KlimaSeniorinnen follow-up: five issues and ways forward
With its KlimaSeniorinnen judgment, the European Court of Human Rights (the Court) established a Convention-based climate mitigation framework and introduced international review with the overarching climate change policies of the European Convention on Human Rights’ Contracting States. This is a significant development, both in the context of climate change and human rights. It is natural that this groundbreaking judgment reflects a work in progress. Clarifications and adjustments are needed for this new legal paradigm to work well within the context of both climate change and human rights.
As people within and beyond the Court look ahead, the question is what the Court should do next. A variety of issues arise in the pending climate cases, as well as before the Committee of Ministers of the Council of Europe as it supervises the execution of the judgment. In my view, the key to a constructive future role for the Court and the Convention lies in these five action points:
- clarify the long-term mitigation target to prevent European ambitions from backsliding;
- seize the (missed) opportunity to support the Paris Agreement;
- tailor the procedural requirements in view of the establishment of a mitigation framework;
- safeguard the democratic foundation for economy-wide transformation; and
- anticipate pressure on individuals’ rights as authorities pursue collective (climate) interests.
In the following sections, I explain this agenda in simplified terms and suggest ways forward. For the sake of brevity, I concentrate on Article 8 of the Convention and climate change mitigation.
Clarify the long-term mitigation target to prevent European ambitions from backsliding
The most urgent issue concerns the risk that the articulation of the long-term mitigation target in the KlimaSeniorinnen judgment may encourage a backsliding of European mitigation ambitions. Paradoxically, the Court’s first climate change judgment may have provided those opposed to increased mitigation ambitions in Europe with the powerful argument that “effective respect for the rights protected by Article 8 of the Convention” ‘merely’ requires net neutrality in terms of each state’s GHG emissions “within, in principle, three decades” (para. 548, see also para. 561). This is ambiguous at best, and outdated at worst. The Court is more on point where it uses the term ‘carbon neutral’ (paras. 547 and 550 (a)). The differences between the terms, and their significance, have been eloquently explained by others.
The long-term target plays a crucial role in the Convention-based mitigation framework, as it ‘anchors’ the preceding “requisite objectives and goals” (see para 562, cf. 550 (a) and (b)). Simply put, the problem with the Court’s statement as to what effective respect for Article 8 entails in the long term is that it is inconsistent with the Court’s focus on the adverse effects of 1.5oC global warming (paras. 106–120). The implication of ‘net neutrality’ of ‘GHG emissions’ is that European states may equate their own long-term targets with the global aim of reaching net neutrality by mid-century (Article 4.1 of the Paris Agreement). Considering the rapidly decreasing global carbon budget under the 1.5oC temperature target, however, this would, in effect, demand that a larger mitigation burden be placed on states in other regions if the global temperature target is to remain anywhere within reach. To be blunt, it would mean that the Convention’s Contracting States could relax compared to what they are expected to contribute to the global efforts based on the Paris Agreement’s principle of common but differentiated responsibilities and respective capabilities in the light of different national circumstances. In recognition of that principle and climate change science, some European states have already adopted ‘net negative’ targets for 2050 (Finland and, effectively, Norway). The EU has agreed to aim for ‘net negative’ emissions in the period after 2050. The Court should follow suit.
Seize the (missed) opportunity to support the Paris Agreement
Given the global nature of the climate change problem, it appears as a missed opportunity not to link the Convention-based mitigation framework with the Paris Agreement’s iterative process of ever more progressive Nationally Determined Contributions (NDCs). The system is finally kicking into gear this and next year: States are presently preparing their respective first “successive” NDCs (Paris Agreement Articles 4.2 and 4.9), informed by the conclusions from the First Global Stocktake, to be communicated in 2025. Instead of recognising this ‘global moment’ in the KlimaSeniorinnen judgment, the Court comes close to trivialising the Paris Agreement’s NDC system. Both in terms of the iterative process’ function in increasing global mitigation efforts (paras 546 and 547) and in terms of the significance of Switzerland’s NDC in complying with its positive obligations under the Convention (paras 563 and 564).
