CASE OF VEREIN KLIMASENIORINNEN SCHWEIZ AND OTHERS v. SWITZERLAND

GRAND CHAMBER

CASE OF VEREIN KLIMASENIORINNEN SCHWEIZ AND OTHERS v. SWITZERLAND

(Application no. 53600/20)

JUDGMENT
 

STRASBOURG

9 April 2024

This judgment is final but it may be subject to editorial revision.

TABLE OF CONTENTS

PROCEDURE

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. The applicants’ particular situation

1. The first applicant

2. The second to fifth applicants

(a) The second applicant

(b) The third applicant

(c) The fourth applicant

(d) The fifth applicant

B. Proceedings instituted by the applicants

1. The applicants’ requests to the authorities

2. Proceedings in the Federal Administrative Court

(a) The applicants’ appeal

(b) The FAC’s decision

3. Proceedings in the Federal Supreme Court

(a) The applicants’ appeal

(b) The FSC’s decision

II. FACTS CONCERNING CLIMATE CHANGE

A. Submissions by the applicants

1. General observations on climate change

2. The situation in Switzerland

3. Measures taken by the Swiss authorities

B. Submissions by the Government

1. The first phase

2. The second phase

C. Facts in relation to climate change emerging from the material available to the Court

RELEVANT LEGAL FRAMEWORK AND PRACTICE

I. DOMESTIC LEGAL FRAMEWORK

A. Constitution

B. Federal Act on the Protection of the Environment

C. CO2 Act

D. Climate Act

E. The Federal Administrative Procedure Act

F. Relevant domestic case-law

II. RELEVANT INTERNATIONAL MATERIALS

A. United Nations

1. The system of the United Nations Framework Convention on Climate Change

(a) United Nations Framework Convention on Climate Change

(b) The Kyoto Protocol

(c) The Paris Agreement

(d) COP26 and COP27

(e) COP28

2. The Aarhus Convention

3. The United Nations General Assembly

(a) Resolution on the human right to a clean, healthy and sustainable environment

(b) Other General Assembly material

4. The Secretary‑General of the United Nations

5. The Human Rights Council

(a) Resolutions

(b) Special procedures

(i) Special Rapporteur on the promotion and protection of human rights in the context of climate change

(ii) Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment

(iii) Independent expert on human rights and international solidarity

(iv) Independent Expert on the enjoyment of all human rights by older persons

6. The Human Rights Committee

7. Committee on the Elimination of Discrimination against Women

8. Committee on the Rights of the Child

9. Committee on Economic, Social and Cultural Rights

10. Office of the High Commissioner for Human Rights

11. Other developments

B. Council of Europe

1. Parliamentary Assembly of the Council of Europe

2. Committee of Ministers

3. Council of Europe Commissioner for Human Rights

4. Other materials

C. European Union

1. Primary legislation

2. Legislative acts

(a) Concerning GHG emissions

(b) Concerning access to information, public participation and access to justice in environmental matters

3. Case‑law of the Court of Justice and the General Court of the European Union

D. Material from other regional human rights mechanisms

1. Inter-American system

(a) Relevant instruments

(b) The Inter-American Court of Human Rights

(c) The Inter-American Commission on Human Rights

2. African system

III. COMPARATIVE LAW

A. Relevant comparative materials concerning the Aarhus Convention

B. Overview of domestic case‑law concerning climate change

1. France

(a) The Grande-Synthe case

(b) Applications for judicial review seeking to secure compliance with the limit values for concentrations of particulate matter and nitrogen dioxide

(c) Full administrative-law actions seeking to secure compliance with GHG emissions reduction targets

(d) Examples of orders and coercive fines imposed in climate cases

2. Germany

3. Ireland

4. The Netherlands

5. Norway

6. Spain

7. The United Kingdom

8. Belgium

THE LAW

I. PRELIMINARY ISSUES

A. The second applicant

B. Scope of the complaint

1. The parties’ submissions

2. The Court’s assessment

C. Jurisdiction

1. The parties’ submissions

2. The Court’s assessment

D. Compliance with the six-month time-limit

II. INTRODUCTORY REMARKS REGARDING THE COMPLAINTS RAISED IN THE PRESENT CASE

III. ALLEGED VIOLATION OF ARTICLES 2 AND 8 OF THE CONVENTION

A. The parties’ submissions

1. The applicants

(a) Preliminary remarks

(b) Victim status

(i) The applicant association

(ii) Applicants nos. 2-5

(c) Applicability of the relevant Convention provisions

(i) Article 2 of the Convention

(ii) Article 8 of the Convention

(d) Merits

2. The Government

(a) Preliminary remarks

(b) Victim status

(i) The applicant association

(ii) Applicants nos. 2-5

(c) Applicability of the relevant Convention provisions

(i) Article 2 of the Convention

(ii) Article 8 of the Convention

(d) Merits

B. The third‑party interveners

1. Intervening Governments

(a) The Government of Austria

(b) The Government of Ireland

(c) The Government of Italy

(d) The Government of Latvia

(e) The Government of Norway

(f) The Government of Portugal

(g) The Government of Romania

(h) The Government of Slovakia

2. United Nations High Commissioner for Human Rights

3. United Nations Special Rapporteurs on toxics and human rights; on human rights and the environment; and the Independent Expert on the enjoyment of all human rights by older persons

4. International Commission of Jurists (ICJ) and the ICJ Swiss Section (ICJ‑CH)

5. European Network of National Human Rights Institutions (ENNHRI)

6. The coordinated submission of the International Network for Economic, Social and Cultural Rights (ESCR‑Net)

7. The Human Rights Centre of Ghent University

8. Professors Evelyne Schmid and Véronique Boillet (University of Lausanne)

9. Professors Sonia I. Seneviratne and Andreas Fischlin (Swiss Federal Institute of Technology Zurich)

10. Global Justice Clinic, Climate Litigation Accelerator and Professor C. Voigt (University of Oslo)

11. ClientEarth

12. Our Children’s Trust, Oxfam France and Oxfam International and its affiliates (Oxfam)

13. Group of academics from the University of Bern (Professors Claus Beisbart, Thomas Frölicher, Martin Grosjean, Karin Ingold, Fortunat Joos, Jörg Künzli, C. Christoph Raible, Thomas Stocker, Ralph Winkler and Judith Wyttenbach, and Doctors Ana M. Vicedo‑Cabrera and Charlotte Blattner)

14. Center for International Environmental Law and Dr Margaretha Wewerinke‑Singh

15. The Sabin Center for Climate Change Law at Columbia Law School

16. Germanwatch, Greenpeace Germany and Scientists for Future

C. The Court’s assessment

1. Preliminary points

2. General considerations relating to climate‑change cases

(a) Questions of causation

(b) Issues of proof

(c) Effects of climate change on the enjoyment of Convention rights

(d) The question of causation and positive obligations in the climate-change context

(e) The issue of the proportion of State responsibility

(f) Scope of the Court’s assessment

(g) Relevant principles regarding the interpretation of the Convention

3. Admissibility

(a) Victim status/locus standi (representation)

(i) General principles

(ii) Victim status/locus standi in the climate-change context

(iii) Application of these principles to the present case

(b) Applicability of the relevant Convention provisions

(i) General principles

(ii) Application of these principles to the present case

4. Merits

(a) General principles

(b) The States’ positive obligations in the context of climate change

(i) The States’ margin of appreciation

(ii) Content of the States’ positive obligations

(c) Application of the above principles to the present case

(i) Preliminary remarks

(ii) The respondent State’s compliance with its positive obligations

(iii) Conclusion

IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

A. The parties’ submissions

1. The applicants

2. The Government

B. The Court’s assessment

1. Admissibility

(a) Victim status

(b) Applicability of Article 6 § 1 of the Convention

(i) General principles

(ii) Applicability of Article 6 § 1 in the climate‑change context

(iii) Application of the above principles and considerations to the present case

2. Merits

(a) General principles

(b) Application of the above principles to the present case

V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

VI. APPLICATION OF ARTICLES 41 AND 46 OF THE CONVENTION

A. Article 41 of the Convention

1. Damage

2. Costs and expenses

3. Default interest

B. Article 46 of the Convention

1. The parties’ submissions

2. The Court’s assessment

OPERATIVE PROVISIONS

PARTLY CONCURRING PARTLY DISSENTING OPINION OF JUDGE EICKE

Introduction

Background

The Court’s role and evolutive interpretation

“Victim” status/standing

Article 6 – access to court

Articles 2 and 8 – the creation of a new right

Conclusion

In the case of Verein KlimaSeniorinnen Schweiz and Others v. Switzerland,

The European Court of Human Rights, sitting as a Grand Chamber composed of:

 Síofra O’Leary,
 Georges Ravarani,
 Marko Bošnjak,
 Gabriele Kucsko-Stadlmayer,
 Pere Pastor Vilanova,
 Arnfinn Bårdsen,
 Pauliine Koskelo,
 Tim Eicke,
 Jovan Ilievski,
 Darian Pavli,
 Raffaele Sabato,
 Lorraine Schembri Orland,
 Anja Seibert-Fohr,
 Peeter Roosma,
 Ana Maria Guerra Martins,
 Mattias Guyomar,
 Andreas Zünd, judges,
and Søren Prebensen, Deputy Grand Chamber Registrar,

Having deliberated in private on 30 March 2023, 6 and 7 December 2023 and 14 February 2024,

Delivers the following judgment, which was adopted on the latter date:

PROCEDURE

1.  The case originated in an application (no. 53600/20) against the Swiss Confederation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an association registered under Swiss law, Verein KlimaSeniorinnen Schweiz, and by four Swiss nationals, Ms Ruth Schaub, Ms Marie‑Eve Volkoff Peschon, Ms Bruna Giovanna Olimpia Molinari and Ms Marie Gabrielle Thérèse Budry (“the applicants”), all members of that association, on 26 November 2020.

2.  The applicants were represented by Ms C.C. Bähr and Mr M. Looser, lawyers practising in Zürich, Ms J. Simor KC and Mr M. Willers KC, lawyers practising in London, and Mr R. Mahaim, a lawyer practising in Lausanne. The Swiss Government (“the Government”) were represented by their Agent, Mr A. Chablais, of the Federal Office of Justice.

3.  The applicants alleged, in particular, various omissions of the Swiss authorities in the area of climate‑change mitigation. They relied on Articles 2, 6, 8 and 13 of the Convention.

4.  The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). On 26 April 2022 the Chamber to which the case had been allocated relinquished jurisdiction in favour of the Grand Chamber, none of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72).

5.  The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24. The President of the Court decided that in the interests of the proper administration of justice the case should be assigned to the same composition of the Grand Chamber as the cases of Carême v. France (application no. 7189/21) and Duarte Agostinho and Others v. Portugal and 32 Others (application no. 39371/20) (Rule 24, Rule 42 § 2 and Rule 71), which were also relinquished by Chambers of the Fifth and Fourth Sections respectively.

6.  The applicants and the Government each filed memorials on the admissibility and merits of the case. In addition, having been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3), third‑party comments were received from the Governments of Austria, Ireland, Italy, Latvia, Norway, Portugal, Romania and Slovakia.

7.  Upon the leave granted by the President, third‑party comments were also received from the following entities: the United Nations High Commissioner for Human Rights; the United Nations Special Rapporteurs on toxics and human rights, and on human rights and the environment, and the Independent Expert on the enjoyment of all human rights by older persons; the International Commission of Jurists (ICJ) and the ICJ Swiss Section (ICJ‑CH); the European Network of National Human Rights Institutions (ENNHRI); the coordinated submission of the International Network for Economic, Social and Cultural Rights (ESCR‑Net); the Human Rights Centre of Ghent University; Professors Evelyne Schmid and Véronique Boillet (University of Lausanne); Professors Sonia I. Seneviratne and Andreas Fischlin (Swiss Federal Institute of Technology Zurich); Global Justice Clinic, Climate Litigation Accelerator and Professor C. Voigt (University of Oslo); ClientEarth; Our Children’s Trust, Oxfam France and Oxfam International and its affiliates (Oxfam); a group of academics from the University of Bern (Professors Claus Beisbart, Thomas Frölicher, Martin Grosjean, Karin Ingold, Fortunat Joos, Jörg Künzli, C. Christoph Raible, Thomas Stocker, Ralph Winkler and Judith Wyttenbach, and Doctors Ana M. Vicedo‑Cabrera and Charlotte Blattner); the Center for International Environmental Law and Dr Margaretha Wewerinke‑Singh; the Sabin Center for Climate Change Law at Columbia Law School; and Germanwatch, Greenpeace Germany and Scientists for Future.

8.  On 11 January 2023 the Grand Chamber decided that in the interest of the proper administration of justice, after the completion of the written stage of the proceedings in the above-mentioned cases, the oral stage would be staggered so that a hearing in the present case and in the Carême v. France case would be held on 29 March 2023, and a hearing in the Duarte Agostinho and Others v. Portugal and 32 Others case would be held before the same composition of the Grand Chamber at a later stage (the hearing was held on 27 September 2023). At a later stage, Armen Harutyunyan, who was prevented from sitting in the present case, was replaced by Jovan Ilievski, substitute judge (Rule 24 § 3).

9.  A hearing took place in public in the Human Rights Building, Strasbourg, on 29 March 2023 (Rule 59 § 3).

There appeared before the Court:

(a)  for the Government
Mr A. Chablais, Agent,
Mr F. Perrez,
Ms M. Beeler-Sigron,
Ms L.L. Paroz,
Ms R. Burkard,
Ms S. Nguyen-Bloch,
Ms I. Ryse  Advisers;

(b)  for the applicants

 Ms J. Simor KC,

 Mr M. Willers KC, 

 Ms C.C. Bähr, 

 Mr M. Looser, 

 Mr  R. Mahaim, Counsel,

 Mr R. Harvey, 

 Ms L. Fournier, Advisers,

 Ms B. Molinari, 

 Ms M. Budry, Applicants,

 Ms A. Mahrer, 

 Ms R. Wydler-Wälti, Co-Presidents of the applicant association;

(c)  for the Government of Ireland 

 Mr B. Lysaght, Agent,

 Ms C. Donnelly SC,  

 Mr D. Fennelly, Counsel,

 Mr M. Corry, 

 Ms E. Griffin, Advisers;

(d)  for ENNHRI

 Ms J. Sandvig, 

 Ms K. Sulyok, 

 Ms H.C. Braenden, 

 Mr P.W. Dawson, Advisers.
 

The Court heard addresses by Mr Chablais, Mr Perrez, Ms Simor KC, Mr Willers KC, Ms Donnelly SC and Ms Sandvig, and the answers by Mr Chablais, Mr Perrez and Ms Simor KC to questions put by the Court.

THE FACTS

10.  The first applicant – Verein KlimaSeniorinnen Schweiz – is a non‑profit association established under Swiss law (“the applicant association”). According to its Statute, the applicant association was established to promote and implement effective climate protection on behalf of its members. The members of the association are women living in Switzerland, the majority of whom are over the age of 70. The applicant association is committed to reducing greenhouse gas (“GHG”) emissions in Switzerland and their effects on global warming. The activity of the applicant association is stated to be in the interests of not only its members, but also of the general public and future generations, through effective climate protection. The applicant association pursues its purpose in particular through the provision of information, including educational activities, and by taking legal action in the interests of its members with regard to the effects of climate change. The applicant association has more than 2,000 members whose average age is 73. Close to 650 members are 75 or older.

11.  For the purposes of the proceedings before the Grand Chamber, the applicant association solicited submissions by its members about the effects of climate change on them. The members described how their health and daily routines were affected by heatwaves.

12.  The second to fifth applicants (“applicants nos. 2‑5”) are women who are members of the applicant association. The second applicant, Ms Schaub, was born in 1931. She died in the course of the proceedings before the Court (see paragraph 273 below). The third applicant, Ms Volkoff Peschon, was born in 1937 and lives in Geneva. The fourth applicant, Ms Molinari, was born in 1941 and lives in Vico Morcote. The fifth applicant, Ms Budry, was born in 1942 and lives in Geneva.

(a)   The second applicant

13.  In a written declaration, the second applicant submitted that she had experienced difficulties enduring the heatwaves and had more than once collapsed while exposed to the sun on a balcony in her flat. She had had to adapt her lifestyle to the heatwaves, for instance when going to the shops, and had to stay indoors almost the entire day. She had also received assistance from a nurse, who had given her special clothing to keep cool. She had needed to get medical attention and had suffered extremely painful episodes of gout, which intensified during hot days. She had even been hospitalised once after she had collapsed during a heatwave, but then she had adapted her habits to the heat by going to the shops earlier and getting fresh air at night. All these limitations had led to problems in her social environment.

14.  The second applicant also provided a medical certificate of 15 November 2016 describing how in August 2015, during a warm summer’s day, she had collapsed in the doctor’s waiting room owing to the high temperature. The medical certificate also indicated that the applicant wore a pacemaker.

(b)   The third applicant

15.  In a written declaration, the third applicant submitted that she had difficulties enduring the heatwaves, such that she needed to organise her life according to the weather forecast. When it was very hot, she had to stay at home the entire day, with the blinds down and the air conditioning turned on. She was also required to refrain from recreational activities and was obliged to regularly measure her blood pressure and then take her medication accordingly. She had also had to see a cardiologist. She would like to move and live somewhere at altitude, but her cardiovascular problems limited her in that respect. She had never been hospitalised, but on several occasions she had felt severely unwell. In addition, owing to the pollution, she had experienced breathing difficulties and extreme sweating. In conclusion, the third applicant stressed that between May and September, the thermometer determined the way she led her life, including her relations with family and friends.

16.  The third applicant provided a medical certificate of 19 October 2016 indicating that for the previous two summers she had suffered significantly as a result of the heatwaves. They affected her physical capacities as she had cardiovascular health issues. Another medical certificate of 11 February 2019 indicated that the applicant’s health condition and the medication she took were not compatible with heatwaves. During heatwaves she had to stay at home and take the appropriate medication (which needed to be adjusted).

17.  A medical certificate of 23 September 2021 confirmed that the applicant suffered from cardiovascular health issues. During heatwaves she generally felt weak and had been unable to continue with her usual therapy. Moreover, she was required to adjust her daily routines. Another medical certificate of 26 November 2022, which was based on a telephone interview with the applicant and the inspection of her medical file, confirmed that the applicant suffered physically and psychologically during the heatwaves.

(c)   The fourth applicant

18.  According to a written declaration of the fourth applicant, her mobility was restricted during heatwaves as excessive heat exacerbated her asthma and chronic obstructive pulmonary disease.

19.  She provided medical certificates of 7 October 2016 and 15 July 2020 attesting to her medical condition and to the adverse effects of periods of hot weather on it. This was confirmed in a medical certificate of 26 November 2022 according to which it was highly probable that the aggravation of the applicant’s health condition was in correlation with the occurrence of climate change‑induced heatwaves. Moreover, during heatwaves, the applicant suffered because she had to reduce her activities and she felt isolated.

(d)   The fifth applicant

20.  In a written declaration, the fifth applicant complained that the heatwaves had the effect of taking away all her energy. During summer she could not face leaving her home and going for a swim. At the same time, she could not afford to take longer holidays in a hotel with a swimming pool. She had never been hospitalised and had not seen a doctor in relation to the heatwaves. Previously she had also worried about her 90‑year‑old mother, until the latter had moved away to a place with a better climate.

21.  The fifth applicant provided a medical certificate of 4 October 2016 attesting that she suffered from asthma.

22.  On 25 November 2016, relying on section 25a of the Federal Administrative Procedure Act of 20 December 1968 (“the APA”), and Articles 6 and 13 of the Convention, the applicants requested the Federal Council, the Federal Department of the Environment, Transport, Energy and Communications (“the DETEC”), the Federal Office for the Environment (“the FOEN”) and the Federal Office for Energy (“the SFOE”) to take a formal decision on “real acts” (acts based on federal public law that affect rights and obligations, but do not arise from formal rulings) with a view to addressing alleged omissions in climate protection. Their requests for a legal remedy read as follows:

“1.  By 2020, the Respondents [the above-noted authorities] shall take all necessary actions within their competence to reduce [GHG] emissions to such an extent that Switzerland’s contribution aligns with the target of holding the increase in global average temperature to well below 2oC above pre‑industrial levels, or at the very least, does not exceed the 2oC target, thereby putting an end to the unlawful omissions undermining these targets.

Specifically:

a.  Respondent 1 shall examine the duties of the Confederation under Article 74 § 1 of the Federal Constitution and their implementation in the climate sector [under] the current climate goal and regarding compliance with:

–  Article 74 § 2 and Article 73 of the Constitution and the constitutional duty of the government to protect the individual in accordance with Article 10 § 1 of the Constitution; and

–  Articles 2 and 8 of the European Convention on Human Rights (ECHR);

and shall develop, without delay, a new plan to be implemented immediately and through 2020 that will permit Switzerland to achieve the ‘well below 2oC’ target or, at the very least, not [to] exceed the 2oC target, which requires a reduction of domestic [GHG] emissions by at least 25% below 1990 levels by 2020;

b.  Respondent 1 shall communicate to the Federal Assembly (Parliament) and the general public that – in order to comply with Switzerland’s obligation to protect and [with] the principles of precaution and sustainability – a reduction of [GHG] emissions is necessary by 2020 in order to meet the ‘well below 2oC’ target or, at the very least, not exceed [the] 2oC target, which requires a domestic [GHG] reduction of at least 25% below 1990 levels by 2020;

c.  Through a decision at the level of the Federal Council, department or federal office, Respondents 1, 2, or 3 shall initiate, without delay, a preliminary legislative procedure for an emission reduction target as laid out in the request [at] 1 (a); and

d.  Respondent 1 shall inform Parliament as stated in the request [at] 1 (c) [whether] the proposed emissions reduction target is in compliance with the Constitution and the ECHR.

2.  The respondents shall take all necessary mitigation measures within their competence to meet the [GHG] reduction target defined in the request [at] 1, namely reducing [GHG] emissions by at least 25% below 1990 levels by 2020, thereby putting an end to their unlawful omissions. In particular:

a.  Respondent 1 shall consider measures to achieve the target as defined in the request [at] 1 (a);

b.  Respondent 1 shall communicate the appropriate measures to reach the target as stated in the request [at] 1 (b);

c.  Respondents 1, 2, or 3 shall, with regard to the request [at] 1 (c) above, include measures to achieve the target in the preliminary legislative procedure.

3.  Respondents shall carry out all acts, within their competence, required to lower emissions by 2030 to such an extent that Switzerland’s contribution aligns with the ‘well below 2oC’ target or, at the very least, does not exceed [the] 2oC target, thus ending the unlawful omissions inconsistent with these targets. In particular:

a.  Respondents 1, 2, or 3 shall, in the course of the preliminary legislative procedure, carry out all actions that allow Switzerland to do its share to meet the ‘well below 2oC’ target or, at the very least, to not exceed [the] 2oC target, which means a domestic reduction of [GHG] emissions of at least 50% below 1990 levels by 2030;

b.  Respondents 1, 2, or 3 shall include in the preliminary legislative procedure all necessary mitigation measures required to meet the [GHG] reduction target as defined in the request [at] 3 (a).

4.  The respondents shall implement all mitigation measures, within their competence, required to achieve the current [GHG] reduction target of 20%, thus ending the unlawful omissions. In particular:

a.  Respondent 3 shall obtain without delay the reports of cantons detailing the technical measures adopted to reduce the CO2 emissions from buildings;

b.  Respondent 3 shall verify that the cantonal reports include data about CO2 reduction measures that have already been taken or are planned and their effectiveness; demonstrate the progress made to reduce CO2 emissions from buildings in their territory; and require improvements if necessary;

c.  Respondent 3 shall verify that cantons are issuing state of the art building standards for new and existing buildings;

d.  Respondents 1, 2 and 3 shall take the necessary actions if cantons fail to comply with the verification requirement as stated in the request at 4 (c); if necessary they shall become active in [the] preparation of new state of the art federal building standards for new and existing buildings;

e.  Respondent 2, having determined that the interim building sector target for 2015 was not achieved, shall examine the need for improvements by cantons and propose additional effective mitigation measures to Respondent 1;

f.  Respondents 1, 2, and 3 shall take steps aimed at rapidly increasing the CO2 tax on thermal fuels;

g.  Respondent 4 shall require the importers of passenger cars to submit data showing actual CO2 emissions of passenger cars;

h.  Respondent 2, given that the interim transport sector target 2015 will likely not be achieved, shall immediately draft additional and effective mitigation measures and propose them to Respondent 1; in particular, Respondent 1 shall take actions to promote electromobility or otherwise demonstrate that the sector interim target in section 3(2) of the CO2 Ordinance can be achieved without such promotion; and Respondents l, 2, and 3 shall take steps to raise the compensation rate for the CO2 emissions from motor fuels;

i.  Respondent 1 shall make a comprehensive assessment of the effectiveness of measures enacted under the CO2 Act and consider whether additional measures are necessary, report the findings of the assessment to Parliament, and immediately initiate steps to implement the necessary measures for the period ending in 2020.

5.  Alternatively, with regard to the requests 1, 2, 3 and 4, a declaratory ruling shall be issued finding the respective omissions unlawful.

as well as the following procedural motion:

The requests for legal remedies 1-5 shall be enacted in a timely manner.”

23.  In their memorial submitted to the DETEC, the applicants pointed out, in particular, that the aim of their request was to compel the authorities, in the interest of safeguarding their lives and health, to take all necessary measures required by the Constitution and the Convention to prevent the increase of the global temperature.

24.  As regards their individual circumstances, the applicants pointed to the nature and mission of the applicant association and, as regards the rest of them, contended that they were members of a most vulnerable group affected by climate change. Evidence showed that the life and health of older women were more severely impacted by periods of heatwaves than the rest of the population. They submitted that this could be seen in their cases as they all had various health impairments affected by heatwaves, and such adverse effects would exacerbate with time owing to the predicted rise in the frequency and duration of heatwaves.

