By Pranav Ganesan, PhD candidate at the University of Zurich
Two international courts have now recognized the existence of climate change-related obligations under two different legal regimes. The European Court of Human Rights (‘ECtHR’), in the case of Verein KlimaSeniorinenn Schweiz and others v Switzerland (‘KS’) has found that the right to life and right to private and family life under the European Convention of Human Rights (‘ECHR’) encompass positive obligations on states to take measures and regulations necessary to address climate change to the extent that it poses a risk of harm to those rights. The International Tribunal on the Law of the Sea (‘ITLOS’) concluded in its advisory opinion (‘AO’), that states parties to the 1982 UN Convention on the Law of the Sea (‘UNCLOS’) have specific obligations to protect the marine environment and prevent transboundary harm to other states through prevention and control of pollution from greenhouse gas (‘GHG’) emissions, and international cooperation. The AO was issued upon the request of the Commission on Small Island States (‘COSIS’), an international organization which was constituted as a vehicle for global cooperation in contributing towards definition, implementation and progressive development of rules and principles of international law concerning climate change (Article 1(3), COSIS Agreement). Article 2(3) of its constative treaty explicitly authorizes it to request an advisory opinion from the ITLOS on any legal question within the scope of UNCLOS). The creation of COSIS was presumably inspired by the conclusion by the ITLOS in the SFRC Advisory Opinion, that it can exercise advisory jurisdiction over a legal question if an international agreement related to the purposes of the UNCLOS specifically provides for such a request (para 219).
This blogpost will highlight the ECtHR and ITLOS’ engagement with the UNFCCC and Paris Agreement, and specifically Article 2.1(a) of the Paris Agreement which expresses an international commitment to pursue efforts to keep the global average temperature from increasing beyond 1.5°C, and well below 2°C (‘Paris temperature targets’). While there are commonalities between how the two courts clarified the relationship between their constitutive treaties the UNFCCC and Paris Agreement, there seems to be a difference between what they held in regard to the Paris temperature targets.
Interaction between climate treaties and the ECHR/UNCLOS
Both the ECtHR and the ITLOS found that the UNFCCC and Paris Agreement are relevant for the purposes of determining the content of due diligence obligations to reduce GHG emissions, under the ECHR and UNCLOS, respectively (KS, paras. 455-456; AO, para. 222). The climate treaties do not supplant climate-related obligations arising out of the ECHR and UNCLOS, and a states’ compliance with the provisions of the former does not equate to compliance with the latter (KS, para. 547, AO, para. 223).
Both the ECtHR and the ITLOS specifically pointed out that the Paris temperature targets contained are salient for interpretation purposes. In the context of climate related positive obligations under the ECHR, the ECtHR noted that ‘the global aims as to the need to limit the rise in global temperature, as set out in the Paris Agreement, must inform the formulation of domestic policies’ (para. 547). The ITLOS similarly noted that “[i]n particular, the temperature goal and the timeline for emission pathways set out in the Paris Agreement inform the content of necessary measures to be taken under article 194, paragraph 1, of the [UNCLOS]” (para. 222). The Tribunal has been criticised for stopping short in its consideration of the provisions of the Paris Agreement, since beyond the temperature thresholds and the timeline for the collective achievement of net-zero, which are found in Articles 2.1 and Article 4.1 respectively, there are other obligations and legal principles in the Paris Agreement which may be regarded as relevant for interpretation purposes (Voigt).
1.5°C Temperature target
Article 2.1 (a) of the Paris Agreement contains two negative temperature targets: 1.5°C and 2°C, with different language qualifying each of them. The provision a does not in itself create distinct individual or collective legal obligations for Parties, but are operationally relevant in the calibration of individual states parties’ own mitigation efforts under their NDCs (see Rajamani and Werksman). This leads to concerns about what it means for due diligence obligations to be interpreted on the basis of the Paris temperature targets. To illustrate this issue by way of a question: consider three scenarios where a state choses to determine its own mitigation efforts: (a) on the basis of the 2°C target without considering the 1.5°C target, (b) on the basis of a pathway with limited overshoot of 1.5°C but no exceedance beyond 2°C, and (c) on the basis of its own (different) assessment of what constitutes safe levels of atmospheric GHG concentrations. How do each of these three determinations affect the state’s compliance with due diligence obligations under Article 8 ECHR/ Article 194(1) UNCLOS?
