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17.10.2018 11.30 Vierashuoneessa Assoc. Prof. Stefan Kirchner: Climate Change Litigation has a future in public law

Vierashuoneessa Assoc. Prof. Stefan Kirchner: Climate Change Litigation has a future in
public law

A recent court case in the Netherlands shows that climate change litigation has a significant potential to force states to reduce greenhouse gas emissions. While the current international climate law framework, formed mainly by the 2015 Paris Agreement, is dependent on the political will of governments, strategic climate change litigation based on international human rights treaties such as the European Convention on Human Rights is emerging as a powerful legal tool.

Climate change litigation has long been perceived as problematic in the realm of private law due to the difficulties associated with proving causality between respondents’ actions and plaintiffs’ damages. The recent case by a Peruvian rural resident who had to take flood protection measures as a result of climate change and who brought a lawsuit against German energy company RWE is just one example for the challenges faced by litigants. While it is well documented that greenhouse gas emissions contribute to climate change, the causality standards employed in many national legal systems will often pose high hurdles for plaintiffs. It will often be difficult for individual plaintiffs who have suffered a damage, e.g. as a result of a flood caused by a melting glacier which would not have melted had it not been for climate change, to provide clear evidence for the causality between climate change and a specific damage suffered by the plaintiff as well as for the causality between the respondent’s emissions and climate change. This causality problem has made tort law a difficult tool when it comes to address climate change.

Public law, on the other hand, can be used in a preventive manner. Domestic legal systems in legal systems which are based on the rule of law and respect for human rights will usually allow for the possibility to gain an injunction (or similar type of court order) with which the authorities can be forced to take a specific action. This is especially the case when the failure of the relevant authorities to take action would amount to a violation of the human rights of the applicant. By connecting climate change with pre-existing human rights obligations, for example under the European Convention on Human Rights, states can be forced to take significant steps beyond their voluntary commitments under the 2015 Paris Agreement. This is the approach taken by the Dutch non-governmental organization Urgenda, which had sued the government of the Netherlands over human rights violations stemming from the failure of the Dutch government to take more effective action against climate change. Earlier this month the Appeals Court in The Hague confirmed an earlier ruling to the effect that the Dutch government has to ensure that greenhouse gas emissions are reduced by 25 % from the 1990 emission levels no later than 31 December 2020. This court decision essentially forces the Dutch government to accelerate the reduction of greenhouse gas emissions beyond its own plans.

In light of the special report issued by the Intergovernmental Panel on Climate Change earlier this month, more decisive climate action is urgently needed in limit global warming. Already today, a limitation of global warming to 1.5 °C will require a dramatic global changes to lifestlyes, consumption, transport etc. The Northern countries are already experiencing climate change and nowhere can the effects of climate change be seen as dramatically as in the High North and the Arctic.

Climate change will affect a range of human rights, from the right to health and indeed the right to life, to the right to family life and private life. In the case recently decided by the Court of Appeals in The Hague, particular attention was given to Article 2 of the European Convention on Human Rights, which covers the right to life, and to Article 8 of the same international treaty, which covers, among other rights, the rights to private and family life. By obtaining a court decision, the plaintiffs in this case were able to turn the positive obligation inherent in these international human rights norms into a duty of the government to take positive action against climate change.

Shifting the climate change debate towards human rights is not only an important legal development, it also is a way to realize the hierarchy of international legal norms in their domestic implementation and it can serve as decision-making tool for authorities on the national and sub-national level. In many countries, measures to limit climate change are perceived as costly in the short run, although the failure to limit climate change is very likely to be more expensive in the future. By framing the climate change debate in terms of human rights, plaintiffs force public authorities to make not only economical decisions, but also value decisions. International human rights law provides states with a duty to combat climate change. The recent court decision in the Netherlands marks an important step in the development of climate change litigation and shows that international human rights law can be utilized on the national level to tackle large scale problems. Just as human rights concern everybody, as holders of rights and in the case of horizontal effects also from the perspective of obligations, everybody needs to act on climate change. No individual, corporation, community or state has the ability, not the duty, to solve the problem of climate change alone, but everybody, ever corporation, community and state, has the possibility and the duty to do something about climate change. The Court of Appeals in The Hague has formulated this obligation in legal terms and found a solid legal foundation for the positive duty to act in very basic rights, which are enshrined in the European Convention on Human Rights.

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Toimittaja: Jani Surakka, Edilex-toimitus (jani.surakka@edita.fi)

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