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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
2024 European Convention on Human Rights Norway Private and family life Right to life

Norwegian Air Shuttle ASA v. Norway

Summary:
In a case before the EFTA Court concerning the EU’s emissions trading scheme, referred by the Oslo District Court under Article 34 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice, the EFTA Court acknowledged the link between human rights and climate change. The case concerned the obligation to surrender greenhouse gas emissions allowances granted under the scheme in the context of a corporate restructuring, with the EFTA Court finding that EU law precludes national legislation from providing that the obligation to surrender emissions allowances may be settled by dividend in a compulsory debt settlement in connection with the restructuring of an insolvent company.

In doing so, the Court held in para. 35 of its ruling (issued in 9 August 2024) that:

[I]t must be recalled that combating climate change is an objective of fundamental importance given its adverse effects and the severity of its consequences, including the grave risk of their irreversibility and its impact on fundamental rights (compare the judgment of the European Court of Human Rights of 9 April 2024, Verein Klimaseniorinnen Schweiz and Others v Switzerland, CE:ECHR:2024:0409JUD005360020).

Suggested citation:
EFTA Court, Norwegian Air Shuttle ASA v. Norway, Case E-12/23, Judgment of 9 August 2024.

Last updated:
2 June 2025

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.

Categories
2022 Children and young people Domestic court Emissions reductions/mitigation Imminent risk Indigenous peoples' rights Public trust doctrine Uncategorized United States of America

Sagoonick et al. v. State of Alaska I

Summary:
In 2017, sixteen children and young people — including some who were members of Alaskan Indigenous peoples — filed suit against the U.S. State of Alaska arguing by the state’s climate and energy policy violated their constitutional rights. Because the policy in question authorized and facilitated activities producing greenhouse gas emissions, the plaintiffs alleged violations of their due process rights to life, liberty, and property under the Alaskan Constitution, as well as their right to a stable climate system. The argued that the state government and relevant agencies had, “knowingly and with deliberate indifference”, created a dangerous situation for them, in violation of their constitutional rights. The plaintiffs also made an equal protection claim and alleged a violation of Alaska’s public trust doctrine.

The plaintiffs sought declaratory relief. They sought a declaration that the state had a constitutional duty to protect their constitutional rights, as well as a duty under the public trust doctrine to protect Alaska’s waters, atmosphere, land, fish, wildlife, and other public trust resources. They sought a declaration that the state’s climate and energy policy had violated their rights and placed them “in a position of danger with deliberate indifference to their safety” and had “materially caused, contributed to, and/or exacerbated climate change and discriminated against Youth Plaintiffs as members of a protected class, and with respect to their fundamental rights”. They sought an order for the state to prepare a complete and accurate accounting of Alaska’s GHG emissions and an enforceable state climate recovery plan.

Alaska Superior Court Judgment:
On 30 October 2018, the Alaska Superior Court rejected the case, arguing that it was indistinguishable from previous climate cases based on the public trust doctrine and that it concerned political questions which were not justiciable. The plaintiffs appealed.

Alaska Supreme Court Judgment:
In 2022, on appeal, the Alaska Supreme Court affirmed the dismissal of the case (see full text of the judgment below). The Court found that the applicants’ claims concerned non-justiciable political questions and found that it could not make “the legislative policy judgments necessary to grant the requested injunctive relief.”

Judge Maassen, dissenting, argued that he was “no longer convinced that nothing can be gained by clarifying Alaskans’ constitutional rights and the State’s corresponding duties in the context of climate change”, and that the public trust doctrine under the Alaskan Constitution provided a right to a livable climate.

Additional developments:
A follow-up case, Sagoonick et al. v. State of Alaska II, was filed in 2022.

Sagoonick IDownload

Suggested citation:
Supreme Court of Alaska, Sagoonick et al. v. State of Alaska I, 28 January 2022, No. 3AN-17-09910 CI.

Last updated:
14 November 2024

Categories
2024 Domestic court Germany Rights of nature

German Rights of Nature Case (8 O 1373/21)

Summary:

On 2 August 2024, in the context of a case about compensation for the purchase of a BMW-brand vehicle during the so-called “diesel scandal”/”Dieselgate”, a judge at the Erfurt Regional Court in Germany, Dr. Martin Borowsky, made an innovative finding: he found that rights of nature can already be derived from the law currently in force, namely the EU Charter of Fundamental Rights, meaning that nature is not an object, but a subject with its own right to protection. The relevant parts of his extensive holding on this matter, based on his involvement during the drafting of the Charter and translated from the original German by this database, are replicated below in full.

