Category: 2025

Categories
2025 Business responsibility / corporate cases Domestic court Fossil fuel extraction Indigenous peoples' rights Right to a healthy environment Right to culture Right to development and work Right to health Sea-level rise South Africa

Green Connection NPC and Another v. Minister of Forestry, Fisheries and the Environment and Others

Summary:
On 13 August 2025, the Western Cape High Court (South Afria) delivered a judgment in a successful judicial review application that was brought by two public interest organisations, Green Connection NPC and Natural Justice, against the decisions to grant environmental authorisation to TotalEnergies and Shell for offshore oil and gas exploration drilling in Block 5/6/7, an area which is approximately 10,000km² off South Africa’s South-West coast between Cape Town and Cape Agulhas. The court upheld five of the six grounds of review and declared the decisions unlawful, remitting the matter to the Director-General (“the DG”) of the South African Department of Mineral Resources and Energy,  for reconsideration.

The review application concerned the granting of an environmental authorisation (“the EA”) to TotalEnergies and Shell in terms of the National Environmental Management Act 107 of 1998 (“NEMA”), for the purpose of conducting exploration drilling to determine whether geological structures contain oil or gas – fossil fuels – in potentially extractable amounts. The application for an EA was lodged with the Department of Mineral Resources and Energy and it was granted by its DG on 17 April 2023. On 24 September 2023, the Minister of Forestry, Fisheries and the Environment dismissed the applicants’ internal joint appeal against the DG’s decision.

More details on the challenge:
Total and its co-venture partners, Shell and PetroSA, are co-holders of Exploration Right 12/3/224, granted under the Mineral and Petroleum Resources Development Act 28 of 2002 for Block 5/6/7. The block is situated 60-170km offshore at water depths of 700 and 3,200m. Following seismic surveys, Total sought to drill one exploration well and up to four additional wells.

The EA application triggered listed activities under the Environmental Impact Assessment Regulations of 2014. Total commissioned technical modelling (drilling discharges, oil spill, underwater noise) and specialist studies (marine ecology, fisheries, socio-economic, cultural heritage, climate change). The Petroleum Agency SA reviewed the studies and recommended an approval. The DG granted the EA on 17 April 2023. The Minister dismissed an internal appeal on 24 September 2023, prompting the review application.

Rights at Stake:

  • Section 24(a) of the Constitution, the right to an environment not harmful to health or well-being.
  • Section 24(b) of the Constitution, the right to have the environment protected through reasonable measures preventing pollution and ecological degradation, promoting conservation, and securing ecologically sustainable development.
  • Interests of the whole community in coastal public property, including future generations and other living organisms dependent on the National Environmental Management: Integrated Coastal Management Act 24 of 2008 (“ICMA”).
  • Rights of small-scale fishers and coastal communities to livelihood and cultural practices.

Claim:
The applicants’ review challenged the final environmental and social impact assessment report (“Final EIR”) prepared on behalf of TotalEnergies and the review grounds may be summarised as follows:

(a) Firstly, the Final EIR failed to properly assess and the state respondents failed to properly consider the socio-economic impact of the proposed project because it did not assess the socio-economic impact which a well blowout and consequent oil spill may cause on the fishing industry and small-scale fishers.

(b) Secondly, the decision-makers failed to consider the factors prescribed by ICMA.

(c) Thirdly, the Final EIR failed to assess and the state respondents failed properly to consider the need and desirability of the proposed project because no consideration was given to the climate change impacts which will be caused by burning any gas discovered by the proposed project.

(d) Fourthly, the Final EIR failed to assess and the state respondents failed to consider the transboundary impacts of the proposed project, both on Namibia and on international waters.

(e) Fifthly, neither the Final EIR nor the Environmental Management Programme Report included TotalEnergies’ Oil Spill Contingency Plan or Blow Out Contingency Plan.

(f) Sixthly, PASA delivered an appeal response report which at face value was submitted on behalf of the DG and was treated as such by the Minister.

Judgment:
On 13 August 2025, Judge Mangcu-Lockwood delivered judgment in favour of the applicants on the first five grounds of review and dismissed the sixth.

First Ground: The court held that once the Final EIR identified a potential blowout and oil spill as a potentially significant impact or risk, it was obliged to assess the consequences and probability of the impact or risk including those with a low degree of probability. The court rejected TotalEnergies’ distinction between a “risk” and an “impact” stating this was “against the spirit and purport of these Regulations. Both are required to be assessed in terms of the legislation, in equal measure.”

Second Ground: The court found that the DG’s decision made no specific mention of ICMA. Even based on a generous reading of the record, the court was unable to conclude that the Final EIR, and by extension the DG, considered ICMA factors. The court held:

“As the applicants point out, ICMA introduces concepts which are not present in NEMA or other aspects of environmental law, by conferring a special legal status on coastal public property, which afforded the environment a particularly high level of protection. It expressly provides that the State holds the coastal public property in trust for current and future generations. It creates the concept of the interests of the whole community, which specifically recognises the need to take into account the interests of other living organisms which are dependent on the coastal environment. As such the ICMA’s requirements cannot be satisfied by generic consideration of NEMA.”

