“Law is the bridge between scientific knowledge and political action.”1 “The earth was designed as the permanent abode of man through ceaseless generations. Each generation, as it appears upon the scene, is entitled only to use the fair inheritance. It is against the law of nature that any waste should be committed to the disadvantage of succeeding tenants. ... That one generation may not only consume or destroy the annual increase of products of the earth, but the stock also, thus leaving an inadequate provision for the multitude of successors which it brings to life, is a notion so repugnant to reason as scarcely to need formal refutation.”2 Commentary
It is beyond cavil that climate change poses grave and irreversible risks to mankind, other living species and nature.3 A preponderance of scientific evidence and opinion supports that fact; it suggests that the average global temperature should, at least, not exceed a threshold of 2 degrees Celsius above the pre-industrial level (hereinafter also referred to as the two-degree threshold).4
The globally averaged mole fractions of greenhouse gases have reached new heights in 2013. The atmospheric increase of CO2 from 2012 to 2013 is the largest year-to-year change from 1984 to 2013.5 PwC (Price Waterhouse Cooper) warns that at current rates of decarbonisation6 of 0,9%, “we would be heading towards the worst projected scenario of the IPCC, leading to a significant chance of exceeding 4 (degrees) Celsius of warming”.7 The World Bank is even more pessimistic:
“(...) the likelihood of 4 (degrees) C warming being reached or exceeded this century has increased, in the absence of near-term actions and further commitments to reduce emissions. The report reaffirms the International Energy Agency’s 2012 assessment that in the absence of further mitigation action there is a 40 percent chance of warming exceeding 4 (degrees) C by 2100 and a 10 percent chance of it exceeding 5 (degrees) C in the same period.
The 4 (degrees) C scenario does not suggest that global mean temperatures would stabilize at this level; rather, emission scenarios leading to such warming would very likely lead to further increases in both temperature and sea-level during the 22nd century”.8 Referring to the IPCC, the 2014 version of the World Bank report points to “much higher warming levels exceeding 6○ C or more in the long term.”9 It points to a series of extreme events occurring since the 1960s.10 Climate change, if allowed to continue, will have disastrous consequences for life on earth generally. It will cause enormous harm for very large numbers of people. That is supported by the same scientific evidence and opinion. These sources also suggest that there is a limited amount of time within which measures to avoid passing the two- degree threshold can adequately be taken – i.e., that there is an urgent need to take these measures. Finally, these sources agree that countervailing measures are feasible, and at costs that would not be prohibitive to the relevant parties.11 World leaders, international institutions and, increasingly, business leaders have, clearly and loudly, expressed serious concern.12 Several pledges have been made to the effect that steps must be taken to secure that the world’s mean temperature does not pass the two-degree threshold. This stance has continuously been taken, despite the reservations of the small number of dissenting climate scientists and of sceptics.
Despite the laudable pledges by leading politicians around the globe and a series of urgent calls made by prestigious international organisations, political actions do not keep pace with these promises and calls; they fall short of doing the minimum necessary to avoid that the two-degree threshold will be passed.13 As things stand right now, there is not much reason to believe that politicians will be able to strike compromises to the extent needed in time. This regrettable state of affairs serves as an incentive, if not imperative, to explore potentially promising avenues to stem the tide.
The swiftly emerging unease and, in some instances, understandable anger have served as a stimulus for a series of international institutions, countries, politicians, business leaders, non-governmental organisations and major investors to sound the alarm and, to a lesser extent, to take action.14 So far, most steps taken or considered by governments fall short of what is needed: major reductions of GHG emissions.
There is an increasingly intense debate about legal aspects of climate change.15 Armies of academics, some members of the judiciary, and practising lawyers have paid attention to a myriad of legal issues in relation to climate change. Part of this debate is about the question whether climate change is an issue under international law, human rights law, national environmental law and, to a lesser extent, tort law. Ever more leading academics answer this question in the affirmative.
Naturally, there is much that can still be described as uncharted territory. In particular, there is one core question that requires answering: what are the respective legal obligations of States and enterprises to reduce their GHG emissions? So long as one cannot determine what must be done by each respective player, the law can only play a limited role.16 Our group has tried to fill this gap.
We believe that prevention should be our first and foremost focus.17 If we cannot tame the hydra, catastrophe will set in, catastrophes that can still largely be avoided.18
We realise, of course, that our submissions could and will be challenged. There may be alternative methods of determining the obligations of the respective players. Countries could strike compromises in international agreements, thus allocating the obligations in different ways. It can only be hoped that politicians will forgo the present lethargy. International agreement(s) would be the best solution if and to the extent they are sufficient to avoid that the fatal threshold will be passed. Until that happens, reliance on other sources or areas of law is unavoidable. These sources are imperfect when it comes to answering the question, what has to be done by whom and why that is the case. But their ability to form a sound foundation for concrete obligations to avert the dangers of climate change should also not be underestimated.
