climate change

RELINQUISHMENT TO THE GRAND CHAMBER: THE CLIMATE CHANGE CASE

/ Mili Gupta / 1 Comment

INTRODUCTION:

On Friday, 29th April, the European Court of Human Rights [ECtHR] declared that the Swiss Climate Case [Verein KlimaSeniorinnen and Others vs Switzerland] was relinquished to the Grand Chamber. The competent Chamber of the ECtHR relinquished authority to the Grand Chamber in compliance with Article 30 of the ECHR and Rule 72 (1) and (2) of the Rules of the Court. This relinquishment can be utilized, firstly, when the 7 judges agree that the issue raises a ‘grave question impacting the interpretation of the ECHR or its Protocols, or secondly, where there is a chance of deviating from preceding case laws’. 

FACTUAL BACKGROUND:

The Swiss Climate Case involves a complaint filed by a Swiss Association and its members [a group of elderly individuals] who are protesting against the effects of global warming on their health and living standards. The applications mentioned three primary issues: first, insufficient climate policies in Switzerland that infringe upon the right to life and health under Articles 2 and 8 of the ECtHR; second, the Swiss Federal Supreme Court dismissal of their cases on irrational grounds, in breach of Article 6 of the Convention; and third, the courts and Swiss officials non-compliance with the subject-matter of their complaints, in breach of Article 13 of the Convention. 

The significance of the Swiss Climate case is that it will be the first case of climate change adjudicated by the ECtHR. Although Duarte Agostinho and Other was the first case to bring up the topic of climate change, the Swiss Climate Case and Agostinho address different legal issues.

RULE:

The competent Chamber of the ECtHR relinquished authority to the Grand Chamber in compliance with Article 30 of the ECHR and Rule 72 (1) and (2) of the Rules of the Court. This relinquishment can be utilized, firstly, when the 7 judges agree that the issue raises a ‘grave question impacting the interpretation of the ECHR or its Protocols, or secondly, where there is a chance of deviating from preceding case laws’.

In the case of Tatar vs Romania, the Court emphasized that pollution can damage the personal and family sphere of an individual because pollution damages the individual’s well-being and health. Further, the government has a responsibility to safeguard its people by governing and controlling the authorization, establishment, functionality and security of industrial operations, particularly those that are hazardous to the environment and human health. 

ANALYSIS:

i.                        VICTIM STATUS: 

The admissibility stage, particularly the acknowledgment of ‘victim status’ will be the initial obstacle for the Swiss Climate Case. According to Article 34 of the Convention, applicants can allege ‘to be the victim of an infringement’ of the rights in the Convention by one of the states.  If the claim is an omission to undertake appropriate measures mandated by a constructive obligation, the legal evaluation will invariably need at least an inquiry into whether the complainants have victim status.  Further, to be a victim of an infringement, the applicant must demonstrate that he/she was ‘directly impacted’ by the actions complained of, like in the current case, the allegedly omitted implementation of necessary actions despite an international duty binding upon Switzerland. 

In the case of Cordella vs Italy, the Court ruled that persons are ‘directly affected’ by the measures complained of if there is the persistence of a circumstance ‘of great environmental danger’, in which the environmental risk ‘will become potentially detrimental to the well-being and health of those who are subjected to it’. The Swiss climate case fulfills that standard because the Swiss authorities have not taken positive action to protect the elderly persons who will be subjected to intense heat waves in the future.

The applicant in Swiss Climate contended that the applicant organization should be given representative status for its members. This contradicts the previous precedent, as the Court does not consider petitions in the public interest [‘actio popularis’]. However, in the case of Fadeyeva, the court stated that because there is no  ‘right to nature preservation’ in the Convention, in cases of environmental deterioration ‘the involvement must personally affect the household, home or private affairs of the applicant’ to invoke Article 8 of the Convention. 

  1. POSITIVE OBLIGATION IN THE CONVENTION: 

Generally, positive duties are those which compel member states to undertake certain actions. They are essential where there is (I) a known and serious danger to the exercise of a right, and (II) the State has the potential to restrict, mitigate a danger or remedy its repercussions. A pre-requisite is that the State was aware of, or should have been aware of, the presence of a serious and imminent threat to a major legal value. In the case of Balmer-Schafroth and Others c. Switzerland, the Grand Chamber pointed to a ‘threat that was not just significant but also precise and, most importantly imminent’.

The two kinds of positive duties which have been recognized by the ECtHR to safeguard can co-exist in the same situation, whether it’s in the context of domestic violence or various other risks. The Swiss Climate case essentially turns on the issue of preventive positive duties under Articles 2 and 8 of the Convention. The applicants note the negative consequences of the absence of climate change prevention measures. See the case of Bevacqua and Others vs Bulgaria.