The court found that the DG then failed to consider the ICMA factors and that his decision stood to be reviewed and set aside. The Minister’s decision was described as “woefully deficient” as it did not explicitly identify the ICMA factors to be considered and failed to set out any findings in respect thereof.

Third Ground: The court held there is “no doubt that climate change impact assessment must form part of the assessment to be conducted and considered before the grant of an environmental authorisation.” Regarding the distinction between exploration and production phases, the court stated: “Whilst it is correct that the specific activity for which the EA in this case is granted is exploration and not production… the two processes are intertwined. There would be no point in conducting an exploration activity unless an entity hoped to proceed to the next phase of production.”

Fourth Ground: Applying sections 232 and 233 of the Constitution, which require consideration of customary and international law, the court held:

“There is accordingly an obligation arising from customary international law and international law upon South Africa to not allow its territory to be used in a manner which causes transboundary harm. The duty includes a requirement for an environmental impact assessment to be conducted where an activity such as the present exploration activity, which poses a risk of transboundary harm, is to be conducted.”

Fifth Ground: The court found that given more focused information would be provided in the Oil Spill Contingency Plan and Blow Out Contingency Plan in another round of submissions it was “difficult to conclude that there had been a full assessment.” Even more problematic was the lack of public participation regarding these plans.

Sixth Ground: The court dismissed this ground and found that PASA as an organ of state designated under section 70 of the MPRDA to perform public functions was entitled to submit an appeal response.

Remedy:
The court made the following order:

  1. Shell Exploration and Production South Africa BV was joined as the fifth respondent. There were no costs in relation to the joinder application.
  2. The applicants’ late service of the review application was condoned.
  3. The decision taken by the third respondent on 17 April 2023 to grant an environmental authorisation to TotalEnergies to conduct exploratory operations in Block 5/6/7 was reviewed and set aside.
  4. The decision taken by the first respondent on 24 September 2023 dismissing the appeal of the first and second applicants was reviewed and set aside.
  5. The decision of granting an environmental authorisation to TotalEnergies was remitted to the third respondent for reconsideration, which process must provide for the following:
  6. TotalEnergies must be afforded the opportunity to submit new or amended assessments to cure the deficiencies identified in the first to fifth grounds of review.
  7. Public participation must be conducted in regard to the new and/or amended assessments submitted by TotalEnergies before decision is made by the third respondent.
  8. The first to third respondents were ordered to pay the costs of this application, jointly and severally, on a scale C, including the costs of three counsel.

Status of the case:
The High Court judgment has set aside the environmental authorisation and the matter remitted for reconsideration. The State and Shell have filed applications for leave to appeal, either before the Supreme Court of Appeal or a full bench of the High Court of South Africa.

Case Documents:
Judgment of the High Court of South Africa can be found here.

Commentary:

Academic and professional commentary on the cases is available here, here, and here.

Related case:
For related case-law, see:

Suggested Citation:
High Court of South Africa, Western Cape (Cape Town), Division Green Connection NPC and Another v Minister of Forestry, Fisheries and the Environment and Others, case no. 5676/2024, 13 August 2025, Judge Mangcu Lockwood.

Last updated:
3 August 2026.

Credits:
This database entry was contributed by Camagu Luvo, LLD Candidate in the Urban Law and Sustainability Governance Chair, Stellenbosch University, South Africa.

Categories
2025 Adaptation Belgium Class action Domestic court Emissions reductions/mitigation European Convention on Human Rights Just transition litigation Paris Agreement Private and family life Right to life Standing/admissibility Victim status

We Are Nature.Brussels and others v. Brussels-Capital Region

Summary:
In June 2023, an adaptation case was filed in Belgium against the Brussels-Capital Region (RBC) before the Francophone Court of First Instance of Brussels. The case was brought by 1330 individuals and by the NGO We Are Nature.Brussels, a Brussels-based organisation dedicated to protecting biodiversity, natural areas, undeveloped areas, abandoned sites, and living soils within the RBC. The plaintiffs emphasized the right to life in Article 2 ECHR and the right to respect for private and family life in Article 8 ECHR to argue that the region’s government had violated its duty of care to adapt to climate change by failing to adapt to the risks of flooding or urban heat islands. On 29 October 2025, Judge Sabine Malengreau for the Court of First Instance found that the RBC had indeed violated its legal obligations under domestic law, ordering the suspension of further urbanization and soil sealing projects on undeveloped sites larger than 0,5 hectares. Although the case is subject to appeal, it is provisionally enforceable.