Given that our focus is on prevention, we do not express a view on other important issues, such as adaptation, damages and climate change refugees.19 Leading academics have pointed to a series of potential obstacles to litigating climate change cases.20 The three most obvious obstacles are probably that most individual states and enterprises make only minimal contributions to the global threat,21 the “political question argument” (for practical purposes, the unwillingness of judges to deal with the matter and their deference to elected officials) and lack of (adequate) obligations or targets set by international conventions or perhaps even national legislation.22 These issues and a series of other potential hurdles need to be addressed if a credible picture of the enforceable legal obligations of the respective players is to be provided. With the exception of minimal causation, we do not tackle these issues. However, we believe that the mere setting out of a solid footing for the definition of legal obligations of States, enterprises and other actors in the field of climate change can serve a useful purpose, regardless of whether the obligations defined can be enforced by remedies, such as injunctions, issued by courts.
We realise, of course, that our Principles are, in the short-run, quite demanding for States and enterprises. The obligations embedded in our Principles go well beyond the international “consensus”.23 Unlike the present reductions by most countries and enterprises, they are in line with the almost commonly accepted view that we must avoid the passing of the dangerous two-degree threshold.24 When a long-run perspective is taken, it can be tenably argued that the cost of immediate action will be considerably lower than the cost of mitigation and adaption if we carry on with business as usual.
We sincerely hope that our Principles will contribute to a solution to the greatest challenge and threat for mankind in living memory.
We have acknowledged the most useful work of the ILA. Its Draft Principles aim to “provide considerations that decision-makers must take into account.”25 The same goes for our Principles. If “decision-makers” (political leaders, governmental agencies and business leaders) fail to comply with their obligations as described, they could serve as a basis for legal enforcement by means of injunctive relief. Furthermore, these principles are intended to also serve as guidance to investors, supervisory institutions and auditors about steps that must be taken by enterprises.
After our meeting in Oslo, the IBA (International Bar Association) launched a most interesting report: Achieving Justice and Human Rights in an Era of Climate Disruption.26 Unlike our principles, the report emphasises adaptation and compensation, although it labels mitigation (including the planet’s capacity to absorb GHGs) as the “first strategy”. The IBA rightly observes that mitigation and adaptation raise justice issues.27 The IBA advocates strategies to make climate change obligations concrete;28 that is exactly the purpose of our principles.
In 2009 the World Wildlife Fund (WWF) issued an important report: Sharing the effort under a global carbon budget.29 WWF proposes three trajectories to come to grips with climate change. One of our core principles aligns with the WWF’s contraction and convergence submission. The WWF suggests the following: “as a first step, all countries agree on a path to future global emissions that leads to an agreed long-term stabilisation level for greenhouse gas concentrations (“contraction”). As a second step, the targets for individual countries are set in such a way that per capita emission allowances converge from the countries’ current level to a level equal for all countries within a given period (convergence). The convergence level is calculated at a level that resulting global emissions follow the agreed global emission path.”30 The major difference between the WWF’s report and our principles is that the WWF still stressed the need for agreement among nation states. That would indeed be very desirable, but in the short term it is almost certainly a mirage; it would already be a giant step forward if the COP in Paris would result in any concrete agreement on reduction of GHG emissions and if that agreement would be ratified by countries around the globe. In our view, States are legally obliged to reduce their GHG emissions, even if they do not conclude (further) international agreements or conventions. Besides, our principles are much more detailed and provide a series of additional obligations of a substantive and procedural nature. That said, we largely endorse the WWF’s contraction and convergence approach.
2. The group and its working method
Thomas Pogge and Jaap Spier have taken the initiative to convene a group of distinguished experts from various countries and diverse legal backgrounds to explore whether it would be possible to determine the legal obligations of States and enterprises as concretely as possible. The group has accepted the challenge; these Principles are the fruit of its work.
The first meetings (The Hague, New York and London) were attended by Michael Gerrard of the United States, Toon Huydecoper of The Netherlands, Michael Kirby of Australia, Thomas Pogge of the United States, Dinah Shelton of the United States (New York), Jim Silk of the United States, and Jaap Spier of The Netherlands, and Philip Sutherland of South Africa (London and New York). At the second and third meetings, drafts produced by Jaap Spier were discussed and were largely adopted with the exception of duties of enterprises. The preamble is an abbreviated version of the impressive and eloquent draft by Michael Kirby.
After the London meeting, the members of the group were keen to expand it. In particular, the members wanted to extend membership to representatives from countries that were not yet represented. At its meeting in Oslo, Antonio Benjamin of Brazil, M.C. Mehta of India, Qin Tianbao of China and Jessica Simor of the U.K. joined the group. The group had the privilege to benefit from the insights of the Independent UN expert John Knox of the United States, who attended the first and the third meeting; John Knox is, however, not in a position to express a view on or support the principles. Due to personal circumstances, Elisabeth Steiner of Austria31 could not attend the meetings, but she expresses support for the principles.
On the basis of the discussions in London and an updated draft about obligations of enterprises by Michael Gerrard, the text of the principles has been amended. A commentary to the principles was drafted by Jaap Spier. Thomas Pogge and Philip Sutherland have suggested many improvements to the commentary which are incorporated in this draft. The updated draft and the principles related to enterprises were discussed in Oslo. The group has reached agreement on the obligations of States and, to some extent, also of enterprises. An updated draft has been circulated; the comments have been incorporated. This pre-final draft of the principles was subsequently edited by Jim Silk. The edited version and the updated commentary have again been distributed among the members. Michael Gerrard has submitted a series of suggestions and observations; these have been addressed by Jim Silk on the basis of comments by Philip Sutherland and Jaap Spier in the final draft, the present text. The amended text has been distributed among and was approved by the members.