The ECtHR did not specify if one out of the two temperature targets are relevant in defining states’ positive obligation to mitigate climate change under Article 8. It held that regulations and measures must be “aimed at preventing an increase in GHG concentrations in the Earth’s atmosphere and a rise in global average temperature beyond levels capable of producing serious and irreversible adverse effects on human rights, notably the right to private and family life and home under Article 8 of the Convention” (para. 546, emphasis added). As for the ITLOS, the advisory opinion neither dwells on the relationship between the two temperature targets, and how each of them have particular effects on the interpretation of the UNCLOS provisions containing due diligence obligations to protect the marine environment. It merely identifies the UNFCCC and the Paris Agreement as two some amongst the many reference points for assessing necessary measures (para. 214). However, it does speak to temperature thresholds in a different context: of IPCC’s findings. In its review of the best available science, which the Tribunal had earlier identified as playing a crucial role in the determination of states’ due diligence obligations (para. 212), it held that ‘there is also broad agreement within the scientific community that if global temperature increases exceed 1.5°C, severe consequences for the marine environment would ensue’ (para. 241). In its conclusion, the Tribunal held that ‘necessary measures to prevent, reduce and control marine pollution from anthropogenic GHG emissions’ under Article 194(1) UNCLOS:
‘should be determined objectively, taking into account, inter alia, the best available science and relevant international rules and standards contained in climate change treaties such as the UNFCCC and the Paris Agreement, in particular the global temperature goal of limiting the temperature increase to 1.5°C above pre-industrial levels and the timeline for emission pathways to achieve that goal’ (para. 243)
The two courts’ pronouncements still leave the question of how exactly the Paris temperature targets ought to inform states’ due diligence obligations open. It is likely that they will be called upon to provide clarity on this aspect in the future.
Conclusion
In responding to the questions that was posed before the two courts, they seem to have wielded the tool of systemic integration. The two pronouncements reflect a common understanding: that broad legal obligations such as the duty to protect individuals’ right to life and prevent unjustifiable interferences with their right to private and family life, and the duty to protect the marine environment, albeit arising out of treaty provisions which were not drafted with climate change in mind, require individual mitigation measures against anthropogenic climate change. This action needs be informed by the provisions of the Paris Agreement as opposed to, whereas states’ compliance with the latter would not suffice in ensuring legal compliance with what other legal regimes require in regard to climate change. However, this does not mean that the ECtHR and the ITLOS spoke with one voice in regard to all issues. In particular, their engagement with the Paris temperature targets, insofar as interpretation of due diligence obligations arising from the relevant treaties is concerned seemed different. While the ITLOS specifically interpreted Article 194(1) as implying a duty to take measures that take into account the 1.5°C temperature target under the Paris Agreement specifically, the ECtHR’s interpretation was that ECHR parties’ measures be informed by both temperature targets. It remains to be seen whether in future cases, courts will be able to nuance the practical difference between a duty to take into account the lower 1.5°C temperature target, and a duty take into account both targets in the determination of mitigation measures.
P.S. In engaging in discourse on the temperature targets, it is important to keep in mind that there is nothing magical about the 1.5°C and 2°C numbers. These are temperature targets which have been noted in the Paris Agreement as a result of a political compromise, and based on predictions about the consequences of breaching these thresholds. States’ (differentiated) responsibility for breaching obligations associated with the prevention of the devastating impacts of climate change on populations and ecosystems do not begin only after the 1.5°C threshold is breached. It would be unreasonable to argue that international human rights law and the law of the sea are apathetic to the human suffering and the devastating impacts for the marine environment in a warming world that is yet to cross the 1.5°C threshold.