The Convention-based mitigation framework and that of the Paris Agreement could, however, readily augment each other. The Convention-based “positive obligations relating to the setting-up of a [national] regulatory framework” (see para. 547) could be linked with the Paris Agreement’s obligation on states to “prepare” and “maintain” their respective NDCs (Article 4.2). The reasoning under the Convention would be that the primary obligation of states in the face of a global environmental problem is to participate in global cooperation. The Court could then engage with the global normative consensus that each state’s NDC “will … reflect its highest possible ambition” (Article 4.3 of the Paris Agreement) and have this inform both the procedural and substantive requirements under the Convention.
Choosing to integrate, rather than fragment, international climate change mitigation obligations would be conducive to two desirable outcomes: i) the Convention improving the quality of national democratic processes related to the Paris Agreement’s NDCs, and ii) boosted global mitigation efforts under the Paris Agreement would lead to increased protection of human rights at a scale each state cannot achieve on its own.
Tailor the procedural requirements in view of the establishment of a mitigation framework
Another opportunity that presents itself in the wake of the KlimaSeniorinnen judgment, is to tailor the procedural requirements under the Convention to match the establishment of an effective mitigation framework. The first step was taken in KlimaSeniorinnen, transposing the decision-making process requirements from the Court’s environmental case law (para. 554). In my view, the natural next step is to distinguish between two main categories of decisions pertaining to climate change mitigation and differentiate between them in terms of relevant topics for assessment and consideration in the context of each decision-making process.
The first category of the decision-making process concerns the determination of the mitigation framework: the targets, pathways and emission budgets (see paras 550 (a), (b), and (d)). The procedural safeguards must ensure that climate change impacts of alternative targets and pathways (overall or sector-specific) are sufficiently assessed, reflected in publicly available information, made the topic of public participation and are addressed in the reasoning provided for the decisions made.
The second category of the decision-making process concerns specific activities emitting greenhouse gases. Here, it matters whether an emission mitigation framework has been put in place, is complied with (para 550 (c)) and is kept up to date (para. 550 (d)). Provided that an effective mitigation framework is in place, the salient question is how much of the framework’s emission budget will be ‘spent’ by the emitting activity in question – not what its climate change effects may be. However, if a decision-making process concerns greenhouse gases that will not be ‘covered’ by a mitigation framework, or the state is not capable of providing evidence showing that the framework is effective, the effect those emissions will have on climate change will be relevant to assess and consider.
In other words, the establishment of an effective substantive framework changes the topic of assessments and considerations regarding specific emitting activities. Instead of trying to assess the climate change impacts of certain activities, the question becomes whether those activities should be given priority within a limited emission budget. Clarifying this in the context of the Convention’s procedural safeguards would emphasise the appropriateness of a framework approach to climate change mitigation.
Safeguard the democratic foundations necessary for economy-wide transformation
Climate change mitigation in line with the temperature targets of the Paris Agreement demands economy-wide transformation of modern societies. A democratic foundation is essential to such comprehensive transformation, both on account of democratic values and in the interest of effective implementation. By obliging democratically elected authorities to adopt a mitigation framework and comply with these decisions, as well as ensuring access to information and public participation, the KlimaSeniorinnen principles promote such democratic foundations.
However, there is obviously also a tension between (national) democratic authority and (international) judicial review with the substantive aspects of economy-wide mitigation targets and pathways. Going forward, a continued engagement with this tension is inevitable, especially if the Court is going to review the adequacy of adopted mitigation targets, and not only focus on omissions (as in KlimaSeniorinnen, see paras 562, 572 and 573). If the Court is to review the degree and pace of economy-wide transformation in each of the Convention’s Contracting States, alternative approaches should be considered both in terms of the test applied and the margin of appreciation afforded.