Three students of Jim Silk’s Allard K. Lowenstein International Human Rights Clinic – Ben Farkas, Allana Kembabazi and Stephanie Safdi – have provided the group with a most valuable report, http://www.law.yale.edu/Climate_and_Human_Rights__Memo.Final.pdf.
Fiona Kinniburgh, a collaborator of Michael Gerrard, has drafted a most useful overview in relation to efficiency measures that could be taken; that report can be downloaded from http://web.law.columbia.edu/sites/default/files/microsites/climate-change/files/Publications/Students/Specific%20Measures%20to%20Combat%20Climate%20Change%20-%20Compilation_Final.pdf.
The meetings in The Hague, London (in part) and New York (in part) have received generous financial support from the Heinrich Böll Foundation; the meeting in London by the Dixon Poon School of Law, Kings College London; the meeting in Oslo from the Centre for the Study of Mind in Nature at the University of Oslo.
As already mentioned, the International Law Association is also in the process of drafting legal principles relating to climate change.32 Its admirable draft submits a series of highly important principles. There is some overlap between the ILA draft and ours, but both drafts primarily complement each other.
The current text of the commentary includes minor edits made since its original release on March 30, 2015.
3.1 The core principles should be as clear as is reasonably possible
There is a heated debate about the allocation of the reduction burden. A major part of that discussion is fuelled by the common but differentiated responsibility debate; see below supra Principle 14. It is understandable that opinions on this subject diverge significantly.
In the extensive debate that has primarily taken place in the non-legal literature, a plethora of considerations that can be used to determine the allocation of reduction responsibilities has been bandied about.33 Most of them have merits. However, we believe that we should not unnecessarily complicate matters. Overly sophisticated formulas may be fair on paper, but unworkable in practice.
First, many of the criteria are unavoidably vague; thus (national) courts and parties to the obligations would have too much manoeuvring room, which would create uncertainty and inequality.
Secondly, the greater number of the factors that carry weight, the more the respective obligations will vary over time, as they will be dependent on ever-shifting consideration.
It follows that, to some extent, we cannot do without simplified criteria.
Nevertheless, the principles give special consideration to the special position of vulnerable countries (see Principles 8, 9, 10, 13, 14, 15, 16, 17, 18, 19b, 20, 21 and 23), despite making use of simplified criteria.
3.2 Per capita approach
We have adopted a “per capita approach”34 as a point of departure. This means that each human being is entitled to the same GHG emissions.35 There are several reasons for this position, predominantly:
* fairness: human beings are equal and it would be unfair to allocate diverging emission rights;36
* it allows for the indirect accommodation of the level of “development” of a country as the economic development produces greater GHG emissions;
* it broadly accommodates the historical contributions of countries. As a matter of fact, most countries with small or relatively modest per capita GHG emissions at this time also did not emit much GHG in the past.37 Conversely and as a rule of thumb, countries with large per capita GHG emissions right now are mostly the major contributors to historical emissions;
* this approach allows countries with modest GHG emissions below the permissible level to increase their GHG emissions, within the boundaries mentioned in Principles14 and 15;
* it can easily be “calculated”, unlike a formula based on a series of vague determinants.
We realise, of course, that use of per capita emissions does not necessarily do full justice to (all) vulnerable nations. We do not, for instance, deny that it is open to debate whether it fully, or even sufficiently, copes with the diverging GHG emissions in the past. So far, the debate about “historical contributions” has been rather vague and undetermined.38 We have been unable to glean more specific legal principles and rules from the law, including international instruments, case law and well-established legal concepts.39 It follows, we think, that it is hardly possible to determine the legal impact of GHG emissions in the past.40 We appreciate the debate about historical contributions and the other factors mentioned in Principle 16. We could imagine that a more subtle approach, based on a series of relevant factors, might do more justice in specific instances. But we believe some sophistication has to be traded off against certainty. A formula entirely or predominantly based on open or vague criteria will not work; it will unnecessarily complicate things. Such a formula would be a stumbling block for global solutions and, by the same token, also for the protection of the most vulnerable countries: if we opt for solutions that will not work because they do not point to sufficiently clear and operable reduction obligations, the entire globe would be worse off. For these reasons, we do not explicitly provide for the lowering of obligations of countries with limited GHG emissions in the past. It also is difficult to discern a legal basis upon which historical contributions can be accommodated more directly. Yet, the principles provide some flexibility to reach fair and equitable results in concrete cases; see Principles 16, and also 9, 21 and 23.
Although we do not find a clear legal basis for greater protection to countries that have made small historical contributions to global emissions, we would nevertheless welcome any attempts by international treaties to further restrict the obligations of these countries. Nevertheless, such restrictions should be allowed only by concomitant increases in the obligations of others.
The per capita approach does not yet answer the question how to allocate the reduction burden among countries, but it lays the basis for making such a determination. In our submission, the reductions needed in line with Principle 6 have to be achieved by countries with GHG emissions above the permissible level as defined in Principle 3. If below permissible quantum countries as defined in Principle 4 would also have to bear part of the reduction burden at their own expense, the per capita approach would be undermined. With a few possible exceptions, such as “developed countries” largely depending on nuclear energy, below permissible quantum countries do not bear a relevant historical responsibility for the impending crisis. Besides, a major part of the population of many of these countries is very poor. It would be unfair to require reductions from those countries, unless these reductions do not impose more than a minimal financial burden or are financed by others. We realise that “minimal” is rather vague. Its meaning has to be determined on the basis of all relevant factors of the case in point.