The first instance court’s reasoning in more depth:
On the admissibility of the case, the court considered the reasoning of the European Court of Human Rights (ECtHR) in KlimaSeniorinnen as concerns victim status and standing. The RBC’s government had invoked this judgment to argue that, like in the ECtHR proceedings, the individual applicants in the present case also lacked victim status because they had failed to demonstrate that they were personally and directly affected by the violations they alleged. The court rejected this argument. It held that this reasoning from the ECtHR was not relevant to the case before it given that the ECtHR determines victim status based on the autonomous conception of that term under Article 34 ECHR, whereas the conditions for liability under Belgian law “may validly differ from the conditions for the admissibility of an application filed within the framework of a system of remedies and procedures designed to ensure the ECtHR’s oversight of compliance with the ECHR.” It went on to declare the claims by the individual plaintiffs, all residents of Brussels, admissible.

In her reasoning, which noted the judgment in Belgium’s Klimaatzaak mitigation case, Judge Malengreau established a violation of the RBC’s duty of care because of its failure to act with the prudence and diligence required by Article 1382 of the former Belgian Civil Code. Previously, in the Klimaatzaak, two successive instances of the Belgian judiciary had already established that the RBC’s climate policy violated Articles 2 and 8 ECHR given that it had failed to take appropriate and reasonable measures to do its part in meeting the minimum requirements for reducing GHG emissions between 2013 and 2020.

Building on this reasoning, as well as obligations under the Paris Agreement and under EU law, the court noted (own translation from the original French):

  • RBC’s failure resulting from its inadequate goals and results in terms of mitigating GHG emissions;
  • the lack of an updated estimate of the capacity of natural sinks to absorb GHG emissions at the regional level;
  • the steady increase in urbanization and soil sealing;
  • the inadequacy of current regulatory tools;
  • and this, in a context where, for more than fifteen years, the RBC was aware of the certain risk of climate change that is dangerous to the region’s population and of the urgency of preventing the inevitable harmful effects of this climate change.

The court went on to find that:

Indeed, the aforementioned findings do not support the conclusion that RBC took the necessary measures to maintain and strengthen the capacity of natural sinks to absorb GHG emissions, even though it knew, as early as 2017, that, as things stood, the absorption capacity was largely insufficient relative to direct GHG emissions and that it was essential to strengthen natural sinks both to mitigate climate change and to adapt to its adverse effects.

In terms of establishing damage, the court held that:

None of the individual plaintiffs is immune to the negative effects (heat waves, droughts, floods, etc.) of climate change, which, in one way or another, is manifesting itself throughout the Brussels region.

It is also established that, regardless of efforts to mitigate the causes of global warming, its harmful effects will continue to multiply and worsen in the short and medium term.

To remedy this violation, the plaintiffs sought a moratorium on development and soil sealing on undeveloped sites larger than 0.5 ha.
The court noted that this would have the effect of regulating the use of land belonging to public and private actors, which would constitute an interference with property rights as guaranteed by Article 16 of the Belgian Constitution and Article 1 of the Protocol No. 1 to the ECHR. It was accordingly not within the court’s authority to limit the exercise of the right to property by a broad and undefined range of public or private entities that were not parties to this case. Specific measures were accordingly left to the discretion of the RBC, which was ordered to take the necessary measures to suspend development and soil sealing of undeveloped sites and parcels of land larger than 0.5 ha within its jurisdiction, until the adoption of the PRAS amendment, or (as a back-up deadline) 31 December 2026.

The judgment:
The full text of the first-instance judgment (in the original French) is available below.

20251029-jugement-WAN-RBC-sans-annexesDownload

More information:
Additional information on the case, including press releases, are available here.

Suggested citation:
Francophone Court of First Instance of Brussels, We Are Nature.Brussels and others v. Brussels-Capital Region, case nr. 24/885/A, judgment of 29 October 2025.

Last updated:
23 July 2026.

Categories
2025 Austria Emissions reductions/mitigation European Convention on Human Rights European Court of Human Rights Farming Fossil fuel extraction Private and family life Right to life Right to property Uncategorized

Fliegenschnee and Others v. Austria

Summary:
Fliegenschnee and Others v. Austria concerns an application to the European Court of Human Rights (ECtHR) by three Austrian nationals (Peter Fliegenschnee, Klara Kornelia Butz and Monika Jasansksy) and the environmental organisation Global 2000. After the Austrian authorities refused to issue a phased ban on the sale of fossil fuels from 2025 (2040 for aviation), which the applicants had requested under the Austrian Trade Act to mitigate the effects of climate change, the applicants turned to the ECtHR. They argued that the State’s inaction leaves them exposed to increasingly severe climate impacts such as heatwaves, drought, and environmental degradation. The association applicant, recognised under Austrian law as an environmental organisation, also asserted that it represented the interests of the general public, which it claimed were harmed by the State’s failure to act. On 11 December 2025, the ECtHR published a decision declaring the application inadmissible for lack of victim status, standing and substantiation.