25.  The applicants further explained that they considered the current domestic emissions reduction targets insufficient, unconstitutional and incompatible with the Convention and international law. They also considered the mitigation measures taken by the authorities to be insufficient. In their view, the authorities had no justification for their inaction in the field of climate change.

26.  The applicants contended that the above‑noted omissions violated the sustainability principle (Article 73 of the Constitution), the precautionary principle (Article 74 § 2 of the Constitution) and the right to life (Article 10 of the Constitution), and also their rights under the Convention, in particular “the right to life, to health, and to physical integrity protected in Article 2 and Article 8 [of the Convention]” in relation to the positive duty to protect. Specifically, they argued that the State had a duty to put in place the necessary regulatory framework and administration, taking into account the particular situation in question and the level of risk.

27.  Furthermore, the applicants relied on Articles 6 and 13 of the Convention. They argued, in particular, that their request concerned a serious and genuine dispute over their civil rights and obligations within the meaning of Article 6 § 1 of the Convention, since the omissions at issue posed a serious risk to their lives, health and physical integrity. They were therefore entitled to have their request assessed by the authorities and ultimately a court. This was, in their view, the intention and purpose of the remedy under section 25a of the APA, which, by the nature of things, was being used in the present case to contest omissions and claim protection under the Convention. However, and independently of section 25a of the APA, the applicants considered that their request should be examined, having regard to the requirements of Articles 6 and 13 of the Convention.

28.  On 25 April 2017 the DETEC rejected the applicants’ request for lack of standing. The DETEC explained that an action under section 25a of the APA was subject to the following conditions: (a) there had to be a “real act”; (b) the request had to concern federal public law; (c) the authority concerned had to be a federal administrative authority; (d) the real act had to affect rights or obligations; (e) there had to be an “interest worthy of protection”; and (f) the principle of subsidiarity had to be observed.

29.  While, in principle, the DETEC accepted that the conditions under (a) to (c) had been fulfilled, it considered that the condition under (d) – namely, that the real act had to affect rights or obligations – had not been met, which made it irrelevant to discuss the conditions under (e) to (f).

30.  The DETEC held that the main aim of the applicants’ request to the federal administrative authorities had been to initiate the enactment of legislative provisions to reduce CO2 emissions. That action was not comparable with an order (individual‑specific order) or at least with a general order (general‑specific order), as required by section 25a of the APA. In the DETEC’s view, the general purpose of the applicants’ request was to achieve a reduction in CO2 emissions worldwide and not only in their immediate surroundings. The DETEC considered that no individual legal positions were affected in the case in issue as the applicants’ request did not serve to specifically realise such individual positions, but rather aimed to have general, abstract regulations and measures put in place. The DETEC therefore considered that section 25a of the APA did not apply, as legislative procedures were not regulated by that Act and the applicants had other means at their disposal to engage in the exercise of their political rights.

31.  For similar reasons, the DETEC rejected the applicants’ Convention arguments. Focusing on Article 13 of the Convention, the DETEC found that the applicants were pursuing general‑public interests, which could not provide the basis for them having victim status under the Convention. The DETEC also held that Article 13 of the Convention allowed only the review of a concrete State act in relation to an individual person, which was not the situation in the case at hand.

(a)   The applicants’ appeal

32.  On 26 May 2017 the applicants lodged an appeal with the Federal Administrative Court (“the FAC”) against the DETEC’s decision. They requested that the impugned decision be quashed and remitted to the DETEC for re‑examination.

33.  In their appeal the applicants reiterated their arguments regarding the effects of climate change made before the DETEC (see paragraphs 22‑27 above) and argued that their request was not aimed at obtaining the adoption of general, abstract regulations, but rather specific actions in the context of preliminary legislative proceedings as well as the correct implementation of the existing law. Such a request, in the applicants’ view, fell within the scope of section 25a of the APA. The applicants also argued that the DETEC had violated their right to be heard by not entering into the details of their request and particularly their arguments based on the Convention.

(b)   The FAC’s decision

34.  On 27 November 2018 the FAC dismissed the applicants’ appeal.

35.  With regard, first, to the applicants’ standing to lodge the appeal, the FAC held that applicants nos. 2‑5 had an “interest worthy of protection” in the revocation or amendment of the impugned DETEC decision, which made the appeal admissible from that perspective. The FAC therefore considered that it was unnecessary to determine whether the applicant association had such an interest as well.

36.  The FAC then examined the applicants’ complaint as regards the breach of their right to be heard. It found that, while the DETEC decision lacked reasoning, in the circumstances of the case at hand it was clear that the applicants’ request had been rejected because the DETEC considered it to be of an actio popularis nature.

37.  As regards the remainder of the applicants’ arguments, the FAC explained that section 25a of the APA reflected the guarantee of access to a court provided in Article 29a of the Constitution and Article 6 of the Convention, in so far as “real acts” were concerned. It also pointed out that neither the law nor the case‑law defined the concept of “real acts”. However, the FAC considered that, as regards the substantive area of application of section 25a of the APA, the decisive factor was the question whether a need for individual legal protection existed. Moreover, in order to restrict the area of application as was necessary to exclude actio popularis claims, the other criteria mentioned in section 25a(l) of the APA – namely, an “interest worthy of protection”, and rights and obligations being affected – were to be applied. The concept of an “interest worthy of protection”, which derived primarily from fundamental rights, required that there should be an existing interest and a practical benefit in pursuing it. Moreover, the appellant had to be affected in a way that differed from the general population, which was a criterion intended to exclude actio popularis proceedings. As regards potential infringements of fundamental rights, it was necessary to examine the material scope of the right in question in order to determine whether the right was affected or not. This assessment was to be carried out in the circumstances of a particular case.

38.  Examining the applicants’ case from the perspective of these considerations, and relying on the Federal Supreme Court’s case‑law on actio popularis complaints, the FAC held that the applicants’ claim relating to the consequences of climate change, and demanding the issuance of a material ruling under section 25a of the APA, required the existence of a close proximity between the applicants and the matter in dispute, which – as opposed to actio popularis claims – went beyond the existence of a possible proximity which the general public might claim. In this connection, while accepting that over the course of the twenty‑first century climate change would affect Switzerland in all its regions and seasons, the FAC considered that the impacts of climate change on people, animals and plants would be of a general nature, even if not all would be impacted equally. The FAC reasoned, in particular, as follows:

“The adverse effects vary among different population groups in terms of economic and health impacts. For the population in cities and agglomerations, for example, heatwaves are a health burden because of the formation of heat islands. Heatwaves in the summer can put infants and small children at risk as well because of their susceptibility to dehydration, and high ozone levels owing to the heat can bring about respiratory disorders and impairment of pulmonary function. In addition, the changed geographic areas of carriers of disease such as ticks and mosquitoes will newly affect parts of the population which had previously not been exposed to such risks. Climate change, and in particular the associated change of average temperature and average amounts of precipitation also impact forestry, agriculture, winter tourism and water management, for example. In addition, because of the thawing permafrost, the danger of rockslides is increasing, and, particularly in the winter, also the risk of flooding, debris flows and landslides.”

39.  However, the FAC considered that the group of women older than 75 would not be particularly affected by the impacts of climate change such as to allow them to lodge an action under section 25a APA. It noted the following:

“Although different groups are affected in different ways, ranging from economic interests to adverse health effects affecting the general public, it cannot be said from the perspective of the administration of justice, having regard to the case-law as described above, that the proximity of the appellants to the matter in dispute – climate protection on the part of the Confederation – was close, compared with the general public ... Thus, the appellants have no sufficient interest worthy of protection, for which reason the authority of first instance rightly refused to issue a material ruling in terms of section 25a APA.”

40.  As regards the applicants’ reliance on Article 6 § 1, and subsidiarily on Article 13, of the Convention, concerning the protection of their rights under Articles 2 and 8 of the Convention, the FAC held that the applicability of Article 6 § 1 of the Convention required, inter alia, the existence of a genuine dispute of a serious nature, the outcome of which was directly decisive for the civil claim in question. According to the FAC, this meant that a claim should be asserted in formal terms in a reasonable way and that Article 6 § 1 should be interpreted in conjunction with Article 34 of the Convention, which regulated the conditions for lodging individual applications before the Court and excluded the possibility of actio popularis complaints.

41.  In this respect, as regards the applicants’ specific complaints, the FAC reasoned as follows:

“Neither preliminary legislative proceedings nor the requested provision of information to the public [as requested by the appellants] can make a direct contribution toward reducing [GHG] emissions in Switzerland in line with the case‑law summarised above. Rather, this depends on the decisions of the legislature and regulators as well as of each individual concerned. The requested actions are therefore not appropriate for reducing the risk of heatwaves during the summer. The same applies inasmuch as the appellants demand the introduction of emission reduction measures not currently provided for by law ...

In this factual situation, it cannot be said that a genuine dispute of a serious nature was brought before the first-instance authority the outcome of which would have proven to be directly decisive for any possible civil claims by the appellants; a reduction of the general risk of danger cannot be achieved directly through the requested actions. The first‑instance authority was therefore not obliged on the basis of Article 6 § 1 [of the Convention] to enter into the matter of the appellants and to issue a material ruling which would open up the path to appeal and thus provide for protection through the courts. With this outcome, it is not necessary to examine Article 13 [of the Convention], either ... the guarantee in terms of Article 13 [of the Convention] is absorbed in full by Article 6 [of the Convention] in civil disputes.”

42.  Finally, the FAC summarised its findings in the following manner:

“In summary, the appellants are not affected by the Confederation’s climate protection measures in a way that goes beyond that of the general public. Their legal requests, inasmuch as they are based on section 25a of the APA and demand (further) actions to reduce [GHG] emissions, are therefore to be qualified as inadmissible actio popularis; the first‑instance authority rightly did not enter into the matter. Further claims to the issuance of a material ruling do not result from the [Convention] either. Therefore, the appeal is to be dismissed.”

(a)   The applicants’ appeal

43.  On 21 January 2019 the applicants lodged an appeal in the Federal Supreme Court (“the FSC”) against the FAC’s judgment. They requested that it be quashed, and the case remitted to the DETEC for examination on the merits or, alternatively, to the FAC for its reassessment. In their appeal, the applicants relied on Articles 9, 10, 29 and 29a of the Constitution and Articles 2, 6, 8, 13 and 34 of the Convention.

44.  The applicants argued that they had an “interest worthy of protection”, which was current and practical, since, in the absence of a remedial action, Switzerland continued to emit excessive GHG emissions which increasingly impacted their lives and health. As regards the applicant association, they stressed that it was appealing on its own behalf but also in the interests of its members, which represented a vulnerable group whose health, and potentially lives, were particularly impacted by the consequences of global warming.

45.  The applicants further contended that the FSC needed to make the necessary determination of the facts of the case since the FAC had failed to do that or had done it only in a rudimentary way, particularly in relation to the possible impacts of climate change. In their view, the FAC had failed to consider the issues relating to more frequent deaths and the adverse health impacts in the population group of women aged 75 to 84 linked to climate change. They referred to the various health ailments suffered by applicants nos. 2‑5, which made them even more vulnerable to climate change.

46.  Moreover, as regards the object of the appeal before the FSC, the applicants explained that they were challenging, in particular, the lower bodies’ determination of the procedural prerequisites for examination of the substance of their case in terms of section 25a of the APA and Articles 6 § 1 and 13 of the Convention, in conjunction with Articles 10 and 29 § 2 of the Constitution and Articles 2 and 8 of the Convention. They complained of a breach of their right to be heard, namely the right to have a proper examination of their case by the DETEC and the FAC. The applicants also referred to Article 9 § 3 of the Aarhus Convention[1] (see paragraph 141 below) as regards their standing to bring the present proceedings before the courts.

47.  The applicants further argued that the FAC had incorrectly considered that their complaint was of an actio popularis nature. In their view, as a group which was particularly vulnerable to climate change, they had a right to seek protection under Article 10 of the Constitution and under Article 2 of the Convention. Moreover, pointing to the risks to their health, physical integrity and well‑being as a result of global warming, the applicants argued that excessive GHG emissions were similar to harmful air pollution and were to be considered as dangerous activities within the meaning of Article 8 of the Convention. On the basis of these considerations, the applicants also considered that they had victim status under Article 34 of the Convention.

48.  As regards, in particular, their reliance on Article 6 of the Convention, the applicants argued that the FAC had examined the wrong question by reviewing the connection between their legal requests and GHG emissions (which it had, moreover, assessed incorrectly), whereas it had been supposed to examine the connection between GHG emissions and the State’s obligation to protect their right to life under Article 10 of the Constitution.

49.  In this connection, the applicants alleged that they had not had effective legal protection as required by the Convention. In their view, the FAC had misconstrued the concept of a dispute of a genuine and serious nature relevant for the applicability of Article 6. The applicants argued that their request had been aimed at addressing the omissions in climate protection on the part of the State, thereby leading to a reduction in excessive GHG emissions and the heatwaves linked to them. In other words, the outcome of the proceedings they sought to achieve was the reduction of GHG emissions and heatwaves. However, the FAC had incorrectly considered that there needed to be a direct connection between their requests and the reduction of GHG emissions. In any event, in the applicants’ view, the FAC had not properly examined the existence of a link between some of the demands they had made (such as the institution of preliminary legislative proceedings or the provision of information to the public and Parliament) and the reduction of GHG emissions and heatwaves, and, by extension, the protection of their right to life guaranteed under the relevant domestic law, namely Article 10 of the Constitution.

50.  According to the applicants, there was a sufficient connection between this protected civil right under domestic law and the outcome of the proceedings which they sought to achieve. Moreover, citing the Court’s case‑law in Bursa Barosu Başkanlığı and Others v. Turkey (no. 25680/05, § 128, 19 June 2018), the applicants argued that Article 6 was applicable even if their claim did not benefit only them exclusively, but also benefited the general public. The applicants also considered that the FAC’s interpretation of Article 6 in conjunction with Article 34 of the Convention had had no legal basis and been arbitrary. In summary, the applicants noted as follows:

“The appellants’ dispute is genuine and serious because the outcome of the proceedings – the reduction of [GHG] – is directly decisive for their right to protection of their lives as well as for the implementation of CO2 legislation. The appellants thus have the right to access to a court in terms of Article 6 [of the Convention].”

51.  As regards Article 13 of the Convention, the applicants argued that even if the FAC had considered Article 6 to be inapplicable, it had been required to examine the complaint under Article 13 in conjunction with the existence of adverse effects of climate change on their right to life under Article 2, and their right to respect for private and family life under Article 8 of the Convention.

(b)   The FSC’s decision

52.  On 5 May 2020 the FSC dismissed the applicants’ appeal.

53.  The FSC considered that applicants nos. 2‑5 had standing to lodge an appeal against the FAC’s judgment. The FSC, however, left it open whether the applicant association also had standing to lodge the appeal and considered it more appropriate to limit its considerations to applicants nos. 2‑5.

54.  As regards the merits of the applicants’ appeal, the FSC first found that the decisions of the DETEC and the FAC had been duly reasoned, as required by Article 29 § 2 of the Constitution and Article 6 § 1 of the Convention (assuming that it applied).

55.  With respect to the applicants’ reliance on section 25a of the APA, the FSC stressed that this provision was intended to provide legal protection against “real acts” and not for an actio popularis avenue. This necessitated a careful examination in the particular circumstances of each case of whether the person was affected in a different way from the general public. In other words, it was essential that an applicant’s own rights were affected. Moreover, the FSC explained that the term “real acts” under section 25a of the APA referred to a broad concept of State acts (or failures to act). However, the legal protection guaranteed under that provision was restricted by the application of other admissibility criteria, notably the requirement that the “real act” affect rights or obligations and that the person have an “interest worthy of protection”. The requirement of being affected presupposed an interference (actual or potential) of a certain gravity with the rights of an individual. Linked to that, the “interest worthy of protection” was primarily concerned with fundamental rights, although other legal titles might also be taken into account.

56.  Applying these considerations to the case in issue, the FSC first noted that the applicants had requested a large number of measures of different nature and scope which essentially amounted to a request to institute preparatory work for the enactment of laws and secondary legislation. However, finding that in the light of other considerations it was not necessary to engage further with this issue, the FSC stressed that, according to Swiss constitutional law, proposals for shaping current policy areas should in principle be pursued by way of democratic participation.

57.  The FSC further considered that the fact that the DETEC and the other authorities had not taken the actions requested by the applicants did not in itself mean that the rights invoked by the applicants would be violated. Moreover, it did not follow from that alleged omission alone that the applicants’ fundamental rights would be affected with the necessary intensity, as required under section 25a of the APA.

58.  In this connection, the FSC held that the limit of “well below 2oC” in terms of the Paris Agreement[2] was not expected to be exceeded in the near future. Relying on the 2018 Special report “1.5oC global warming” of the Intergovernmental Panel on Climate Change (IPCC), the FSC concluded that global warming would reach 1.5oC around the year 2040 (likely range 2030 to 2052), provided that it continued at the current rate (0.2oC per decade, likely range 0.1 to 0.3oC per decade). The limit of “well below 2oC” would accordingly be reached at a later time. The FSC considered that the Paris Agreement and the international climate protection regime based on it, including the relevant Swiss law, were based on the assumption that the limit of “well below 2oC” would not be exceeded in the near future and that there was still some time to prevent global warming from exceeding this limit.

59.  On the basis of the above considerations, the FSC found as follows:

“In the circumstances mentioned above, the appellants’ right to life under Article 10 § 1 of the Constitution and Article 2 [of the Convention] does not appear to be threatened by the alleged omissions to such an extent at the present time that one could speak of their own rights being affected in terms of section 25a of the APA with sufficient intensity ... The same applies to their private and family life and their home in terms of Article 8 [of the Convention] and Article 13 § 1 of the Constitution. The alleged domestic omissions do not achieve the fundamental rights relevance required under section 25a to guarantee the protection of individual rights. Therefore, section 25a of the APA, which ensures the protection of individual rights, does not apply ... Nor do the appellants appear to be victims of a violation of the above‑mentioned Convention rights in terms of Article 34 [of the Convention] ... Their above‑mentioned rights are not affected and they are not victims within the meaning of Article 34 [of the Convention] because their rights are not affected with sufficient intensity. This is not altered by the fact that – as they argue – in certain cases potential victims can be victims in terms of Article 34 [of the Convention]. This also requires being affected with a certain intensity ..., which requirement is not met here.

In view of what has been said above, it follows that the rights of the appellants – like the rest of the population – are not affected by the alleged omissions with sufficient intensity in terms of section 25a of the APA. Accordingly, their request to the above‑mentioned authorities for issuance of a ruling on real acts does not have the aim of ensuring their individual legal protection. Rather, it aims to have the climate protection measures at the federal level existing today and planned up to the year 2030 examined in the abstract for their compatibility with State obligations to protect. Indirectly – through the requested action of State authorities – it aims to initiate the tightening of these measures. Such a procedure or actio popularis is inadmissible in terms of section 25a of the APA, which guarantees the protection of individual rights only. Article 9 § 3 of the Aarhus Convention ... to which the appellants referred, cannot alter this finding ...”

60.  Moreover, the FSC considered that, in terms of section 25a of the APA, the applicants’ legal action was of an actio popularis nature and aimed at achieving something which should more appropriately be achieved not by legal action but by political means. The DETEC had therefore not acted in breach of section 25a of the APA when rejecting the applicants’ requests.

61.  As regards the applicants’ reliance on Article 6 § 1 of the Convention, the FSC reasoned as follows:

“[The] condition [that the disputed claim existing in domestic law must at least be “arguable”] is not met in the present case. In terms of domestic law, the appellants base their alleged subjective right to have the impugned omissions ceased and to have the requested actions performed, on the right to life under Article 10 § 1 of the Constitution. However, as noted above, the alleged omissions do not affect this fundamental right in a legally relevant way. Therefore, they cannot derive the requests mentioned from this right. Accordingly, they have no subjective right to the declaratory ruling requested in the alternative, namely that the alleged omissions breach (fundamental) rights. The [FAC] therefore rightly confirmed the DETEC’s decision not to examine the case in this respect. It is therefore not necessary to address the further requirements of Article 6 § 1 [of the Convention] ...”

62.  Lastly, as regards the applicants’ complaint under Article 13 of the Convention, the FSC found that, in the light of the findings above, the applicants did not have an arguable claim under another provision of the Convention triggering the application of Article 13.

63.  In conclusion, the FSC stressed as follows:

“It is clear from the considerations above that the appellants cannot use the means of individual legal protection invoked to protect themselves against the alleged omissions of the abovementioned authorities in the field of climate protection. Therefore, even though their concern is readily comprehensible given the possible consequences of insufficient implementation of the Paris Climate Agreement for older women which they highlighted, their appeal must be dismissed.”

64.  The work of the IPCC demonstrated that increases in GHG concentrations since around 1750 had unequivocally been caused by human activities and that the human‑caused global surface temperature increase from the period 1850‑1900 to the period 2010‑19 was 1.07oC. The IPCC had also found with high confidence that there was a near‑linear relationship between cumulative anthropogenic GHG emissions and global warming: human‑induced global warming resulted in more frequent and more intense heatwaves[3]. The IPCC had emphasised that reductions this decade largely determined whether warming could be limited to 1.5oC or 2oC[4].

65.  Increasing temperatures and heatwaves increased mortality which could be attributed to human‑induced climate change[5]. Indeed, climate change and related extreme events would significantly increase ill health and premature deaths in the near to long term[6]. Globally, heat‑related mortality in people over 65 had increased by approximately 68% between 2000‑04 and 2017‑21[7]. Of all the climate hazards, heat was by far the most significant cause of death in Europe[8].

66.  Increasing temperatures and heatwaves not only entailed increased mortality but also posed a serious health risk. Heatwaves placed strain on the human body and caused dehydration and the impairment of heart and lung function, leading to an increase in emergency hospital admissions: older people and infants were particularly at risk. They also contributed to dehydration, hyperthermia, fatigue, loss of consciousness, heat cramps and heat strokes, including the aggravation of existing medical conditions such as cardiovascular, respiratory and kidney conditions or mental illnesses and stress[9].

67.  Older adults, women and persons with chronic diseases were at the highest risk of temperature‑related morbidity and mortality[10]. Overall, women aged above 75 (such as applicants nos. 2‑5) were at greater risk of premature loss of life, severe impairment of life and of family and private life, owing to climate change‑induced excessive heat than the general population[11].

68.  While any increase in global warming was projected to affect heat‑related morbidity and mortality, the global scientific consensus was that many premature deaths and health impairments could be prevented by adhering to the 1.5oC limit[12].

69.  Per capita GHG emissions in Switzerland in 2020 had been 5.04 tonnes of CO2eq. Total domestic GHG emissions in Switzerland in 2020 had amounted to 43.40 Mt CO2e[13]. In the same year, Switzerland’s share of global cumulative CO2 emissions had been 0.18%[14].

70.  These figures, however, excluded emissions attributable to Switzerland but occurring outside of its territory (“external emissions”) such as GHG emissions from international aviation and shipping fuels tanked in Switzerland (these emissions had nearly doubled since 2004 and in 2019 had been equivalent to about 13.2% of total domestic GHG emissions in Switzerland[15]) and consumption‑based GHG emissions, created by the import of goods (Switzerland being the world’s largest importer of such emissions relative to its domestic emissions[16]). The per capita footprint in that respect had been 13 tonnes of CO2eq[17]. Such a GHG footprint had been found to be excessively high by the FOEN[18].

71.  Moreover, to this had to be added the emissions caused by finance flows (such as investing, underwriting, lending, insurance). A 2015 study commissioned by the FOEN had shown that the investments made by the largest equity funds authorised in Switzerland tended to a contribution to global warming of 4‑6oC[19]. The FOEN had therefore considered that more could be done at this level[20].

72.  In Switzerland, the annual temperature had increased around 2.1oC since the measurements had begun in 1864[21]. The summers of 2003, 2015, 2018, 2019 and 2022 had been the five warmest summers on record in Switzerland, with those of 2003 and 2022 being the first and second hottest since records had begun[22].

73.  In Switzerland more deaths than average occurred during hot summers[23]. Almost 1,000 additional heat‑related deaths had occurred in June and August 2003, approximately 800 in June, July and August 2015, 185 in August 2018 and 521 in June, July and August 2019. Between June and August 2022, 1,700 more people over 65 had died than statistically expected (the reasons having still not been completely analysed)[24].

74.  During the 2003 heatwave, 80% of the additional deaths had occurred in persons over 75. The most significant rise in mortality risk during the hot summer of 2015 had been for 75 to 84‑year‑olds. In August 2018, nearly 90% of heat‑related deaths had occurred in older women, almost all of whom were older than 75. During the 2019 heatwave, older persons had been at the highest risk of mortality, and people aged 85 and over had been most affected (448 of 521). Similarly, the 2022 heatwaves appeared predominantly to have affected people over 65[25].

75.  Switzerland had not transposed its Nationally Determined Contributions (NDC) under international law into domestic law:

–  The current CO2 Act 2011 merely contained a binding emissions reduction target for 2020 and 2024;

–  A new CO2 Act 2020[26], containing a binding target for 2030, had been rejected in a referendum on 13 June 2021;

–  On 16 September 2022 the government had submitted to Parliament a draft amendment of the CO2 Act 2011[27] which was intended to apply for the period from 2025 to 2030[28]. Parliament had, however, agreed on another proposed amendment[29] to the Act;

–  Moreover, Switzerland had never carried out an analysis of its carbon budget.

76.  According to the applicants, Switzerland’s climate reduction targets and actions could be summarised as follows:

–  2007‑13: in accordance with the CO2 Act 2011 (in force since 2013), domestic GHG needed to be reduced by 20% below 1990 levels by 2020. However, in 2007, the IPCC had stated that developed countries like Switzerland had to reduce their domestic emissions by 25%‑40% below 1990 levels by 2020 to meet the (now outdated) 2oC limit with a 66% probability[30]. The inadequacy of the solution had been recognised by the government[31].