4. Legal basis for far-reaching reduction requirements
4.1 An amalgamation of legal sources
So far, the legal debate about legal duties to mitigate climate change has taken place in the following areas: human rights, international, constitutional, environmental and, to a lesser extent, tort law.
A sound legal underpinning, based on international law, would obviously entail many advantages: it “applies” world-wide or, at least, in major regions, it has – at least on paper – a higher status than national law, and it may be easier to enforce, at least in theory. International law – encompassing human rights law – provides a rather strong basis for the submission that steps must be taken to avoid the passing of the fatal threshold: Principles 6 and 13. Unfortunately, it does not provide sufficiently precise guidance as to the concrete obligations of individual countries. To achieve that, reliance on other areas of law is necessary.41 In our view, only an amalgamation of legal sources can provide a sufficiently sound underpinning for our principles; international law, legislation, case law and doctrine from these sources reinforce one another. We cannot yet support our principles with references to judicial precedents. That may be problematic in countries that are heavily dependent on judicial precedents. But even in these countries, the law has developed over time and judges have been creative to map ways to meet other urgent demands of society. One can still make use of established legal principles and concepts. Our principles are aimed at contributing towards the establishment of precedents on the basis of doctrine and principles; if we were to wait for judicial precedents, we will be too late.
4.2 International law and human rights
The ILA draft points to a well-established principle of customary international environmental law to avoid significant trans-boundary harm.42 A report commissioned by the group and written by Ben Farkas, Allana Kembabazi and Stephanie Safdi,43 Obligations of States and Enterprises to Respond to the Threat of Climate Change, gives detailed consideration to a series of human rights and other aspects of international law. Below we will quote their major findings;44 the updated full report can be downloaded http://www.law.yale.edu/Climate_and_Human_Rights__Memo.Final.pdf.45
The UN Human Rights Council has acknowledged that human rights obligations of States related to trans-boundary environmental harm need to be clarified.46 Over the last years, there has been an intensive debate about the relationship between human rights and climate change.47 The Independent UN Expert John Knox has convincingly demonstrated that climate change is not only a human rights issue, but that human rights also provide an underpinning for quite a few important legal obligations, be it primarily of a procedural nature.48 The same goes for the “no harm rule” of international law.49 It is true that these sources do, or at least may, not (yet) point to very concrete obligations of the respective States50 and, to the extent human rights and international law also have some horizontal effect, enterprises. But they reinforce and support the view that major harm to others (neighbouring countries and their citizens included) must be avoided. Indeed, international law cannot be relevant only to relatively unimportant – and at times even trivial – issues. It must play a role in relation to the most serious challenge to humankind in living memory. So, in case of doubt, we believe that it should be interpreted extensively.
4.3 The human rights dimension
According to the Lowenstein Clinic, the “Principle of Human Dignity” is vital in the human rights debate.51 States have a stringent duty to respect, protect, and fulfil human dignity, which requires that they act urgently to mitigate climate change. States must take necessary measures in response to climate change in order to maximally respect, protect, and advance human dignity. They elaborate as follows:52
“The central place of the concept of dignity in the UN Charter and the Universal Declaration of Human Rights has contributed to the establishment of the concept as a core value throughout international and regional human rights law.53 Corresponding with the adoption of the Universal Declaration at the end of WWII, Germany enshrined dignity as the foundational principle of its new constitution,54 and many nations have since followed suit. As international and national courts begin to engage with climate change-related issues, they have begun to invoke dignity as a source of governmental constraints and affirmative duties. Dignity is a particularly powerful lens through which to view the human consequences of climate change because it provides a fabric that unifies the full panoply of human rights that climate change will compromise. (..)
The Universal Declaration of Human Rights relies on the concept of dignity as a core human value.55 In adopting the Declaration, States began to engage in the project of creating a universal system of agreed-upon human rights. Dignity helped to provide a common value that States could embrace and connect to their own legal traditions.56 From that point of departure, the concept of dignity has become established as a foundation for the binding human rights obligations embedded in subsequent treaties and domestic constitutional law. The International Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights extended dignity’s foundational role, establishing the inherent dignity of the human person as the source from which all other human rights derive.57 All major UN conventions have since included the concept of dignity in their preambles or their substantive provisions.58 As the international community has developed new human rights instruments in areas such as indigenous and cultural rights, their drafters have connected these rights to the protection and advancement of human dignity.59
Regional human rights instruments and many post-WWII constitutions have adopted dignity as their “central organizing principle,” giving the concept local meaning and force.60 Dignity plays a prominent role, for instance, in the American Declaration on the Rights and Duties of Man, the American Convention on Human Rights, the Revised Arab Charter on Human Rights, the African Charter on Human and Peoples’ Rights, and the European Union Charter of Fundamental Rights. Article I of the German Basic Law begins with the statement, “Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.”61 Similarly, Chapter 1 of the South African Constitution inscribes “human dignity” as the first value upon which the democratic State is founded. Many constitutions protect dignity as a fundamental right itself. The South African Constitution places the right of “[e]veryone . . . to have their dignity respected and protected” ahead of the right to life.62 Regional and domestic courts have given force to these provisions by finding that a wide range of State actions and omissions violate the right to dignity.