Claim:
The applicants contest a finding from the Austrian Constitutional Court, made in July 2023, which recognized the state’s duty to actively take effective measures to protect life and health as well as to protect private life and property, but accorded the government a wide margin of discretion and found that fundamental and human rights do not allow for claims to a specific measure (here the applicants petitioned the domestic courts to order legislators to set binding expiry dates for the permissibility of the sale of fossil fuels in 2040). Rather, the domestic court found that the legislature must be allowed to choose between the various available measures to meet the State’s protective obligations.

Before the ECtHR, the applicants argued that Austria’s refusal to introduce a fossil-fuel ban violated Article 2 (right to life) and Article 8 (right to respect for private and family life), because climate change poses real and foreseeable risks to their health, safety, and living conditions. They contended that by declining to adopt effective mitigation measures despite having the capacity to do so, the State breached its positive obligations under the Convention. The environmental association added that this refusal also harmed the public interest, which it is entitled to represent, because ineffective climate action endangers society as a whole. One applicant, a farmer, claimed an additional violation of Article 1 of Protocol No. 1 to the ECHR, arguing that drought linked to climate change threatened her crops and thus her right to property.

Domestic decisions:
Domestically, the Minister held that the requested fossil-fuel ban fell outside the Minister’s statutory authority and that such sweeping climate-policy decisions must be taken at the legislative or governmental level. The refusal was upheld by domestic courts

On 25 April 2022 the Vienna Regional Administrative Court upheld the Federal Minister’s decision, confirming that she lacked the competence to order the requested measure and holding that the applicants did not have an individual right to such a measure. On 10 June 2022, the applicants lodged a complaint with the Constitutional Court, which rejected their complaint on 27 June 2023 (E 1517/2022-14), confirming that neither EU law, nor the ECHR, nor Austria’s Trade Act granted the applicants a right to an ordinance banning fossil fuels.

Decision of the European Court of Human Rights:
The applicants brought their case to the ECtHR, asserting that Austria’s inaction amounts to a breach of its human-rights obligations under the ECHR. On 11 December 2025, the ECtHR published its unanimous decision in this case, which was taken on 18 November 2025 by the Fourth Section of the Court. The decision declared the case inadmissible on grounds of victim status.

The Court held, regarding the applicants’ complaints under Articles 2 and 8 ECHR, that there needed to be “a serious, genuine and sufficiently ascertainable threat to life” in order for Article 2 to apply and for individual applicants to meet the especially strict victim status criteria for climate change mitigation cases (KlimaSeniorinnen, § 488). Considering it “questionable” whether Article 2 applied here, the Court examined the case under Article 8 ECHR alone.

For the individual applicants, the Court noted that they had not provided details about whether and how they had been personally affected, nor evidence to substantiate their alleged health vulnerabilities. They had thus not met the KlimaSeniorinnen victim status test, and their claims were declared inadmissible. The Court did not accept the argument from the 28-year-old second applicant that her health was endangered because of her young age and her thus lengthy exposure to the effects of climate change in the future, nor arguments linked to the first applicant’s heart condition.

As concerned the fourth applicant, an environmental association incorporated under Austrian law, the Court found that (applying the KlimaSeniorinnen test for representative standing of associations) “in principle, this recognition under Austrian domestic law is sufficient to show that the fourth applicant is lawfully established within that jurisdiction and has standing to act there, and that it pursues a dedicated purpose, based on its statutes, for the protection of the environment”. However, the Court doubted whether it met the final criteria of that test, which require associations who bring representative climate claims to have “a dedicated purpose in the defence of human rights in the context of the protection of the environment” and to represent affected individuals in that jurisdiction. The Court held that this was “unclear as no detailed information on its membership nor its statutes have been submitted”. It left this issue open, however, as the case would have in any case been inadmissible for the following reasons.

  • Article 8 ECHR does not grant a right to the measure sought, namely a ban on the sale of fossil fuels. The Court here considered it “inherent in the principle of subsidiarity and the wide margin of appreciation accorded to States with respect to the choice of means to achieve their climate change goals (…) that Article 8 cannot be read to guarantee a right to a particular mitigation measure by a specific State body under a certain sectoral law of an applicant’s choice” (para. 33).
  • Secondly, the Court considered that the applicants had insufficiently substantiated how Austria had failed to devise an adequate regulatory framework. Despite government admissions that current measures would not allow Austria to comply with its own GHG emissions reduction targets by 2030, the Court considered this argumentation insufficient as a base for its assessment, and noted that no domestic remedies had been used other than requesting a measure from the Federal Ministry. The applicants had also not alleged a lack of appropriate remedies.

The Court also engaged with the third applicant’s complaints under Article 1 of Protocol No. 1 to the Convention, the right to property. As a farmer, she argued that her property had been endangered because of droughts caused by climate change. Here, the Court noted that “it has so far not applied Article 1 of Protocol No. 1 in the context of climate change and that its applicability does not follow from the current case-law” (para. 37). The Court held that “even if Article 1 of Protocol No. 1 were applicable in the context of climate change”, the third applicant would have lacked victim status.

Suggested case citation:
ECtHR, Fliegenschnee and Others v Austria App no 40054/23, decision of 18 November 2025.