What would be the essence of the Court’s review of the adequacy of a state’s adopted mitigation targets and pathways? The review of complex decision-making processes in the Court’s ‘classic’ environmental case law is whether a State has succeeded in striking a fair balance between the competing interests of the individual(s) affected and the community as a whole (see, among others, Hatton and Others v. the United Kingdom, app.no. 36022/97, Grand Chamber judgment of 8 July 2003, §§ 122 and 129, and Pavlov and Others v. Russia, app.no. 31612/09, judgment 11 October 2022, § 75) – essentially, checking whether concrete individuals had to bear an undue burden on behalf of the rest of the community (see, among others, Fadeyeva v. Russia, app.no. 55723/00, judgment 9 June 2005, §§ 128 and 134). Translated to the context of climate change mitigation, the equivalent would be to review whether the democratic decision-maker has succeeded in striking the appropriate balance between conflicting collective interests. That is, between the interest in allowing emissions to continue and the interest in curbing them, recognising “the inherently collective nature of both the consequences and the challenges arising from the adverse effects of climate change” (para. 413). This is a test that, in a sense, elevates the Court’s review to the same perspective as legislative and executive powers, thus posing a stronger challenge to the authority of democratically elected authorities to make long-term decisions for the economy and set overall priorities. A constructive (tried and tested) alternative would be to focus the Court’s substantive review on whether relevant, sufficient and consistent reasons have been provided for the adopted targets. This would discipline democratic decision-making processes, underscore the importance of the choices made, and be conducive to democratic accountability by exposing flawed reasoning from democratically elected authorities.
As regards the margin of appreciation, the Court states in KlimaSeniorinnen that it will apply a “reduced” margin in relation to “the setting of the requisite aims and objectives” (para. 543, my emphasis). Does this signify strict (international) review of whether the correct targets have been adopted? If so, the challenge to domestic democratic authority would be intensified. It would require further justification, as the “the general consensus as to the stakes involved in ensuring the overarching goal of effective climate protection through overall GHG reduction targets” (para 543) does not include a general consensus as to how the remaining global emission budget is to be allocated between states.
Underlying the general principles in KlimaSeniorinnen, there is also a more fundamental challenge to the authority of the electorate. Namely the notion that there is an ‘inherent’ risk of shortsightedness in “the relevant political decision-making processes”, and that the possibility of judicial review is justified also on account of the interests of future generations (although the legal obligations arising under the Convention do not extend to them, see para. 420). Going forward, it will be interesting to see whether democratically elected officials fully accept the premise that (international) judges are better placed to divine the interests of future generations and decide accordingly. The Swiss parliament’s response suggests not.
Anticipate pressure on individual’s rights as authorities pursue collective climate interests
A consequence of KlimaSeniorinnen is that authorities will have more leeway to pursue climate change measures that interfere with the rights of individuals. The technical reason is this: in the context of a proportionality assessment related to an interference with the rights of an individual on account of climate change mitigation, state authorities can argue that it is complying with a positive obligation to protect the rights of everyone (or, at least, very large vulnerable groups) from the effects of climate change. In short, state authorities would have more weighty reasons to interfere than before. Combined with a wide margin of appreciation regarding the state’s choice of means to pursue its mitigation aims and objectives (para 543), the protection afforded under the Convention to individuals’ rights adversely affected by mitigation measures has consequently become weaker.
This development occasions a new set of questions for the future: What kind of policies may be construed as ‘climate mitigation policies’ as a guise for pushing through collective interests at the expense of individuals? Will the Court’s transformation of the Convention into an instrument for protecting collective interests be contained to climate change? Or will the change in the Convention’s character be transposed to other areas with a connection between state policies and the enjoyment of human rights, such as other planetary boundaries, national security, or the fight against poverty? And are we then looking at a future where the Court’s competence of review is widening, only to see that this leaves states with more room to encroach on individuals’ rights in pursuance of ‘the collective good’?
One might say that the Court has placed the Convention’s potency as a bulwark against state encroachment on individual rights on the line to save us from our own emissions. Whether it was worth it will be for future generations to judge. Currently, there is no way around trial and error as we piece together human rights law and the climate change regime in search of the best way forward.