Courts have interpreted dignity to require States to refrain from infringing on other fundamental rights, such as liberty and equality, and to take positive steps to fulfil socioeconomic rights. (...)
In a 2005 case, the Federal Court of Nigeria found that protecting the fundamental right to dignity required the State to enjoin gas flaring by the Shell Petroleum Development Company in the Niger Delta. The Court found that the “massive, relentless, and continuous gas flaring” in the production of crude oil and petroleum products “contributes to adverse climate change as it emits carbon dioxide and methane.”63 The “warming of the environment” that results, combined with the direct environmental effects of the localized pollution, impairs the community’s health and jeopardizes their food and water sources.64 The Court declared that the Nigerian “constitutional guarantee of right to life and dignity . . . includes the right to a clean, poison-free and pollution-free air and healthy environment conducive for human beings to reside in for our development and full enjoyment of life.”65 Finding that these rights “are being wantonly violated,” the Court enjoined all further gas flaring in the area and instructed the government that regulations that allow for such gas flaring are unconstitutional.66 The case provides a pathway for other constitutional courts to similarly enforce the right to dignity in order to curtail greenhouse gas emissions.
Regional courts have also invoked the right to dignity to prevent environmental degradation (...). The Inter-American Commission of Human Rights has invoked human dignity in enjoining both Nicaragua and Belize from granting logging concessions that violated indigenous communities’ physical and cultural survival and exacerbated environmental damage to their property.67 Although dismissed, the Inuit Petition to the Inter-American Commission on Human Rights articulated climate change as a threat to dignity, particularly through the threats that it poses to indigenous property rights and cultural integrity.68 The judicial recognition of the relationship of dignity to environmental protection suggest that dignity may play an important role going forward in shaping the duty of States and non-State actors with regards to climate change mitigation (...).
Though it has not yet been invoked in relation to climate change, the notion of “vida digna” in the jurisprudence of the Inter-American Court of Human Rights could provide teeth to States’ climate change-related obligations. The Court has interpreted the “right to life,” protected by Article I of the American Declaration on the Rights and Duties of Man, to encompass the right to live a “vida digna,” or a dignified life.69 The right to a “vida digna,” in the Court’s conception, “obligates the State to generate living conditions that are at least ‘minimum living conditions that are compatible with the dignity of the human person.’”70 “Vida digna” imposes both positive and negative obligations on the State. It requires States to “take positive, concrete measures geared toward fulfillment of the right to a decent life (...).”71 (...)
The Inter-American Court’s jurisprudence on “vida digna” suggests that States have obligations to undertake immediate mitigation measures to dampen the severe impacts of climate change on human welfare.72 (...)”
They also point to a duty to institute affirmative measures individually and in concert, in order to further the exercise of core human rights by all people within their jurisdictions. States must therefore act expeditiously to mitigate climate change in order to protect the enjoyment of core human rights by all of their members, with particular attention to persons and communities that are most vulnerable to its impacts.73 States have a fundamental duty to respect and fulfil the right to life. Given the imminent threat that climate change poses to human life, States have a duty to immediately curtail activities that contribute to climate change and to take positive measures to protect and promote the right to life.74 The argument of the Lowenstein Clinic is along the following lines:
“The right to life is explicitly protected in ICCPR Article 6: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”75 The subsequent portions of Article 6 deal with the death penalty and genocide, but the Human Rights Committee has interpreted the right broadly in CCPR General Comment 6 to extend as far as creating an obligation to reduce infant mortality and increase life expectancy.76 At the same time, the General Comment notes that the right to life, based on its unqualified language and primary position in the ICCPR, is a bedrock human right from which no derogation is permitted.77 General Comment 6 may well go too far; the language of the ICCPR itself does not make it clear that suffering an avoidable early natural death amounts to being “arbitrarily deprived of life.” Article 6 also explicitly contemplates and permits the death penalty, indicating that the word “arbitrarily” restricts the application of the right to situations in which no valid reason is offered for an individual’s death.
Climate change will threaten lives. Because climate change is anthropogenic, this threat to life is more clearly related to the core of Article 6 than, for example, deaths from preventable illness, which are not always as obviously caused by human activity. In human rights terms, a death is more unacceptably “arbitrary” when it is foreseeably caused by human activity. When human activities foreseeably threaten lives, engaging in these activities amounts to a potential violation of the right to life.78 ICCPR Article 2(1) provides that the State has a positive obligation to ensure that such violations do not take place.79
The European Court of Human Rights has provided a similar interpretation of the parallel text of article 2 of the European Convention on Human Rights. States have an obligation “to take appropriate steps to safeguard the lives of those within their jurisdiction.” This duty applies “in the context of any activity, whether public or not, in which the right to life may be at stake.”80 The key factor seems to be foreseeability of risk; the obligation applies even when there is a foreseeable risk in a situation that is not caused by human activity.81 The Inter-American Court of Human Rights has enforced perhaps the most sweeping interpretation of the “right to life,” by interpreting it to require States to fulfil the conditions for their people to live a life with dignity.82 As climate-change threats to human life, particularly for vulnerable communities, become increasingly imminent and apparent, courts may become receptive to using “right to life” provisions to require mitigation measures.”