Case documents:

  • The decision of the Court is available here.
  • The Court’s press release (summary) is available here.
Categories
2025 Blog International Court of Justice Paris Agreement

The ICJ’s Interpretation of the Paris Agreement

Pranav Ganesan, PhD candidate at the University of Zurich

Introduction

The ICJ, in its advisory opinion on the Obligations of States in respect of Climate Change (AO), makes several notable findings which are worth unpacking and assessing. In this blogpost, I will comment upon some of the Court’s findings related to the interpretation of states’ obligations arising from the 2015 Paris Agreement (Part IV.B of the AO).

Much of the Court’s engagement with the provisions of the climate treaties, in the part of the judgment answering the first question concerning the international obligations of States to protect the climate system and other parts of the environment, was limited to identifying whether they contained procedural or substantive obligations, and obligations of conduct or obligations of result. The most interesting findings of the Court were:

  • That between the two temperature limits specified in the Paris Agreement (PA), viz. 2°C and 1.5°C (art. 2.1(a)), keeping the global average temperature increase below 1.5°C is the ‘primary temperature goal’ (para. 224); and
  • That Paris Agreement Parties’ discretion to determine the substantive content of their nationally determined contributions (NDCs) is limited (para. 245).

In order to arrive at these conclusions, the Court resorted to the rules of interpretation as under the 1969 Vienna Convention on the Law of Treaties (VCLT).

1.5°C as the Primary Goal

Regarding the 1.5°C temperature limit, the Court considered the Glasgow Pact, as a ‘subsequent agreement’ between the parties to the Paris Agreement regarding its interpretation. Subsequent agreements between all parties to a treaty regarding its interpretation or application must be ‘taken into account’ together with the treaty’s context for the purposes of interpretation (VCLT, Art. 31(3)(a)). In other words, they must be thrown into the ‘crucible’ of all things that inform a treaty provision’s interpretation (see Declaration of Judge Tladi, para. 13). Readers may recall that the Conference of Parties (COP) held at Glasgow in the year 2021 aimed to keep the 1.5°C goal alive. The Glasgow Pact reaffirms Article 2.1(a) of the Paris Agreement, and then:

‘Recognizes that the impacts of climate change will be much lower at the temperature increase of 1.5 °C compared with 2 °C and resolves to pursue efforts to limit the temperature increase to 1.5 °C’ (para. 21, emphasis in the original).

The ICJ also relied on the 2023 UAE Consensus which ‘encourages Parties to come forward in their next nationally determined contributions with ambitious, economy-wide emission reduction targets, covering all greenhouse gases, sectors and categories and aligned with limiting global warming to 1.5 °C, as informed by the latest science, in the light of different national circumstances’ (Decision 1/CMA.5, para. 39).

Why is specifying the primacy of 1.5°C important? The mention of two different temperature limits in the Paris Agreement (a comprise formulation considering intractable disagreements between negotiating states) has been a source of some confusion. Mayer has argued that Article 2.1(a) can be explained as prescribing 2°C as the ‘real’ objective, with the States realizing that ‘achieving it is only possible if each of them implements the level of mitigation action that it sees as consistent with a 1.5°C target.’ Rajamani and Werksman have noted that: ‘[a]lthough there are differences in impacts between a 1.5°C temperature rise and a 2°C temperature rise, because the [PA’s] temperature goal is a single goal with two textually inseparable elements—the 1.5° C aspirational goal and the ‘well below 2°C’ goal—the implications of missing the goal are the same in relation to the implementation of the Agreement.’ The implications of missing the goal, according to the above authors, do not include state responsibility for individual Parties as Article 2.1 does not create legally binding obligations. However, there is no confusion as to the provision’s relevance for interpretation (which I shall get to in the next section).

Other international courts which have engaged with this provision have not been as clear about the primacy of the 1.5°C goal under the PA. In its KlimaSeniorinnen judgment, although the European Court of Human Rights noted as a general consideration that ‘the relevant risks are projected to be lower if the rise in temperature is limited to 1.5°C above pre-industrial levels’ (para. 436), it did not make normative statements suggesting 1.5°C as a quantitative temperature goal. In its findings as to the content of positive obligations under Article 8 of the European Convention on Human Rights (ECHR), it held that mitigation measures to be undertaken by ECHR parties must be aimed at preventing ‘a rise in global average temperature beyond levels capable of producing serious and irreversible adverse effects on human rights’ (para. 546). Admittedly, the Court’s factual finding regarding a +1.5°C warmer world could be taken together with this latter finding to imply that if the 1.5°C is crossed, the conclusion that human rights are seriously and irreversibly affected becomes obvious. Alternatively, the conspicuous absence of any mention of the 1.5°C threshold in the court’s conclusions as to ECHR parties’ positive obligations could be taken to imply that determination of what constitutes an unsafe level falls within each state party’s margin of appreciation as reduced by the consensus reflected in the PA and subsequent COP decisions (on the reduced margin of appreciation, see para 543). Under this line of reasoning, the Court could be seen as having shied away from putting forward its position on the issue of whether a consensus had arisen as to whether the lower of the two temperature goals is primary.