–  2014‑17: in 2017 the government had presented a new CO2 Act (which had later become the rejected 2020 CO2 Act) proposing an overall reduction of 50% and a domestic emissions reduction of 30% below 1990 levels by 2030[32]. However, in 2014, the IPCC had found that countries such as Switzerland had to achieve domestic reductions of at least 40% and possibly as much as 100% by 2030 for there to be a 66% probability of remaining within the (now outdated) 2oC limit. This implied the need for an on average domestic reduction of 50% by 2030[33].

–  In 2020 Switzerland had submitted an updated NDC, stating that it was committed to following scientific recommendations in order to limit warming to 1.5oC and that in view of its climate neutrality target by 2050, Switzerland’s NDC was to reduce its GHG emissions by at least 50% by 2030 compared with 1990 levels[34].

–  2018‑2030: There had been no real progression in the formally updated NDC by Switzerland[35] and the text of the current and planned national climate legislation did not reflect a commitment to the 1.5oC limit. Moreover, the emission reduction pathways were not in line with the 1.5oC limit: in comparison to the period up to 2020 (which the applicants considered as entailing an annual decrease of 2%), in 2021 they had even decreased (see paragraph 123 below; section 3(1bis) and (1ter) of the CO2 Act 2011). The Swiss authorities had accepted that the reduction pathway would not be sufficient to achieve Switzerland’s NDC and that compensating for the delay in emissions reduction would be a major challenge and the share of measures taken abroad would have to be significantly higher than planned[36]. For the period from 2025 to 2030, it was planned that it would be within the competence of the government to determine the spread of domestic measures within the reduction target of at least 50% by 2030. The intention was a domestic reduction of around 34% by 2030 compared to 1990 (1.52% per year). At the same time, the State had not explained how the delay could be compensated for with this domestic reduction pathway[37].

–  2031‑50: for the period from 2031 onwards, the Swiss authorities’ goal was to reduce GHG emissions by 75% below 1990 levels by 2040 and to net zero by 2050. However, the applicants pointed out that according to that legislation these targets were to be achieved only “as far as possible” through domestic measures[38]. They also considered that these targets were not in line with the 1.5oC objective.

77.  In this connection, taken globally, the IPCC had considered that immediate action to limit the warming to 1.5oC required a reduction in net global GHG emissions from 2019 levels of 43% by 2030 and by 84% by 2050[39]. To limit the global temperature increase required limiting the overall cumulative CO2 emissions within a carbon budget. To have a 67% chance of meeting the 1.5oC limit, the remaining global carbon budget was 400 GtCO2 and to have an 83% chance, 300 GtCO2[40]. Thus, according to the applicants’ calculation, even applying the method of same “per capita burden‑sharing” for emissions from 2020 onwards (the applicants challenged the validity of the method of “equal per capita emissions” as compared to “highest possible ambition”), Switzerland would have a remaining carbon budget of 0.44 GtCO2 for a 67% chance of meeting the 1.5oC limit, or 0.33 GtCO2 for an 83% chance. In a scenario with a 34% reduction in CO2 emissions by 2030 and 75% by 2040, Switzerland would have used the remaining budget around 2034 (or 2030 for an 83% chance).

78.  The Climate Action Tracker (“the CAT”)[41] had found that if all States followed Switzerland’s approach, warming would reach up to 3oC. In addition, the CAT had rated Switzerland’s fair share target as “insufficient” and its climate finance as “insufficient”, indicating that “substantial improvements” were needed to be consistent with limiting warming to 1.5oC[42]. The CAT had concluded that to do its fair share to limit global warming to 1.5oC, Switzerland had to reduce its GHG emissions to significantly below zero by 2030 (a reduction of between 160% and more than 200% below 1990 emissions)[43]. Similar findings had been reached in other studies[44].

79.  However, Switzerland was pursuing a strategy of purchasing emission reductions abroad and taking them into account in the national emission reduction target for 2030, which had the effect of postponing the reduction efforts Switzerland itself had to undertake to be net zero in 2050. Such a strategy would require Switzerland, after 2030, to reduce domestic emissions to zero within a very short period of time with high annual emission reduction rates that would become increasingly difficult to achieve[45].

80.  Furthermore, most of the GHG emissions attributable to Switzerland occurred abroad. The Swiss authorities had at first recognised that they should be taken into account when setting climate targets[46]. However, this did not form part of their current legislative proposals or of the updated 2021 NDC[47]. In this context, the financial sector had a considerable influence on GHG emissions[48]. However, according to the amended CO2 Act 2011, the finance sector would be included in national climate law only in 2025 and with a limited effect, since it would merely be obliged to review the financial risks of climate change and not to make financial flows compatible with a climate‑compatible emissions pathway.

81.  The Swiss authorities also recognised that they had missed their own 2020 climate target. Even after the COVID‑19 restrictions, GHG emissions were rising again significantly[49]. Some sectors (and most notably the building and transport sectors in the cantons) were not properly supervised and some sectors (such as the agricultural and financial sectors) were not regulated.

82.  The (planned) emission reduction measures for 2030 were similar to those in the CO2 Act 2011 and these measures would not be able to achieve a domestic reduction of around 34% by 2030[50]. At the same time, a 1.5oC compatible domestic pathway was technically and economically feasible[51]. However, Switzerland would need to achieve full decarbonisation in line with the 1.5oC limit and should step up the taking of the measures abroad in order to meet its “fair share” target.

83.  The Government considered that the situation concerning climate change in Switzerland, and the measures taken in that respect, should be viewed in two separate phases: the first concerned the measures taken before the adoption of the FSC’s judgment of 5 May 2020 in the applicants’ case (see paragraphs 52‑63 above); and the second related to the measures taken after the adoption of that judgment.

84.  The CO2 Act 2011, applying the Kyoto Protocol[52], envisaged that GHG emissions in Switzerland should be reduced by 20% compared to 1990 levels by 2020. This corresponded to an average reduction of 15.8% in the period between 2013 and 2020, which was the international objective fixed by Switzerland under the Kyoto Protocol. The Federal Council had relied on the available scientific data when fixing the objective for the period up until 2020.

85.  The fourth IPCC report of 2007[53] had noted that the concentration of GHG in the atmosphere should be stabilised at a level of 445 to 490 ppm of the equivalent CO2 in order to avoid dangerous climate change. In this way, it would have been possible to limit the rise in temperature to 2 or even 2.4oC compared to the pre‑industrial period. To achieve this objective, it was necessary to reduce GHG emissions at the global level from 5.8 t to 1 to 1.5 t of CO2 equivalent per inhabitant at most. Such an objective would have required a reduction in GHG emissions of at least 50 to 85% globally and an 80 to 95% reduction at the national level of industrialised countries until 2050 compared to 1990. Industrialised countries therefore had to reduce their emissions by 25 to 40% until 2020 compared to 1990. In this connection, the objective fixed by Switzerland (20% compared to 1990 levels) corresponded to the objective set by its principal commercial partners, notably the European Union. Moreover, although the Federal Council had envisaged the possibility of increasing the relevant level of reduction of GHG emissions to 30%, it had not ultimately pursued this possibility.

86.  By the end of 2020, the relevant legislation on climate had envisaged the following measures: (a) imposing a CO2 tax on fossil fuels and creating benefits for the construction sector, technology, households and enterprises; (b) requiring all installations emitting significant levels of GHG emissions to participate in the EU Emissions Trading System[54]; (c) ensuring the undertaking of emissions reduction by small and mid‑size installations emitting GHG emissions; (d) aligning domestic legislation with EU requirements relating to the GHG emissions emanating from passenger cars; (e) obliging the importers of fossil fuels to compensate for a certain proportion of CO2 emissions; (f) taking measures in the field of waste management in order to reduce GHG emissions; (g) coordination of the relevant adaptation measures; and (h) provision of information and education on climate change.

87.  These measures, as well as measures taken in other areas, in particular agriculture and energy, should have enabled Switzerland to reduce its emissions by 20% to 2020 compared to 1990. According to the relevant assessment[55], Switzerland had just barely missed this target: in 2020 GHG emissions had been some 19% below 1990 levels. Owing to the mild winter, in 2020 emissions had been particularly low in buildings and the measures to contain the coronavirus pandemic had further contributed to a reduction of transport‑related emissions. However, only the industrial sector had achieved the fixed objective. Emissions from the building and transport sectors and other emissions had been above the target level. On average over the period from 2013 to 2020, Switzerland had reduced its GHG emissions by around 11% compared to 1990 levels.

88.  Since 2012 the Federal Council had put in place the national strategy of climate change adaptation measures which identified the measures that needed to be taken in different sectors to address the issues of climate change.[56] While this strategy was at the federal level, at the local and cantonal levels many measures could be taken by the relevant authorities under the CO2 Act.

89.  The Federal Council had envisaged sixty‑three adaptation measures for the period between 2014 and 2019, which included, among others, measures of protection against heatwaves. Some further scientific reports on the matter had also been published[57], including a FOEN report which had found that the increase in heat stress and the damage to human health it caused were among the main risks of climate change in Switzerland[58]. Other adaptation measures had also been adopted[59].

90.  In 2015 Switzerland had also established a National Centre for Climate Services which was in charge of coordinating various climate services at the federal level. Moreover, and in reaction to the heatwaves in the summer of 2003, since 2005 the Federal Office of Meteorology and Climatology (MeteoSwiss) had been publishing heatwaves alerts, and the Federal Office for Public Health had been publishing recommendations on how to deal with the effects of heatwaves[60]. Various adaptation measures had accordingly been taken at the cantonal level to protect the population during heatwaves.

91.  Furthermore, as regards the planning for the period between 2030 and 2050, on 27 February 2015 Switzerland had been the first country to provide its NDC[61]. It was committed to reducing its GHG emissions by 50% by 2030 compared to 1990, which represented an average reduction of 35% over the period from 2021 to 2030. It had also set an indicative reduction target of 70 to 85% by 2050. When setting these targets, Switzerland had relied on the available scientific evidence contained notably in the fifth IPCC report (2014)[62]. Switzerland considered that its commitment to reduce emissions by 50% by 2030 compared to 1990 would correspond to the recommendations in the IPCC report, namely of reducing global emissions by 40 to 70% by 2050 compared to 2010. Switzerland also noted that its responsibility for GHG emissions had been limited since it only produced around 0.1% of global emissions and its per capita emissions had been within the international average. Moreover, it was taking measures to reduce GHG emissions.

92.  By ratifying the Paris Agreement, Switzerland had made a definite commitment to halve its GHG emissions by 2030 and reduce them by on average 35% per year over the period from 2021 to 2030 compared to 1990. In 2017 the Federal Council had proposed legislation to implement this commitment but, despite its acceptance by Parliament, it had been rejected in a referendum on 13 June 2021.

93.  The parliamentary deliberations on the complete revision of the CO2 Act had been delayed. In 2019 Parliament had therefore decided to proceed with a partial revision of the CO2 Act in force at the time by extending the time‑limit for the measures provided for and setting a reduction target for 2021, according to which GHG emissions were to be limited by 1.5% compared to 1990. The 2021 objective represented, in particular, a legal basis for determining the applicable compensation rate for importers of fossil fuels and the level of the CO2 tax increase. In August 2019 the Federal Council had decided that as of 2050, Switzerland should no longer emit more GHG than could be absorbed by natural sinks and stored by technical installations (net zero emissions target)[63]. This corresponded to the scientific evidence established in the IPCC 2018 Special report “1.5oC global warming” (cited above). The same scientific basis underpinned the objectives set out in the 2021 strategy adopted by Switzerland (see paragraph 100 below).

94.  On 25 September 2020 Parliament had enacted a new CO2 Act which had been intended to implement Swiss commitments under the Paris Agreement and fix the objectives for the period until 2030 (reduce emissions by 50% by 2030 and by 35% for the period from 2021 to 2030, each time relative to 1990). The new CO2 Act, envisaging a comprehensive set of measures to achieve those objectives, had been supposed to come into force on 1 January 2022. However, on 13 June 2021 it had been rejected in a referendum.

95.  In order to avoid a legislative lacuna, on 17 December 2021 Parliament had decided to enact a partial revision of the existing CO2 Act 2011[64]. In accordance with this solution, the reduction target for the years 2021 to 2024 was 1.5% per year compared to 1990, on the understanding that from 2022, a maximum of 25% of this reduction could be achieved by measures implemented abroad. These objectives were independent of the reduction objective of 20% set for the period until 2020, and they were susceptible to further amendments.

96.  In the meantime, on 17 September 2021 the Federal Council had defined the next steps of Swiss climate policy[65]. It had sought to address, in particular, the concerns expressed in the popular vote relating to fears of an increase in the cost of living and in particular a possible rise in the price of petrol, which had led to the rejection of the new CO2 Act. The Federal Council had therefore established the following guiding principles for the new legislation: (a) keeping the instruments of the existing CO2 Act; (b) no new taxes; (c) additional financial aid to the sectors and population affected; and (d) the development of sustainable aviation fuel.

97.  Furthermore, on 17 December 2021 the Federal Council had started the consultation process on the revision of the CO2 Act for the period after 2024[66]. The consultation process had ended in April 2022 and in September of that year the Federal Council had issued a communication regarding a revision of the CO2 Act for the period after 2024[67]. The following measures had been envisaged: (a) reintroduction of the CO2 tax and, for a determined period, an increase in climate‑protection benefits; (b) financial support for biogas installations and the encouragement of energetic planning in the municipalities; (c) lowering of the CO2 emission target values applicable to new vehicles in cooperation with the European Union; (d) introduction of the relevant climate‑protection measures in the transport sector; (e) the development of sustainable aviation fuel in coordination with the European Union; (f) an increase in the maximum share of emissions that had to be offset by petrol importers to 90% (compensation measures in Switzerland and abroad); (g) introduction of a possible CO2 tax exemption for companies which were willing to put in place the relevant offsetting measures; and (h) introduction of an obligation for the financial sector supervision authorities to review the risks linked to climate change. All these measures, combined with the use of new developing technologies, should allow Switzerland to maintain its reduction target of 50% by 2030. The Federal Council had considered that the measures implemented in Switzerland should lead to a reduction of emissions by some 34%. The legislative process with a view to enacting this legislation was currently ongoing.

98.  There had also been developments in the domestic legislation in relation to popular initiatives to combat climate change, in particular the “Initiative pour les glaciers” that sought to establish in the Constitution a prohibition of GHG emission by 2050. The Federal Council had opposed certain aspects of this initiative, considering that it had gone too far. On 11 August 2021 the Federal Council had made a counter legislative proposal considering that it would be more appropriate to introduce an obligation to reduce consumption of fossil fuels, save in some exceptional circumstances (such as when needed for the military, police or other security services).

99.  Parliament had finally, on 30 September 2022, passed the Law on climate protection, innovation and strengthening energy security (“the Climate Act”)[68], which had put in place the principle of a net zero emissions target by 2050. This Act – approved by a popular vote on 18 June 2023 – provided for an intermediate target for 2040 (75% reduction compared to 1990) and for the years 2031 to 2040 (average reduction of 64%) and 2041 to 2050 (average reduction of 89%). It had also set indicative values for the reduction of emissions in the building, transport and industry sectors for the years 2040 and 2050. A significant budget had already been put in place in order to meet the objectives of this Act.

100.  The Climate Act corresponded to the climate strategy for 2050 drafted by the Federal Council in January 2021[69], several months before the publication of the sixth IPCC report[70]. In adopting this strategy, Switzerland had, albeit with a month’s delay, complied with its commitments under the Paris Agreement by showing that it could reduce its GHG emissions to close to 90% by 2050. The building and transport sectors would be able to cut their emissions by 2050 and emissions from energy consumption in the industry sector could also be eliminated by 2050. A reduction in emissions of at least 40% compared to 1990 was also possible in the agricultural sector.

101.  As regards the adaptation measures, on the basis of preliminary assessments of the situation, in August 2020 the Federal Council had adopted the second climate‑change adaptation plan.[71] The major novelty of this plan was the putting in place of the “prevention of heat stress” measure, which aimed to protect the population from the heat, specifically the workforce. Moreover, various other measures had been put in place to address the adverse effects of heatwaves. Switzerland was currently in the process of drafting its next climate‑change adaptation plan for the period after 2025.

102.  At the international level, on 9 December 2020 Switzerland had submitted its new NDC, setting out the target of reducing GHG emissions by at least 50% by 2030 compared to 1990. Compared to the objective announced in 2015, that of 2020 had been characterised by the following elements: the reduction target had gone from 50% to at least 50%, and the indicative reduction target from below 70% to below 85% until 2050, complemented by the target of GHG neutrality by 2050.[72] Switzerland had also kept the parties to the Paris Agreement duly informed of developments at the domestic level.

103.  With a view to its examination of the present case, and having regard to the two other cases being examined by the Grand Chamber (see paragraph 5 above), in which rulings are being delivered on the same day, as well as other pending cases stayed at the Chamber level, the Court deems it necessary to highlight the following factual elements which emerge from the material available to it.

104.  As early as 1992, when there was less scientific evidence and knowledge than there is at present, the United Nations Framework Convention on Climate Change (UNFCCC)[73] noted in its Preamble that “human activities have been substantially increasing the atmospheric concentrations of GHG, that these increases enhance the natural greenhouse effect, and that this will result on average in an additional warming of the Earth’s surface and atmosphere and may adversely affect natural ecosystems and humankind”. This was further developed in the operationalisation of the commitments under the UNFCCC by the adoption of the Kyoto Protocol 1997 (including its Doha Amendment) and of the Paris Agreement 2015, as a legally binding international treaty on climate change. The Preamble to the latter instrument acknowledged, in particular, that “climate change is a common concern of humankind, [and that] Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to development, as well as gender equality, empowerment of women and intergenerational equity”.

105.  More recently, in 2021, the acknowledgment expressed in the Paris Agreement was reiterated in the Glasgow Climate Pact[74], which also expressed “alarm and utmost concern” as regards human activity‑induced global warming, and the Paris Agreement was also endorsed in the 2022 COP 27 Sharm el‑Sheikh Implementation Plan and similar findings have been reached in the 2023 COP28 decision (see paragraph 140 below). For its part the EU recognised in the European Climate Law “[t]he existential threat posed by climate change” which required “enhanced ambition and increased climate action by the Union and the Member States”. A similar position has been adopted in the recent developments on climate change in the various initiatives and instruments adopted at the UN level, notably as regards the recognition of a human right to a clean, healthy and sustainable environment (UN General Assembly Resolution 76/300[75]).

106.  The Court further notes that by defining the Paris Agreement targets the States formulated, and agreed to, the overarching goal of limiting warming to “well below 2oC above pre‑industrial levels and pursuing efforts to limit the temperature increase to 1.5oC above pre‑industrial levels”, recognising that this would significantly reduce the risks and impacts of climate change (Article 2 § 1 (a)). Since then, scientific knowledge has developed further and States have recognised that “the impacts of climate change will be much lower at the temperature increase of 1.5oC compared with 2oC” and thus resolved “to pursue further efforts to limit the temperature increase to 1.5oC” (see Glasgow Climate Pact, paragraph 21, and Sharm el‑Sheikh Implementation Plan, paragraph 4).

107.  Indeed, in this connection, the Conference of Parties to the UNFCCC, in its decision adopting the Paris Agreement, invited the IPCC to provide a special report on the impacts of global warming of 1.5oC above pre‑industrial levels and related global GHG emission pathways (1/CP.21, paragraph 21). The IPCC report in question – IPCC 2018 Special report “1.5oC global warming” (cited above) – found that human‑induced warming had reached approximately 1oC above pre‑industrial (the period 1850‑1900) levels in 2017, increasing at 0.2oC per decade (high confidence). Ambitious mitigation actions were therefore considered indispensable to limit warming to 1.5oC[76]. The report further found that any increase in global temperature (such as +0.5oC) was projected to affect human health, with primarily negative consequences (high confidence). Lower risks were projected at 1.5oC than at 2oC for heat‑related morbidity and mortality (very high confidence), and for ozone‑related mortality if emissions needed for ozone formation remained high (high confidence)[77].

108.  The report also noted with alarm that in line with the then existing emission commitments under the Paris Agreement (NDCs), global warming was expected to surpass 1.5oC above pre‑industrial levels, even if those pledges were supplemented with very challenging increases in the scale and ambition of mitigation, after 2030 (high confidence). Thus, net zero CO2 emissions would be required in less than fifteen years, and lower GHG emissions in 2030 would lead to a higher chance of keeping peak warming to 1.5oC (high confidence). In particular, limiting warming to 1.5oC implied reaching net zero CO2 emissions globally around 2050 and concurrent deep reductions in emissions of non‑CO2 forcers (high confidence)[78].

109.  The IPCC report sought to quantify mitigation requirements in terms of 1.5oC pathways that refer to “carbon budgets”. The report explained that cumulative CO2 emissions would be kept within a budget by reducing global annual CO2 emissions to net zero. This assessment suggested a remaining budget of about 420 GtCO2 for a two‑thirds chance of limiting warming to 1.5oC, and of about 580 GtCO2 for an even chance (medium confidence). At the same time, staying within a remaining carbon budget of 580 GtCO2 implied that CO2 emissions would have to reach carbon neutrality in about thirty years, reduced to twenty years for a 420 GtCO2 remaining carbon budget (high confidence). Moreover, non‑CO2 emissions contributed to peak warming and affected the remaining carbon budget[79].

110.  In its subsequent Assessment Reports (“AR”), the IPCC came to similar conclusions confirming and updating its findings in the 2018 Special Report. Thus, in AR6 “Climate Change 2021: The Physical Science Basis” (cited above), the IPCC unequivocally confirmed that anthropogenic climate change has produced various adverse effects for humans and nature and created risks for further such effects in the future, in particular in relation to global warming. According to the report, global surface temperature would continue to increase until at least the middle of the century under all emissions scenarios considered, and global warming of 1.5oC and 2oC would be exceeded during the twenty‑first century unless deep reductions in CO2 and other GHG emissions occurred in the coming decades. On the other hand, with further global warming, changes in several climatic impact‑drivers would be more widespread at 2oC compared to 1.5oC global warming and even more widespread and/or pronounced for higher warming levels[80]. The report also confirmed the IPCC’s earlier findings (high confidence) that there was a near‑linear relationship between cumulative anthropogenic CO2 emissions and the global warming they caused. Thus, limiting human‑induced global warming to a specific level required limiting cumulative CO2 emissions, reaching at least net zero CO2 emissions, together with strong reductions in other GHG emissions. Furthermore, the report nuanced the relevant estimated remaining carbon budgets from the beginning of 2020. It explained that to have a 67% chance of meeting the 1.5oC limit, the remaining global carbon budget was 400 GtCO2 and to have an 83% chance, 300 GtCO2.[81]

111.  In AR6 “Climate Change 2022: Mitigation of Climate Change” (cited above), the IPCC found that total net anthropogenic GHG emissions had continued to rise during the period 2010‑2019. During that period, average annual GHG emissions had been higher than in any previous decade (high confidence). Net anthropogenic GHG emissions had increased across all major sectors globally[82]. The report further pointed out that a consistent expansion of policies and laws addressing mitigation had led to the avoidance of emissions that would otherwise have occurred. However, global GHG emissions in 2030 associated with the implementation of NDCs announced prior to the Glasgow Climate Conference (COP26) would make it likely that warming would exceed 1.5oC during the twenty‑first century. It was likely that limiting warming to below 2oC would then rely on a rapid acceleration of mitigation efforts after 2030. Policies implemented by the end of 2020 were projected to result in higher global GHG emissions than those implied by NDCs (high confidence). In other words, according to the findings of the IPCC, the world was currently on a trajectory that would lead to very significant adverse impacts for human lives and well‑being.

112.  According to the above‑mentioned IPCC report, global GHG emissions would be projected to peak between 2020 and at the latest before 2025 in global modelled pathways that limited warming to 1.5oC with no or limited overshoot and in those that limited warming to 2oC and assumed immediate action (in both types of modelled pathways, rapid and deep GHG emissions reductions follow throughout 2030, 2040 and 2050). However, without a strengthening of policies beyond those already implemented by the end of 2020, the report predicted GHG emissions to rise beyond 2025, leading to a median global warming of 3.2oC (2.2 to 3.5oC) by 2100 (medium confidence)[83].

113.  Furthermore, the report stressed that global net zero CO2 emissions would be reached in the early 2050s in modelled pathways that limited warming to 1.5oC with no or limited overshoot, and around the early 2070s in modelled pathways that limited warming to 2oC. These pathways also included deep reductions in other GHG emissions. Reaching and sustaining global net zero GHG emissions would result in a gradual decline in warming (high confidence).[84]

114.  In the latest AR6 “Synthesis Report: Climate Change 2023”, the IPCC noted that human activities, principally through GHG emissions (increasing with unequal historical and ongoing contributions arising from unsustainable energy use, land use and land‑use change, lifestyles and patterns of consumption and production across regions, between and within countries, and among individuals), had unequivocally caused global warming, with global surface temperature reaching 1.1oC above 1850‑1900 levels between 2011 and 2020. According to the report, human‑caused climate change was already affecting many weather and climate extremes in every region across the globe, which had led to widespread adverse impacts and related losses and damages to nature and people (high confidence)[85].