The Lowenstein Clinic subsequently turns to the right to property, in particular the extent to which it meets the essential needs of “dignified human living.” The latter is under stress due to climate change. In turn, countries have to mitigate climate change:
“The right to property is not explicitly protected by the ICCPR or ICESCR, but it is protected by inter-American, African, and European rights treaties83 as well as many national jurisdictions. The right to property is not absolute; the ability of states and their courts to balance the right to property against other values is essential for making it possible to regulate pollution.84 (...)
At the same time, the protections for property within human rights instruments also suggest that states have an obligation to ensure that private property is protected, particularly so as to prevent harms to other essential rights. For instance, the American Declaration on the Rights and Duties of Man ensures the right to private property to the extent that “it meets the essential needs of decent living and helps to maintain the dignity of the individual and of the home.”85 States may thus have an obligation, grounded in human rights, to regulate emitters in order to protect private property from environmental harm and thereby ensure that essential needs are met and core human rights protected.”86
Climate change will also jeopardise the right to health. The duty of States to respect, protect, and fulfil the right to health extends to securing a healthy environment and preventing environmental degradation. States have a consequential obligation to prevent degradation of the earth’s atmosphere, thereby curtailing the severe threats to human health that global temperature increases, extreme weather events, and sea level rise will pose:
“The right to health has been relied upon as a source of the right to a clean and healthy environment. In turn, a healthy environment is deemed a sine qua non for the right to health to be meaningful. International law reflects this strong interface between health and the environment. (...) In Article 12, the Covenant expressly calls on State parties to take steps to improve all aspects of environmental [hygiene] (...) and to enable the prevention, treatment and control of epidemic, endemic, occupational, and other diseases.87 The Committee on Economic, Social and Cultural Rights has defined the right to health expansively, as “an inclusive rightextending not only to timely and appropriate health care but also to the underlying determinants of health, such as access to safe and potable water and adequate sanitation, an adequate supply of safe food, nutrition and housing,[and] healthy occupational and environmental conditions.”88 (...)
The Inter-American Commission expanded on the link between the environment and health in its 1997 “Report on the Situation of Human Rights in Ecuador.” In the Report, the Commission identified human rights violations, particularly violations of the right to life and health, resulting from contamination caused by oil exploration in the Oriente region. The contamination threatened the food and water supply and increased morbidity in the surrounding populations.89 The Commission determined that “[c]onditions of severe environmental pollution, which may cause serious physical illness, impairment and suffering on the part of the local populace, are inconsistent with the right to be respected as a human being.”90 Emphasizing the interrelatedness of health and the environment, it stated that “[t]he realization of the right to life, and to physical security and integrity is necessarily related to and in some ways dependent upon one’s physical environment. Accordingly, where environmental contamination and degradation pose a persistent threat to human life and health, the foregoing rights are implicated.”91 The Commission pointed out that “states parties may therefore be required to take positive measures to safeguard the fundamental and non-derogable rights to life and physical integrity, particularly to prevent the risk of severe environmental pollution that could threaten human life and health (...).”92 The Commission called on the government to implement legislation to strengthen protection against pollution, (...)
The Commission’s insistence on positive measures to protect health from future contamination can be used as a powerful tool in environmental protection. It calls on States to both formulate and enforce laws to prevent environmental degradation and its consequent impacts on human health (...). In the context of climate change, the requirement to take positive measures extends to those that prevent degradation of the earth’s atmosphere, thereby curtailing the severe threats to human health that global temperature increases, extreme weather events, and sea level rise will pose. (...)”
In relation to the duty to adopt appropriate economic, environmental, and social policies to ensure access to adequate and nutritious food and prevent hunger, States must take effective measures to mitigate climate change:
“The right to food is enshrined in international instruments, including the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights. It is also recognized in subject-specific human rights treaties, such as the Convention on the Rights of the Child,93 the Convention on the Elimination of All Forms of Discrimination against Women,94 and the Convention on the Rights of Persons with Disabilities.95 The right to food is also recognized by many national constitutions96 and regional human rights instruments, including the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (known as the Protocol of San Salvador), the African Charter on the Rights and Welfare of the Child, and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa.
The Committee on Economic, Social and Cultural Rights has clarified that the right to adequate food requires the adoption of “appropriate economic, environmental and social policies.”97 In General Comment No. 12, the Committee stated that “[t]he right to adequate food is realized when every man, woman and child, alone or in community with others, has physical and economic access at all times to adequate food or means for its procurement.”98The Covenant on Economic, Social and Cultural Rights also enshrines “the fundamental right of everyone to be free from hunger.”99 The UN Special Rapporteur on the Right to Food has declared that the right encompasses “[t]he right to have regular, permanent and unrestricted access, either directly or by means of financial purchases, to quantitatively and qualitatively adequate and sufficient food corresponding to the cultural traditions of the people to which the consumer belongs, and which ensure a physical and mental, individual and collective, fulfilling and dignified life free of fear.”
Climate change will adversely affect States’ ability to realize the right to food. Fulfilment of the right to food requires access to appropriate natural resources and healthy ecosystems, particularly for those populations that depend on a subsistence economy. It also requires production and distribution of sufficiently nutritious foodstuffs to satisfy the basic needs of all individuals. Climate change is expected to disrupt ecosystems and growing cycles, causing food production to decrease and thereby increasing the risk of hunger and food insecurity in the poorer regions of the world.100 In response to these threats, the (former) UN Special Rapporteur on the Right to Food, Olivier De Schutter, has stated that the right to food includes “the right to be protected from policies that undermine access to it.” States’ obligation to ensure realization of the right to food is a central component of their duty to take (...) mitigation (...) measures.”