The case law and precedent of the Court acknowledging the duty to safeguard against widespread risks by legal and other actions [and the recognition that there can be potential victims, before damage has occurred] has conceptual implications on the evaluation of the victim status provision. If claims of omissions to act in respect to particular, one-time risks will receive preferential consideration over claims of breaches of duties to safeguard against potentially serious risks on a broader level, protection would be rendered ineffective. Certainly, the positive duties at issue in the current case are primarily directed at the law-maker [and as the Swiss Federal Tribunal stated, the duties are consequently of importance to political entities]. However, because of the lawful character of the duties, their invocation shouldn’t be considered inadmissible due to procedural grounds. 

CONCLUSION:

Humanity is facing a worldwide climate catastrophe that is already having devastating consequences for human rights. To avoid disastrous climate change and the wave of human rights abuses that would follow, immediate, comprehensive, and revolutionary reforms are essential. When States fail to adopt effective measures to accomplish the objectives of the Paris Agreement, international human rights courts may and should give adequate protection to elderly people or other vulnerable persons who are endangered by catastrophic heat waves and its related consequences. The Court’s reaction to this conclusion is expected to set the stage for how it handles future climate issues, and it will be echoed in the court rulings of domestic courts as well as various other human rights organizations. The ECtHR shall act as a Court of Law within the scope of its jurisdiction, always keeping in account that Convention protections must be practical and genuine, not fictitious.

Go On! Climate Change and Cultural Extinction: A Human Rights Crisis

/ Stephanie Farrior / Leave a comment
Photo credit: UNICEF/Akash

The negative impacts of climate change on the enjoyment of cultural rights — along with the positive potential of cultures to serve as critical tools in responding to the climate emergency — must be placed on the international agenda. A cultural rights perspective is a critical component of the holistic approach needed to respond to catastrophic climate change.

To address these issues, an inter-disciplinary panel will convene in a side event / webinar via Zoom on 21 October co-hosted by UN Special Rapporteur in the field of cultural rights Karima Bennoune and the Human Rights Program of the Roosevelt House Public Policy Institute at Hunter College in New York. The following day, the Special Rapporteur will present her pathbreaking new report on climate change and cultural rights to the UN General Assembly.

Date: 21 October 2020 Time: 1:15pm – 2:45pm EDT / 5:15pm – 6:45pm GMT

Advance registration required. Click here to register.

Panelists:

Mary Robinson, Chief of The Elders; Former President of Ireland, Former UN High Commissioner for Human Rights, and Former Special Envoy of the UN Secretary-General for Climate Change

Karima Bennoune, UN Special Rapporteur in the field of cultural rights

David Boyd, UN Special Rapporteur on human rights and the environment

Joshua Castellino, Executive Director, Minority Rights Group International

Noa Petueli Tapumanaia, Chief Librarian & Archivist, Tuvalu National Library and Archives Department; Tuvalu national librarian

Mohamed Hizyam, youth activist, Maldives (video message)

Moderated by Stephanie Farrior, Distinguished Lecturer, Human Rights Program, Hunter College

Postgraduate Colloquium on Frontiers of International Environmental Law

/ Rosa Manzo / 1 Comment

The PluriCourts Centre of Excellence for the Study of the Legitimate Roles of the Judiciary in the Global Order in collaboration with the Faculty of Law welcome 20 young scholars working in the area of International Law and Environment to present and discuss their work in a subject-specific forum.

The 2017 theme

Since the release of the Brundtland Report in 1987, international environmental law has gone through a rapid evolution. Negotiations over global warming and the ongoing negotiations towards the adoption of a convention to protect marine biodiversity show how often states are engaged in international negotiations with the aim to cooperatively prevent environmental degradation.

In spite of an increased number of multilateral environmental agreements, States are still reluctant to establish an International Environmental Court. This significantly impacts the protection of the environment. In case of transnational environmental damages or in case of non-compliance with international obligations, there aren’t any specialized environmental courts which would assess States’ responsibilities for environmental damage. In order to cover this lack of remedies, well-established international courts such as the International Court Justice (the Whaling case) or the International Criminal Court (Ecuador v. Chevron) have been asked to rule in cases involving environmental damages. Recent cases have been contributed to advance the protection of environment at an international level. See for instance the ITLOS Advisory Opinion Activities in the Area where the Tribunal recognizes the States’ obligation of due diligence in case of non-compliance of international environmental agreement.

It is therefore a good moment to evaluate the developments achieved by international courts in the context of environmental protection.