Finding of the court (paras. 29-40 of the judgment):

[N]ature’s own rights, which arise from the Charter of Fundamental Rights of the European Union, reinforce protection [in the context of the ‘diesel scandal’]. These rights of nature are – as in numerous other legal systems, such as in South America – to be taken into account ex officio and independently of any corresponding submission by the parties or an explicit reference to them.

As European Union law is relevant in the diesel cases, the Charter of Fundamental Rights is also applicable (Art. 51 (1)). The rights in the Charter, in particular Art. 2 and Art. 3 (1) in conjunction with Art. 37, establish inherent rights of nature, which also require consideration in the present case. These fundamental rights are by their nature applicable to nature or individual ecosystems — i.e. ecological persons. It can be left open whether in the present case nature as such or individual ecosystems (particularly) damaged by exhaust gases require protection. The Charter gives rise to the comprehensive right of ecological persons to have their existence, preservation and regeneration of their life cycles, structure, functions and development processes respected and protected.

The fact that the [EU’s] convention on fundamental rights [a “body composed of representatives of the Heads of State and Government and of the President of the Commission as well as of members of the European Parliament and national parliaments” formed to draft the EU’s fundamental rights charter], which met in 2000, had not yet taken these rights into account does not prevent such rights from being recognized. As is well known, originalism is not a decisive interpretative approach in Europe. Moreover, the convention on fundamental rights was certainly open to ecological issues and concerns.

In particular, the Charter – like the Council of Europe’s European Convention on Human Rights – is a living instrument that can be used to respond appropriately to new threats. The recognition of specific rights of ecological persons through the interpretation and application of existing Union law is necessary due to the importance and urgency of the ecological challenges – climate change, species extinction and global pollution – and in view of the threat of irreversible damage.

Granting legal subjectivity to ecological persons, as was recently done by the Spanish legislator for the Mar Menor saltwater lagoon, is in line with the Charter’s view of humanity. Its preamble emphasizes the responsibility and duties towards fellow human beings as well as towards the human community and future generations. According to Art. 37 of the Charter, a high level of environmental protection and the improvement of the quality of the environment must be integrated into the Union’s policies and ensured in accordance with the principle of sustainable development. The recognition of nature’s own rights serves this essential objective of the Union.

The open term “person”, which is frequently used in the Charter, includes nature or ecosystems such as rivers and forests as additional legal subjects alongside humans. In the first title of the Charter, containing fundamental rights, the term “person” (“personne”) is used in the original German text, as in numerous other language versions, rather than the term “Mensch”. The English “everyone” can be equated with this. Since fundamental rights such as the right to life in Art. 2 of the Charter do not apply to legal persons, the overriding value, the added value of the term “person” lies in respecting and protecting ecological persons in addition to human beings.

Moreover, there is no apparent reason why legal persons – or in future artificial intelligence – should be comprehensively protected under fundamental rights, but not ecological persons. Ultimately, this only creates an “equality of arms”.

The guarantee of human dignity in Art. 1 of the Charter does not preclude the recognition of the rights of nature; on the contrary, it requires this step. The recognition of nature’s own rights helps to ensure that people can continue to lead a free and self-determined life in dignity in the future.

Furthermore, the fact that Art. 2 and other Charter rights are borrowed from the ECHR and that this Convention – to date – does not recognize any inherent rights of nature does not stand in the way of the above. Art. 52 para. 3 sentence 2 of the EU Charter expressly allows European Union law to grant more extensive protection than the ECHR.

Finally, Art. 53 of the Charter requires comparative law to be taken into account in its interpretation. In numerous legal systems, particularly in the Global South, but also in the USA and New Zealand, the rights of nature are recognized and enforced under constitutional law, legislation or by judges. The European legal system is not immune to this increasing global trend.

Against this background, it seems justified from the point of view of legal doctrine to give nature’s own rights the force of law in Europe too. The example of Colombian or Peruvian courts can be followed here, which – even without relevant legislation – have derived such rights from an overall view of their legal systems.

Suggested citation:
Regional Court Erfurt, 8th Civil Chamber, judgment of 2 August 2024, file number 8 O 1373/21, ECLI:DE:LGERFUR:2024:0802.8O1373.21.00.

Last updated:
29 August 2024.