Climate change also impairs access to Safe Drinking Water and Sanitation. That also requires positive action geared at mitigation:
“The right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses.101 States must ensure there is adequate access to water to secure the health, dignity and livelihoods of all people.102 Water is essential to fulfilling many of the social, economic, and cultural rights protected under the ICESCR. As climate change puts additional stress on water resources, thereby reducing access to safe drinking water, water for crop production and sanitation resources, it will also endanger other rights, such as the rights to life, health and food.103 The ESCR Committee has underscored that water and water facilities and services must be accessible to all, including the most vulnerable and marginalized sections of the population. The manner in which States realize the right to water must be sustainable, ensuring that present and future generations can depend on safe and reliable water resources.104 The Committee has also stated, “Steps should be taken by States parties to prevent their own citizens and companies from violating the right to water of individuals and communities in other countries.”105 (...)
The ESCR Committee has identified several ways in which States violate the right to water, including:
a) State parties’ interference with the right to water. This includes, inter alia: (i) arbitrary or unjustified disconnection or exclusion from water services or facilities; (...)
b) Violations of the obligation to protect follow from the failure of a State to take all necessary measures to safeguard persons within their jurisdiction from infringements of the right to water by third parties. (...)”
Last but not least, the duty to provide for a clean and healthy environment conducive to human well-being is equally at risk in relation to climate change: “Every citizen has the right to a clean and healthy environment, one that permits the realization of a life of dignity and well-being. States have an obligation to take positive measures to safeguard and advance this right. In particular, States have a duty to prevent severe environmental pollution that could threaten human life and health (...)
Although U.N. human rights treaties do not refer to the right to a clean and healthy environment, regional human rights conventions for Africa and the Americas and almost 60 national constitutions106 recognize it.107 The Protocol of San Salvador, the additional protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights, explicitly recognizes the right to a healthy environment. Article 11 states: “Everyone shall have the right to live in a healthy environment and to have access to basic public services. The States Parties shall promote the protection, preservation, and improvement of the environment.”108 Article 24 of the African Charter on Human and Peoples’ Rights states that “all peoples shall have the right to a general satisfactory environment favorable to their development.” The African Charter expresses the right as one that belongs to peoples as a collective, rather than one that adheres to individuals.
The African Commission on Human and Peoples’ Rights specifically adjudicated the right to a satisfactory environment in the case SERAC v. Nigeria. Two non-governmental organizations filed a petition on behalf of the people of Ogoniland, Nigeria, alleging that Nigeria had breached its obligations to respect, protect, promote and fulfil the right to a healthy environment guaranteed by the Charter. The Commission articulated the substantive aspects of Article 24:
The right to a general satisfactory environment, as guaranteed under Article 24 of the African Charter or the right to a healthy environment, as it is widely known, therefore imposes clear obligations upon a government. It requires the state to take reasonable and other measures to prevent pollution and ecological degradation, to promote conservation, and to secure an ecologically sustainable development and use of natural resources.”109
So far, we have presented a few core findings of the report by Yale’s Lowenstein Clinic. A very recent judgement of the ECHR110 seems to support our case. The Court reiterates that art. 2 (the right to life)
“lays down a positive obligation on States to take appropriate steps to safeguard the life of those within their jurisdiction (....)
80. This obligation is construed as applying in the context of any activity, whether public or not, in which the right to life may be at stake, and a fortiori in the case of industrial activities which by their very nature are dangerous (...)”.
The Court recalls that “a serious risk of an ensuing death” suffices.111 It observes that
“in the context of dangerous activities, the scope of the positive obligations under Article 2 of the Convention largely overlaps with that of those under Article 8”112 (private life).
Further down, the ECHR held:
“101. The Court makes reference to its general principles as stated in Öneryıldız and further elaborated on in Budayeva and Others (both cited above), as summarised in Kolyadenko and Others v. Russia, nos. 17423/05, 20534/05, 20678/05, 23263/05, 24283/05 and 35673/05, §§ 157-161, 28 February 2012, and as reiterated in Vilnes and Others v. Norway, nos. 52806/09 and 22703/10, § 220, 5 December 2013:
“The Court reiterates that the positive obligation to take all appropriate steps to safeguard life for the purposes of Article 2 (see paragraph 151 above) entails above all a primary duty on the State to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life (see Öneryıldız, cited above, § 89, and Budayeva and Others, cited above, § 129).
The Court considers that this obligation must be construed as applying in the context of any activity, whether public or not, in which the right to life may be at stake, and a fortiori in the case of industrial activities, which by their very nature are dangerous. In the particular context of dangerous activities special emphasis must be placed on regulations geared to the special features of the activity in question, particularly with regard to the level of the potential risk to human lives. They must govern the licensing, setting up, operation, security and supervision of the activity and must make it compulsory for all those concerned to take practical measures to ensure the effective protection of citizens whose lives might be endangered by the inherent risks (see Öneryıldız, cited above, §§ 71 and 90).