The International Tribunal on the Law of the Sea took a different route its advisory opinion where it was tasked with interpreting obligations under the 1982 UN Convention on the Law of the Sea related to addressing the deleterious effects of climate change on the marine environment. Regarding Article 194(1), the Tribunal interpreted the content of the duty to prevent, reduce and control marine environmental pollution via greenhouse gas emissions as requiring parties to undertake the necessary emission reduction measures while taking into account the 1.5°C goal in the PA (para. 243). It did so based on the ‘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 other words, the ITLOS did not explicate that it regarded 1.5°C as the ‘primary goal’ under Article 2.1 of the Paris Agreement, although the advisory opinion could be understood as implying so. With the ICJ’s AO, this has now been made clear.

Just a few days before the ICJ gave its AO, the Inter-American Court on Human Rights (IACtHR) gave its advisory opinion on the ‘obligations of States in responding to the climate emergency.’ The IACtHR not only identified an obligation to regulate climate mitigation under the 1969 American Convention on Human Rights and 1988 San Salvador Protocol, but also went into detail as to what action states must take to comply with the same (para. 322 et seq). In this regard, it found there to be a ‘significant international consensus’ on keeping the global average temperature increase from exceeding beyond 1.5°C above pre-industrial levels. However, it added that even achieving this goal ‘does not eliminate the risk hovering over millions of people in the region’ (para. 326). As I had argued in a previous blogpost, there is nothing special about 1.5°C and 2°C, since they were merely a product of political compromise. Thus, the fact that the PA mentions these numbers does not necessarily lead to the conclusion that human rights law should be apathetic to the devastating impacts suffered by individuals and groups in a +1.4°C or +1.3°C warmer world. The threshold of warming that puts populations and ecosystems at ‘serious’ risk may vary from region to region. And the Inter-American Court affirmed this view. Still, since it had to specify a standard or otherwise risk leaving scope for ambiguity, the Court held that states must determine a mitigation target, based inter alia, ‘on a temperature increase of no more than 1.5ºC’ (para. 326). Again, the Court did not interpret Article 2.1(a) of the PA itself but rather used the provision, the international consensus and specific findings of the IPCC as to the risks of global warming exceeding the 1.5°C mark to help arrive at ‘a minimum starting point’ for what should inform national mitigation targets (para. 326). What is more, the language used by the Inter-American Court suggests no tolerance even for a limited overshoot above 1.5°C, in contrast to what seems to be suggested by the text of the UAE Consensus (see Decision 1/CMA.5, para 27).

Ultimately, the ECtHR, ITLOS and IACtHR avoided wading into the thicket of constructive ambiguity created by the mention of two temperature goals in Article 2.1(a) of the PA. Of course, they were only tasked with interpreting the ECHR, UNCLOS and ACHR respectively, and referring to the PA as a relevant instrument for interpretive purposes (VCLT, art. 31(3)(c)). Answering an interpretive question pertaining to an external treaty provision could have invited criticisms about the courts overstepping their jurisdiction. Moreover, the three courts in question may have chosen the ‘better safe than sorry’ approach, avoiding getting the interpretation of the PA wrong (before the ICJ could give its AO). Going forward, other courts may rely upon the findings in the AO about Article 2.1(a) PA, as well as its approach of using COP decisions as interpretive tools.

The Content of NDCs

The primacy of ‘national determination’ of mitigation contributions under the Paris Agreement (also called the ‘bottom-up approach’) has led to concerns about the toothlessness of the treaty. Indeed, while Article 4.2 creates a binding obligation on Parties to prepare and communicate NDCs, the committee tasked with reviewing compliance with this obligation cannot comment on their substantive (in)adequacy (Decision 20/CMA.1, Annex, para. 23). Moreover, the wording of Article 4.2 does not directly suggest that these NDCs must be highly ambitious or determined with concern for those most vulnerable to the effects of global warming. However, the ICJ held that ‘[t]he content of the NDCs is equally relevant’ to the formal preparation, communication and maintenance of successive NDCs ‘to determine compliance’ (para. 236).