The Convention, the Court and the Climate: The Future in the Balance
Written by Ane Sydnes EgelandKlimaSeniorinnen follow-up: five issues and ways forward
With its KlimaSeniorinnen judgment, the European Court of Human Rights (the Court) established a Convention-based climate mitigation framework and introduced international review with the overarching climate change policies of the European Convention on Human Rights’ Contracting States. This is a significant development, both in the context of climate change and human rights. It is natural that this groundbreaking judgment reflects a work in progress. Clarifications and adjustments are needed for this new legal paradigm to work well within the context of both climate change and human rights.
As people within and beyond the Court look ahead, the question is what the Court should do next. A variety of issues arise in the pending climate cases, as well as before the Committee of Ministers of the Council of Europe as it supervises the execution of the judgment. In my view, the key to a constructive future role for the Court and the Convention lies in these five action points:
In the following sections, I explain this agenda in simplified terms and suggest ways forward. For the sake of brevity, I concentrate on Article 8 of the Convention and climate change mitigation.
Clarify the long-term mitigation target to prevent European ambitions from backsliding
The most urgent issue concerns the risk that the articulation of the long-term mitigation target in the KlimaSeniorinnen judgment may encourage a backsliding of European mitigation ambitions. Paradoxically, the Court’s first climate change judgment may have provided those opposed to increased mitigation ambitions in Europe with the powerful argument that “effective respect for the rights protected by Article 8 of the Convention” ‘merely’ requires net neutrality in terms of each state’s GHG emissions “within, in principle, three decades” (para. 548, see also para. 561). This is ambiguous at best, and outdated at worst. The Court is more on point where it uses the term ‘carbon neutral’ (paras. 547 and 550 (a)). The differences between the terms, and their significance, have been eloquently explained by others.
The long-term target plays a crucial role in the Convention-based mitigation framework, as it ‘anchors’ the preceding “requisite objectives and goals” (see para 562, cf. 550 (a) and (b)). Simply put, the problem with the Court’s statement as to what effective respect for Article 8 entails in the long term is that it is inconsistent with the Court’s focus on the adverse effects of 1.5oC global warming (paras. 106–120). The implication of ‘net neutrality’ of ‘GHG emissions’ is that European states may equate their own long-term targets with the global aim of reaching net neutrality by mid-century (Article 4.1 of the Paris Agreement). Considering the rapidly decreasing global carbon budget under the 1.5oC temperature target, however, this would, in effect, demand that a larger mitigation burden be placed on states in other regions if the global temperature target is to remain anywhere within reach. To be blunt, it would mean that the Convention’s Contracting States could relax compared to what they are expected to contribute to the global efforts based on the Paris Agreement’s principle of common but differentiated responsibilities and respective capabilities in the light of different national circumstances. In recognition of that principle and climate change science, some European states have already adopted ‘net negative’ targets for 2050 (Finland and, effectively, Norway). The EU has agreed to aim for ‘net negative’ emissions in the period after 2050. The Court should follow suit.
Seize the (missed) opportunity to support the Paris Agreement
Given the global nature of the climate change problem, it appears as a missed opportunity not to link the Convention-based mitigation framework with the Paris Agreement’s iterative process of ever more progressive Nationally Determined Contributions (NDCs). The system is finally kicking into gear this and next year: States are presently preparing their respective first “successive” NDCs (Paris Agreement Articles 4.2 and 4.9), informed by the conclusions from the First Global Stocktake, to be communicated in 2025. Instead of recognising this ‘global moment’ in the KlimaSeniorinnen judgment, the Court comes close to trivialising the Paris Agreement’s NDC system. Both in terms of the iterative process’ function in increasing global mitigation efforts (paras 546 and 547) and in terms of the significance of Switzerland’s NDC in complying with its positive obligations under the Convention (paras 563 and 564).