The colloquium seeks to address the following questions: What advances have been made in environmental protection in international courts and quasi-judicial bodies? Are new IEL principles emerging? What is the relation between the traditional corpus of IEL principles and new emerging States‘ obligations of due diligence and duty of prevention in environmental protection? Have the principles of inter and intra generational equity gained the status of legally binding principles? How do the Courts interpret the principles of equitable access to natural resources and how do they balance this with the right to Development?

Applicants

The colloquium welcomes research from postgraduate students (Ph.D and Post-Doc) at all stages of their postgraduate work and LLM students working in the area of International Law and Environment.

Prizes

Prizes will be awarded to the best oral and poster presentations during the drink reception at the end of the day.

Marks will be awarded for the following:

  • Introduction
  • Aims/Hypothesis
  • Appropriateness of methodology
  • Conclusions
  • Legibility of poster
  • Audibility of talk
  • Clarity of expression
  • Ability to answer questions, engage in scientific discussion
  • The impact of the work on future studies and the field

Submission and deadline

Those interested in presenting in any area of International Law and Environment are invited to submit an abstract, indicating whether it is intended for oral or poster presentation, of no more than 200 words by Sunday 4 June 2017. The authors of abstracts selected for presentation will not be expected to submit completed papers but they may do so if they wish.

Financial aid

The colloquium is made possible by generous funding from Lovsamlingsfondet and the PluriCourts Centre of Excellence. During the day of colloquium lunch and dinner will be served. Presenters in need of financial support are invited to make contact with the organisers to discuss coverage of travel expenses.

Time and place: First Postgraduate Colloquium on Frontiers of International Environmental Law Sep. 21, 2017 9:00 AM – 5:00 PM

For the life and health of my children: We MUST include Human Rights in the New Climate Accord

/ Astrid Puentes Riaño

We humans have caused climate change, a real threat to humanity thus it requires human solutions.  We also have lost precious time on eternal discussions about the existence of climate change, despite imminent evidence.  Our efforts to deliver solutions must be inclusive and ambitious if they are to ensure that the lives and livelihoods of all people are protected.

If and how to include human rights protections in new climate accord was one of the primary issues discussed during October’s Bonn Climate Conference. These protections were notably left out of the no-text presented by the co-chairs, and then added back in at the insistence of several countries, many from the Global South, and hundreds of civil society organizations.

I could write a long list of legal, political, ethical, and economic arguments as to why human rights must be included in the Paris Agreement. In my opinion, however, they can all be distilled into two primary and powerful arguments: my children!

At 4 and nearly 2 years old, they are already experiencing the realities of a changing climate.  Some days, for example, they cannot go to the park because of increased air and climate pollution levels in Mexico City, be it black carbon or ozone, or both.  Unfortunately, the worst is yet to come, as hurricanes, droughts, floods, glacier loss, and fires are all increasing.

UntitledNow the question for my kids is not whether they will suffer from climate change, but to what extent.

Some may say I’m exaggerating, and that my kids aren’t among the most affected. They’re right.

Many others are suffering, and will continue to suffer, far worse consequences, such as: the Kunas in Panama, who are loosing their land due to sea-level rise; the 62 million people living on 52 small island states, including Tuvalu and Barbados; the 70 million people in the Andes, all of whom depend on water from glaciers and paramos, which are expected to dissapear within a few decades.

Despite the evident urgency, official responses have been shamefully slow. The United Nations recently announced that current national commitments aren’t enough to prevent world temperatures from surpassing 2oC by 2100, when my children will be 89 and 87 years old.

How, then, can we speed up agreements, increase ambition, and close the gap between what is needed and what is promised by States?

Human Rights are an important part of this answer. If implemented, they can help to:

  1. Recognize the realities of climate change and its impact on the enjoyment of human rights of all peoples, particularly those in vulnerable situations.
  2. Remind States of their existing obligations to protect and respect human rights, obligations which are fundamentally shared by corporations and other international entities. Incorporating human rights in the climate change agreement will not create new obligations; it will instead allow us to be consistent and comply with preexisting commitments.
  3. Avoid increased threats to world stability that have been linked to climate change due to impacts such as: local resource competition, livelihood insecurity, migration, extreme weather events and disasters, volatile food prices, transboundary water management, sea-level rise, coastal degradation, and the unintended effects of climate policies.
  4. Spur effective solutions, such as the rethinking of energy. These kinds of solutions haven’t yet been achieved due to a lack of ambition and political will.

For my son and daughter, and the millions of children of the world, we must accept that climate change is a human rights issue. For the health of future generations, and that of those already suffering from its impacts, we must do all we can to create effective solutions.

The new climate accord, which will be signed in Paris this December, must include human rights protections in its Preamble, as well as in its operative text. Only then, with an overarching respect for the rights of all people, can begin to see the results we need in the fight against climate change.

We must take the climate crisis seriously.