Categories
2024 Children and young people Domestic court Emissions reductions/mitigation Paris Agreement Right to a healthy environment Right to life Right to property Right to pursue happiness Uncategorized

Min-A Park v. South Korea

Summary:
In July 2023, a fourth constitutional mitigation case was filed before the South Korean Constitutional Court. This case was consolidated with three previously-filed climate cases, representing a total of 255 plaintiffs, and the Constitutional Court issued its ruling in all four cases on 29 August 2024. This joint ruling was reported as a landmark judgment and as the first finding of its kind in Asia (i.e. the first time that a court in the region found that inadequate mitigation action violates constitutional rights).

In the present case, 51 individuals argued that their constitutional rights were being inadequately safeguarded by the failure to create an adequate implementation plana for South Korea’s 2030 Nationally Determined Contribution under the Paris Agreement (NDC). This makes this case somewhat different from the other three, in the sense that it does not contest the country’s 40% reduction target (by 2030) itself, but argues that domestic measures will not be enough to meet that target. The plaintiffs estimated that current steps envisioned under South Korea’s Carbon Neutrality Plan would achieve only a 29.6% emissions reduction.

As per the complaint document (available, in the original Korean, on ClimateCaseChart), the plaintiffs invoked their rights to life, to pursue happiness, to general freedom, to property and to a healthy environment along with the State’s obligation to protect against disasters and protect fundamental rights.

Relevant developments:
On 12 June 2023, shortly before this case was filed, it was announced that the National Human Rights Commission of Korea had decided to submit an opinion to South Korea’s Constitutional Court to oppose the country’s Carbon Neutrality Act (2021), which it considered to be unconstitutional and in violation of the fundamental rights of future generations because it sets out a greenhouse gas emissions reductions target that was too low. The Act sets out a 40% emissions reductions target by 2030 as compared to 2018 levels. This, the Commission found, did not respect the constitutional principle of equality, because it passed the burden of greenhouse gas emissions on to future generations.

Consolidation with three other cases:
The South Korean Constitutional Court decided to consolidate its first four climate cases (Do-Hyun Kim et al. v. South Korea, Woodpecker et al. v. South Korea (Baby Climate Litigation), Climate Crisis Emergency Action v. South Korea (a.k.a. Byung-In Kim et al. v. South Korea) and Min-A Park v. South Korea (the present case). Public hearings in the cases were held on 23 April 2024 and 21 May 2024.

These cases all alleged that the government’s inadequate greenhouse gas reduction targets violated citizens’ fundamental rights, particularly those of future generations. Together, the four cases comprised over 250 plaintiffs, including civil society, youth and children. The Constitutional Court issued a joint ruling in these cases on 29 August 2024.

Judgment of the constitutional court:
On 29 August 2024, the South Korean Constitutional Court found a violation of constitutional rights in this case and three related cases. In an unanimous ruling, hailed as “the first decision of its kind in Asia“, the court found that the government’s response to the climate crisis was inadequate and threatened constitutional rights, noting that the country lacked legally binding long-term emissions reductions targets for the post-2031 period, which violated the constitutional rights of future generations by shifting an excessive reductions burden to the future. The Court gave government and legislature 18 months (until 28 February 2026) to introduce the relevant targets.

In particular, the Court ruled that Article 8(1) of the South Korean Carbon Neutrality Basic Act was unconstitutional. Previously, the government had pledged a 40% reduction of its GHG emissions by 2030 compared to 2018 levels, but had failed to set any targets since. The Constitutional Court held that this “does not have the minimum character necessary as a protective measure corresponding to the dangerous situation of the climate crisis”, citing the “principle of non-underprotection”, which means that the State must take appropriate measures to effectively protect the constitutional rights of its citizens.

Simultaneously, the Court held that the government’s target for 2030 did not infringe constitutional rights.

See also:
Do-Hyun Kim et al. v. South Korea.

Last updated:
29 August 2024.

Categories
2024 Emissions reductions/mitigation European Court of Human Rights France Private and family life Right to life Standing/admissibility Victim status

Carême v. France

Summary:
On 7 June 2022, the European Court of Human Rights announced the relinquishment of an application against France concerning the municipality of Grande-Synthe to the Court’s Grand Chamber. The applicant in this case, in his capacity as mayor of the municipality of Grande-Synthe, was originally involved in the Grande-Synthe case, but the Conseil d’État held on 19 November 2020 that, unlike the municipality itself, Mr Carême could not prove that he had an interest in bringing proceedings.

This was the second climate case to reach the Court’s Grand Chamber, after the Klimaseniorinnen application. The case was lodged on 28 January 2021, and the Grand Chamber held a public hearing in this case on 29 March 2023, making it the second climate case to be heard by the Court (after KlimaSeniorinnen).