The Convention-based mitigation framework and that of the Paris Agreement could, however, readily augment each other. The Convention-based “positive obligations relating to the setting-up of a [national] regulatory framework” (see para. 547) could be linked with the Paris Agreement’s obligation on states to “prepare” and “maintain” their respective NDCs (Article 4.2). The reasoning under the Convention would be that the primary obligation of states in the face of a global environmental problem is to participate in global cooperation. The Court could then engage with the global normative consensus that each state’s NDC “will … reflect its highest possible ambition” (Article 4.3 of the Paris Agreement) and have this inform both the procedural and substantive requirements under the Convention.
Choosing to integrate, rather than fragment, international climate change mitigation obligations would be conducive to two desirable outcomes: i) the Convention improving the quality of national democratic processes related to the Paris Agreement’s NDCs, and ii) boosted global mitigation efforts under the Paris Agreement would lead to increased protection of human rights at a scale each state cannot achieve on its own.
Tailor the procedural requirements in view of the establishment of a mitigation framework
Another opportunity that presents itself in the wake of the KlimaSeniorinnen judgment, is to tailor the procedural requirements under the Convention to match the establishment of an effective mitigation framework. The first step was taken in KlimaSeniorinnen, transposing the decision-making process requirements from the Court’s environmental case law (para. 554). In my view, the natural next step is to distinguish between two main categories of decisions pertaining to climate change mitigation and differentiate between them in terms of relevant topics for assessment and consideration in the context of each decision-making process.
The first category of the decision-making process concerns the determination of the mitigation framework: the targets, pathways and emission budgets (see paras 550 (a), (b), and (d)). The procedural safeguards must ensure that climate change impacts of alternative targets and pathways (overall or sector-specific) are sufficiently assessed, reflected in publicly available information, made the topic of public participation and are addressed in the reasoning provided for the decisions made.
The second category of the decision-making process concerns specific activities emitting greenhouse gases. Here, it matters whether an emission mitigation framework has been put in place, is complied with (para 550 (c)) and is kept up to date (para. 550 (d)). Provided that an effective mitigation framework is in place, the salient question is how much of the framework’s emission budget will be ‘spent’ by the emitting activity in question – not what its climate change effects may be. However, if a decision-making process concerns greenhouse gases that will not be ‘covered’ by a mitigation framework, or the state is not capable of providing evidence showing that the framework is effective, the effect those emissions will have on climate change will be relevant to assess and consider.
In other words, the establishment of an effective substantive framework changes the topic of assessments and considerations regarding specific emitting activities. Instead of trying to assess the climate change impacts of certain activities, the question becomes whether those activities should be given priority within a limited emission budget. Clarifying this in the context of the Convention’s procedural safeguards would emphasise the appropriateness of a framework approach to climate change mitigation.
Safeguard the democratic foundations necessary for economy-wide transformation
Climate change mitigation in line with the temperature targets of the Paris Agreement demands economy-wide transformation of modern societies. A democratic foundation is essential to such comprehensive transformation, both on account of democratic values and in the interest of effective implementation. By obliging democratically elected authorities to adopt a mitigation framework and comply with these decisions, as well as ensuring access to information and public participation, the KlimaSeniorinnen principles promote such democratic foundations.
However, there is obviously also a tension between (national) democratic authority and (international) judicial review with the substantive aspects of economy-wide mitigation targets and pathways. Going forward, a continued engagement with this tension is inevitable, especially if the Court is going to review the adequacy of adopted mitigation targets, and not only focus on omissions (as in KlimaSeniorinnen, see paras 562, 572 and 573). If the Court is to review the degree and pace of economy-wide transformation in each of the Convention’s Contracting States, alternative approaches should be considered both in terms of the test applied and the margin of appreciation afforded.