115.  The IPCC further stressed that policies and laws addressing mitigation had consistently expanded and had already been deployed successfully in some countries, leading to avoided and in some cases reduced or removed emissions (high confidence). Global GHG emissions in 2030 implied by NDCs announced by October 2021 made it likely that warming would exceed 1.5oC during the twenty‑first century and made it harder to limit warming below 2oC. There were gaps between projected emissions from implemented policies and those from NDCs. Moreover, finance flows fell short of the levels needed to meet climate goals across all sectors and regions (high confidence). The IPCC warned that continued GHG emissions would lead to increasing global warming, with the best estimate of reaching 1.5oC in the near term (2021‑2040). At the same time, every increment of global warming would intensify multiple and concurrent hazards. However, deep, rapid and sustained reductions in GHG emissions would lead to a discernible slowdown in global warming within around two decades, and also to discernible changes in atmospheric composition within a few years (high confidence). While some future changes were unavoidable and/or irreversible, they could be limited by deep, rapid and sustained global GHG emissions reductions. The likelihood of abrupt and/or irreversible changes increased with higher global warming levels. Similarly, the probability of low‑likelihood outcomes associated with potentially very large adverse impacts increased with higher global warming levels (high confidence). Adaptation options that were feasible and effective today would become constrained and less effective with increasing global warming; losses and damages would also increase and additional human and natural systems would reach adaptation limits (high confidence).[86]

116.  In the same report, the IPCC stressed the importance of carbon budgets and policies for net zero emissions. It noted that limiting human‑caused global warming required net zero CO2 emissions. Cumulative carbon emissions until the time of reaching net‑zero CO2 emissions and the level of GHG emission reductions this decade would largely determine whether warming could be limited to 1.5oC or 2oC. Projected CO2 emissions from existing fossil fuel infrastructure without additional abatement would exceed the remaining carbon budget for 1.5oC (50%) (high confidence). As regards mitigation pathways, the IPCC noted that all global modelled pathways that limited warming to 1.5oC (>50%) with no or limited overshoot, and those that limited warming to 2oC (>67%), involved rapid and deep and, in most cases, immediate GHG emissions reductions in all sectors this decade. Global net zero CO2 emissions would be reached for these pathway categories in the early 2050s and around the early 2070s, respectively (high confidence).[87]

117.  However, the IPCC stressed that if warming exceeded a specified level such as 1.5oC, it could gradually be reduced again by achieving and sustaining net negative global CO2 emissions, which would require additional deployment of carbon dioxide removal, compared to pathways without overshoot. This would, however, lead to greater feasibility and sustainability concerns as overshoot entailed adverse impacts, some irreversible, and additional risks for human and natural systems, all growing with the magnitude and duration of overshoot (high confidence)[88].

118.  The IPCC stressed the urgency of near‑term integrated climate action. It noted that climate change was a threat to human well‑being and planetary health. There was a rapidly closing window of opportunity to secure a liveable and sustainable future for all (very high confidence). Climate‑resilient development integrated adaptation and mitigation to advance sustainable development for all, and was enabled by increased international cooperation, including improved access to adequate financial resources and inclusive governance and coordinated policies (high confidence). The choices and actions implemented in this decade would have impacts now and for thousands of years (high confidence).[89]

119.  According to the IPCC, deep, rapid and sustained mitigation and accelerated implementation of adaptation actions in this decade would reduce projected losses and damages for humans and ecosystems (finding with very high confidence). On the other hand, delayed mitigation and adaptation action would lock in high‑emissions infrastructure, raise risks of stranded assets and cost‑escalation, reduce feasibility, and increase losses and damages (high confidence)[90].

120.  The IPCC noted that effective climate action was enabled by political commitment, well‑aligned multilevel governance, institutional frameworks, laws, policies and strategies and enhanced access to finance and technology. Clear goals, coordination across multiple policy domains and inclusive governance processes facilitated effective climate action. Regulatory and economic instruments could support deep emissions reductions and climate resilience if scaled up and applied widely (high confidence).[91]

RELEVANT LEGAL FRAMEWORK AND PRACTICE

121.  The relevant provisions of the Federal Constitution of the Swiss Confederation, adopted on 18 April 1999 (Cst., RS 101), read as follows:

Article 10 Right to life and to personal freedom

“1.  Every person has the right to life. The death penalty is prohibited.

2.  Every person has the right to personal liberty and in particular to physical and mental integrity and to freedom of movement.

...”

Article 13 Right to privacy

“1.  Every person has the right to respect for their private and family life and their home, and the relations established via mail and telecommunications.

...”

Article 29 General procedural guarantees

“1.  Every person has the right to equal and fair treatment in judicial and administrative proceedings and to have their case decided within a reasonable time.

2.  Each party to a case has the right to be heard.

...”

Article 29a Guarantee of access to the courts

“In a legal dispute, every person has the right to have their case determined by a judicial authority. The Confederation and the cantons may by law preclude the determination by the courts of certain exceptional categories of case.”

Article 73 Sustainable development

“The Confederation and the cantons shall endeavour to achieve a balanced and sustainable relationship between nature and its capacity to renew itself and the demands placed on it by the population.”

Article 74 Protection of the environment

“1.  The Confederation shall legislate on the protection of the population and its natural environment against damage or nuisance.

2.  It shall ensure that such damage or nuisance is avoided. The costs of avoiding or eliminating such damage or nuisance are borne by those responsible for causing it.

3.  The cantons are responsible for the implementation of the relevant federal regulations, except where the law reserves this duty for the Confederation.”

Article 189 Jurisdiction of the Federal Supreme Court

“...

4.  Acts of the Federal Assembly or the Federal Council may not be challenged in the Federal Supreme Court. Exceptions may be provided for by law.”

122.  The relevant provisions of the Federal Act on the Protection of the Environment of 7 October 1983 (EPA, RS 814.01) read as follows:

Section 1 Aim

“(1)  [The Environmental Protection] Act is intended to protect people, animals and plants, their biological communities and habitats against harmful effects or nuisances and to preserve the natural foundations of life in the long term, in particular biological diversity and the fertility of the soil.

(2)  Early preventive measures must be taken in order to limit effects which could become harmful or a nuisance.”

Section 3 Reservation of other legislation

“(1)  Stricter regulations in other federal legislation are reserved.

...”

Section 4 Implementing provisions based on other federal legislation

“(1)  Regulations on the environmental effects of air pollution, noise, vibrations and radiation that are based on other federal legislation must comply with the principles of limitation of emissions (Art. 11), ambient limit values (Art. 13‑15), alarm values (Art. 19) and planning values (Art. 23-25).

...”

Section 11 Principles

“(1)  Air pollution, noise, vibrations and radiation are limited by measures taken at their source (limitation of emissions).

(2)  Irrespective of the existing environmental pollution, as a precautionary measure emissions are limited as much as technology and operating conditions allow, provided that this is economically acceptable.

(3)  Emissions are limited more strictly if the effects are found or expected to be harmful or a nuisance, taking account of the existing level of environmental pollution.”

Section 12 Limitation of emissions

“(1)  Emissions are limited by issuing:

(a)  maximum emission values;

(b)  regulations on construction and equipment;

(c)  traffic or operating regulations;

(d)  regulations on the heat insulation of buildings;

(e)  regulations on thermal and motor fuels.

(2)  Limits are prescribed by ordinance or, in cases where an ordinance makes no such provision, by rulings based directly on this Act.”

Section 13 Ambient limit values

“(1)  The Federal Council stipulates by ordinance the ambient limit values for assessing harmful effects or nuisances.

(2)  In doing so, it also takes account of the effects of pollution levels on particularly sensitive groups such as children, the sick, the elderly and pregnant women.”

Section 14 Ambient limit values for air pollution

“The ambient limit values for air pollution must be set so that, in the light of current scientific knowledge and experience, ambient air pollution below these levels:

(a)  does not endanger people, animals or plants, their biological communities and habitats;

(b)  does not seriously affect the well-being of the population;

(c)  does not damage buildings;

(d)  does not harm soil fertility, vegetation or waters.”

123.  The relevant provision of the Federal Act on the Reduction of CO2 Emissions of 23 December 2011 (CO2 Act, RS 641.71), read as follows:

Section 1 Aim

“(1)  This Act is intended to reduce [GHG] emissions and in particular CO2 emissions that are attributable to the use of fossil fuels (thermal and motor fuels) as energy sources with the aim of contributing to limiting the global rise in temperature to less than 2 degrees Celsius.

...”

Section 3 Reduction target

“(1)  Domestic [GHG] emissions must be reduced overall by 20 per cent as compared with 1990 levels, by 2020. The Federal Council may set sector‑specific interim targets.

(1bis)  [GHG] emissions must be reduced by a further 1.5 per cent annually by 2024 compared with 1990 levels. The Federal Council may specify sectoral interim targets.

(1ter)  At least 75 per cent of the reduction in [GHG] emissions in accordance with paragraph 1bis must be achieved through domestic measures.

(3)  The total volume of [GHG] emissions is calculated on the basis of the [GHG] emitted in Switzerland. Emissions from the use of aviation fuel on international flights are not taken into account.

...

(4)  The Federal Council may set reduction targets for individual economic sectors by agreement with the parties concerned.

(5)  It shall at the due time submit proposals to the Federal Assembly on the reduction targets for the period after 2020. It shall consult the parties concerned beforehand.”

124.  The Federal Council set interim targets for various sectors (section 3(1) of the Ordinance on the Reduction of CO2 Emissions [CO2 Ordinance, SR 641.711] in conjunction with section 3(1)(2) of the CO2 Act). If a sectoral interim target is not achieved, the DETEC, after hearing the cantons and the parties concerned, applies to the Federal Council for further measures (section 3(2) of the CO2 Ordinance) or – for the fuels sector – the CO2 tax is automatically increased (section 94(1) of the CO2 Ordinance in conjunction with section 29 of the CO2 Act). The CO2 Act provides for various measures to achieve the reduction target. These are, first of all, technical measures for the reduction of CO2 emissions in the building sector (enactment of building standards for new and old buildings by the cantons, combined with a reporting obligation for the attention of the FOEN – section 9 of the CO2 Act in conjunction with section 16 of the CO2 Ordinance) and in the transport sector (overall target values for the CO2 emissions of all new passenger cars placed on the market in Switzerland and, since 1 January 2018, also for vans and light articulated vehicles placed on the market for the first time, combined with individual targets and penalty payments – sections 10 et seq. of the CO2 Act).

125.  In the transport sector, part of the CO2 emissions resulting from the use of motor fuels as an energy source must be compensated, for example, through emissions‑reduction projects. The Federal Council determines the compensation rate according to, among other things, the achievement of the reduction target pursuant to section 3 of the CO2 Act (section 26(1) and (2) of the CO2 Act in conjunction with section 89(1) of the CO2 Ordinance).

126.  The Federal government levies the above‑mentioned CO2 tax on the production, extraction and import of fuels (section 29 of the CO2 Act). The enforcement of the CO2 Act and the issuance of implementing regulations is the responsibility of the Federal Council (section 39(1) of the CO2 Act). It then periodically reviews the effectiveness of the legal measures and the need for further measures (section 40(1) of the CO2 Act). The implementation of the CO2 Ordinance is generally the responsibility of the Federal Office for the Environment (section 130(1) of the CO2 Ordinance).

127.  The relevant provisions of the Federal Act on climate protection, innovation and strengthening energy security of 30 September 2022 (the Climate Act, FF 2022 2403), read as follows:

Section 1 Aim

“The purpose of the present Act is to set the following objectives, in accordance with the Agreement of 12 December 2015 on climate change:

(a)  reduction of [GHG] emissions and use of negative-emissions technologies;

(b)  adaptation to and protection from the effects of climate change;

(c)  directing of financial flows so as to render them compatible with climate-resilient low-emission development.”

Section 3 Targets for emissions reduction and negative-emissions technologies

“(1)  The Confederation shall ensure a reduction to net zero by 2050 of human-induced [GHG] emitted in Switzerland (net‑zero objective) through the following measures:

(a)  reducing [GHG] emissions as far as possible, and

(b)  offsetting the impact of residual [GHG] emissions through the use of negative‑emissions technologies in Switzerland and abroad.

(2)  After 2050, the quantity of CO2 removed and stored using negative‑emissions technologies must be greater than the residual [GHG] emissions.

(3)  The Confederation shall ensure a reduction in [GHG] emissions compared with 1990 levels. The intermediate reduction targets shall be the following:

(a)  between 2031 and 2040: at least 64% on average;

(b)  by 2040: at least 75%;

(c)  between 2041 and 2050: at least 89% on average.

(4)  The reduction targets must be technically feasible and economically sustainable. As far as possible, they should be achieved through emissions reductions in Switzerland.

(5)  Within the scope of their powers, the Confederation and the cantons shall ensure that, by 2050 at the latest, carbon sinks are available in Switzerland and abroad in sufficient quantity to achieve the net‑zero objective. The Federal Council may set indicative values for the use of negative-emissions technologies.

(6)  Emissions from international air and sea transport refuelling in Switzerland shall be taken into account for the achievement of the targets referred to in subsections 1 and 2.”

Section 4 – Indicative values for different sectors

“(1)  The reduction targets referred to in section 3, subsections 1 and 3, are to be achieved by reducing [GHG] emissions in Switzerland compared with 1990 levels by at least the following amounts:

(a)  in the construction sector:

1.  by 2040: 82%,

2.  by 2050: 100%;

(b)  in the transport sector:

1.  by 2040: 57%,

2.  by 2050: 100%;

(c)  in the industrial sector:

1.  by 2040: 50%,

2.  by 2050: 90%.

(2)  After consultation with the relevant actors the Federal Council may, in accordance with subsection 1, set indicative values for other sectors and for [GHG] and emissions from fossil‑based energy sources. It shall take into account the latest scientific knowledge, the availability of new technologies, and developments within the European Union.”

Section 11 – Achievement of the objectives

“(1)  After hearing the views of the relevant actors and taking into account the most recent scientific knowledge, the Federal Council shall submit to the Federal Assembly, in good time, proposals for the realisation of the objectives set in the present Act:

(a)  for the period from 2025 to 2030;

(b)  for the period from 2031 to 2040;

(c)  for the period from 2041 to 2050.

(2)  The proposals referred to in subsection 1 are to be implemented primarily in the CO2 Act of 23 December 2011.

(3)  The proposals of the Federal Council shall aim to strengthen the economy and ensure social acceptance.

(4)  Within the scope of their powers, the Confederation and the cantons shall undertake efforts, in Switzerland and internationally, to limit the risks and effects of climate change, in accordance with the objectives of the present Act.”

128.  The relevant provision of the Federal Administrative Procedure Act of 20 December 1968 (APA, RS 172.021), determining standing for a ruling on real acts, namely acts based on federal public law that affect rights and obligations, but do not arise from formal rulings, provides as follows:

Section 25a Ruling on real acts

“(1)  Any person who has an interest that is worthy of protection may request from the authority that is responsible for acts that are based on federal public law and which affect rights or obligations that it:

(a)  refrains from, discontinues or revokes unlawful acts;

(b)  rectifies the consequences of unlawful acts;

(c)  confirms the illegality of such acts.

(2)  The authority shall decide by way of a ruling.”

129.  For further relevant provisions of the Act, see Athanassoglou and Others v. Switzerland [GC], no. 27644/95, § 28, ECHR 2000‑IV.

130.  According to the Federal Supreme Court’s case‑law, Article 73 of the Constitution does not provide for individual claims (ATF [judgments of the Federal Supreme Court] 132 II 305, at 4.3). Conversely, it is not a mere declaration or interpretation aid, “but a binding instruction for action addressed to the competent authorities” (FOJ, VPB 65.2, A.III). The Constitution therefore recognises the pursuit of sustainability as a (never completed) permanent task. The addressees are the Confederation and the cantons, each within the scope of their competence. The political authorities (legislature, parliaments and governments) are to be addressed first and foremost, and only subsidiarily – within the scope of their competence – also the authorities applying the law.

131.  Similarly to Article 73, Article 74 of the Constitution is also not a justiciable norm. It simply provides a guideline for legislation. The addressee is primarily the legislature. The authorities applying the law must, however, take into account the requirements of Article 74 § 2 of the Constitution within the framework and limits of constitutional interpretation (see ATF 132 II 305, at 4.3, concerning the concept of precaution). The “precautionary principle” as a constitutional guideline is intended to prevent a lack of scientific certainty from becoming a pretext for government inaction (ATF 132 II 305, at 4.3). Paragraph 2 leaves the (federal) legislature a certain scope for assessment and design of the necessary legislative measures to be taken. In line with Article 74 § 2 of the Constitution, Article 1 § 2 of the Environmental Protection Act interprets this constitutional mandate to mean that impacts that could become harmful or a nuisance are to be “limited at an early stage”.

132.  Furthermore, Article 189 § 4 of the Constitution excludes the abstract review of norms by way of appeal. It does not, however, prejudice action against an ordinance by way of concrete legal action. The preliminary review of an ordinance in the particular circumstances of a case in which it has been applied is not excluded (concrete norm control; see ATF 141 V 473, at 8.3, and ATF 141 II 169, at 3.4) and neither is the preliminary review of another Federal Council or parliamentary act (see ATF 139 II 499, at 4.1). Article 189 § 4 of the Constitution can also not allow the constitutional guarantee of legal recourse under Article 29a of the Constitution to be circumvented. The content of the latter must be taken into account in the interpretation and implementation of Article 189 of the Constitution, as must the requirements of international law arising from Article 6 § 1 or Article 13 of the Convention (see message of the Federal Council accompanying the Constitution, p. 531).

(a)   United Nations Framework Convention on Climate Change

133.  The relevant parts of the UNFCCC provide as follows:

“Acknowledging that change in the Earth’s climate and its adverse effects are a common concern of humankind,

Concerned that human activities have been substantially increasing the atmospheric concentrations of [GHG], that these increases enhance the natural greenhouse effect, and that this will result on average in an additional warming of the Earth’s surface and atmosphere and may adversely affect natural ecosystems and humankind,

Noting that the largest share of historical and current global emissions of [GHG] has originated in developed countries, that per capita emissions in developing countries are still relatively low and that the share of global emissions originating in developing countries will grow to meet their social and development needs,

...

Noting that there are many uncertainties in predictions of climate change, particularly with regard to the timing, magnitude and regional patterns thereof,

Acknowledging that the global nature of climate change calls for the widest possible cooperation by all countries and their participation in an effective and appropriate international response, in accordance with their common but differentiated responsibilities and respective capabilities and their social and economic conditions,

...

Recalling also that States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction,

...

Recognizing that States should enact effective environmental legislation, that environmental standards, management objectives and priorities should reflect the environmental and developmental context to which they apply, and that standards applied by some countries may be inappropriate and of unwarranted economic and social cost to other countries, in particular developing countries,

...

Recognizing that steps required to understand and address climate change will be environmentally, socially and economically most effective if they are based on relevant scientific, technical and economic considerations and continually re-evaluated in the light of new findings in these areas,

Recognizing that various actions to address climate change can be justified economically in their own right and can also help in solving other environmental problems,

Recognizing also the need for developed countries to take immediate action in a flexible manner on the basis of clear priorities, as a first step towards comprehensive response strategies at the global, national and, where agreed, regional levels that take into account all [GHG], with due consideration of their relative contributions to the enhancement of the greenhouse effect,

...

Affirming that responses to climate change should be coordinated with social and economic development in an integrated manner with a view to avoiding adverse impacts on the latter, taking into full account the legitimate priority needs of developing countries for the achievement of sustained economic growth and the eradication of poverty,

...

Determined to protect the climate system for present and future generations ...”

Article 1

Definitions

“For the purposes of this Convention:

1.  ’Adverse effects of climate change’ means changes in the physical environment or biota resulting from climate change which have significant deleterious effects on the composition, resilience or productivity of natural and managed ecosystems or on the operation of socio‑economic systems or on human health and welfare.

2.  ’Climate change’ means a change of climate which is attributed directly or indirectly to human activity that alters the composition of the global atmosphere and which is in addition to natural climate variability observed over comparable time periods.

...

4.  ’Emissions’ means the release of [GHG] and/or their precursors into the atmosphere over a specified area and period of time.

5.  ’[GHG]’ means those gaseous constituents of the atmosphere, both natural and anthropogenic, that absorb and re‑emit infrared radiation.

...

9.  ’Source’ means any process or activity which releases a [GHG], an aerosol or a precursor of a [GHG] into the atmosphere.”

Article 2

Objective

“The ultimate objective of this Convention and any related legal instruments that the Conference of the Parties may adopt is to achieve, in accordance with the relevant provisions of the Convention, stabilization of [GHG] concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a time‑frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.”

Article 3

Principles

“In their actions to achieve the objective of the Convention and to implement its provisions, the Parties shall be guided, inter alia, by the following:

1.  The Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities. Accordingly, the developed country Parties should take the lead in combating climate change and the adverse effects thereof.

2.  The specific needs and special circumstances of developing country Parties, especially those that are particularly vulnerable to the adverse effects of climate change, and of those Parties, especially developing country Parties, that would have to bear a disproportionate or abnormal burden under the Convention, should be given full consideration.

3.  The Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures, taking into account that policies and measures to deal with climate change should be cost-effective so as to ensure global benefits at the lowest possible cost ...

4.  The Parties have a right to, and should, promote sustainable development ...

5.  The Parties should cooperate to promote a supportive and open international economic system that would lead to sustainable economic growth and development in all Parties, particularly developing country Parties ...”

Article 4

Commitments

“1.  All Parties, taking into account their common but differentiated responsibilities and their specific national and regional development priorities, objectives and circumstances, shall:

(a)  Develop, periodically update, publish and make available to the Conference of the Parties ... national inventories of anthropogenic emissions ...

(b)  Formulate, implement, publish and regularly update national and, where appropriate, regional programmes containing measures to mitigate climate change by addressing anthropogenic emissions by sources and removals by sinks of all [GHG] not controlled by the Montreal Protocol, and measures to facilitate adequate adaptation to climate change;

(c)  Promote and cooperate in the development, application and diffusion, including transfer, of technologies, practices ...

(d)  Promote sustainable management, and promote and cooperate in the conservation and enhancement, as appropriate, of sinks and reservoirs ...

(e)  Cooperate in preparing for adaptation to the impacts of climate change ...

(f)  Take climate change considerations into account, to the extent feasible, in their relevant social, economic and environmental policies and actions, and employ appropriate methods, for example impact assessments, formulated and determined nationally, with a view to minimizing adverse effects on the economy, on public health and on the quality of the environment, of projects or measures undertaken by them to mitigate or adapt to climate change;

(g)  Promote and cooperate in scientific, technological, technical, socio-economic and other research ...

2.  The developed country Parties ... commit themselves specifically as provided for in the following:

(a)  Each of these Parties shall adopt national policies and take corresponding measures on the mitigation of climate change, by limiting its anthropogenic emissions of [GHG] and protecting and enhancing its [GHG] sinks and reservoirs. These policies and measures will demonstrate that developed countries are taking the lead in modifying longer‑term trends in anthropogenic emissions consistent with the objective of the Convention, recognizing that the return by the end of the present decade to earlier levels of anthropogenic emissions of carbon dioxide and other [GHG] not controlled by the Montreal Protocol would contribute to such modification, and taking into account the differences in these Parties’ starting points and approaches, economic structures and resource bases, the need to maintain strong and sustainable economic growth, available technologies and other individual circumstances, as well as the need for equitable and appropriate contributions by each of these Parties to the global effort regarding that objective. These Parties may implement such policies and measures jointly with other Parties and may assist other Parties in contributing to the achievement of the objective of the Convention and, in particular, that of this subparagraph;

(b)  In order to promote progress to this end, each of these Parties shall communicate ... detailed information on its policies and measures referred to in subparagraph (a) above, ... with the aim of returning individually or jointly to their 1990 levels these anthropogenic emissions of carbon dioxide and other [GHG] not controlled by the Montreal Protocol ...”

(b)   The Kyoto Protocol

134.  The UNFCCC was first operationalised through the Kyoto Protocol (1997). This Protocol committed industrialised countries and economies in transition to limit and reduce GHG emissions in accordance with agreed individual targets and the principle of “common but differentiated responsibility and respective capabilities”. The relevant part of the Kyoto Protocol provides as follows:

Article 3 § 1

“The Parties included in Annex I shall, individually or jointly, ensure that their aggregate anthropogenic carbon dioxide equivalent emissions of the [GHG] listed in Annex A do not exceed their assigned amounts, calculated pursuant to their quantified emission limitation and reduction commitments inscribed in Annex B and in accordance with the provisions of this Article, with a view to reducing their overall emissions of such gases by at least 5 per cent below 1990 levels in the commitment period 2008 to 2012.

135.  Annex B of the Kyoto Protocol set quantified emission limitation or reduction commitment (percentage of base year or period) for Switzerland at 92%.

(c)   The Paris Agreement

136.  The Paris Agreement – adopted at the UN Climate Change Conference (COP21) in Paris on 12 December 2015 – is an international treaty setting out the overarching goal of GHG emissions reduction. The relevant parts of it provide as follows:

“In pursuit of the objective of the Convention, and being guided by its principles, including the principle of equity and common but differentiated responsibilities and respective capabilities, in the light of different national circumstances,

Recognizing the need for an effective and progressive response to the urgent threat of climate change on the basis of the best available scientific knowledge,

...

Recognizing that Parties may be affected not only by climate change, but also by the impacts of the measures taken in response to it,

...

Acknowledging that climate change is a common concern of humankind, Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to development, as well as gender equality, empowerment of women and intergenerational equity,

...”

Article 2

“1.  This Agreement, in enhancing the implementation of the Convention, including its objective, aims to strengthen the global response to the threat of climate change, in the context of sustainable development and efforts to eradicate poverty, including by:

(a)  Holding the increase in the global average temperature to well below 2oC above pre‑industrial levels and pursuing efforts to limit the temperature increase to 1.5oC above pre‑industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change;

(b)  Increasing the ability to adapt to the adverse impacts of climate change and foster climate resilience and low [GHG] emissions development, in a manner that does not threaten food production; and

(c)  Making finance flows consistent with a pathway towards low [GHG] emissions and climate‑resilient development.

2.  This Agreement will be implemented to reflect equity and the principle of common but differentiated responsibilities and respective capabilities, in the light of different national circumstances.”

Article 3

“As nationally determined contributions to the global response to climate change, all Parties are to undertake and communicate ambitious efforts ...”

Article 4

“1.  In order to achieve the long-term temperature goal set out in Article 2, Parties aim to reach global peaking of [GHG] emissions as soon as possible, recognizing that peaking will take longer for developing country Parties, and to undertake rapid reductions thereafter in accordance with best available science, so as to achieve a balance between anthropogenic emissions by sources and removals by sinks of [GHG] in the second half of this century, on the basis of equity, and in the context of sustainable development and efforts to eradicate poverty.