Before the Court, the applicant argued that France’s insufficient climate change mitigation measures violated his rights to life (Article 2 ECHR) and to respect for private and family life (Article 8 ECHR). The Court summarized the applicant’s complaint as follows:

The applicant submits that the failure of the authorities to take all appropriate measures to enable France to comply with the maximum levels of greenhouse gas emissions that it has set itself constitutes a violation of the obligation to guarantee the right to life, enshrined in Article 2 of the Convention, and to guarantee the “right to a normal private and family life”, under Article 8 of the Convention. In particular, the applicant argues that Article 2 imposes an obligation on States to take the necessary measures to protect the lives of persons under their jurisdiction, including in relation to environmental hazards that might cause harm to life. Under Article 8 he argues that by dismissing his action on the grounds that he had no interest in bringing proceedings, the Conseil d’État disregarded his “right to a normal private and family life”. He submits that he is directly affected by the Government’s failure to take sufficient steps in the combat against climate change, since this failure increases the risk that his home might be affected in the years to come, and in any event by 2030, and that it is already affecting the conditions in which he occupies his property, in particular by not allowing him to plan his life peacefully there. He adds that the extent of the risks to his home will depend in particular on the results obtained by the French Government in the prevention of climate change.

The Court’s press release on this case can be found here.

Date of decision:
It was announced on 26 March 2024 that the Grand Chamber would issue its judgment in this case, along with the two other climate cases pending before the Grand Chamber, in a hearing on 9 April 2024 at 10:30 a.m. The judgment and a summary were made available on the Court’s HUDOC database immediately after the hearing.

The Court’s findings on the admissibility:
From the summary prepared by Viktoriya Gurash on the day of the Grand Chamber decision in this case.

Today, on 9 April 2024, the European Court of Human Rights issued a Grand Chamber decision in this case, unanimously declaring the applicant’s complaints under Articles 2 and 8 of the European Convention on Human Rights inadmissible ratione personae.

The Court, first, noted that its assessment of Mr Carême’s victim status as a physical person in the climate context will be based on the criteria set out in Verein KlimaSeniorinnen Schweiz and Others v Switzerland, decided on the same day, which includes that: the applicant must be subject to a high intensity of exposure to the adverse effects of climate change; and there must be a pressing need to ensure the applicant’s individual protection, owing to the absence or inadequacy of any reasonable measures to reduce harm (para 487 of KlimaSeniorinnen). The Court emphasised that the threshold for fulfilling these criteria is especially high in view of the exclusion of actio popularis cases under the Convention (para 488 of KlimaSeniorinnen).

Using this framework, in Carême, the ECtHR first assessed the reasons adduced by the domestic courts, specifically the Conseil d’État, when rejecting Mr Carême’s standing. Before the national authorities, the applicant argued that the house in which he resided at the time was located close to the coastline and that according to some predictions it would be flooded by 2040, taking into account the effects of climate change. The Conseil d’État found that the area of the municipality of Grande-Synthe was at a very high level of exposure to high risks of flooding and severe drought with the effect not only of a reduction and degradation of water resources, but also significant damage to built-up areas, given the geological characteristics of the soil. However, the Conseil d’État ruled that Mr Carême did not have an interest in bringing proceedings on the basis of the mere fact that his current residence was located in an area likely to be subject to flooding by 2040. The ECtHR adhered to this argument, reasoning that the risk relating to climate change affecting the applicant is of hypothetical nature.

The crucial factor leading to the Court’s decision as regards the applicant’s victim status is that he no longer has any relevant links with Grande-Synthe because he no longer resides in France, nor does he own or rent any property in Grande-Synthe. The Court noted that in his initial application the applicant indicated an address in Grande-Synthe, although at that time he no longer resided in that municipality but in Brussels. In view of this, the Court found moot Mr Carême’s argument that his residence in Grande-Synthe was at a future risk of flooding and that the current situation prevented him from envisaging himself serenely in his home.

The Court held that the applicant had no right to lodge a complaint under Article 34 of the Convention on behalf of the municipality of Grande-Synthe because, in view of the ECtHR’s settled case law, decentralised authorities that exercise public functions are considered to be ‘governmental organisations’ that have no standing. In addition, the Court highlighted that the interests of the residents of Grande-Synthe have, in any event, been defended by their municipality before the Conseil d’État in accordance with national law.

