29 April 2024
The European Court of Human Rights’ April 9 Climate Rulings and the Future (Thereof)
By recognizing the responsibility they have toward future individuals who will be standing in their shoes, current decision-makers are encouraged to adopt long-term perspectives and consider the broader implications of their actions beyond the immediate. This responsibility is echoed in numerous statements by the ECtHR in its rulings about how it understands its own role in European society and the world, and about the deference it believes it owes to domestic decision-makers on the one hand, and to its own past and future work on the other hand. In this light, the ECtHR has struck a pragmatic yet slightly cynical balance between the great demands it was faced with and the great responsibilities it owes to European citizens, to other institutions, and to itself. Continue reading >>
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26 April 2024
Who is afraid of actio popularis?
If, as the German experience suggests, the actio popularis exclusion serves to bar individuals from invoking objective illegality that does not concern rights, while standing of associations is a way to enforce objective legality despite the actio popularis exclusion, it is hard to see why this should have any relevance for the European Convention of Human Rights. Human rights are, after all, rights.
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25 April 2024
The Paris Effect
The judgment of the European Court of Human Rights (ECtHR) in the case Verein KlimaSeniorinnen v. Switzerland is a striking example of the Paris effect: the influence of the non-binding collective goals of the Paris Agreement (PA) on the interpretation of domestic constitutional law or international human rights law in climate litigation. The Court’s decision proves to be an essential element in triggering the necessary democratic debates on which the PA relies “from the bottom up”. Reinforcing the procedural limb of Art. 8 ECHR will be an essential step towards further strengthening democratic decision-making in the societal transition to climate neutrality. Continue reading >>
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22 April 2024
The First Italian Climate Judgement and the Separation of Powers
On 26th February 2024, in its Giudizio Universale decision, the Tribunal of Rome penned the first Italian climate judgement. Shortly after, on 9 April 2024, the ECtHR handed down its seminal trio of KlimaSeniorinnen v. Switzerland, Duarte Agostinho v. Portugal and Others and Carême v. France. In this monumental string of cases, the ECtHR set the new standard for climate litigation in Europe, also regarding separation of powers. This invites a critical assessment of Giudizio Universale’s stance. Continue reading >>18 April 2024
Menschenrecht auf Klimaschutz als „lebensrettende Behandlung“?
Manuela Niehaus verteidigt die menschenrechtsgestützte Klimarechtsprechung – insbesondere des EGMR – gegen meine Kritik. Es handele sich nicht um „Globuli für Umweltjuristen“, sondern um ein potentiell lebensrettendes Medikament, das – im Zusammenspiel mit anderen Mitteln – einen wesentlichen Beitrag zum Klimaschutz leisten könne. Das sehen sicher viele ähnlich und darum bin ich dankbar für Niehaus Argumente und für ihren sanften Spott. Ihr Spott trifft mich zu Recht, ihre Argumente aber überzeugen mich nur sehr teilweise. Continue reading >>
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18 April 2024
KlimaSeniorinnen and the Choice Between Imperfect Options
The facts of Verein KlimaSeniorinnen Schweiz and Others v. Switzerland were categorically different from the ECtHR’s previous environmental case law. The Court therefore decided to incorporate important parts of International Climate Change Law into the ECHR. From an institutional perspective, this approach, which is not without its weaknesses, amounts to the ECtHR’s attempt to maintain the relevance of the Convention in the midst of the climate crisis, while, at the same, carefully striving to respect the realm of politics. Continue reading >>
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11 April 2024
The Meaning of Carbon Budget within a Wide Margin of Appreciation
Although the KlimaSeniorinnen judgment discusses a number of rights of the European Convention on Human Rights (ECHR), including Article 6 (right of access to a court), Article 2 (right to life), and Article 13 (right to an effective remedy), the focus of this blog post is on its discussion of Article 8 (right to private, home and family life). The question raised by that discussion is whether the judgment is one that will “frighten the horses” and lead to oppositional cries of judicial overreach around the separation of powers, or if it is more an unexceptional case of “move on, nothing to see here.” My argument is that the judgment is mostly the latter but that it has what, in computer gaming terms, is known as an “Easter egg” – a hidden element included by the developers to surprise and reward those who look carefully. That could turn out to be more controversial. Continue reading >>
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09 April 2024
Historic and Unprecedented
The three much-awaited judgments rendered by the European Court of Human Rights on 9 April 2024 are truly historic and unprecedented. In Verein Klimaseniorinnen Schweiz and Others v. Switzerland, the Grand Chamber established that climate change is 'one of the most pressing issues of our times' and poses a threat to human rights. With this ruling, the Court confirmed that States have a positive obligation to adopt measures to mitigate climate change under Article 8 ECHR, the right to family and private life. The judgments will undeniably set the tone for climate litigation in the years to come. It will impact both litigation and other procedures before other international courts. Continue reading >>09 April 2024