2.  Each Party shall prepare, communicate and maintain successive nationally determined contributions that it intends to achieve. Parties shall pursue domestic mitigation measures, with the aim of achieving the objectives of such contributions.”

(d)   COP26 and COP27

137.  At the UNFCCC Conference of the Parties (COP26) in Glasgow, which took place between 31 October and 13 November 2021, the Glasgow Climate Pact was adopted, which provides, inter alia, as follows:

“The Conference of the Parties

...

Also acknowledging that climate change is a common concern of humankind, Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to development, as well as gender equality, empowerment of women and intergenerational equity,

...

I. Science and urgency

1.  Recognizes the importance of the best available science for effective climate action and policymaking;

...

3.  Expresses alarm and utmost concern that human activities have caused around 1.1 oC of warming to date, that impacts are already being felt in every region and that carbon budgets consistent with achieving the Paris Agreement temperature goal are now small and being rapidly depleted;

4.  Recalls Article 2, paragraph 2, of the Paris Agreement, which provides that the Paris Agreement will be implemented to reflect equity and the principle of common but differentiated responsibilities and respective capabilities in the light of different national circumstances;

5.  Stresses the urgency of enhancing ambition and action in relation to mitigation, adaptation and finance in this critical decade to address the gaps in the implementation of the goals of the Paris Agreement;

...

IV. Mitigation

20.  Reaffirms the Paris Agreement temperature goal of holding the increase in the global average temperature to well below 2 oC above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5 oC above pre‑industrial levels;

21.  Recognizes that the impacts of climate change will be much lower at the temperature increase of 1.5 oC compared with 2 oC and resolves to pursue efforts to limit the temperature increase to 1.5 oC;

22.  Recognizes that limiting global warming to 1.5 oC requires rapid, deep and sustained reductions in global [GHG] emissions, including reducing global carbon dioxide emissions by 45 per cent by 2030 relative to the 2010 level and to net zero around mid‑century as well as deep reductions in other [GHG];

23.  Also recognizes that this requires accelerated action in this critical decade, on the basis of the best available scientific knowledge and equity, reflecting common but differentiated responsibilities and respective capabilities in the light of different national circumstances and in the context of sustainable development and efforts to eradicate poverty;

...

26.  Emphasizes the urgent need for Parties to increase their efforts to collectively reduce emissions through accelerated action and implementation of domestic mitigation measures in accordance with Article 4, paragraph 2, of the Paris Agreement;

...”

138.  The UNFCCC Conference of the Parties (COP27) took place in Sharm el‑Sheikh from 6 to 20 November 2022. The relevant parts of the adopted Sharm el‑Sheikh Implementation Plan provide as follows:

“The Conference of the Parties

...

Acknowledging that climate change is a common concern of humankind, and that Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights, the right to a clean, healthy and sustainable environment, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to development, as well as gender equality, empowerment of women and intergenerational equity,

...

57.  Encourages Parties to increase the full, meaningful and equal participation of women in climate action and to ensure gender‑responsive implementation and means of implementation, including by fully implementing the Lima work programme on gender and its gender action plan, to raise climate ambition and achieve climate goals;

...

59.  Recognizes the role of children and youth as agents of change in addressing and responding to climate change and encourages Parties to include children and youth in their processes for designing and implementing climate policy and action, and, as appropriate, to consider including young representatives and negotiators into their national delegations, recognizing the importance of intergenerational equity and maintaining the stability of the climate system for future generations;”

(e)   COP28

139.  In preparation for the UNFCCC Conference of the Parties (COP28) in Dubai, held between 30 November and 12 December 2023, the synthesis report on the technical dialogue of the first global stocktake under the Paris Agreement[92], made the following key findings:

“Key finding 1: since its adoption, the Paris Agreement has driven near-universal climate action by setting goals and sending signals to the world regarding the urgency of responding to the climate crisis. While action is proceeding, much more is needed now on all fronts.

Key finding 2: to strengthen the global response to the threat of climate change in the context of sustainable development and efforts to eradicate poverty, governments need to support systems transformations that mainstream climate resilience and low GHG emissions development. Credible, accountable and transparent actions by non‑Party stakeholders are needed to strengthen efforts for systems transformations.

Key finding 3: systems transformations open up many opportunities, but rapid change can be disruptive. A focus on inclusion and equity can increase ambition in climate action and support.

Key finding 4: global emissions are not in line with modelled global mitigation pathways consistent with the temperature goal of the Paris Agreement, and there is a rapidly narrowing window to raise ambition and implement existing commitments in order to limit warming to 1.5 oC above pre-industrial levels.

Key finding 5: much more ambition in action and support is needed in implementing domestic mitigation measures and setting more ambitious targets in NDCs to realize existing and emerging opportunities across contexts, in order to reduce global GHG emissions by 43 per cent by 2030 and further by 60 per cent by 2035 compared with 2019 levels and reach net zero CO2 emissions by 2050 globally.

Key finding 6: achieving net zero CO2 and GHG emissions requires systems transformations across all sectors and contexts, including scaling up renewable energy while phasing out all unabated fossil fuels, ending deforestation, reducing non‑CO2 emissions and implementing both supply‑ and demand-side measures.

Key finding 7: just transitions can support more robust and equitable mitigation outcomes, with tailored approaches addressing different contexts.

Key finding 8: economic diversification is a key strategy to address the impacts of response measures, with various options that can be applied in different contexts.

Key finding 9: as climate change threatens all countries, communities and people around the world, increased adaptation action as well as enhanced efforts to avert, minimize and address loss and damage are urgently needed to reduce and respond to increasing impacts, particularly for those who are least prepared for change and least able to recover from disasters.

Key finding 10: collectively, there is increasing ambition in plans and commitments for adaptation action and support, but most observed adaptation efforts are fragmented, incremental, sector‑specific and unequally distributed across regions.

Key finding 11: when adaptation is informed and driven by local contexts, populations and priorities, both the adequacy and the effectiveness of adaptation action and support are enhanced, and this can also promote transformational adaptation.

Key finding 12: averting, minimizing and addressing loss and damage requires urgent action across climate and development policies to manage risks comprehensively and provide support to impacted communities.

Key finding 13: support for adaptation and funding arrangements for averting, minimizing and addressing loss and damage need to be rapidly scaled up from expanded and innovative sources, and financial flows need to be made consistent with climate‑resilient development to meet urgent and increasing needs.

Key finding 14: scaled‑up mobilization of support for climate action in developing countries entails strategically deploying international public finance, which remains a prime enabler for action, and continuing to enhance effectiveness, including access, ownership and impacts.

Key finding 15: making financial flows – international and domestic, public and private – consistent with a pathway towards low GHG emissions and climate‑resilient development entails creating opportunities to unlock trillions of dollars and shift investments to climate action across scales.

Key finding 16: existing cleaner technologies need to be rapidly deployed, together with accelerated innovation, development and transfer of new technologies, to support the needs of developing countries.

Key finding 17: capacity-building is foundational to achieving broad‑ranging and sustained climate action and requires effective country‑led and needs‑based cooperation to ensure capacities are enhanced and retained over time at all levels.”

140.  The relevant parts of the COP28 First Global Stocktake[93] provide as follows:

The Conference of the Parties serving as the meeting of the Parties to the Paris Agreement,

Recalling Article 2, paragraph 1, of the Paris Agreement, which provides that the Agreement, in enhancing the implementation of the Convention, including its objective, aims to strengthen the global response to the threat of climate change, in the context of sustainable development and efforts to eradicate poverty,

Also recalling Article 2, paragraph 2, of the Paris Agreement, which provides that the Agreement will be implemented to reflect equity and the principle of common but differentiated responsibilities and respective capabilities, in the light of different national circumstances,

...

Acknowledging that climate change is a common concern of humankind and that Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights, the right to a clean, healthy and sustainable environment, the right to health, the rights of Indigenous Peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to development, as well as gender equality, empowerment of women and intergenerational equity,

...

I. Context and cross-cutting considerations

1.  Welcomes that the Paris Agreement has driven near-universal climate action by setting goals and sending signals to the world regarding the urgency of responding to the climate crisis;

2.  Underlines that, despite overall progress on mitigation, adaptation and means of implementation and support, Parties are not yet collectively on track towards achieving the purpose of the Paris Agreement and its long‑term goals;

3.  Reaffirms the Paris Agreement temperature goal of holding the increase in the global average temperature to well below 2 oC above pre‑industrial levels and pursuing efforts to limit the temperature increase to 1.5 oC above pre‑industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change;

4.  Underscores that the impacts of climate change will be much lower at the temperature increase of 1.5 oC compared with 2 oC and resolves to pursue efforts to limit the temperature increase to 1.5 oC;

5.  Expresses serious concern that 2023 is set to be the warmest year on record and that impacts from climate change are rapidly accelerating, and emphasizes the need for urgent action and support to keep the 1.5 oC goal within reach and to address the climate crisis in this critical decade;

6.  Commits to accelerate action in this critical decade on the basis of the best available science, reflecting equity and the principle of common but differentiated responsibilities and respective capabilities in the light of different national circumstances and in the context of sustainable development and efforts to eradicate poverty;

7.  Underscores Article 2, paragraph 2, of the Paris Agreement, which stipulates that the Agreement will be implemented to reflect equity and the principle of common but differentiated responsibilities and respective capabilities, in the light of different national circumstances;

...

15.  Notes with alarm and serious concern the following findings of the Sixth Assessment Report of the Intergovernmental Panel on Climate Change:

(a)  That human activities, principally through emissions of [GHG], have unequivocally caused global warming of about 1.1 oC;

(b)  That human‑caused climate change impacts are already being felt in every region across the globe, with those who have contributed the least to climate change being most vulnerable to the impacts, and, together with losses and damages, will increase with every increment of warming;

(c)  That most observed adaptation responses are fragmented, incremental, sector‑specific and unequally distributed across regions, and that, despite the progress made, significant adaptation gaps still exist across sectors and regions and will continue to grow under current levels of implementation;

16.  Notes the following findings of the Sixth Assessment Report of the Intergovernmental Panel on Climate Change:

(a)  That mitigation efforts embedded within the wider development context can increase the pace, depth and breadth of emissions reductions, as well as that policies that shift development pathways towards sustainability can broaden the portfolio of available mitigation responses and enable the pursuit of synergies with development objectives;

(b)  That both adaptation and mitigation financing would need to increase manyfold, and that there is sufficient global capital to close the global investment gap but there are barriers to redirecting capital to climate action, and that Governments through public funding and clear signals to investors are key in reducing these barriers and investors, central banks and financial regulators can also play their part;

(c)  That feasible, effective and low‑cost mitigation options are already available in all sectors to keep 1.5 oC within reach in this critical decade with the necessary cooperation on technologies and support;

17.  Notes with concern the pre‑2020 gaps in both mitigation ambition and implementation by developed country Parties and that the Intergovernmental Panel on Climate Change had earlier indicated that developed countries must reduce emissions by 25–40 per cent below 1990 levels by 2020, which was not achieved;

II. Collective progress towards achieving the purpose and long‑term goals of the Paris Agreement ...

A. Mitigation

...

25.  Expresses concern that the carbon budget consistent with achieving the Paris Agreement temperature goal is now small and being rapidly depleted and acknowledges that historical cumulative net carbon dioxide emissions already account for about four fifths of the total carbon budget for a 50 per cent probability of limiting global warming to 1.5 oC;

...

28.  Further recognizes the need for deep, rapid and sustained reductions in [GHG] emissions in line with 1.5 oC pathways and calls on Parties to contribute to the following global efforts, in a nationally determined manner, taking into account the Paris Agreement and their different national circumstances, pathways and approaches:

...

(d)  Transitioning away from fossil fuels in energy systems, in a just, orderly and equitable manner, accelerating action in this critical decade, so as to achieve net zero by 2050 in keeping with the science;

...”

141.  The relevant parts of the 1998 Aarhus Convention read as follows:

“The Parties to this Convention,

...

Recognizing that adequate protection of the environment is essential to human well‑being and the enjoyment of basic human rights, including the right to life itself,

Recognizing also that every person has the right to live in an environment adequate to his or her health and well‑being, and the duty, both individually and in association with others, to protect and improve the environment for the benefit of present and future generations,

...

Have agreed as follows:”

Article 2

Definitions

“4.  ’The public’ means one or more natural or legal persons, and, in accordance with national legislation or practice, their associations, organizations or groups;

5.  ’The public concerned’ means the public affected or likely to be affected by, or having an interest in, the environmental decision‑making; for the purposes of this definition, non‑governmental organizations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest.”

Article 9

Access to justice

“2.  Each Party shall, within the framework of its national legislation, ensure that members of the public concerned

(a)  Having a sufficient interest or, alternatively,

(b)  Maintaining impairment of a right, where the administrative procedural law of a Party requires this as a precondition, have access to a review procedure before a court of law and/or another independent and impartial body established by law, to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of article 6 and, where so provided for under national law and without prejudice to paragraph 3 below, of other relevant provisions of this Convention.

What constitutes a sufficient interest and impairment of a right shall be determined in accordance with the requirements of national law and consistently with the objective of giving the public concerned wide access to justice within the scope of this Convention. To this end, the interest of any non‑governmental organization meeting the requirements referred to in article 2, paragraph 5, shall be deemed sufficient for the purpose of subparagraph (a) above. Such organizations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph (b) above.

3.  In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.”

142.  The relevant parts of the Aarhus Convention Implementation Guide[94] provide as follows (footnotes omitted):

“While narrower than the ‘public,’ the ‘public concerned’ is nevertheless still very broad. With respect to the criterion of ‘being affected’, this is very much related to the nature of the activity in question. Some of the activities subject to article 6 of the Convention may potentially affect a large number of people. For example, in the case of pipelines, the public concerned is usually in practice counted in the thousands, while in the case of nuclear power stations the competent authorities may consider the public concerned to count as many as several hundred thousand people across several countries.

With respect to the criterion of ‘having an interest’, the definition appears to go well beyond the kind of language that is usually found in legal tests of ‘sufficient interest’ (see next paragraph). In particular it should be read to include not only members of the public whose legal interests or rights guaranteed under law might be impaired by the proposed activity. Potentially affected interests may also include social rights such as the right to be free from injury or the right to a healthy environment. It also applies, however, to a category of the public that has an unspecified interest in the decision‑making procedure.

It is significant that article 2, paragraph 5, does not require that a person must show a legal interest to be a member of the public concerned. Thus, the term may encompass both ‘legal interest’ and ‘factual interest’ as defined under continental legal systems, such as those of Austria, Germany and Poland. Under national law, persons with a mere factual interest do not normally enjoy the full panoply of rights in proceedings accorded to those with a legal interest. In contrast, the Convention accords the same status (at least in relation to article 6) regardless of whether the interest is a legal or factual one.

Article 2, paragraph 5, explicitly includes within the category of the interested public NGOs whose statutory goals include promoting environmental protection, so long as they meet ‘any requirements under national law’. Whether or not an NGO promotes environmental protection can be ascertained in a variety of ways, such as through its charter, by‑laws or activities. ‘Environmental protection’ can include any purpose consistent with the implied definition of environment found in article 2, paragraph 3. The requirement for ‘promoting environmental protection’ would thus be satisfied in the case of NGOs focusing on any aspect of the implied definition of environment in article 2, paragraph 3. For example, if an NGO works to promote the interests of those with health concerns due to water‑borne diseases, this NGO would be considered to fulfil the definition of article 2, paragraph 5.

The reference to ‘meeting any requirements under national law’ should not be read as leaving absolute discretion to Parties in defining these requirements. Their discretion should be seen in the context of the important role the Convention assigns to NGOs with respect to its implementation and the clear requirement of article 3, paragraph 4, to provide ‘appropriate recognition’ for NGOs. In its findings on communication ACCC/C/2004/05 (Turkmenistan), the Compliance Committee found that ‘Non‑governmental organizations, by bringing together expertise and resources, generally have greater ability to effectively exercise their rights under the Convention than individual members of the public’.

Parties may set requirements for NGOs under national law, but in the light of the integral role that NGOs play in the implementation of the Convention, Parties should ensure that these requirements are not overly burdensome or politically motivated, and that each Party’s legal framework encourages the formation of NGOs and their constructive participation in public affairs. Moreover, any requirements should be consistent with the Convention’s principles, such as non‑discrimination and the avoidance of technical and financial barriers. Within these limits, Parties may impose requirements based on objective criteria that are not unnecessarily exclusionary.

For example, a possible requirement for environmental NGOs to have been active in that country for a certain number of years might not be consistent with the Aarhus Convention, because it may violate the non‑discrimination clause of article 3, paragraph 9. Furthermore, the requirement ‘to have been active’ in itself might be overly exclusive in countries that have permitted the formation of NGOs for only a relatively short period of time, and where they are therefore relatively undeveloped.

There are also sometimes requirements for NGOs to have a certain number of active members. This was one of the issues considered by the ECJ in Case C‑263/08 (Sweden), discussed in the box above. Such a membership requirement would also be considered overly strict under the Convention, if the threshold is set at such a high level that only a handful of NGOs can meet it in a given country. In 2009, Slovenia amended its Environmental Protection Act to remove the requirement that NGOs promoting environmental protection undergo a financial audit of operations in order to qualify as the ‘public concerned’ under article 2, paragraph 5.

If an NGO meets the requirements set out in article 2, paragraph 5, it is deemed to be a member of the ‘public concerned’ under article 6 and article 9, paragraph 2. But for NGOs that do not meet such requirements ab initio, and for individuals, the Convention is not entirely clear whether the mere participation in a public participation procedure under article 6, paragraph 7, would qualify a person as a member of the ‘public concerned’. Because article 9, paragraph 2, is the mechanism for enforcing rights under article 6, however, it is arguable that any person who participates as a member of the public in a hearing or other public participation procedure under article 6, paragraph 7, should have an opportunity to make use of the access to justice provisions in article 9, paragraph 2. In this case, he or she would fall under the definition of ‘public concerned’.

...

Nothing in the Convention prevents the Parties from granting standing to any person without distinction. However, the Convention requires – as a minimum – that members of the ‘public concerned’ either having a sufficient interest or maintaining impairment of a right have standing to review the substantive and procedural legality of any decision, act or omission subject to the provisions of article 6 ...

With respect to NGOs, the Convention states clearly that NGOs meeting the requirements of article 2 paragraph 5, are deemed to have a ‘sufficient interest’ or a right capable of being impaired...

Proper implementation of, and compliance with, the Convention requires that the objective of wide access to justice is upheld when determining the scope of persons – both natural and legal ­ with standing. Several Parties to the Convention apply some kind of test to establish standing, often in terms of a direct, sufficient, personal or legal interest, or of a legally protected individual right. While some such criteria, for instance limiting standing only to members of the public with private property rights, would not be in line with the Convention, the permissibility of other criteria will depend on how they are construed by the reviewing body in practice. In other words, even criteria such as having a sufficient interest or a right that can be impaired may be incompatible with the Convention if understood too narrowly in the case law of the reviewing bodies.

As illustrated by the Compliance Committee’s findings on communication ACCC/C/2005/11 (Belgium), meeting the Convention’s objective of giving the public concerned wide access to justice may require a significant shift of thinking in countries where NGOs have previously lacked standing in cases because they were held not to have a sufficient interest, or an impaired right. In ACCC/C/2005/11, the Belgian judiciary had applied the general criteria for standing under Belgian law to NGOs, meaning that NGO applicants had to show a direct, personal and legitimate interest as well as a ‘required quality’. The Compliance Committee concluded that even though the wording of the relevant Belgian laws did not as such imply a lack of compliance, the jurisprudence of the Belgian courts, as developed before the entry into force of the Convention for Belgium, implied a too restrictive access to justice to environmental organizations, and thus did not meet the requirements of the Convention. ...

An example of national criteria for standing that would clearly not be in compliance with the Convention was the former Swedish criteria for NGOs. According to former Swedish law, to be able to appeal environmental permits, environmental associations were required to be active in Sweden for more than three years and to have at least 2,000 members. This was found by the CJEU to be in violation of the EU legislation intended to implement the Aarhus Convention ...”

143.  The relevant part of the 2015 Maastricht Recommendations[95] on the implementation of the Aarhus Convention provides as follows:

“c.  ’The public concerned’ includes, inter alia, non‑governmental organizations (NGOs) promoting environmental protection and meeting any requirements under national law. To ensure the framework for public participation is as transparent, clear and consistent as possible, the following may be clearly specified through national law:

i.  What constitutes ‘having an interest in’ environmental decision‑making;

ii.  The requirements, if any, which NGOs promoting environmental protection must meet in order to be deemed to have an interest. What constitutes a sufficient interest should be determined in accordance with the objective of giving the public concerned wide access to justice.”

(a)   Resolution on the human right to a clean, healthy and sustainable environment

144.  Upon the invitation of the Human Rights Council formulated in its Resolution 48/13 of 8 October 2021, the General Assembly of the United Nations adopted its Resolution 76/300 on the human right to a clean, healthy and sustainable environment on 28 July 2022.

145.  It was adopted with 161 votes in favour (of the 169 member States present), 8 abstentions[96] and no votes against[97]. 45 of the 46 member States of the Council of Europe voted in favour.[98]

146.  In the Preamble to the Resolution, the General Assembly noted the following:

“[A] vast majority of States have recognized some form of the right to a clean, healthy and sustainable environment through international agreements, their national constitutions, legislation, laws or policies.”

147.  Its four operative paragraphs provide as follows:

“1.  Recognizes the right to a clean, healthy and sustainable environment as a human right;

2.  Notes that the right to a clean, healthy and sustainable environment is related to other rights and existing international law;

3.  Affirms that the promotion of the human right to a clean, healthy and sustainable environment requires the full implementation of the multilateral environmental agreements under the principles of international environmental law;

4.  Calls upon States, international organizations, business enterprises and other relevant stakeholders to adopt policies, to enhance international cooperation, strengthen capacity‑building and continue to share good practices in order to scale up efforts to ensure a clean, healthy and sustainable environment for all.”

(b)   Other General Assembly material

148.  Nearly every year since its first Resolution on the subject, namely Resolution no. 43/53 on the protection of global climate for present and future generations of mankind adopted on 6 December 1988, the issue of global climate protection for future generations has been put on the agenda of the General Assembly, resulting in the adoption of numerous resolutions[99].

149.  In its Resolution 69/220 adopted on 19 December 2014, the General Assembly made explicit reference to the necessity to protect the climate system for the benefit of present and future generations of humankind, referring to the UNFCCC.

150.  In the Preamble to its Resolution 72/219 adopted on 20 December 2017, the General Assembly made a statement which it has retained ever since in the Preamble of each of the resolutions adopted on this subject[100]:

“Recognizing that, in undertaking its work, the United Nations should promote the protection of the global climate for the well‑being of present and future generations of humankind ...”

151.  In 2009, the Secretary‑General of the United Nations noted that:

“The United Nations human rights treaty bodies all recognize the intrinsic link between the environment and the realization of a range of human rights, such as the right to life, to health, to food, to water and to housing (see A/HRC/10/61)”.[101]

152.  In May 2022, pursuant to the request of the Human Rights Council[102], the Secretary‑General issued a report on “The impacts of climate change on the human rights of people in vulnerable situations”[103], in which he presented the legal and policy framework applying to persons in vulnerable situations in the context of climate change (footnotes omitted):

“The nine core international human rights instruments set forth binding legal obligations on the States that are party to them, including some that are relevant to climate change. In the context of climate change, fulfilling these obligations may require States to, among other things, take action to protect people against climate change‑related harms that impact on the enjoyment of human rights and to implement inclusive climate policies. Climate action should empower people in vulnerable situations, ensuring their full and effective participation as rights holders.”

153.  In the report, the Secretary‑General made a series of recommendations to States and other stakeholders to address the impacts of climate change on the human rights of people in vulnerable situations (paragraphs 48‑58).

(a)   Resolutions

154.  In 2018, in its Resolution 37/8, the Human Rights Council acknowledged that “more than 100 States [had] recognized some form of a right to a healthy environment in, inter alia, international agreements, their constitutions, legislations or policies”.[104]

155.  In Resolution 46/7 on human rights and the environment[105] the Human Rights Council noted as follows:

“Recalling also the Paris Agreement, adopted on 12 December 2015 by the parties to the United Nations Framework Convention on Climate Change, in which they acknowledged in the preamble that they should, when taking action to address climate change, respect, promote and consider their respective obligations with regard to human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to development, as well as gender equality, the empowerment of women and intergenerational equity,

...

Taking note of the outcomes of the twenty‑fifth session of the Conference of the Parties to the United Nations Framework Convention on Climate Change, and encouraging States to consider, among other aspects, respect for and the promotion of human rights at the twenty‑sixth session, to be held in Glasgow, United Kingdom of Great Britain and Northern Ireland, from 1 to 12 November 2021,

...”

156.  In Resolution 48/13 of 8 October 2021, the Human Rights Council formally recognised the right to a clean, healthy and sustainable environment as a human right and invited the General Assembly to consider the matter (see the General Assembly Resolution 76/300, cited above). The relevant parts of the Resolution read as follows:

“Recalling also States’ obligations and commitments under multilateral environmental instruments and agreements, including on climate change, and the outcome of the United Nations Conference on Sustainable Development, held in Rio de Janeiro, Brazil, in June 2012, and its outcome document entitled “The future we want”, which reaffirmed the principles of the Rio Declaration on Environment and Development,

Recalling further all its resolutions on human rights and the environment, the most recent of which are resolutions 45/17 of 6 October 2020, 45/30 of 7 October 2020 and 46/7 of 23 March 2021, and relevant resolutions of the General Assembly,

Recognizing that sustainable development, in its three dimensions (social, economic and environmental), and the protection of the environment, including ecosystems, contribute to and promote human well‑being and the enjoyment of human rights, including the rights to life, to the enjoyment of the highest attainable standard of physical and mental health, to an adequate standard of living, to adequate food, to housing, to safe drinking water and sanitation and to participation in cultural life, for present and future generations,

Reaffirming the importance of international cooperation, on the basis of mutual respect, in full compliance with the principles and purposes of the Charter, with full respect for the sovereignty of States while taking into account national priorities,

Recognizing that, conversely, the impact of climate change, the unsustainable management and use of natural resources, the pollution of air, land and water, the unsound management of chemicals and waste, the resulting loss of biodiversity and the decline in services provided by ecosystems interfere with the enjoyment of a clean, healthy and sustainable environment, and that environmental damage has negative implications, both direct and indirect, for the effective enjoyment of all human rights,

...