If not, we will be trapped in short-sighted negotiations that won’t provide my children the hope of a dignified and healthy life. They will be left inside, unable to play in the park, to enjoy the world beyond our doorstep. And those in more vulnerable situations may be left with nowhere at all to find the shelter they seek.

CONSISTENCY: The Most Urgent Action Against Climate Change

/ Astrid Puentes Riaño / Leave a comment

During the first two weeks of December, world leaders will lay the foundation for a new global agreement on climate change at the 20th Conference of the Parties (COP20) of the United Nations Framework Convention on Climate Change in Lima, Peru. Its focus will be creating a draft agreement that, at next year’s COP in Paris, will replace the 1997 Kyoto Protocol. This time, as stated by Manuel Pulgar-Vidal, Peru’s Environment Minister and next President of the Conference, “the world will not accept another failure.”

Not without reason. Each year we are both witnesses to and victims of the worsening impacts of climate change. And our role in the problem is conspicuous: “Human influence on the climate system is clear, and recent anthropogenic emissions of greenhouse gases are the highest in history,” the Intergovernmental Panel on Climate Change concluded in their fifth report.

With COP20 nearing and recognition of the problem growing, world leaders are increasingly giving speeches, promising action and making hopeful commitments. One recent example is the unprecedented agreement between China and the United States, which established limits and objectives for the reduction of emissions. In Latin America we, too, have taken effective steps to confront the greatest threat to the human race.

Despite this progress, however, there remain in practice many policies that both created the problem and make it worse. In particular, the reliance of our economies on fossil fuels, which generate 57 percent of the global emissions of carbon dioxide. In the search for alternatives, we have boosted hydroelectric power from large dams. But dams are not clean energy. They generate significant amounts of greenhouse gases, such as carbon dioxide and methane, particularly in tropical regions. These and the other negative impacts of dams are often ignored, resulting in rudimentary solutions to climate change.

Consistency, then, becomes critical. What follows are examples of the lack of it in our own countries. Let’s take them into account as an effort to make adjustments, align objectives, and not erase with one hand what was written by the other:

  • Brazil is a key player in the region, and has demonstrated its will to achieve positive results on climate change. Proof of this is the historic decline of deforestation in the country, 79 percent in the last decade, as announced by Brazil’s President at the Climate Summit. However, Brazil continues to focus its development on fossil fuels, mining and large dams, particularly in the Amazon Basin. Under the influence of Brazil, 254 new dams are either under construction or in planning phases in the Amazon Basin, including the massive Belo Monte Dam on the Xingú River.

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Pledges, promises and a poem – The UN Climate Summit 2014

/ Christina Voigt

On 21 September 2014, the world has seen the biggest ever climate march, which drew about 400.00 people to the streets of NYC. On 23 September 2014, about 120 heads of state and government followed UN Secretary General Ban Ki-moon’s invitation to the UN climate summit 2014. Many states – as well as corporations – made pledges to reduce greenhouse gas emissions. While with these events momentum is brought back in the climate talks, the pledges amount to “too little, too late”. Much more action needs to be taken soon to keep global temperature increases somewhere close to 2 degrees Celsius.

Under the umbrella of the United Nations Framework Convention on Climate Change (UNFCCC), states currently negotiate a new global agreement which can take the form of “a protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties”. This agreement is to be adopted at the 20th Conference of the Parties to the UNFCCC in Paris, December 2015, and to come into effect and be implemented from 2020.

While the negotiations on this agreement have advanced significantly over the last year, no draft text exists yet as to show how the architecture of the agreement will look like. Certainly, elements such as mitigation, adaptation, means of implementation and institutional arrangements will be a part of it. Yet, how much will be done and by whom are still open questions. The UN summit has given some indications of what states might be willing to agree to. The pledges of states – which in the climate negotiations currently take the form on “intended nationally determined contributions” – will have to stand the scrutiny of the world public before they find their way into the agreement. Other states, civil society, businesses will have the chance to see what is on the table. It can only be hoped that public pressure – and peer pressure – can and will increase these pledges to a level where they are adequate for meeting the 2 degree goal.

One voice at the UN climate summit made clear the urgency of the task: A young mother’s letter to her 7 months old daughter. In this beautiful poem, Kathy Jetnil-Kijiner from the Marshall Islands brought home to the delegates the fact that climate change does not respect spatial nor temporal boundaries. The poem is also a promise to her child – and all children, including those yet to be born – that the world will stand up to this immense task.

The next round of climate negotiations is set for 1-12 December in Lima, Peru. It is expected that a draft negotiation text emerges from the Lima talks. This draft will give an indication of what can be expected from the Paris summit next year. It might also give an indication of the fate of the world.