Climate Litigation and the Limits of Legal Imagination: A Reply to Corina Heri
By Benoit Mayer (Associate Professor, The Chinese University of Hong Kong)
Published on 4 November 2022
Corina Heri’s article in the European Journal of International Law argues that ‘protection against the human rights impacts of climate change under the ECHR (European Convention on Human Rights) is both possible … and normatively desirable’. Alexander Zahar replies that Heri has not convincingly demonstrated the applicability of human rights law to the mitigation of climate change. Heri’s rejoinder reaffirms the ‘argumentative possibilities’ for the applicability of human rights law to climate change.
Heri makes some interesting points in the article and clarifies some of them in the post. Certainly, the right to torture could be relevant, along with others. Human rights law could lead to a challenge to majoritarian rules in national responses to climate change. Surely, the European Court of Human Rights (ECtHR) could impose positive obligations on climate change adaptation (i.e. to reduce social and ecological vulnerabilities to climate impacts, see also Billy v Australia and Ashgar Leghari v Pakistan).
The more interesting question is whether the ECtHR could also impose obligations concerning the mitigation of climate change (i.e. the reduction of greenhouse gas (GHG) emissions). In this regard, Heri’s article and blog promise to argue that the ECtHR can and should take decisions imposing mitigation obligations on states. Yet, Heri’s argument on the possibility of such decisions is unconvincing, while her argument on the desirability of these decisions feels missing.
The possibility of ECtHR decisions on climate change mitigation
Heri’s first argument is that it is ‘legally possible’ for the ECtHR to impose an obligation on states to mitigate climate change. Yet, in many important places, Heri’s argument is less than strict. If Heri concludes that there is a possibility for the ECtHR to impose a mitigation obligation, it is because she does not mention why the Court cannot do so.
At key points of her argument, Heri confuses a double negation with an affirmation. She claims that ‘establishing causation and responsibility for the causes of [climate harms] is not impossible’, but she does not provide any evidence that it is possible. She also asserts that ‘the ECtHR’s case law is not necessarily incapable of capturing risks that are not (yet) imminent and individualized’, but she does not provide any evidence that the ECtHR’s case law is capable of doing so. And while Heri proclaims that ‘the meaning and role of human rights is undermined if their application ends where they begin to trouble the status quo’, surely that does not mean that any application of human rights law challenging the status quo is possible.
Zahar has pointed out some of Heri’s tendency to hide objections under the carpet. She ignores various national cases that are inconvenient to her argument (see here, here, here, here, here, here, here, here, here, here and here). She discounts as a mere ‘allegation’ arguments that it is nearly impossible for a court to apply human rights treaties as the source of an obligation on climate change mitigation (see an argument of mine and similar arguments by others: here, here, here and here). She notes that difficulties with her argument ‘are so numerous and complex that the present contribution cannot cover them all in detail.’ Yet, she speculates that ‘many of the hurdles … can be overcome’, leaving it for the reader to imagine how these ‘many’ hurdles could be overcome, and how the others could be dealt with. Heri submits that, ‘[a]s we begin to think these possibilities through, it is a mistake to give up on rights-based litigation pre-emptively’—which would be a good point if these issues had not already been discussed at length in the literature.
Further, the article builds on weak analogies. Heri claims that the ECtHR is lagging behind the Inter-American Court of Human Rights (IACtHR), the United Nations Committee on the Rights of the Child (CRC) and ‘a growing number of domestic courts, which have begun engaging with climate change … as a human rights issue.’ It is unclear what Heri means with ‘engaging with climate change’, but the IACtHR’s advisory opinion that Heri cites determines obligations applicable to regional marine pollution, while the CRC rejected as inadmissible the application cited by Heri. Of the two national cases that Heri cites in that sentence, Urgenda v the Netherlands was decided as public interest litigation (which ECHR’s Article 34 precludes before the ECtHR), while Neubauer v Germany relied on a constitutional norm.
Noting that several cases are currently pending before the ECtHR, Heri suggests that ‘[a]ny one of these cases could potentially become a landmark judgment’, or that, if they all fail, ‘similar cases are sure to follow.’ Yet, the number of times similar arguments are made does not fundamentally affect their likelihood of success. And if ‘it has become inevitable that the Court will engage with climate change in some way,’ this could be (like the CRC) by rejecting these cases, or (like the Human Rights Committee) by upholding them on other (e.g. adaptation) grounds while rejecting the mitigation grounds.
Zahar has noted the weak analogy on which Heri relies to suggest the relevance of Cordella v Italy to climate litigation. The former concerns the environmental harm that a steel factory caused directly to its neighbours. The latter concerns the diffuse harm resulting over time from scattered sources of GHG emitters, contributing incrementally to a global phenomenon, climate change, which affects everyone, born and unborn. Heri responds to Zahar that the two cases ‘are not epistemologically different’ because both rely on ‘scientific reports’ and ‘demand a contextual understanding of human life, as dependent on its physical environment and vulnerable to changes in it.’ It is doubtful whether these similarities are sufficient to justify that the ECtHR should decide climate mitigation cases the same way as it has decided Cordella. Contrary to what Heri suggests, a factsheet of the Court’s Press Unit referring to Cordella along with three climate cases does not suggest that the Court will decide the latter case by analogy with the former.