1.  Recognizes the right to a clean, healthy and sustainable environment as a human right that is important for the enjoyment of human rights;

2.  Notes that the right to a clean, healthy and sustainable environment is related to other rights and existing international law;

3.  Affirms that the promotion of the human right to a clean, healthy and sustainable environment requires the full implementation of the multilateral environmental agreements under the principles of international environmental law;”

157.  The Human Rights Council also adopted Resolution 50/9 on human rights and climate change of 7 July 2022, in which it focused more closely on the implications of climate change for the full enjoyment of the right to food, but also called upon all States to adopt

“a comprehensive, integrated, gender‑responsive, age‑inclusive and disability‑inclusive approach to climate change adaptation and mitigation policies, consistent with the United Nations Framework Convention on Climate Change and the objective and principles thereof”.

158.  On 6 October 2022 the Human Rights Council adopted Resolution 51/4 on the human rights of older persons, in which it recognised the essential contribution that older persons made to the functioning of societies and to the achievement of the 2030 Agenda for Sustainable Development (see also Resolution 44/7 of 16 July 2020).

(b)   Special procedures

(i)      Special Rapporteur on the promotion and protection of human rights in the context of climate change

159.  The mandate of the Special rapporteur on the promotion and protection of human rights in the context of climate change was established in October 2021 by the Human Rights Council.

160.  In the thematic report of July 2022 to the United Nations General Assembly – entitled “Promotion and protection of human rights in the context of climate change mitigation, loss and damage and participation” (A/77/226) – the Special rapporteur provided a series of recommendations:

“Recommendations with respect to bridging the mitigation gap

89.  The Special Rapporteur maintains that all of the recommendations made by the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment in his report to the General Assembly in 2019 with respect to mitigation action are still relevant and should be considered as recommended in the present report. In addition, the below recommendations should be considered.

90.  With respect to mitigation, the Special Rapporteur on the promotion and protection of human rights in the context of climate change recommends that the General Assembly:

...

(d)  Establish an international human rights tribunal to hold accountable Governments, business and financial institutions for their ongoing investments in fossil fuels and carbon intensive industries and the related human rights effects that such investments invoke;

...

97.  The Special Rapporteur also recommends that the General Assembly encourage all Member States to include youth representatives in national parliaments to highlight climate change concerns.

98.  The Special Rapporteur further recommends that the General Assembly encourage all States to give standing to children and young people, including indigenous children and young people international, national and subnational court systems.”

(ii)    Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment

161.  In 2018 the then Special Rapporteur issued a report which summarised the main human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment under the title of “Framework principles on human rights and the environment”[106].

162.  The subsequent Rapporteur issued two thematic reports in 2019 (one to the Human Rights Council, the other to the General Assembly).

163.  In his 2019 report to the Human Rights Council of 8 January 2019 (A/HRC/40/55), the Special Rapporteur focused on the right to breathe clean air as one of the human rights to a safe, clean, healthy and sustainable environment. He detailed the scope and content of human rights obligations relating to clean air in the following terms:

“IV. Human rights obligations relating to clean air

57.  As the previous mandate holder made clear, States have obligations to protect the enjoyment of human rights from environmental harm (A/HRC/25/53). The foreseeable adverse effects of poor air quality on the enjoyment of human rights give rise to extensive duties of States to take immediate actions to protect against those effects. In a joint statement issued in 2017, a group of United Nations experts said ‘a threat like this can no longer be ignored. States have a duty to prevent and control exposure to toxic air pollution and to protect against its adverse effects on human rights.’[107]

58.  The framework principles on human rights and the environment clarify the three categories of State obligations: procedural, substantive, and special obligations towards those in vulnerable situations. Therefore, the framework principles can be operationalized in the context of air pollution in order to respect, protect and fulfil human rights.

59.  The procedural obligations of States in relation to the right to breathe clean air include duties related to promoting education and public awareness; providing access to information; ensuring freedom of expression, association and assembly; facilitating public participation in the assessment of proposed projects, policies and environmental decisions; and ensuring affordable, timely access to remedies.

60.  With respect to substantive obligations, States must not violate the right to breathe clean air through their own actions; must protect the right from being violated by third parties, especially businesses; and must establish, implement and enforce laws, policies and programmes to fulfil the right. States also must avoid discrimination and retrogressive measures.

61.  There are seven key steps that States must take in fulfilling the right to breathe clean air: monitor air quality and impacts on human health; assess sources of air pollution; make information publicly available, including public health advisories; establish air quality legislation, regulations, standards and policies; develop air quality action plans at the local, national and, if necessary, regional levels; implement an air quality action plan and enforce the standards; and evaluate progress and, if necessary, strengthen the plan to ensure that the standards are met.

62.  At each of these stages, States must ensure that the public is fully informed and has an opportunity to participate in decision‑making processes. Extra effort should always be made to reach out to women, children and others in vulnerable situations whose voices are too often not heard in environmental policy processes. States must pay special attention to environmental defenders working to protect the right to clean

164.  In the 2019 report to the General Assembly (A/74/161), the Special Rapporteur built on the above‑mentioned 2018 framework principles on human rights and the environment (see paragraph 161 above) and detailed the content of State obligations (footnotes omitted):

“63.  The framework principles on human rights and the environment clarify three categories of State obligations: procedural, substantive, and special obligations towards those in vulnerable situations. The framework principles can be operationalized in the context of climate change in order to respect, protect and fulfil human rights.

64.  Pursuant to international human rights law, States have procedural obligations to:

(a)  Provide the public with accessible, affordable and understandable information regarding the causes and consequences of the global climate crisis, including incorporating climate change into the educational curriculum at all levels;

(b)  Ensure an inclusive, equitable and gender‑based approach to public participation in all climate‑related actions, with a particular emphasis on empowering the most affected populations, namely women, children, young people, indigenous peoples and local communities, persons living in poverty, persons with disabilities, older persons, migrants, displaced people, and other potentially at‑risk communities;

(c)  Enable affordable and timely access to justice and effective remedies for all, to hold States and businesses accountable for fulfilling their climate change obligations;

(d)  Assess the potential climate change and human rights impacts of all plans, policies and proposals, including both upstream and downstream effects (i.e. both production‑ and consumption‑related emissions);

(e)  Integrate gender equality into all climate actions, enabling women to play leadership roles;

(f)  Respect the rights of indigenous peoples in all climate actions, particularly their right to free, prior and informed consent;

(g)  Provide strong protection for environmental and human rights defenders working on all climate‑related issues, from land use to fossil fuels. States must vigilantly protect defenders from harassment, intimidation and violence.

65.  With respect to substantive obligations, States must not violate the right to a safe climate through their own actions; must protect that right from being violated by third parties, especially businesses; and must establish, implement and enforce laws, policies and programmes to fulfil that right. States also must avoid discrimination and retrogressive measures. These principles govern all climate actions, including obligations related to mitigation, adaptation, finance, and loss and damage.

66.  Human rights obligations are reinforced by international environmental law, as States are obliged to ensure that polluting activities within their jurisdiction or control do not cause serious harm to the environment or peoples of other States or to areas beyond the limits of national jurisdiction. Given the foreseeability of increasing climate impacts, this well‑established ‘no harm’ rule of customary international law is being violated as a result of [GHG] emissions, which, regardless of where they are emitted, are contributing, cumulatively, to adverse effects in other States, including small island developing States. The Urgenda case in the Netherlands is an important precedent, as the Court relied on international human rights law to hold the Government of the Netherlands accountable for fulfilling commitments the Government itself says are necessary to prevent dangerous climate change.

...

68.  States have an obligation to cooperate to achieve a low‑carbon, climate resilient and sustainable future, which means sharing information; the transfer of zero‑carbon, low‑carbon and high‑efficiency technologies from wealthy to less wealthy States; building capacity; increasing spending on research and development related to the clean energy transition; honouring international commitments; and ensuring fair, legal and durable solutions for migrants and displaced persons. Wealthy States must contribute their fair share towards the costs of mitigation and adaptation in low‑income countries, in accordance with the principle of common but differentiated responsibilities. Climate finance to low‑income countries should be composed of grants, not loans. It violates basic principles of justice to force poor countries to pay for the costs of responding to climate change when wealthy countries caused the problem.

69.  Climate actions, including under new mechanisms being negotiated pursuant to article 6 of the Paris Agreement, must be designed and implemented to avoid threatening or violating human rights. In the past, policies supporting biofuel production contributed to spikes in food prices, riots, and a major increase in the total number of people suffering from hunger. Forest preservation policies raise similar concerns about the impact on rights, as such policies may limit access to lands used for hunting, fishing, gathering, cultivation and other important cultural activities. Integrating actions to achieve climate targets and the Sustainable Development Goals, in cooperation with affected communities, will ensure that these types of adverse outcomes are avoided.

70.  In 2018, the Committee on Economic, Social and Cultural Rights warned States that a failure to prevent foreseeable human rights harm caused by climate change, or a failure to mobilize the maximum available resources in an effort to do so, could constitute a breach of their obligation to respect, protect and fulfil all human rights for all. States must, therefore, dedicate the maximum available financial and material resources to shift to renewable energy, clean transport and agroecological farming; halt and reverse deforestation and soil deterioration; and increase adaptive capacity, especially in vulnerable and marginalized communities ...

74.  A failure to fulfil international climate change commitments is a prima facie violation of the State’s obligations to protect the human rights of its citizens. ...

75.  A dramatic change of direction is needed. To comply with their human rights obligations, developed States and other large emitters must reduce their emissions at a rate consistent with their international commitments. To meet the Paris target of limiting warming to 1.5oC, States must submit ambitious nationally determined contributions by 2020 that will put the world on track to reducing [GHG] emissions by at least 45 per cent by 2030 (as calculated by the Intergovernmental Panel on Climate Change). All States should prepare rights‑based deep decarbonization plans intended to achieve net zero carbon emissions by 2050, in accordance with article 4, paragraph 19, of the Paris Agreement. Four main categories of actions must be taken: addressing society’s addiction to fossil fuels; accelerating other mitigation actions; protecting vulnerable people from climate impacts; and providing unprecedented levels of financial support to least developed countries and small island developing States.”

165.  In the 2020 Report to the Human Rights Council, entitled “Right to a healthy environment: good practices” (A/HRC/43/53), the Special Rapporteur summarised good practices in implementing the human right to a safe, clean, healthy and sustainable environment, drawn from more than 175 States. He argued that the legal recognition of this right could itself be considered a good practice. The relevant parts of the report read as follows:

“III. Good practices in the implementation of the right to a safe, clean, healthy and sustainable environment

A. Legal recognition

9.  In the present report, the Special Rapporteur focuses on the implementation of the right to a safe, clean, healthy and sustainable environment. The legal recognition of this right can itself be considered a good practice, whether by means of constitutional protection, inclusion in environmental legislation or through ratification of a regional treaty that includes the right.

10.  In cooperation with the Vance Center for International Justice, the Special Rapporteur prepared an updated list of States that legally recognize the right to a safe, clean, healthy and sustainable environment (see annex II). There are 110 States where this right enjoys constitutional protection. Constitutional protection for human rights is essential, because the constitution represents the highest and strongest law in a domestic legal system. Furthermore, the constitution plays an important cultural role, reflecting a society’s values and aspirations.

11.  The right to a healthy environment is explicitly included in regional treaties ratified by 126 States. This includes 52 States that are parties to the African Charter on Human and Peoples’ Rights, 45 States that are parties to the Convention on Access to Information, Public Participation in Decision‑Making and Access to Justice in Environmental Matters (Aarhus Convention), 16 States that are parties to the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador) and 16 States that are parties to the Arab Charter on Human Rights. As at 1 December 2019, five States had ratified the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean (Escazú Agreement); this recent treaty requires, however, 11 ratifications to enter into force. Ten States adopted the non‑binding Declaration on Human Rights of the Association of South‑East Asian Nations.

12.  It is also important that legislation be enacted and implemented to respect, protect and fulfil the right to a safe, clean, healthy and sustainable environment. There are 101 States where this right has been incorporated into national legislation. Especially good practices can be seen in Argentina, Brazil, Colombia, Costa Rica, France, the Philippines, Portugal and South Africa, where the right to a healthy environment serves as a unifying principle that permeates legislation, regulations and policies.

13.  In total, more than 80 per cent of States Members of the United Nations (156 out of 193) legally recognize the right to a safe, clean, healthy and sustainable environment. The Special Rapporteur has collected the texts of the constitutional and legislative provisions that recognize this right.”

166.  The Special Rapporteur also issued thematic reports on “Human rights and the global water crisis: water pollution, water scarcity and water‑related disasters” (A/HRC/46/28, 2021); Healthy and sustainable food: reducing the environmental impacts of food systems on human rights (A/76/179, 2021); and “The right to a clean, healthy and sustainable environment: non‑toxic environment” (A/HRC/49/53, 2022).

167.  In the recent thematic report – entitled “The human right to a clean, healthy and sustainable environment: a catalyst for accelerated action to achieve the Sustainable Development Goals” (A/77/284, 2022) – the Special Rapporteur wanted to “challeng[e] the conventional wisdom that the Sustainable Development Goals are mere aspirations, by highlighting the extensive human rights obligations that underlie the Goals”. The relevant recommendations in this respect include the following:

“(a)  Incorporate the right to a clean, healthy and sustainable environment at all levels (global, regional and national), including in a legally binding global instrument, the Universal Declaration of Human Rights, post‑2020 global biodiversity framework, the European Convention on Human Rights and national constitutions, legislation and policies;

(b)  Acknowledge that the Goals are built on a robust foundation of human rights law, establishing legally binding obligations;”

(iii)   Independent expert on human rights and international solidarity

168.  In a 2020 Report submitted to the Human Rights Council – entitled “International solidarity and climate change” (A/HRC/44/44) – the Independent expert on human rights and international solidarity made a series of recommendations for human rights based reform, in relation to threats posed by climate change, in particular:

“(a)  All States, corporations and international organizations should take all necessary separate and joint steps towards achieving net‑zero emissions by 2050, consistent with their highest possible ambitions to reduce emissions and the common objective of keeping the global temperature rise below 1.5oC under the Paris Agreement;

(b)  To that end, States, corporations and financial institutions, particularly the highest emitting States, in historical and contemporary terms, should consider ceasing to pursue the exploration of and new investments in fossil fuels as a matter of human rights‑based international solidarity, since the shared carbon budget will be exceeded if already existing and proposed fossil fuel developments proceed;

(c)  States, corporations and financial institutions should cooperate to ensure that any transformation of the fossil fuel economy (which is imperative) does not perpetuate asymmetries between richer and poorer States and peoples. As countries phase down or even phase out their fossil fuel operations, wealthier countries should provide poorer countries that are less adaptable to the transition with support based on the right to development of the poorer States, and the social and economic rights of their people that are tied to energy systems;

...

(g)  States should cooperate through the international climate regime and international human rights community, including through ILO, to guarantee access to justice in the context of climate change with respect to the following:

(i)  Rectifying loss and damage associated with the inequalities perpetuated by climate change, including by giving this agenda the same priority as mitigation and adaptation and providing meaningful financial support to affected countries and peoples;

(ii)  Safeguarding the enjoyment of international human rights among indigenous peoples and local communities affected by climate change‑related projects, including protecting environmental defenders from criminalization;

(iii)  Formulating and implementing concrete plans from the global to the local levels for a just transition towards sustainable economies that ensures the right to decent work for all;

(iv)  Cooperating to realize international human rights obligations as they apply to marginalized groups uniquely affected by climate change, including indigenous peoples, the elderly, children, persons with disabilities, persons living in poverty and women.”

(iv)  Independent Expert on the enjoyment of all human rights by older persons

169.  The 2019 Report (A/HRC/42/43) of the Independent Expert noted the following negative impacts of climate change on older people:

“101.  The Independent Expert reiterates her view that the lack of a comprehensive and integrated international legal instrument to promote and protect the rights and dignity of older persons has significant practical implications, including for older persons in emergency situations. She stresses in particular that current instruments do not make the issues of ageing specific or sufficiently visible, and therefore preclude older persons from the full enjoyment of their human rights, particularly in emergency situations.”

170.  In the 2021 Report entitled “Human rights of older women: the intersection between ageing and gender” (A/76/157), the Independent Expert added that “in emergencies brought on by climate change impacts, older women might be viewed as a burden and therefore be vulnerable to abuse and neglect ... The specific risks and impacts for older women are, however, generally invisible.”

171.  The International Covenant on Civil and Political Rights (“ICCPR”)[108] does not contain any provisions explicitly aimed at environmental protection. Nevertheless, the Human Rights Committee (“the HRC”) derives specific obligations related to environmental protection from the right to life (Article 6) and the right to private and family life (Article 17).

172.  In its General Comment No. 36 on the right to life, adopted in 2019[109], the HRC reiterated the link between environmental protection and the duty to protect life (a connection already made by the HRC in a communication from 2001):

“26.  The duty to protect life also implies that States parties should take appropriate measures to address the general conditions in society that may give rise to direct threats to life or prevent individuals from enjoying their right to life with dignity. These general conditions may include ... degradation of the environment ...”

173.  Referring to international instruments, such as the Paris Agreement, the HRC further detailed the connection between States’ obligations regarding the right to life and environmental preservation (footnotes omitted):

“62.  Environmental degradation, climate change and unsustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life. The obligations of States parties under international environmental law should thus inform the content of article 6 of the Covenant, and the obligation of States parties to respect and ensure the right to life should also inform their relevant obligations under international environmental law. Implementation of the obligation to respect and ensure the right to life, and in particular life with dignity, depends, inter alia, on measures taken by States parties to preserve the environment and protect it against harm, pollution and climate change caused by public and private actors. States parties should therefore ensure sustainable use of natural resources, develop and implement substantive environmental standards, conduct environmental impact assessments and consult with relevant States about activities likely to have a significant impact on the environment, provide notification to other States concerned about natural disasters and emergencies and cooperate with them, provide appropriate access to information on environmental hazards and pay due regard to the precautionary approach.”

174.  In the case of Portillo Cáceres v. Paraguay[110] the HRC held as follows:

“6.3  The Committee takes note of the State party’s argument that the communication is inadmissible ratione materiae because environmental rights are not provided for in the Covenant. The Committee also notes, however, that the authors have stated that they are not claiming a violation of the right to a healthy environment but rather violations of their right to life, physical integrity, privacy, family life and an effective remedy and that they are doing so on the grounds that the State party has not honoured its positive obligation to protect those rights, which, in the case at hand, would entail enforcing environmental standards. The Committee considers, therefore, that article 3 of the Optional Protocol does not constitute an obstacle to a finding of admissibility in respect of the present communication.

...

7.4  The Committee also takes note of developments in other international tribunals that have recognized the existence of an undeniable link between the protection of the environment and the realization of human rights and that have established that environmental degradation can adversely affect the effective enjoyment of the right to life. Thus, severe environmental degradation has given rise to findings of a violation of the right to life.

7.5  In the present case, the Committee is of the view that heavily spraying the area in question with toxic agrochemicals – an action which has been amply documented – poses a reasonably foreseeable threat to the authors’ lives given that such large‑scale fumigation has contaminated the rivers in which the authors fish, the well water they drink and the fruit trees, crops and farm animals that are their source of food. (...) Consequently, in view of the acute poisoning suffered by the authors, as acknowledged in the amparo decision of 2011 (paras. 2.20 and 2.21), and of the death of Mr. Portillo Cáceres, which has never been explained by the State party, the Committee concludes that the information before it discloses a violation of article 6 of the Covenant in the cases of Mr. Portillo Cáceres and the authors of the present communication.

...

7.8  ... When pollution has direct repercussions on the right to one’s private and family life and home, and the adverse consequences of that pollution are serious because of its intensity or duration and the physical or mental harm that it does, then the degradation of the environment may adversely affect the well‑being of individuals and constitute violations of private and family life and the home. Consequently, in the light of the information that it has before it, the Committee concludes that the events at issue in the present case disclose a violation of article 17 of the Covenant.”

175.  In Teitiota v. New Zealand[111] the HRC noted as follows:

“9.4  The Committee recalls that the right to life cannot be properly understood if it is interpreted in a restrictive manner, and that the protection of that right requires States parties to adopt positive measures. The Committee also recalls its general comment No. 36 (2018) on the right to life, in which it established that the right to life also includes the right of individuals to enjoy a life with dignity and to be free from acts or omissions that would cause their unnatural or premature death (para. 3). The Committee further recalls that the obligation of States parties to respect and ensure the right to life extends to reasonably foreseeable threats and life‑threatening situations that can result in loss of life. States parties may be in violation of article 6 of the Covenant even if such threats and situations do not result in the loss of life. Furthermore, the Committee recalls that environmental degradation, climate change and unsustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life.

9.5  Moreover, the Committee observes that both it and regional human rights tribunals have established that environmental degradation can compromise effective enjoyment of the right to life, and that severe environmental degradation can adversely affect an individual’s well‑being and lead to a violation of the right to life.

...

9.7  [In relation to the author’s claims regarding the risk of violence during land‑disputes] the Committee considers that a general situation of violence is only of sufficient intensity to create a real risk of irreparable harm under articles 6 or 7 of the Covenant in the most extreme cases, where there is a real risk of harm simply by virtue of an individual being exposed to such violence on return, or where the individual in question is in a particularly vulnerable situation. ... [T]he author has not demonstrated clear arbitrariness or error in the domestic authorities’ assessment as to whether he faced a real, personal and reasonably foreseeable risk of a threat to his right to life as a result of violent acts resulting from overcrowding or private land disputes in Kiribati.

9.8  ... While recognizing the hardship that may be caused by water rationing, the Committee notes that the author has not provided sufficient information indicating that the supply of fresh water is inaccessible, insufficient or unsafe so as to produce a reasonably foreseeable threat of a health risk that would impair his right to enjoy a life with dignity or cause his unnatural or premature death.

9.9  ... The Committee recognizes that in certain places, the lack of alternatives to subsistence livelihoods may place individuals at a heightened risk of vulnerability to the adverse effects of climate change. ... The information made available to the Committee does not indicate that when the author’s removal occurred, there was a real and reasonably foreseeable risk that he would be exposed to a situation of indigence, deprivation of food and extreme precarity that could threaten his right to life, including his right to a life with dignity. ...

9.11  ... The Committee is of the view that without robust national and international efforts, the effects of climate change in receiving States may expose individuals to a violation of their rights under articles 6 or 7 of the Covenant, thereby triggering the non‑refoulement obligations of sending States. Furthermore, given that the risk of an entire country becoming submerged under water is such an extreme risk, the conditions of life in such a country may become incompatible with the right to life with dignity before the risk is realized.

9.12  In the present case, the Committee accepts the author’s claim that sea level rise is likely to render Kiribati uninhabitable. However, it notes that the time frame of 10 to 15 years, as suggested by the author, could allow for intervening acts by Kiribati, with the assistance of the international community, to take affirmative measures to protect and, where necessary, relocate its population. The Committee notes that the State party’s authorities thoroughly examined that issue and found that Kiribati was taking adaptive measures to reduce existing vulnerabilities and build resilience to climate change‑related harms. Based on the information made available to it, the Committee is not in a position to conclude that the domestic authorities’ assessment that the measures taken by Kiribati would suffice to protect the author’s right to life under article 6 of the Covenant was clearly arbitrary or erroneous in that regard, or amounted to a denial of justice.”

176.  In its views adopted on 21 July 2022 in Communication No. 3624/2019 (Daniel Billy et al. v. Australia; “Torres Strait Islanders case”), although not finding a violation of Article 6 in that particular case, the HRC considered that adverse climate‑change impacts could qualify as a reasonably foreseeable threat to life:

“Article 6

8.3  The Committee notes the authors’ claim that the events in this case constitute a violation by act and omission of their right to a life with dignity under article 6 of the [International Covenant on Civil and Political Rights], owing to the State party’s failure to perform its duty to provide adaptation and mitigation measures to address climate change impacts that adversely affect their lives, including their way of life. With respect to the State party’s position that article 6 (1) of the Covenant does not obligate it to prevent foreseeable loss of life from climate change, the Committee recalls that the right to life cannot be properly understood if it is interpreted in a restrictive manner, and that the protection of that right requires States parties to adopt positive measures to protect the right to life.[112] The Committee also recalls its general comment No. 36 (2018) on the right to life, in which it established that the right to life also includes the right of individuals to enjoy a life with dignity and to be free from acts or omissions that would cause their unnatural or premature death (para. 3).[113] The Committee further recalls that the obligation of States parties to respect and ensure the right to life extends to reasonably foreseeable threats and life‑threatening situations that can result in loss of life.[114] States parties may be in violation of article 6 of the Covenant even if such threats and situations do not result in the loss of life. The Committee considers that such threats may include adverse climate change impacts, and recalls that environmental degradation, climate change and unsustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life. The Committee recalls that States parties should take all appropriate measures to address the general conditions in society that may give rise to direct threats to the right to life or prevent individuals from enjoying their right to life with dignity.

8.4  The Committee takes note of the State party’s position that the extension of article 6 (1) of the Covenant to a right to life with dignity through general comment No. 36 is unsupported by the rules of treaty interpretation, with reference to article 31 of the 1969 Vienna Convention on the Law of Treaties. However, the Committee is of the view that the language at issue is compatible with the latter provision, which requires that a treaty be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. In this regard, the Committee notes that under article 31 of the Convention, the context for interpretation of a treaty includes in the first place the text of the treaty, including its preamble and annexes. The preamble of the Covenant initially recognizes that the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, and further recognizes that those rights derive from the inherent dignity of the human person. While the State party notes that socioeconomic entitlements are protected under a separate Covenant, the Committee observes that the preamble of the present Covenant recognizes that the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy their civil and political rights, as well as their economic, social and cultural rights.

