget, in other words, to estimate the remaining volume of GHG that can be emitted from their territory in the future (if not using another equivalent method). This is a question of climate justice. It is about dividing the global carbon budget among States. And this goes to the heart of the debate on the principle of common but differentiated responsibilities and respective capabilities (CBDR-RC). Many States have shied away from definite answers to the question so far. One could understand that the ECtHR meant that States must make this decision. However, it also held that it would only assess the five criteria mentioned above in an overall assessment (para. 551). Thus, shortcomings in quantifying an overall remaining national carbon budget must not necessarily mean overstepping the margin of appreciation. In any event, it is surprising that the Court had little to say about climate justice and the relationship of ECHR parties to developing states. States will likely have to face uncomfortable questions on this front in the future.

Wide Margin of Appreciation to Define Climate Mitigation Ambition

The Grand Chamber was cautious in setting requirements for States’ climate mitigation ambition. It found that State parties must “undertake measures for the substantial and progressive reduction of their respective GHG emission levels, with a view to reaching net neutrality within, in principle, the next three decades” (para. 548). One is left to wonder what “in principle” means and in which circumstances the Court may consider that State parties do not need to reach net neutrality in time. Meanwhile, “it is obvious” for the Grand Chamber that, based on the Paris Agreement, “each individual State is called upon to define its own adequate pathway for reaching carbon neutrality” (para. 547). Hence, it seems that States decide their ambition level – as long as they have an effective general framework in place with the features described above that “in principle” leads to carbon neutrality in the next thirty years. This leeway is still substantial.

States Can Choose the Means to Combat Climate Change

The leeway is even greater for States to select the “operational choices and policies”, for which the Court attested a “wide margin of appreciation” (paras. 543, 549). States largely remain free to decide whether they prefer market-based mechanisms such as emissions trading systems, command-and-control regulations such as prohibiting selling cars with combustion engines, subsidies, or a variety of other policy tools – and how to account for and distribute the social burdens and benefits that the transformation entails. Arguably, this is where the domestic discussions are most contentious, and the choice of means will impact whether and how climate law affects reality.

Extraterritoriality and Embedded Emissions

As noted by Rocha, the ECHR did not impose obligations on States related to how emissions from their territory affect people abroad. The Grand Chamber rejected the creation of a new exception for extraterritorial jurisdiction under Article 1 ECHR in Duarte Agostinho (paras. 210, 213). This simplifies matters for States as, legally, they can focus on the effects on their territory in most situations regarding the ECHR. Needless to say, domestic human rights laws may say otherwise and offer standing before domestic constitutional courts to people living abroad (e.g., the German Federal Constitutional Court in the Neubauer case, paras. 101, 173 et seq.).

The Grand Chamber did also consider extraterritoriality in Verein KlimaSeniorinnen Schweiz regarding embedded emissions. These are emissions “generated abroad and attributed to Switzerland through the import of goods for household consumption” (para. 275). The Grand Chamber did not see a problem of jurisdiction under Article 1 ECHR as that link was already established by the applicants living in Switzerland (para. 287). Instead, “embedded emissions” were only a question of State responsibility to be dealt with on the merits, “if necessary” (para. 287), but which the Court eventually left open. This matter will lead to further strategic litigation in the future.

An Upgraded Role for Environmental Associations, also Domestically

Likely, the most significant consequence of the ECtHR climate cases for domestic law is the upgraded role of environmental associations. As described in more detail elsewhere (e.g., by Arntz and Krommendijk), the Grand Chamber set relatively lenient requirements for the standing of environmental associations in Verein KlimaSeniorinnen Schweiz (while setting the bar high for individuals). The Court connected this international question of standing under Article 34 ECHR to domestic law via Article 6 ECHR on the right to access a court (paras. 614, 622). It held that Switzerland had violated this provision because its domestic courts did not seriously consider claims made by the applicant environmental association, the Verein KlimaSeniorinnen Schweiz. The Swiss administration and courts had concentrated their reasoning on the individual co-applicants – senior women and association members – leaving the association’s standing open (paras. 28 et seq., 34 et seq., and 52 et seq.). The Grand Chamber found this to be insufficient. It explained this by referring to its findings on Article 34 ECHR. In the court’s view, the complexities of climate change and the problem of representing those that will suffer from it in the future called for a strong role of environmental associations, also domestically (paras. 614, 622). Thus, it seems like the Court will review cases if domestic jurisdictions accord a similarly prominent role to associations as the ECHR does or at least seriously consider their standing, building on the Aarhus Convention. The question remains whether domestic courts would already comply with these requirements by seriously investigating associations’ standing (even if, eventually, rejecting it based on adequate reasoning). Also, Article 6 ECHR does not entail the right to invalidate or override a law enacted by the legislature, if not provided so by domestic law (paras. 594, 609). In any event, the judgment will likely strengthen the position of NGOs in domestic climate litigation.

Conclusion

Overall, the climate rulings of the Grand Chamber will have significant implications for the domestic legal orders of the ECHR parties. They are nuanced decisions that send mixed signals. Both the proponents of a more activist role for courts and of leaving ample discretion to democratic decision-making will have reasons to criticize and celebrate different parts of the rulings. This is not the worst outcome that a regional human rights court can achieve.