The Court’s interpretation of Article 4.2 PA was based on other provisions of the Paris Agreement as well as COP Decisions. The following provisions were cited as providing support to the Court’s interpretation: Article 2 (setting out the Parties’ collective goals and manner of implementation of the PA), Article 3 (defining NDCs); Article 4.3 (setting out the normative expectation of progression and highest possible ambition); Article 14.3 (linking the outcomes of the global stocktake with NDCs) and Article 4.8 (linking information to be communicated through NDCs with COP decisions). Additionally, the Court relied on a requirement under the Paris Rulebook (adopted during the 2018 Katowice COP) that Parties must explain how they consider their contribution to be fair and ambitious, and how it contributes to the objectives of the 1992 UN Framework Convention on Climate Change and Paris Agreement as set out in Article 2 of both treaties (Decision 4/CMA.1, Annex I, paras. 6-7). The Court’s reasoning on limited state discretion in determining the content of their NDCs is reminiscent of its reasoning in the Whaling judgment, relating to the question of whether the International Whaling Convention gives parties absolute discretion to determine whether their conduct falls within the ‘purposes of scientific research’ exception (see paras. 56-61). In both instances, the Court balanced the discretion-preserving intent suggested by the wording of the provisions against the treaties’ other-regarding object and purpose. And why is the ICJ’s finding that Parties’ discretion to self-regulate climate mitigation is not absolute important? As Judge Tladi noted in his declaration, this means that the ambitiousness (or sufficiency) of NDCs is ‘open to scrutiny, including judicial scrutiny’ (para. 17, emphasis added).

Concluding Remarks

This blogpost has highlighted two key findings of the ICJ regarding provisions of the PA. Parties must align the mitigation contributions they communicate with the 1.5°C goal as well as other standards under the PA such as progression, highest possible ambition, and the principle of common but differentiated responsibilities and respective capabilities (CBDR-RC). Given that objectives specified in NDCs need to be implemented with due diligence through domestic measures (PA, art. 4.2 second sentence), these findings will embolden domestic courts in reviewing such measures.

Categories
2025 Children and young people Children's rights/best interests Domestic court Right to a healthy environment Right to health South Africa

African Climate Alliance and Others v Minister of Mineral Resources and Energy and Others

Summary:

In African Climate Alliance and Others v Minister of Mineral Resources and Energy and Others, the High Court of South Africa considered a landmark challenge to the government’s continued reliance on coal energy in its national electricity plan. The applicants (a coalition of youth-led and community-based environmental justice organisations) opposed the inclusion of 1,500 megawatts (MW) of new coal-fired power in the 2019 Integrated Resource Plan (IRP 2019). They argued that this decision was unconstitutional, irrational, and disregarded both the worsening climate crisis and the rights of the most vulnerable – especially children and future generations.

The applicants challenged three specific decisions:

  1. The adoption of IRP 2019, which made provision for new coal power.
  2. A subsequent ministerial determination under the Electricity Regulation Act to implement this plan.
  3. The concurrence or approval by the National Energy Regulator of South Africa, which is legally required to agree to such decisions before they can proceed.

The applicants argued that these decisions were unconstitutional, primarily infringing upon the rights to a healthy environment and the well-being of children.

Claim:

The applicants claimed that the government’s decisions to procure 1,500 MW of new coal power violated multiple constitutional rights—primarily Section 24, which guarantees the right to an environment that is not harmful to health or well-being, Section 28(2), which protects the best interests of the child, and the rights to life, dignity, and equality.

They emphasised that coal-based energy generation not only accelerates climate change but also exposes communities—especially poor and historically marginalized ones—to high levels of toxic air pollution. Children, due to their physiological vulnerability, are at greater risk of suffering long-term health consequences. The state, they argued, had a positive duty to consider these human impacts, especially where irreversible environmental harm and intergenerational injustice were at stake.

The applicants further claimed that the process leading to these decisions was procedurally flawed, lacking meaningful public participation, transparency, and adequate consultation with those most affected. They framed their challenge as a matter of environmental justice, climate accountability, and the protection of constitutional rights, particularly for those who bear the brunt of environmental degradation without benefiting from its economic returns.

Judgment:

On 4 December 2024, Judge Cornelius van der Westhuizen ruled in favor of the applicants, declaring the government’s plan to procure 1,500 MW of new coal-fired power unconstitutional, unlawful, and invalid. In a significant affirmation of rights-based climate justice, the court found that the government had failed to consider the harmful impacts of coal on health, the environment, and children’s rights. It highlighted that the best interests of children were not given paramount importance, in breach of Section 28(2). It also criticized the lack of adequate public participation and failure to assess cleaner and less harmful energy alternatives.

The court emphasized that the Constitution demands not only the avoidance of environmental harm, but also active promotion of sustainable development and intergenerational equity. It ordered that the coal provisions in the IRP and associated implementation decisions be set aside, and directed the government to pay the applicants’ legal costs.

This ruling sends a powerful message: government policy cannot be separated from its human rights consequences. It reinforces that climate change is not only an environmental issue, but a profound justice issue, affecting the lives, health, and futures of millions—especially the youngest and most vulnerable South Africans.

Document:

The case documents are available here and here.

Suggested citation:

African Climate Alliance and Others v Minister of Mineral Resources and Energy and Others (56907/2021) [2024] ZAGPPHC 1271 (4 December 2024).

Status of the case:

Decided.