8.5  The Committee observes that both it and regional human rights tribunals have established that environmental degradation can compromise effective enjoyment of the right to life, and that severe environmental degradation can adversely affect an individual’s well‑being and lead to a violation of the right to life.”

177.  The Convention on the Elimination of All Forms of Discrimination against Women does not make explicit reference to environmental rights. However, in its General Recommendation No. 37 on the gender‑related dimensions of disaster risk reduction in the context of climate change, issued in 2018[115], the Committee identified general (§§ 25‑38) as well as specific (§§ 39‑54) principles of that Convention applicable to disaster risk reduction and climate change.

178.  The Committee on the Rights of the Child (“the CRC”) dealt with the issue of the effects of climate change on children in General comment No. 26 on children’s rights and the environment, with a special focus on climate change.[116]

179.  In Sacchi and Others v. Argentina (CRC/C/88/D/104/2019, 22 September 2021), the CRC dealt[117] with a complaint lodged by sixteen children of various nationalities against Argentina (the same complaint was also lodged against Brazil, France, Germany and Türkiye). The authors claimed to be victims of climate change, and that the respondent States were responsible for (a) failing to prevent foreseeable human rights violations caused by climate change by reducing their emissions at the “highest possible ambition”, and (b) delaying the steep cuts in carbon emissions needed to protect the lives and welfare of children at home and abroad. While the Committee established jurisdiction of the respondent States, it declared the case inadmissible for non‑exhaustion of domestic remedies. For further details, see Duarte Agostinho and Others v. Portugal and 32 Others (dec.) [GC], no. 39371/20, §§ 58‑60, 9 April 2024.

180.  In its Statement on climate change and the Covenant of 8 October 2018[118], the Committee on Economic, Social and Cultural Rights noted as follows:

“3.  The Committee welcomes the pledges already made. Quite apart from such voluntary commitments made under the climate change regime however, all States have human rights obligations, that should guide them in the design and implementation of measures to address climate change.

...

5.  Under the International Covenant on Economic, Social and Cultural Rights, States parties are required to respect, protect and fulfil all human rights for all. They owe such duties not only to their own populations, but also to populations outside their territories, consistent with articles 55 and 56 of the United Nations Charter. In doing so they should, consistent with the Covenant, act on the basis of the best scientific evidence available.

6.  This Committee has already noted that a failure to prevent foreseeable human rights harm caused by climate change, or a failure to mobilize the maximum available resources in an effort to do so, could constitute a breach of this obligation.

The nationally determined contributions (NDCs) that have been announced until now are insufficient to meet what scientists tell us is required to avoid the most severe impacts of climate change. In order to act consistently with their human rights obligations, the NDCs should be revised to better reflect the ‘highest possible ambition’ referred to in the Paris Agreement (article 4.3). The future implementation guidelines of the Agreement should require from States that they take into account their human rights duties in the design of the NDCs. This implies acting in accordance with the principles of gender sensitivity, participation, transparency and accountability; and building on local and traditional knowledge.

Moreover, States parties should adopt measures to adapt to the negative consequences of climate change, and integrate such measures within existing social, environmental and budgetary policies at domestic level. Finally, as part of their duties of international assistance and cooperation for the realization of human rights, high‑income States should also support adaptation efforts, particularly in developing countries, by facilitating transfers of green technologies, and by contributing to the Green Climate Fund. This would be consistent with the requirement under the Covenant that States ensure ‘the right of everyone to enjoy the benefits of scientific progress’, and with the Covenant’s acknowledgement of ‘the benefits to be derived from the encouragement and development of international contacts and co‑operation in the scientific ... field’.

...

8.  ... Human rights mechanisms have an essential role to play in protecting human rights by ensuring that States avoid taking measures that could accelerate climate change, and that they dedicate the maximum available resources to the adoption of measures that could mitigate climate change. Such measures include accelerating the shift to renewable sources of energy such as wind or solar; slowing down deforestation and moving to agroecological farming allowing soils to function as carbon sinks; improving the insulation of buildings; and investing in public transport. A fundamental shift in the global energy order is urgently required from hydrocarbon to renewable energy sources, in order to avoid dangerous anthropogenic interference with the climate system and the significant human rights violations that such interference would cause.

9.  Complying with human rights in the context of climate change is a duty of both State and non‑State actors. This requires respecting human rights, by refraining from the adoption of measures that could worsen climate change; protecting human rights, by effectively regulating private actors to ensure that their actions do not worsen climate change; and fulfilling human rights, by the adoption of policies that can channel modes of production and consumption towards a more environmentally sustainable pathway. ...

The role of the Committee on Economic, Social and Cultural Rights

10.  In its future work, the Committee shall continue to keep under review the impacts of climate change on economic, social and cultural rights, and provide States guidance as to how they can discharge their duties under the International Covenant on Economic, Social and Cultural Rights in the mitigation of climate change and adaptation to its unavoidable effects.”

181.  In the relevant parts of General Comment No. 25 (2020) on science and economic, social and cultural rights[119], the Committee on Economic, Social and Cultural Rights held as follows:

“B. Participation and the precautionary principle

56.  Participation also includes the right to information and participation in controlling the risks involved in particular scientific processes and its applications. In this context, the precautionary principle plays an important role. This principle demands that, in the absence of full scientific certainty, when an action or policy may lead to unacceptable harm to the public or the environment, actions will be taken to avoid or diminish that harm. Unacceptable harm includes harm to humans or to the environment that is: (a) threatening to human life or health; (b) serious and effectively irreversible; (c) inequitable to present or future generations; or (d) imposed without adequate consideration of the human rights of those affected. Technological and human rights impact assessments are tools that help to identify potential risks early in the process and the use of scientific applications.

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International cooperation

...

81.  Fourth, international cooperation is essential because the most acute risks to the world related to science and technology, such as climate change, the rapid loss of biodiversity, the development of dangerous technologies, such as autonomous weapons based on artificial intelligence, or the threat of weapons of mass destruction, especially nuclear weapons, are transnational and cannot be adequately addressed without robust international cooperation. States should promote multilateral agreements to prevent these risks from materializing or to mitigate their effects.”

182.  The relevant parts of General Comment No. 14 on the right to health (2000)[120] read as follows (footnotes omitted):

“11.  The Committee interprets the right to health, as defined in article 12.1, as an inclusive right extending 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, healthy occupational and environmental conditions, and access to health ‑related education and information, including on sexual and reproductive health. A further important aspect is the participation of the population in all health‑related decision‑making at the community, national and international levels.

...

15.  ’The improvement of all aspects of environmental and industrial hygiene’ (art. 12.2 (b)) comprises, inter alia, preventive measures in respect of occupational accidents and diseases; the requirement to ensure an adequate supply of safe and potable water and basic sanitation; the prevention and reduction of the population’s exposure to harmful substances such as radiation and harmful chemicals or other detrimental environmental conditions that directly or indirectly impact upon human health. ...

36.  The obligation to fulfil requires States parties, inter alia, to give sufficient recognition to the right to health in the national political and legal systems, preferably by way of legislative implementation ... States are also required to adopt measures against environmental and occupational health hazards and against any other threat as demonstrated by epidemiological data. For this purpose they should formulate and implement national policies aimed at reducing and eliminating pollution of air, water and soil, including pollution by heavy metals such as lead from gasoline. ...”

183.  The relevant parts of General Comment No. 26 (2022) on land and economic, social and cultural rights[121] read as follows:

“Climate change

56.  The impact of climate change on access to land, affecting user rights, is severe in many countries. In coastal zones, sea level rise has an impact on housing, agriculture and access to fisheries. Climate change also contributes to land degradation and desertification. Rising temperatures, changing patterns of precipitation and the increasing frequency of extreme weather events such as droughts and floods are increasingly affecting access to land. States shall cooperate at the international level and comply with their duty to mitigate emissions and their respective commitments made in the context of the implementation of the Paris Agreement. States have these duties also under human rights law, as the Committee has highlighted previously. Moreover, States shall avoid adopting policies to mitigate climate change, such as carbon sequestration through massive reforestation or protection of existing forests, that lead to different forms of land grabbing, especially when they affect the land and territories of populations in vulnerable situations, such as peasants or Indigenous Peoples. Mitigation policies should lead to absolute emissions reductions through the phasing out of fossil fuel production and use.

57.  States have an obligation to design climate change adaptation policies at the national level that take into consideration all forms of land use change induced by climate change, to register all affected persons and to use the maximum available resources to address the impact of climate change, particularly on disadvantaged groups.

58.  Climate change affects all countries, including those that may have contributed to it the least. Thus, those countries that have historically contributed most to climate change and those that are currently the main contributors to it shall assist the countries that are most affected by climate change but are least able to cope with its impact, including by supporting and financing land‑related adaptation measures. Cooperation mechanisms for climate change mitigation and adaptation measures shall provide and implement a robust set of environmental and social safeguards to ensure that no project negatively affects human rights and the environment and to guarantee access to information and meaningful consultation with those affected by such projects. They shall also respect the free, prior and informed consent of Indigenous Peoples.”

184.  Since presenting a general report on the relationship between climate change and human rights to the Human Rights Council in 2009, the Office of the High Commissioner for Human Rights has submitted several reports to the Human Rights Council focused on the effects of climate change on the enjoyment of human rights of several categories of persons, including on persons with disabilities[122], women[123], migrants and displaced persons[124], children[125] and on persons suffering from mental health issues[126].

185.  In its Analytical study on the promotion and protection of the rights of older persons in the context of climate change (A/HRC/47/46) published in 2021, the Office of the High Commissioner for Human Rights addressed multiple and intersecting forms of discrimination in relation to climate change, the relevant parts of which read as follows (footnotes omitted):

“34.  Both ageing and climate change have differential effects when it comes to gender. Because women tend to live longer, there are more older women than older men, and women in heterosexual partnerships tend to outlive their partners, so more older women live alone. Physiological and physical differences, social norms and roles, and gender discrimination and inequities in access to resources and power all play a role in making older women face particular risk of vulnerability to climate impacts.

35.  Older women experience higher rates of poverty than older men and face other economic hardships that are aggravated by climate change. They also face disproportionate health risks, including a greater likelihood of experiencing chronic diseases and air pollution harms, and have higher rates of mortality and other health complications from extreme heat events than any other demographic group. Conversely, during typhoons, older men have been found to be more at risk of death.

36.  Gendered social roles and expectations have complex effects on climate risks for older people. In some societies, older men are more socially isolated and thus have more difficulty in accessing assistance to cope with the negative effects of climate change. However, in situations of emergency or strained family resources brought on by climate impacts, older women are sometimes more likely to be viewed as a burden and to suffer abuse or neglect. In some countries, older women are blamed for extreme weather through accusations of witchcraft or sorcery, and face violence or exclusion as a result. Transformation of traditional livelihoods and of cultural and social practices also has varying effects on men and women because of their different social roles. Social norms around gender orientation and sexual identity may also compound the negative human rights effects of climate change for lesbian, gay, bisexual, transgender and intersex older persons.”

186.  In 2019 the UN Treaty Bodies (Committee on the Elimination of Discrimination against Women; Committee on Economic, Social and Cultural Rights; Committee on the Protection of the Rights of All Migrant Workers and Members of their Families; Committee on the Rights of the Child; and Committee on the Rights of Persons with Disabilities) issued a Joint Statement on human rights and climate change[127], the relevant parts of which provide as follows (footnotes omitted):

“3.  [The report released in 2018 by the Intergovernmental Panel on Climate Change on global warming of 1.5oC above pre‑industrial levels] confirms that climate change poses significant risks to the enjoyment of the human rights protected by the International Convention on the Elimination of all Forms of Discrimination Against Women, the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, the Convention on the Rights of the Child, and the International Convention on the Rights of Persons with Disabilities. The adverse impacts identified in the report threaten, among others, the right to life, the right to adequate food, the right to adequate housing, to health and to water, and cultural rights. These negative impacts are also illustrated in the damage suffered by the ecosystems which in turn affect the enjoyment of human rights. The risk of harm is particularly high for those segments of the population already marginalized or in vulnerable situations or that, owing to discrimination and pre‑existing inequalities, have limited access to decision‑making or resources, such as women, children, persons with disabilities, indigenous peoples and persons living in rural areas. Children are at a particularly heightened risk of harm to their health, owing to the immaturity of their body systems.

...

States’ Human Rights Obligations

10.  Under the Convention on the Elimination of All Forms of Discrimination Against Women, the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, the International Convention on the Rights of the Child, and the International Convention on the Rights of Persons with Disabilities, States parties have obligations, including extraterritorial obligations, to respect, protect and fulfil all human rights of all peoples. Failure to take measures to prevent foreseeable harm to human rights caused by climate change, or to regulate activities contributing to such harm, could constitute a violation of States’ human rights obligations.

11.  In order for States to comply with their human rights obligations, and to realize the objectives of the Paris Agreement, they must adopt and implement policies aimed at reducing emissions. These policies must reflect the highest possible ambition, foster climate resilience and ensure that public and private investments are consistent with a pathway towards low carbon emissions and climate resilient development.

12.  In their efforts to reduce emissions, States parties should contribute effectively to phasing out fossils fuels, promoting renewable energy and addressing emissions from the land sector, including by combating deforestation. Additionally, States must regulate private actors, including by holding them accountable for harm they generate both domestically and extraterritorially. States should also discontinue financial incentives or investments in activities and infrastructure which are not consistent with low [GHG] emissions pathways, whether undertaken by public or private actors as a mitigation measure to prevent further damage and risk.

13.  When reducing emissions and adapting to climate impacts, States must seek to address all forms of discrimination and inequality, including advancing substantive gender equality, protecting the rights of indigenous peoples and of persons with disabilities, and taking into consideration the best interests of the child.

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Role of the Committees

18.  In their future work, the Committees shall continue to keep under review the impacts of climate change and climate‑induced disasters on the rights holders protected under their respective treaties. They will also continue to provide States parties with guidance on how they can meet their obligations under these instruments in relation to mitigation and adaptation to climate change.”

187.  On 12 December 2022 the International Tribunal for the Law of the Sea received a request from the Commission of Small Island States on Climate Change and International Law to deliver an advisory opinion on the scope and content of the “specific obligations of States Parties to the United Nations Convention on the Law of the Sea (‘UNCLOS’) including under Part XII thereof”.[128] The questions put in the request were the following:

“What are the specific obligations of State Parties to the United Nations Convention on the Law of the Sea (‘UNCLOS’), including under Part XII:

(a)  to prevent, reduce and control pollution of the marine environment in relation to the deleterious effects that result or are likely to result from climate change, including through ocean warming and sea level rise, and ocean acidification, which are caused by anthropogenic [GHG] emissions into the atmosphere?

(b)  to protect and preserve the marine environment in relation to climate change impacts, including ocean warming and sea level rise, and ocean acidification?”

188.  On 29 March 2023, under Article 96 of the Charter of the United Nations, the UN General Assembly adopted a Resolution[129] requesting the International Court of Justice to provide an advisory opinion on States’ obligations in respect of climate change. The questions put to that court were the following:

“Having particular regard to the Charter of the United Nations, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the United Nations Framework Convention on Climate Change, the Paris Agreement, the United Nations Convention on the Law of the Sea, the duty of due diligence, the rights recognized in the Universal Declaration of Human Rights, the principle of prevention of significant harm to the environment and the duty to protect and preserve the marine environment,

(a)  What are the obligations of States under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of [GHG] for States and for present and future generations;

(b)  What are the legal consequences under these obligations for States where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect to:

(i)  States, including, in particular, small island developing States, which due to their geographical circumstances and level of development, are injured or specially affected by or are particularly vulnerable to the adverse effects of climate change?

(ii)  Peoples and individuals of the present and future generations affected by the adverse effects of climate change?”

189.  In a Recommendation adopted on 29 September 2021, entitled “Anchoring the right to a healthy environment: need for enhanced action by the Council of Europe”[130], the Parliamentary Assembly of the Council of Europe (PACE) recommended that the Committee of Ministers draw up an additional protocol to the European Convention on Human Rights and an additional protocol to the European Social Charter on the right to a safe, clean, healthy and sustainable environment, based on the terminology used by the United Nations.

190.  More generally, in a Resolution similarly entitled, PACE recommended that the member States build and consolidate a legal framework – domestically and at European level – to anchor the right to a safe, clean, healthy and sustainable environment, based on the United Nations guidance on this matter.[131] The relevant part of the Resolution reads as follows:

“3.  The Parliamentary Assembly notes that already in 1972, the Stockholm Declaration of the United Nations Conference on the Human Environment explicitly linked environmental protection and first generation human rights, indirectly referring to the right to a healthy environment. Since then, about half the countries of the world have recognised the right to a healthy environment in their constitutions, including 32 Council of Europe member States. The right to a healthy environment is also recognised through a series of regional agreements and arrangements worldwide – with the exception of the European region.

4.  The Assembly believes that the European vision of contemporary human rights protection could nevertheless become a benchmark for ecological human rights in the 21st century, if action is taken now. So far this vision has been limited to civil and political rights enshrined in the European Convention on Human Rights and its Protocols (ETS No. 5, hereafter ‘the Convention’) and socio‑economic rights recognised in the European Social Charter (ETS Nos. 35 and 163, hereafter ‘the Charter’).

5.  The Assembly notes that the Convention does not make any specific reference to the protection of the environment, and the European Court of Human Rights (hereafter the ‘Court’) can thus not deal effectively enough with this new generation human right. The Assembly’s call for action, in particular in Recommendation 1885 (2009) ‘Drafting an additional protocol to the European Convention on Human Rights concerning the right to a healthy environment’, was unfortunately not followed by the Committee of Ministers.

6.  The Court’s case law provides for indirect protection of a right to the environment by sanctioning only environmental violations that simultaneously result in an infringement of other human rights already recognised in the Convention. The Court thus favours an anthropocentric and utilitarian approach to the environment which prevents natural elements from being afforded any protection per se. The Assembly encourages the Council of Europe to recognise, in time, the intrinsic value of Nature and ecosystems in the light of the interrelationship between human societies and Nature.

7.  The Assembly is convinced that the Council of Europe as the European continent’s leading human rights and rule of law organisation should stay proactive in the evolution of human rights and adapt its legal framework accordingly. A legally binding and enforceable instrument, such as an additional protocol to the Convention, would finally give the Court a non‑disputable base for rulings concerning human rights violations arising from environment‑related adverse impacts on human health, dignity and life.

8.  The Assembly considers that an explicit recognition of a right to a healthy and viable environment would be an incentive for stronger domestic environmental laws and a more protection‑focused approach by the Court. It would make it easier for victims to lodge applications for remedies and would also act as a preventive mechanism to supplement the currently rather reactive case law of the Court.

9.  Recognising an autonomous right to a healthy environment would have the benefit of allowing a violation to be found irrespective of whether another right had been breached and would therefore raise the profile of this right. In this context, the Assembly notes that the United Nations (UN), in its studies and resolutions on human rights and the environment, mainly refers to the human rights obligations linked to the enjoyment of ‘a safe, clean, healthy and sustainable environment’. The Council of Europe should be encouraged to use this terminology for its own legal instruments – though it may want to go even further and guarantee the right to a ‘decent’ or ‘ecologically viable’ environment.”

191.  In Recommendation 2211 (2021)[132], PACE recommended that the Committee of Ministers draw up an additional protocol to the European Convention on Human Rights on the right to a safe, clean, healthy and sustainable environment. The relevant part of the Recommendation reads as follows:

“1.  The Parliamentary Assembly refers to its Resolution 2396 (2021) ‘Anchoring the right to a healthy environment: need for enhanced action by the Council of Europe’ and reiterates the need for the Council of Europe to modernise its standard setting activity so as to embrace the new generation of human rights. The Assembly is highly concerned by the speed and extent of environmental degradation, loss of biodiversity, and the climate crisis that directly impact on human health, dignity and life. It considers that it is high time for the Council of Europe to show ambition and strategic vision for the future by facing up to this major transformative challenge for human rights and securing their enhanced protection in the era of systemic environmental threats to the present and future generations.

2.  The Assembly notes that harmful environmental impacts are increasingly affecting the enjoyment of first and second generation human rights by individuals and society at large, hurting the shared values that the Council of Europe is called upon to defend. Those impacts are being recognised through environmental litigation at national level across Europe and beyond; they constitute a compelling case for consolidating and updating the Council of Europe legal arsenal, and linking up national action with commitments under the relevant international treaties, such as the United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Agreement.

3.  To this end, the Assembly recommends that the Committee of Ministers:

3.1  draw up an additional protocol to the European Convention on Human Rights (ETS No. 5, hereafter ‘the Convention’) on the right to a safe, clean, healthy and sustainable environment, based on the terminology used by the United Nations and drawing on the text reproduced below, which is an integral part of this recommendation. The inclusion of this right in the Convention would establish the clear responsibility of member States to maintain a good state of the environment that is compatible with life in dignity and good health and the full enjoyment of other fundamental rights; this would also support a much more effective protection of a safe, clean, healthy and sustainable environment at national level, including for generations to come;

3.2  draw up an additional protocol to the European Social Charter (ETS Nos. 35 and 163, hereafter ‘the Charter’) on the right to a safe, clean, healthy and sustainable environment; the inclusion of this right in the ESC would make it possible to recognise the interrelationship between protection of social rights and environmental protection; it would also enable non‑governmental organisations to lodge collective complaints on environmental issues;

3.3  launch the preparation of a feasibility study for a ‘5P’ convention on environmental threats and technological hazards threatening human health, dignity and life; the drawing‑up of such a convention would afford an opportunity to incorporate therein the principles of prevention, precaution and non‑regression, which are necessary if humanity’s right to a healthy environment is to be properly protected; the convention could also include a supranational monitoring mechanism modelled on independent expert committees such as the Group of Experts on Action against Trafficking in Human Beings (GRETA) and The Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO);

3.4  revise Recommendation CM/Rec(2016)3 on human rights and business with a view to strengthening corporate environmental responsibility for the adequate protection of the human right to a safe, clean, healthy and sustainable environment.”

192.  PACE also adopted a Recommendation[133] and a Resolution[134] entitled “The climate crisis and the rule of law”. In the latter, it referred to the Court’s case‑law in relation to environmental damage. In particular, it urged the member States to do the following:

“5.1  promote the rule of law and employ a transparent, accountable and democratic legislative process for implementing the aim of ‘net zero emissions’, based on clear and credible plans to meet commitments to keep the global temperature increase in line with the preferred objective of the Paris Agreement, amounting to an increase in average temperatures of 1.5oC;”

193.  The Committee of Ministers issued replies to the above‑mentioned recommendations of the Parliamentary Assembly. In a reply issued on 4 October 2022, it addressed the recommendation to adopt a new protocol to the European Convention on Human Rights, indicating that it had instructed the Steering Committee for Human Rights (CDDH) to undertake other possible work, including the preparation of a study on the need for and feasibility of a further instrument or instruments on human rights and the environment[135].

194.  The Committee of Ministers adopted its Recommendation CM/Rec(2022)20 to member States on human rights and the protection of the environment on 27 September 2022. In the Preamble, the Committee of Ministers noted:

“the increased recognition of some form of the right to a clean, healthy and sustainable environment in, inter alia, international instruments, including regional human rights instruments, and national constitutions, legislation and policies;”

195.  The Committee of Ministers then recommended that the member States undertake the following:

“1.  reflect on the nature, content and implications of the right to a clean, healthy and sustainable environment and, on that basis, actively consider recognising at the national level this right as a human right that is important for the enjoyment of human rights and is related to other rights and existing international law;

2.  review their national legislation and practice in order to ensure that they are consistent with the recommendations, principles and guidance set out in the appendix to this recommendation;

...”

196.  The appendix to this Recommendation, containing six paragraphs, reads as follows:

“1.  In the implementation of this recommendation, member States should ensure the respect of general principles of international environmental law, such as the no harm principle, the principle of prevention, the principle of precaution and the polluter pays principle, and take into account the need for intergenerational equity.

2.  Member States should ensure, without discrimination, the effective enjoyment of the rights and freedoms set forth in the Convention for the Protection of Human Rights and Fundamental Freedoms and, when applicable, the European Social Charter and the European Social Charter (revised), including in relation to the environment.

3.  Member States should take adequate measures to protect the rights of those who are most vulnerable to, or at particular risk from, environmental harm, taking into account their needs, risks and capacities.

4.  Member States should ensure access without discrimination, inter alia, to information and justice in environmental matters, participation in environmental decision making and environmental education. Member States should ensure that human rights are taken into account at all stages of the environmental decision‑making process.

5.  Taking into consideration their vital role in the protection of the environment, member States should consult and co‑operate in the implementation of this recommendation with sub‑national entities, civil society, national human rights institutions, regional institutions for the protection and promotion of human rights, environmental human rights defenders, economic stakeholders, indigenous peoples and local communities, cities and regions.

6.  Member States should encourage or, where appropriate, require business enterprises to act in compliance with their human rights responsibilities related to the environment, including by applying a smart mix of measures– national and international, mandatory and voluntary.”

197.  In the Explanatory memorandum to the Recommendation[136] the CDDH stated that the Recommendation in question did not have any effect on the legal nature of the instruments on which it was based, or on the extent of States’ existing legal obligations; nor did it seek to establish new standards or obligations.

198.  In the human rights comment “Living in a clean environment: a neglected human rights concern for all of us”[137], the Commissioner stressed as follows:

“The Council of Europe bodies overseeing the implementation of the European Convention of Human Rights and the European Social Charter have produced an extensive body of case law that delineates states parties’ obligations in the field of the environment. Despite the absence in the Convention of a specific reference to the environment, the European Court of Human Rights has clearly established that various types of environmental degradation can result in violations of substantive human rights, such as the right to life, to private and family life, the prohibition of inhuman and degrading treatment, and the peaceful enjoyment of the home. Moreover, the European Committee of Social Rights has interpreted the right to health included in the Charter to encompass the right to a healthy environment.