Furthermore, as regards the applicant’s claim that he had developed allergic asthma making him particularly sensitive to air pollution caused by climate change, the Court found that since this issue was not raised in the initial application, it constitutes a new and distinct complaint and falls outside the scope of this case.

Further reading:

  • For a comment on this case, see Marta Torre-Schaub’s post on Verfassungsblog.
  • For the judgment, click here.
  • For the Court’s Q&A on the three climate cases, click here.

Webcast of the hearing:
To watch a webcast recording of the public hearing in this case, which was held before the Grand Chamber of the European Court of Human Rights on 29 March 2023, click here (available in French and English).

Suggested citation:
ECtHR, Carême v. France, no. 7189/21, decision (Grand Chamber) of 9 April 2024

Last updated:
9 April 2024

Categories
2023 Children and young people Children's rights/best interests Human dignity Inter-American Human Rights System Peru Right to a healthy environment Right to health Right to life

Inhabitants of La Oroya v Peru

Summary:

The Inter-American Court of Human Rights (IACtHR) ruled on 27 November 2023 that Peru is accountable for violating various rights of residents living near the La Oroya Metallurgical Complex (CMLO), established in 1992 in La Oroya. The CMLO, dedicated to smelting and refining metals such as lead, copper, zinc, and arsenic, caused severe environmental pollution, contaminating air, water, and soil, and adversely affecting residents’ health and well-being. Consequently, the Court mandated Peru to conduct an environmental contamination analysis, provide free medical care to affected individuals, and adjust pollutant standards, marking a significant victory for the plaintiffs after enduring years of pollution and inadequate governmental response.

Claim:

The residents of La Oroya brought claims against Peru, asserting that the government’s failure to regulate and address the environmental contamination from the smelting complex violated their fundamental human rights, including the right to a healthy environment, health, and life. They presented evidence of the adverse health effects experienced due to exposure to toxic pollutants emitted by the complex.

Decision:

On 27 November 2023, the IACtHR declared Peru responsible for multiple human rights violations affecting the inhabitants of La Oroya. These violations are rooted in the contamination of the air, water, and soil caused by mining-metallurgical activities in the CMLO. The State’s failure to regulate and supervise these activities exacerbated the situation, leading to violations of the rights to a healthy environment, health, life, and personal integrity of the victims. Furthermore, the Court found that the State failed to fulfil its obligation of progressive development concerning the right to a healthy environment by regressing air quality standards.

The Court also determined that the State neglected children’s rights by not implementing adequate protection measures, considering the disproportionate impact of contamination on the children of La Oroya. It emphasized the critical connection between safeguarding children and addressing the climate crisis, noting that mining and industrial activities, particularly those involving fossil fuels, are significant contributors to greenhouse gas emissions, posing risks to public health and exacerbating climate change. It further acknowledged the vulnerability of children to the impacts of climate change and the long-term consequences they face, as underscored by the United Nations Committee on the Rights of the Child in the Sacchi case. Consequently, the Court asserted that states have a duty to protect children and must take decisive action to mitigate health risks from pollutant emissions that exacerbate climate change crisis.

Moreover, the Court concluded that the State violated the right to public participation and adequate information provision to the victims regarding measures affecting their rights. Additionally, it found the State in violation of the right to judicial protection by failing to comply with a decision of the Constitutional Court for the protection of La Oroya’s inhabitants, which was delivered in 2006.

Finally, the Court held the State accountable for not investigating reported acts of harassment, threats, and reprisals against some victims. Based on these findings, the Court determined that the State of Peru violated several articles of the American Convention on Human Rights, specifically articles 26, 5, 4.1, 8.1, 13, 19, 23, and 25, in relation to articles 1.1 and 2 of the same instrument

Peru was ordered to conduct a comprehensive study assessing contamination in air, water, and soil in La Oroya and to develop an environmental remediation plan accordingly. Furthermore, Peru was ordered to provide free medical care to victims and compensate them individually with amounts ranging between $15,000 and $30,000. This decision emphasizes states’ obligation to safeguard the right to a healthy environment and hold them accountable for environmental harm threatening their citizens’ well-being.