At other points, Heri’s argument relies on hasty generalizations. While ‘nominally new issues can attract human rights protection’, human rights protection can be applied to every new issue. Heri refers to the ECHR as a ‘living instrument’ to suggest that the Court could extend it to climate change, but she omits to mention the conditions in which the Convention ‘lives.’ When similar claims are made against most of the Council of Europe Member States, one can doubt that the standards invoked in these cases are ‘commonly accepted’ by these same States.
Heri’s most innovative argument regards the potential for ‘the merits of climate cases’ to ‘help to overcome the procedural hurdles facing’ them. For this argument to be more than speculation, Heri would need to provide evidence that international courts can extend treaty-based conditions of jurisdiction and admissibility based on the merits of cases. She does not provide such evidence, I suspect, because there is none to be provided. This and Heri’s ambivalent reflection on the ‘separation of powers’ being a ‘hurdle’ that apparently can be ‘overcome’ or otherwise dealt with, flirts with troubling suggestions that the court should simply discard the law and do as it pleases.
The desirability of ECtHR decisions on climate change mitigation
The second argument that Heri proposes to make is that it is ‘normatively desirable’ for the ECtHR to make decisions on climate change mitigation. In lieu of an argument, however, Heri mainly recounts (well-known) evidence that we would be better off with less climate change than with more of it. To conclude that the ECtHR should impose obligations on climate change mitigation (assuming that it could) requires answering at least four difficult questions.
The first concerns identifying the obligations that the ECtHR would impose on respondent States. Heri states that ‘the question is no longer whether, but how, human rights courts should address … climate change harms.’ Yet, she says little about how the ECtHR could address climate change, besides alluding to ‘appropriate measures’ to ‘adequately regulate the matter’ through ‘effective and equitable mitigation plans that will rapidly achieve ambitious emission reduction targets.’ She asserts that the Court ‘is capable of meeting new challenges, and it can define a baseline for what is expected of states.’ Heri seems to suggest that states must ‘adhere to’ the 1.5°C and 2°C goals of the Paris Agreement, which the Treaty presents merely as aspirational objectives (see here, here and here). These goals are rather unhelpful (see here, here and here) as touchstones for national action: they are ambivalent (1.5 or 2°C?) and unspecific (see also, here), and states have not agreed on a burden-sharing formula (see here, here, here and here).
A second question is whether this decision would be effective. One cannot simply assume that courtroom victories will determine effective implementation, especially when the cost of compliance is likely to be colossal. What would be the political consequences were the ECtHR to impose on all higher-income Council of Europe Member States an obligation to reduce their GHG emissions drastically within a few years? Would states comply? Would they do so in a responsible manner, or would they merely take measures that displace emissions abroad, as the government of the Netherlands did in Urgenda (resulting in a slight increase in global GHG emissions)? And even if all goes as Heri imagines, how would the loss of European states’ diplomatic leverage affect their ability to advocate for mitigation action in other countries?
The third question is whether making these decisions on such far-reaching policy issues is within the scope of the judicial function. Important objections, which have prevailed in more comparable cases (see here, here, here, here, here, here, here, here, here, here, here and here), rely on the principle of the separation of powers and the lack of democratic legitimacy of (supranational) courts to make far-reaching policy decisions. While Heri notes the existence of some of these objections, she does not address them ‘[f]or reasons of space’, but asserts (with one more double negation) that these objections ‘should not be accepted uncritically.’ Heri would need to dismiss these objections if she was to argue convincingly about the desirability of ECtHR decisions on climate change mitigation.
A fourth question is whether, if effective, a decision of the ECtHR on climate change mitigation would really, as Heri suggests, advance ‘the practical and effective protection of ECHR rights.’ Mitigation action has benefits, but it also has costs. Both are particularly difficult to ascertain, especially from a human rights perspective. The benefits depend on how a reduction in GHG emissions within a state at a given time contributes to global, long-term efforts, but also on the evolution of other natural, social, political, and economic factors that determine human vulnerability to climate impacts. The costs depend on the way emission are reduced, which is contingent on economic, demographic, and technological factors, and may also be affected by unforeseeable events such as a global pandemic, a war, or the weather. Simply determining the level of mitigation action that would maximise economic utility, a far simpler question, has divided economists for decades.
In this regard, Heri recognises that ‘a number of other interests can be seen as competing with climate mitigation measures’, including ‘development efforts and the eradication of poverty.’ She notes that ‘according to the ECtHR itself, financial interests … should not have priority over the public interest in environmental protection.’ Surely, though, this does not mean that environmental protection should trump economic interests. How, then, would the court balance multiple competing economic and environmental interests? Is the Court better equipped to do so than national governments? Having taken over these complex policy decisions with regard to climate change, what would prevent the ECtHR from similarly pre-empting political decisions on various other issues that affect the enjoyment of human rights, from energy policies to militarization, public budget, pensions and health? And—to push this fantasy further—what would then differentiate the functions of the ECtHR from those of a national government, except for its lack of political accountability?