Last updated:

20 March 2025.

Categories
2025 Domestic court Emissions reductions/mitigation Ireland Just transition litigation Private and family life Renewable energy Victim status

Coolglass Wind Farm Limited v. An Bord Pleanála

Summary:
In a January 2025 judgment, the Irish High Court of Planning and Environment ruled in favor of an appeal challenging the refusal of planning permission for a wind farm development. In doing so, it applied EU law and the European Convention on Human Rights (ECHR), as interpreted in the 2024 KlimaSeniorinnen judgment by the European Court of Human Rights, to find that the relevant planning authority needed to have regard to Ireland’s renewable energy targets.

Facts of the case:
In a judgment delivered on 10 January 2025, the Irish High Court of Planning and Environment ruled on the refusal of planning permission for a wind farm development. The case raised an issue of statutory interpretation relating to the Irish Climate Action and Low Carbon Development Act 2015, as amended in 2021. Planning permission for the wind farm project sought by Coolglass Wind Farm Limited was refused by the responsible board (An Bord Pleanála, Ireland’s national independent planning body that decides appeals on planning decisions made by local authorities) because it was contrary to planning regulation and rules on sustainable development of the area. Coolglass appealed, arguing that the Board was failing to approve adequate planning applications to meet Ireland’s 2030 renewable energy targets in the Climate Action Plan 2024, and was thereby failing to comply with its obligations under section 15 of the Climate Action and Low Carbon Development Act 2015. Coolglass also argued that the board’s decision was incompatible with the ECHR and with Regulation (EU) 2022/2577 of 22 December 2022 laying down a framework to accelerate the deployment of renewable energy.

Findings:
The Court, in a ruling by Humphreys J., upheld the appeal by Coolglass. It held that the board had failed to exercise its powers in a manner that complied (as far as practicable) with Ireland’s climate objectives and policies, and that this failure also constituted a breach of duty under the European Convention on Human Rights, read in light of the KlimaSeniorinnen judgment, as well as a breach of EU law obligations.

On the human rights aspect of the case, the Court ruled that:

109. I agree with the applicant that one must conclude that art. 8 of the ECHR imposes a positive obligation on the State to put in place a legislative and administrative framework with respect to climate change designed to provide effective protection of human health and life, and a further positive obligation to apply that framework effectively in practice, and in a timely manner.
110. Ireland has a framework of course but (as discussed above under the heading of EU law conformity) it is clear that it is not being complied with. The latter failure, on the logic of Klimaseniorinnen, involves a breach of art. 8 of the ECHR.
111. The application of the framework in practice is crucial. As we know from the termination of pregnancy context (Case of A, B and C v. Ireland [GC], no. 25579/05, ECHR 2010 (https://hudoc.echr.coe.int/fre?i=001-102332)), the Strasbourg court takes a dim view of a situation where there are laws on the books but a failure to put in place practical arrangements to implement them.
112. The problem for the opposing parties here is firstly that an interpretation of s. 15(1) that allows the climate goals in legislation to fall by the wayside due to a failure by the board to exercise discretionary powers to override development plans is an interpretation that fails to conform with ECHR obligations contrary to s. 2 of the 2003 Act.
113. Secondly, the failure by the board to use its discretionary powers in that manner constitutes a failure to act consistently with ECHR obligations contrary to s. 3 of the 2003 Act.
114. The board rather weakly raises the defence that a body corporate doesn’t have locus standi to argue for the right to a private life in a climate-relevant sense under art. 8 of the ECHR. But that isn’t the point of course. Whether an individual applicant has standing in a hypothetical case or not doesn’t affect the interpretation of a statutory provision. The point being made is that the court should interpret the 2015 Act as amended in an ECHR-compatible manner. Such an interpretation supports the applicant’s proposition that s. 15(1) should be read as meaning what it says.
115. Thus the requirement to read legislation in an ECHR-compliant manner supports an interpretation of s. 15 that goes beyond the board’s have-regard-to interpretation and the State’s meaningful engagement interpretation. It reinforces the applicant’s case that the interpretation should ensure that ECHR obligations are complied with in practice, including compliance in practice with stated goals in relation to renewable energy infrastructure.

Overall, the Court ruled that:

116. Sometimes (although not as often as some people think) the language, context and purpose of a provision, or the requirements of EU law conformity or ECHR conformity, pull in different directions. This is not such a case.
117. On the contrary, all vectors of interpretation point strongly in the same direction – the need for an imperative reading of s. 15(1) in line with what it says, namely that the board and any other relevant body is required to act in conformity with the climate plans and objectives set out in the subsection unless it is impracticable to do so.
118. I therefore reject the watered-down interpretations of s. 15(1) offered by the opposing parties here and accept the applicant’s interpretation.

The Court granted Coolglass’s appeal and ordered that its planning application be remitted to An Bord Pleanála for renewed consideration. An appeal against the decision to quash the refusal was refused by the Irish Supreme Court on 4 February 2026.

Suggested citation:
Irish High Court of Planning and Environment, Coolglass Wind Farm Limited v. An Bord Pleanála [2025] IEHC 1, H.JR.2024.0001244, 10 January 2025.

Last updated:
24 June 2026.