Environmental protection as jus cogens:

In para. 129 of its ruling, the Court made a novel finding: it held that the obligation to protect the environment should be a jus cogens norm. The paragraph in question is translated here in full:

“States have recognised the right to a healthy environment, which carries with it an obligation of protection that is incumbent on the international community as a whole. It is difficult to imagine international obligations of greater significance than those that protect the environment against unlawful or arbitrary conduct that causes serious, extensive, long-lasting and irreversible damage to the environment in a scenario of climate crisis that threatens the survival of species. In view of the above, international protection of the environment requires progressive recognition of the prohibition of this type of conduct as a peremptory norm (jus cogens) that gains the recognition of the international community as a whole as a norm from which no derogation is permitted. This Court has pointed out the importance of the legal expressions of the International Community whose higher universal value is indispensable to guarantee essential or fundamental values. In this sense, guaranteeing the interest of both present and future generations and the preservation of the environment against its radical degradation is fundamental for the survival of humanity.” (para. 129 of the judgment, translated by climaterightsdatabase.com, references removed).

Links:

The case documents are accessible below for download:

Court-statement-about-the-rulingDownload
Full-text-of-the-rulingDownload
Official-summary-of-the-rulingDownload

Status of the case:

Decided.

Further reading:

For further information and analysis of the case, see among others:

  • José Saldaña, ‘People from La Oroya vs Peru, Inter-American Court of Human Rights: How Effective is International Law to Protect the Environment in Extractive Contexts?’, EJIL:Talk Blog, 11 April 2024, available here.
  • Patricio Trincado Vera, ‘The Right to a Healthy Environment in La Oroya v. Peru: A Landmark Judgement of the IACtHR’, OpinioJuris Blog, 25 May 2024, available here.

Suggested citation:

Inhabitants of La Oroya v Peru (Preliminary Exceptions, Merits, Reparations and Costs), Judgment of November 27, 2023, Inter-Am Ct HR, Series C No 511.

Last updated:

25 March 2024.

Categories
2021 Domestic court Ecuador Gender / women-led Paris Agreement Right to a healthy environment Right to health Right to subsistence/food Right to water Rights of nature

Herrera Carrion et al. v Ministry of the Environment et al. (“Caso Mecheros”)

Summary:

The Caso Mecheros ruling, issued by the Provincial Court of Justice of Sucumbíos in 2021, revolved around nine girls from the provinces of Sucumbíos and Orellana who lodged a constitutional injunction against the Ecuadorian government. In their lawsuit, the applicants asserted that the practice of gas flaring violated their rights to water, health, food sovereignty, and a healthy, ecologically balanced environment. The flares are open-air pipes that burn and expel natural gas at an average temperature of 400 degrees Celsius. The pollution resulting from gas flaring was alleged to have severe impacts on the environment, human health, biodiversity, and climate change. The plaintiffs sought the annulment of gas flaring authorizations, immediate removal of flaring towers, and a prohibition on new oil-related flares in the Amazon region.

Claim:

The plaintiffs argued that the common practice of gas flaring by the Ecuadorian state violated their rights to water, health, food sovereignty, and a healthy, ecologically balanced environment. They asserted that the state’s actions contributed to environmental damage, health issues, biodiversity loss, and climate change. Their specific requests included the annulment of gas flaring authorisations, immediate removal of existing flaring towers, and a prohibition on new oil-related flares in the Amazon region.

Decision:

Initially, on 7 May 2020, the request was denied by the court of first instance. According to Judge María Custodia Toapanta Guanoquiza, there were no studies confirming the impact of gas flaring on the health of people in the area. However, on 29 July 2021, the Provincial Court of Justice of Sucumbíos ruled in favour of the plaintiffs’ appeal, asserting that the Ecuadorian State failed to uphold the girls’ rights to reside in a healthy environment. The ruling highlights the disregard for various international environmental commitments made by Ecuador, notably its Nationally Determined Contributions presented during the COP 21 to the United Nations Framework Convention on Climate Change. As part of its decision, the Court has mandated an updated plan for the gradual elimination of gas flares, with a priority on removing those in close proximity to populated areas within 18 months. Additionally, it stipulated the complete removal of all gas flares by December 2030. The decision also permits new authorisations for clean technologies, provided they are situated away from populated centres.

This landmark decision not only establishes a legal precedent but is also hailed as a historic triumph. It draws a crucial connection between the repercussions of gas flaring and the violation of fundamental rights enshrined in the constitution. The ruling underscores the adverse health effects associated with gas flaring and has the potential to influence public policies in other nations grappling with similar environmental challenges.

Links:

The case documents are accessible for download below (in the original Spanish).

rulingDownload
Decision-court-of-first-instanceDownload

Status of the case:

Decided.

Suggested citation:

Herrera Carrion et al. v. Ministry of the Environment et al. (Caso Mecheros), Provincial Court of Justice, Juicio No: 21201202000170 (Jul. 29, 2021) (Ecuador).

Last updated:

12 January 2024.