Among these preventive measures particular emphasis should be placed on the public’s right to information, as established in the case-law of the Convention institutions. The relevant regulations must also provide for appropriate procedures, taking into account the technical aspects of the activity in question, for identifying shortcomings in the processes concerned and any errors committed by those responsible at different levels (see Öneryıldız, cited above, §§ 89-90, and Budayeva and Others, cited above, § 132 ).
As to the choice of particular practical measures, the Court has consistently held that where the State is required to take positive measures, the choice of means is in principle a matter that falls within the Contracting State’s margin of appreciation. There are different avenues to ensure Convention rights, and even if the State has failed to apply one particular measure provided by domestic law, it may still fulfil its positive duty by other means. In this respect an impossible or disproportionate burden must not be imposed on the authorities without consideration being given, in particular, to the operational choices which they must make in terms of priorities and resources; this results from the wide margin of appreciation States enjoy, as the Court has previously held, in difficult social and technical spheres (see Budayeva and Others, cited above, §§ 134-35).
In assessing whether the respondent State complied with its positive obligation, the Court must consider the particular circumstances of the case, regard being had, among other elements, to the domestic legality of the authorities’ acts or omissions,113 the domestic decision-making process, including the appropriate investigations and studies, and the complexity of the issue, especially where conflicting Convention interests are involved. The scope of the positive obligations imputable to the State in the particular circumstances would depend on the origin of the threat and the extent to which one or the other risk is susceptible to mitigation (see Budayeva and Others, cited above, §§ 136-37).
10. The Court has also held on many occasions that the State has a positive duty114 to take reasonable and appropriate measures to secure an applicant’s rights under Article 8 of the Convention (see, among many other authorities, López Ostra, cited above, § 51, Series A no. 303C; Powell and Rayner v. the United Kingdom, 21 February 1990, § 41, Series A no. 172; and, more recently, Di Sarno and Others v. Italy, no. 30765/08, § 96, 10 January 2012). In particular, the Court has affirmed a positive obligation of States, in relation to Article 8, to provide access to essential information enabling individuals to assess risks to their health and lives (see, by implication, Guerra and Others, cited above, §§ 57-60; López Ostra, cited above, § 55; McGinley and Egan, cited above, §§ 98-104; and Roche, cited above, §§ 157-69). In the Court’s view, this obligation may in certain circumstances also encompass a duty to provide such information (see, by implication, Guerra and Others, cited above, §§ 57-60; and Vilnes and Others, cited above § 235). It has also recognised that in the context of dangerous activities, the scopes of the positive obligations under Articles 2 and 8 of the Convention largely overlap (see Budayeva and Others, cited above, § 133). Indeed, the positive obligation under Article 8 requires the national authorities to take the same practical measures as those expected of them in the context of their positive obligation under Article 2 of the Convention (see Kolyadenko and Others, cited above, § 216). NB: de opmaak is hier versprongen, maar dat is een fout van de computer; negeer dat svp
One cannot take it for granted that the Court would apply the same reasoning in relation to climate change. It may be difficult to persuade the Court that all industrial activities which produce GHGs should be labelled as “dangerous” in the sense quoted above, in light of the marginal contribution of every individual emitter to the ensuing damage.115 The final part of the Brincat judgment may influence the Court to take a more cautious stance.116 However, it would be unsatisfactory if art. 2 and 8 of the European Convention on Human Rights could be invoked in relatively unimportant cases, but not in case of grievous injustice to a great many people around the globe.
The repeated pledges by world leaders, in and outside the COP framework, and the urgent need to come to grips with the looming threats advocated by these leaders may in themselves not amount to legal obligations, but they are not meaningless either. Taken together with other legal bases, they help to crystallise enforceable obligations on countries. Most importantly, it means that above permissible quantum countries should not only reduce GHG emissions, but should also provide financial and technical means to the most vulnerable countries to curb their GHG emissions.
4.4 Tort law
The strongest legal basis for our principles can probably be gleaned from what arguably is a common core of tort law referred to in the U.S. as the Learned Hand formula.117 It is a fundamental and widely accepted rule of thumb that an act or omission will be unlawful if it subjects the life, well-being or property of others to a risk of damage, if the risk is considerable, if the potential damage is colossal, and if the risk can be avoided without undue detriment to the party/parties causing that risk.118 Obligations to mitigate climate change meet all these requirements. Climate change poses a significant risk to billions of people – present and future – which can still be avoided by reducing GHG emissions to a significant extent. Technology has progressed to such an extent that the measures can be taken. Though the costs of making the necessary transition away from fossil fuels may be very large in the short and medium terms, many of them will eventually pay for themselves through energy savings. Overall the net economic effects of this transition would be positive to the extent that it prevents the far greater economic costs of catastrophic climate change. Moreover, many jobs and much economic activity would be created by building the new clean energy facilities, and many negative environmental impacts not related to climate change, such as conventional air pollution, would be reduced.119
In tort law, the yardstick for the assessment whether or not a specific act or omission is (un)lawful is whether the act meets the standard of what a ‘reasonable person’ (bonuspater familias) would/should have done in similar circumstances.120 What can reasonably be required from such a person?121 The Principles of European Tort Law (PETL) determine that it depends:
“in particular, on the nature and the value of the protected interest involved, the dangerousness of the activity, the expertise to be expected of a person carrying it on, the foreseeability of the damage, the relationship between those involved, as well as the costs of precautionary or alternative methods”.122