What would be the essence of the Court’s review of the adequacy of a state’s adopted mitigation targets and pathways? The review of complex decision-making processes in the Court’s ‘classic’ environmental case law is whether a State has succeeded in striking a fair balance between the competing interests of the individual(s) affected and the community as a whole (see, among others, Hatton and Others v. the United Kingdom, app.no. 36022/97, Grand Chamber judgment of 8 July 2003, §§ 122 and 129, and Pavlov and Others v. Russia, app.no. 31612/09, judgment 11 October 2022, § 75) – essentially, checking whether concrete individuals had to bear an undue burden on behalf of the rest of the community (see, among others, Fadeyeva v. Russia, app.no. 55723/00, judgment 9 June 2005, §§ 128 and 134). Translated to the context of climate change mitigation, the equivalent would be to review whether the democratic decision-maker has succeeded in striking the appropriate balance between conflicting collective interests. That is, between the interest in allowing emissions to continue and the interest in curbing them, recognising “the inherently collective nature of both the consequences and the challenges arising from the adverse effects of climate change” (para. 413). This is a test that, in a sense, elevates the Court’s review to the same perspective as legislative and executive powers, thus posing a stronger challenge to the authority of democratically elected authorities to make long-term decisions for the economy and set overall priorities. A constructive (tried and tested) alternative would be to focus the Court’s substantive review on whether relevant, sufficient and consistent reasons have been provided for the adopted targets. This would discipline democratic decision-making processes, underscore the importance of the choices made, and be conducive to democratic accountability by exposing flawed reasoning from democratically elected authorities.
As regards the margin of appreciation, the Court states in KlimaSeniorinnen that it will apply a “reduced” margin in relation to “the setting of the requisite aims and objectives” (para. 543, my emphasis). Does this signify strict (international) review of whether the correct targets have been adopted? If so, the challenge to domestic democratic authority would be intensified. It would require further justification, as the “the general consensus as to the stakes involved in ensuring the overarching goal of effective climate protection through overall GHG reduction targets” (para 543) does not include a general consensus as to how the remaining global emission budget is to be allocated between states.
Underlying the general principles in KlimaSeniorinnen, there is also a more fundamental challenge to the authority of the electorate. Namely the notion that there is an ‘inherent’ risk of shortsightedness in “the relevant political decision-making processes”, and that the possibility of judicial review is justified also on account of the interests of future generations (although the legal obligations arising under the Convention do not extend to them, see para. 420). Going forward, it will be interesting to see whether democratically elected officials fully accept the premise that (international) judges are better placed to divine the interests of future generations and decide accordingly. The Swiss parliament’s response suggests not.
Anticipate pressure on individual’s rights as authorities pursue collective climate interests
A consequence of KlimaSeniorinnen is that authorities will have more leeway to pursue climate change measures that interfere with the rights of individuals. The technical reason is this: in the context of a proportionality assessment related to an interference with the rights of an individual on account of climate change mitigation, state authorities can argue that it is complying with a positive obligation to protect the rights of everyone (or, at least, very large vulnerable groups) from the effects of climate change. In short, state authorities would have more weighty reasons to interfere than before. Combined with a wide margin of appreciation regarding the state’s choice of means to pursue its mitigation aims and objectives (para 543), the protection afforded under the Convention to individuals’ rights adversely affected by mitigation measures has consequently become weaker.
This development occasions a new set of questions for the future: What kind of policies may be construed as ‘climate mitigation policies’ as a guise for pushing through collective interests at the expense of individuals? Will the Court’s transformation of the Convention into an instrument for protecting collective interests be contained to climate change? Or will the change in the Convention’s character be transposed to other areas with a connection between state policies and the enjoyment of human rights, such as other planetary boundaries, national security, or the fight against poverty? And are we then looking at a future where the Court’s competence of review is widening, only to see that this leaves states with more room to encroach on individuals’ rights in pursuance of ‘the collective good’?
One might say that the Court has placed the Convention’s potency as a bulwark against state encroachment on individual rights on the line to save us from our own emissions. Whether it was worth it will be for future generations to judge. Currently, there is no way around trial and error as we piece together human rights law and the climate change regime in search of the best way forward.
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