...

States must adopt – and adhere to – ambitious, holistic policies and measures to preserve the environment and biodiversity, combat air, water and soil pollution, mitigate climate change and ensure proper waste disposal. In doing so, they should pay extra attention to protect the rights of those most vulnerable, including children, the poor and marginalised communities who tend to be disproportionally affected by environmental degradation. Rather than a piecemeal approach that merely reacts to individual complaints, what is needed is a preventive approach at national and local level grounded in the human rights standards of the Council of Europe. This also means ensuring that environmental policies are accompanied by measures to protect the rights of those they may impact, including the right to work and to an adequate standard of living of those working in mining or heavy industries, for example. It is extremely important for states to educate people from an early age of the need to preserve the environment and teach them how to do so. Further, states must ensure people’s rights to information, participation and redress, and demonstrate their commitment to doing so by ratifying the Aarhus convention.”

199.  In 2020 the European Commission for Democracy through Law (“the Venice Commission”) addressed the question of judicial control in the field of environmental protection:

“114.  The Venice Commission is aware of the problems of judicial control in the area of protection of the environment. Critics or sceptics will claim that this area is not suitable for judicial control, as it will take the courts into sophisticated discussions on natural sciences. They might also claim that as the environmental protection is an area for discretion and political compromises, in case a parliament or government made a political compromise on the protection of the environment, the judicial branch should not intervene. However, an important argument to counter such a conclusion is that the protection of the environment is not like the traditional human rights conflict, where the minority needs protection against the majority. In the area of protection of the environment, there is a totally new dimension: the protection of the rights of future generations. As the future generations do not take part in present day democracy and do not vote in present day elections, the judicial branch appears to be best placed to protect the future generations against the decisions of present-day politicians.”[138]

200.  In Appendix V of the Reykjavík Declaration[139] the following was declared:

“We, the Heads of State and Government, underline the urgency of taking co-ordinated action to protect the environment by countering the triple planetary crisis of pollution, climate change and loss of biodiversity. We affirm that human rights and the environment are intertwined and that a clean, healthy and sustainable environment is integral to the full enjoyment of human rights by present and future generations.

...

We note that the right to a healthy environment is enshrined in various ways in several constitutions of the Council of Europe member States and the increased recognition of the right to a clean, healthy and sustainable environment in, inter alia, international instruments, regional human rights instruments, national constitutions, legislation and policies.

We recall the extensive case law and practice on environment and human rights developed by the European Court of Human Rights and the European Committee of Social Rights. We appreciate the ongoing work of the Committee of Ministers, the Parliamentary Assembly, the Congress of Local and Regional Authorities of the Council of Europe, the Commissioner for Human Rights, the youth sector and other parts of the Council of Europe to strengthen the protection of human rights linked to the protection of the environment.

Together we commit to:

i.  strengthening our work at the Council of Europe on the human rights aspects of the environment based on the political recognition of the right to a clean, healthy and sustainable environment as a human right, in line with United Nations General Assembly Resolution 76/300 ‘The human right to a clean, healthy and sustainable environment’, and by pursuing the implementation of Committee of Ministers Recommendation CM/Rec(2022)20 on human rights and the protection of the environment; ...

v.  initiating the ‘Reykjavík process’ of strengthening the work of the Council of Europe in this field, with the aim of making the environment a visible priority for the Organisation. The process will focus and streamline the Organisation’s activities, with a view to promoting co‑operation among member States. We will identify the challenges raised by the triple planetary crisis of pollution, climate change and loss of biodiversity for human rights and contribute to the development of common responses thereto, while facilitating the participation of youth in these discussions. We will do this by enhancing and co‑ordinating the existing Council of Europe activities related to the environment and we encourage the establishment of a new intergovernmental committee on environment and human rights (‘Reykjavík Committee’).”

201.  The relevant part of the Treaty on European Union (OJ 2012/C 326, pp. 13‑390) provides as follows:

Article 3 § 3

“The Union ... shall work for the sustainable development of Europe ... aiming at ... a high level of protection and improvement of the quality of the environment ...”

202.  The relevant parts of the Treaty on the Functioning of the European Union (OJ 2012/C 326, pp. 47‑390) provide as follows:

Article 11

“Environmental protection requirements must be integrated into the definition and implementation of the Union’s policies and activities, in particular with a view to promoting sustainable development.”

Article 191

“1.  Union policy on the environment shall contribute to pursuit of the following objectives:

–  preserving, protecting and improving the quality of the environment,

–  protecting human health,

–  prudent and rational utilisation of natural resources,

–  promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change.

2.  Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.

In this context, harmonisation measures answering environmental protection requirements shall include, where appropriate, a safeguard clause allowing Member States to take provisional measures, for non‑economic environmental reasons, subject to a procedure of inspection by the Union.

3.  In preparing its policy on the environment, the Union shall take account of:

–  available scientific and technical data,

–  environmental conditions in the various regions of the Union,

–  the potential benefits and costs of action or lack of action,

–  the economic and social development of the Union as a whole and the balanced development of its regions.

...”

Article 263

The Court of Justice of the European Union shall review the legality of legislative acts, of acts of the Council, of the Commission and of the European Central Bank, other than recommendations and opinions, and of acts of the European Parliament and of the European Council intended to produce legal effects vis‑à‑vis third parties. It shall also review the legality of acts of bodies, offices or agencies of the Union intended to produce legal effects vis‑à‑vis third parties.

It shall for this purpose have jurisdiction in actions brought by a Member State, the European Parliament, the Council or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers.

...

Any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.

...”

203.  Article 37 of the Charter of Fundamental Rights of the European Union (OJ 2012/C 326, pp. 391‑407) provides as follows:

Article 37

Environmental protection

“A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.”

(a)   Concerning GHG emissions

204.  By Decision No. 94/69/EC of the Council of 15 December 1993 concerning the conclusion of the United Nations Framework Convention on Climate Change (OJ 2009/L 140, pp. 136‑48), the Council approved the UNFCCC on behalf of the European Community (now the European Union).

205.  Decision No. 406/2009/EC of the European Parliament and of the Council of 23 April 2009 on the effort of Member States to reduce their GHG emissions to meet the Community’s GHG emission reduction commitments up to 2020 (OJ 2009/L 140, pp. 136‑48) provides that each Member State is to limit its GHG emission according to a percentage set for that Member State (Article 3). Detailed percentages by Member States can be found in Annex II.

206.  Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC (OJ 2009/L 140, pp. 16‑62), establishes a common framework for the promotion of energy from renewable sources (Article 1) and sets mandatory national overall targets for the use of energy from renewable sources (Article 3 and Annex 1).

207.  Directive 2012/27/EU of the European Parliament and of the Council of 25 October 2012 on energy efficiency, amending Directives 2009/125/EC and 2010/30/EU and repealing Directives 2004/8/EC and 2006/32/EC (OJ 2012/L 315, pp. 1‑56) establishes a common framework of measures for the promotion of energy efficiency within the Union in order to ensure the achievement of the Union’s 2020 20% headline target on energy efficiency (Article 1).

208.  Regulation (EU) 2018/842 of the European Parliament and of the Council of 30 May 2018 on binding annual GHG emission reductions by Member States from 2021 to 2030 contributing to climate action to meet commitments under the Paris Agreement and amending Regulation (EU) No 525/2013 (OJ 2018/L 156, pp. 26‑42) defines obligations on Member States with respect to their minimum contributions for the period from 2021 to 2030 to fulfilling the Union’s target of reducing its GHG emissions by 30% below 2005 levels in 2030 in specific sectors. It provides that each Member State will, by 2030, limit its GHG emissions at least by the percentage set for that Member State in relation to its GHG emissions in 2005 (Article 4 § 1; Annex 1).

209.  By Regulation (EU) 2018/1999 of the European Parliament and of the Council of 11 December 2018 on the Governance of the Energy Union and Climate Action (“the Governance Regulation”, OJ 2018/L 328, pp. 1‑77), the European Union established a governance mechanism, based on long‑term strategies, to implement strategies and measures designed to meet the objectives and targets of the Energy Union and the long‑term Union GHG emissions commitments consistent with the Paris Agreement (Article 1).

210.  Through the adoption on 6 April 2022 of  Decision (EU) 2022/591 on a General Union Environment Action Programme to 2030 (OJ 2022/L 114, pp. 22‑36), the European Parliament and the Council set out a general action programme in the field of the environment for the period up to 31 December 2030 (the “8th Environment Action programme” or “8th EAP”).

211.  Regulation (EU) 2021/1119 of the European Parliament and of the Council of 30 June 2021 establishing the framework for achieving climate neutrality and amending Regulations (EC) No 401/2009 and (EU) 2018/1999 (“European Climate Law”) (OJ 2021/L 243, pp. 1‑17), established a framework for the irreversible and gradual reduction of anthropogenic GHG emissions by sources and enhancement of removals by sinks regulated in Union law. It sets out a binding objective of climate neutrality in the Union by 2050 in pursuit of the long‑term temperature goal set out in point (a) of Article 2 § 1 of the Paris Agreement, as well as a binding Union target of a net domestic reduction in GHG emissions for 2030. The Regulation also requires that the projected indicative Union GHG budget be established and based on the best available science.

(b)   Concerning access to information, public participation and access to justice in environmental matters

212.  Through Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision‑making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ 2006/L 264, pp. 13‑19), the then European Community guaranteed the right of public access to environmental information received or produced by Community institutions and bodies (Article 1).

213.  This Regulation was recently amended, following the 2017 findings and recommendations of the Aarhus Convention Compliance Committee with regard to a communication brought by an NGO concerning compliance of the European union with the Aarhus Convention (in particular with its Article 3 § 1 and Article 9 §§ 2, 3, 4 and 5).[140]

214.  Consequently, Regulation (EU) 2021/1767 of 6 October 2021 amending Regulation (EC) No 1367/2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision‑making and Access to Justice in Environmental Matters to Community institutions and bodies broadened the scope of the type of acts that can be subject to internal review and the range of persons entitled to request an internal review. The relevant provisions of the consolidated Regulation (EC) No 1367/2006 read as follows:

Article 2

Definitions

“...

(g)  ’administrative act’ means any non‑legislative act adopted by a Union institution or body, which has legal and external effects and contains provisions that may contravene environmental law within the meaning of point (f) of Article 2(1);

(h)  ’administrative omission’ means any failure of a Union institution or body to adopt a non‑legislative act which has legal and external effects, where such failure may contravene environmental law within the meaning of point (f) of Article 2(1).”

Article 10

Request for internal review of administrative acts

“1.  Any non‑governmental organisation or other members of the public that meet the criteria set out in Article 11 shall be entitled to make a request for internal review to the Union institution or body that adopted the administrative act or, in the case of an alleged administrative omission, should have adopted such an act, on the grounds that such an act or omission contravenes environmental law within the meaning of point (f) of Article 2(1).

...”

Article 11

Criteria for entitlement at Union level

“1.  A non‑governmental organisation shall be entitled to make a request for internal review in accordance with Article 10, provided that:

(a)  it is an independent non‑profit‑making legal person in accordance with a Member State’s national law or practice;

(b)  it has the primary stated objective of promoting environmental protection in the context of environmental law;

(c)  it has existed for more than two years and is actively pursuing the objective referred to under (b);

(d)  the subject matter in respect of which the request for internal review is made is covered by its objective and activities.

1a.  A request for internal review may also be made by other members of the public, subject to the following conditions:

(a)  they shall demonstrate impairment of their rights caused by the alleged contravention of Union environmental law and that they are directly affected by such impairment in comparison with the public at large; or

(b)  they shall demonstrate a sufficient public interest and that the request is supported by at least 4 000 members of the public residing or established in at least five Member States, with at least 250 members of the public coming from each of those Member States.

In the cases referred to in the first subparagraph, the members of the public shall be represented by a non‑governmental organisation which meets the criteria set out in paragraph 1 or by a lawyer authorised to practise before a court of a Member State. That non‑governmental organisation or lawyer shall cooperate with the Union institution or body concerned in order to establish that the quantitative conditions in point (b) of the first subparagraph are met, where applicable, and shall provide further evidence thereof upon request.”

215.  In 1991 the European Commission adopted a decision granting Spain financial assistance from the European Regional Development Fund for the construction of two power stations in the Canary Islands. In 1993 Greenpeace brought an action before the Court of First Instance (“the CFI”, now the General Court) seeking annulment of the Commission’s decision to disburse these funds to Spain, and of another decision which the Commission had allegedly subsequently taken to reimburse further expenses incurred in the construction of the power stations. In 1995 the CFI dismissed the annulment action of the applicant association for lack of standing. On appeal, the applicant association argued, on the one hand, that by applying case‑law on standing developed by the Court of Justice of the European Union (CJEU) in relation to economic issues, the CFI had failed to take account of the nature and specific character of the environmental interests underpinning their action and, on the other, that “the approach adopted by the [CFI] [had created] a legal vacuum in ensuring compliance with Community environmental legislation, since in this area the interests [were], by their very nature, common and shared, and the rights relating to those interests [were] liable to be held by a potentially large number of individuals so that there could never be a closed class of applicants satisfying the criteria adopted by the [CFI]” (judgment of the CJEU of 2 April 1998 in Stichting Greenpeace Council (Greenpeace International) and Others v. Commission, C‑321/95 P, EU:C:1998:153, paragraphs 17‑18). In reply, the CJEU held as follows (ibid., paragraphs 27‑30 and 33):

“The interpretation of the fourth paragraph of Article 173 of the Treaty [now Article 263 TFEU] that the [CFI] applied in concluding that the appellants did not have locus standi is consonant with the settled case‑law of the Court of Justice.

As far as natural persons are concerned, it follows from the case‑law ... that where, as in the present case, the specific situation of the applicant was not taken into consideration in the adoption of the act, which concerns him in a general and abstract fashion and, in fact, like any other person in the same situation, the applicant is not individually concerned by the act.

The same applies to associations which claim to have locus standi on the basis of the fact that the persons whom they represent are individually concerned by the contested decision. For the reasons given in the preceding paragraph, that is not the case.

In appraising the appellants’ arguments purporting to demonstrate that the case‑law of the Court of Justice, as applied by the [CFI], takes no account of the nature and specific characteristics of the environmental interests underpinning their action, it should be emphasised that it is the decision to build the two power stations in question which is liable to affect the environmental rights arising under Directive 85/337 that the appellants seek to invoke.

... in the circumstances of the present case those rights are fully protected by the national courts which may, if need be, refer a question to this Court for a preliminary ruling under Article 177 of the Treaty [now Article 267 TFEU].”

216.  This line of reasoning, on the strict requirements for natural and legal persons to have standing to institute annulment actions, was confirmed by the CJEU in its judgment of 25 July 2002 in Unión de Pequeños Agricultores v. Council of the European Union, C‑50/00 P, EU:C:2002:462, paragraphs 40‑41:

“By Article 173 and Article 184 [now Article 263 and Article 277 TFEU], on the one hand, and by Article 177 [now Article 267 TFEU], on the other, the Treaty has established a complete system of legal remedies and procedures designed to ensure judicial review of the legality of acts of the institutions, and has entrusted such review to the Community Courts (see, to that effect, Les Verts v. Parliament, paragraph 23). Under that system, where natural or legal persons cannot, by reason of the conditions for admissibility laid down in the fourth paragraph of Article 173 of the Treaty [now Article 263 TFEU], directly challenge Community measures of general application, they are able, depending on the case, either indirectly to plead the invalidity of such acts before the Community Courts under Article 184 of the Treaty [now Article 277 TFEU] or to do so before the national courts and ask them, since they have no jurisdiction themselves to declare those measures invalid (see Case 314/85 Foto‑Frost [1987] ECR 4199, paragraph 20), to make a reference to the Court of Justice for a preliminary ruling on validity.

Thus, it is for the Member States to establish a system of legal remedies and procedures which ensure respect for the right to effective judicial protection.”

217.  In 2021 two annulment actions concerning climate change were rejected by the CJEU. In one case the applicants sought the annulment of the legislative package relating to GHG emissions (Armando Carvalho and Others[141]), while in the other the applicants sought the annulment of part of Directive (EU) 2018/2001 of 11 December 2018 on the promotion of the use of energy from renewable sources (Peter Sabo and Others[142]). The CJEU, referring to its well‑established case‑law in relation to Article 263 § 4 of the Treaty on the Functioning of the European Union (TFEU) (OJ 2016/C 202/01, p. 47) on the standing of natural and legal persons to bring actions for annulment, confirmed that the latter had to be able to demonstrate that they were individually concerned by the impugned acts – a condition not fulfilled by the applicants in either of those cases.

218.  The relevant parts of the judgment of the CJEU in Armando Carvalho and Others, which was decided by a Chamber of three judges, read as follows:

“40  The General Court held, in essence ... that the fact that the effects of climate change may be different for one person than they are for another and that they depend on the personal circumstances specific to each person does not mean that the acts at issue distinguish each of the appellants individually. In other words, the fact that the appellants, owing to the alleged circumstances, are affected differently by climate change is not in itself sufficient to establish the standing of those appellants to bring an action for annulment of a measure of general application such as the acts at issue.

41  Accordingly, the General Court held, in paragraph 50 of the order under appeal, that the appellants’ interpretation of the circumstances alleged by them as establishing that they were individually concerned would render the requirements of the fourth paragraph of Article 263 TFEU meaningless and would create locus standi for all without the criterion of individual concern referred to in the judgment in Plaumann being fulfilled.

42  Consequently, the appellants cannot claim that the General Court did not take into account, in the order under appeal, the characteristics specific to them in order to determine whether they were individually concerned.

43  Moreover, the appellants’ argument that the General Court made no reference, in the order under appeal, to the evidence showing that the appellants were affected in different ways by climate change is, in the light of the foregoing, ineffective.

...

46  According to settled case‑law, which has not been altered by the Treaty of Lisbon, natural or legal persons satisfy the condition of individual concern only if the contested act affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons, and by virtue of these factors distinguishes them individually just as in the case of the person addressed (judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraphs 71 and 72 and the case‑law cited).

47  In that regard, as is noted by the Parliament, the appellants’ reasoning, in addition to its generic wording, leads to the conclusion that there is locus standi for any applicant, since a fundamental right is always likely to be concerned in one way or another by measures of general application such as those contested in the present case.

48  As was recalled by the General Court in paragraph 48 of the order under appeal, the claim that the acts at issue infringe fundamental rights is not sufficient in itself to establish that the action brought by an individual is admissible, without running the risk of rendering the requirements of the fourth paragraph of Article 263 TFEU meaningless (see, to that effect, orders of 10 May 2001, FNAB and Others v Council, C‑345/00 P, EU:C:2001:270, paragraph 40, and of 14 January 2021, Sabo and Others v Parliament and Council, C‑297/20 P, not published, EU:C:2021:24, paragraph 29 and the case‑law cited).

49  Since, as is apparent from paragraph 46 of the order under appeal, the appellants merely invoked, before the General Court, an infringement of their fundamental rights, inferring individual concern from that infringement, on the ground that the effects of climate change and, accordingly, the infringement of fundamental rights are unique to and different for each individual, it cannot be held that the acts at issue affect the appellants by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons, and by virtue of these factors distinguish them individually just as in the case of the person addressed.

50  Therefore, the General Court was fully entitled to hold, in paragraph 49 of the order under appeal, that the appellants had not established that the contested provisions of the acts at issue distinguished them individually from all other natural or legal persons concerned by those provisions just as in the case of the addressee.”

219.  Referring to the fact that, under EU law, actions for annulment by associations had been held to be admissible where, inter alia, the association represented the interests of its members, who would themselves be entitled to bring proceedings, the CJEU held as follows (ibid.):

“89  Indeed, in so far as the appellants, as natural persons, were considered not to be individually concerned for the purposes of the fourth paragraph of Article 263 TFEU, the same consideration applies to the members of that association. Those members cannot therefore claim that they possess attributes which distinguish them individually from the other potential addressees of the acts at issue.

90  Concerning the first condition, it should be borne in mind that associations have a right to bring proceedings against an act of the Union where the provisions of EU law specifically recognise those associations as having procedural rights (see, to that effect, judgment of 4 October 1983, Fediol v Commission, 191/82, EU:C:1983:259, paragraph 28). However, the association Sáminuorra has not claimed that such provisions exist in its favour.

91  As regards the argument that the General Court should have recognised the existence of another situation in which associations would be entitled to bring proceedings, namely ‘the action of a collective defending a collective good’, that argument was not put forward at first instance and must therefore, pursuant to Article 170(1) of the Rules of Procedure of the Court of Justice, be rejected as inadmissible in the context of the present appeal.

92  To allow the appellants to raise for the first time before the Court of Justice arguments which they have not raised before the General Court would be to authorise them to bring before the Court of Justice, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the General Court. In an appeal, the jurisdiction of the Court of Justice is thus confined to review of the findings of law on the pleas argued before the lower court (see, to that effect, judgment of 17 June 2010, Lafarge v Commission, C‑413/08 P, EU:C:2010:346, paragraph 52).”

220.  In the case of Peter Sabo and Others, the CJEU also held as follows:

“29  ... [T]he claim that an act infringes fundamental rights is not sufficient in itself for it to be established that the action brought by an individual is admissible, without running the risk of rendering the requirements of the fourth paragraph of Article 263 TFEU meaningless. Indeed, it is apparent from the settled case‑law of the Court that the extent of the alleged adverse impact on the observance of the appellants’ fundamental rights cannot give rise to non‑application of the rules for admissibility expressly laid down by the fourth paragraph of Article 263 TFEU ...”

221.  The CJEU also has extensive case‑law on the Aarhus Convention, which the EU ratified in 2005, following which various pieces of EU legislation were enacted, including the 2006 Aarhus Regulation (Regulation 1367/2006). More recently, in the context of a request for a preliminary ruling under Article 267 TFEU, the scope and content of obligations under Article 9 § 3 of the Aarhus Convention (access to justice) were examined in relation to EU rules regarding emissions from motor vehicles in the judgment of 8 November 2022 of the CJEU (Grand Chamber) in Deutsche Umwelthilfe eV v. Bundesrepublik Deutschland.[143]

222.  The relevant parts of the reasoning provide as follows:

“1.  Article 9(3) of the Convention on access to information, public participation in decision‑making and access to justice in environmental matters, signed in Aarhus on 25 June 1998 and approved on behalf of the European Community by Council Decision 2005/370/EC of 17 February 2005, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding a situation where an environmental association, authorised to bring legal proceedings in accordance with national law, is unable to challenge before a national court an administrative decision granting or amending EC type‑approval which may be contrary to Article 5(2) of Regulation (EC) No 715/2007 of the European Parliament and of the Council of 20 June 2007 on type approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information.

...

65.  Secondly, where a Member State lays down rules of procedural law applicable to the matters referred to in Article 9(3) of the Aarhus Convention concerning the exercise of the rights that an environmental organisation derives from Article 5(2) of Regulation No 715/2007, in order for decisions of the competent national authorities to be reviewed in the light of their obligations under that article, the Member State is implementing EU law for the purposes of Article 51(1) of the Charter and must, therefore, ensure compliance, inter alia, with the right to an effective remedy, enshrined in Article 47 thereof (see, to that effect, judgment of 20 December 2017, Protect Natur‑, Arten‑ und Landschaftsschutz Umweltorganisation, C‑664/15, EU:C:2017:987, paragraphs 44 and 87 and the case‑law cited).

66.  Consequently, while it is true that Article 9(3) of the Aarhus Convention does not have direct effect in EU law and cannot, therefore, be relied on, as such, in a dispute falling within the scope of EU law, in order to disapply a provision of national law which is contrary to it, the fact remains that, first, the primacy of international agreements concluded by the European Union requires that national law be interpreted, to the fullest extent possible, in accordance with the requirements of those agreements and, secondly, that Article 9(3) of the Aarhus Convention, read in conjunction with Article 47 of the Charter, imposes on Member States an obligation to ensure effective judicial protection of the rights conferred by EU law, in particular the provisions of environmental law (judgment of 20 December 2017, Protect Natur‑, Arten‑ und Landschaftsschutz Umweltorganisation, C‑664/15, EU:C:2017:987, paragraph 45).

67.  However, the right to bring proceedings provided for in Article 9(3) of the Aarhus Convention, which is intended to ensure effective environmental protection (judgment of 8 March 2011, Lesoochranárske zoskupenie, C‑240/09, EU:C:2011:125, paragraph 46), would be deprived of all useful effect, and even of its very substance, if it had to be conceded that, by imposing criteria laid down by national law, certain categories of ‘members of the public’ – a fortiori ‘the public concerned’, such as environmental associations that satisfy the requirements laid down in Article 2(5) of the Aarhus Convention – were to be denied of any right to bring proceedings against acts and omissions by private persons and public authorities which contravene certain categories of provisions of national law relating to the environment (see, to that effect, judgment of 20 December 2017, Protect Natur‑, Arten‑ und Landschaftsschutz Umweltorganisation, C‑664/15, EU:C:2017:987, paragraph 46).

68.  Imposing those criteria must not deprive environmental associations in particular of the possibility of verifying that the rules of EU environmental law are being complied with, given also that such rules are usually in the public interest, rather than simply in the interests of certain individuals, and that the objective of those associations is to defend the public interest (judgment of 20 December 2017, Protect Natur‑, Arten‑ und Landschaftsschutz Umweltorganisation, C‑664/15, EU:C:2017:987, paragraph 47 and the case‑law cited).”

(a)   Relevant instruments

223.  The American Convention on Human Rights[144] does not contain any specific provision relating to the protection of a human right to a healthy environment. However, the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights[145] provides as follows:

Article 11

Right to a Healthy Environment

“1.  Everyone shall have the right to live in a healthy environment and to have access to basic public services.

2.  The States Parties shall promote the protection, preservation, and improvement of the environment.”

224.  The Inter‑American Convention on Protecting the Human Rights of Older Persons[146] provides the following:

Article 25
Right to a healthy environment

“Older persons have the right to live in a healthy environment with access to basic public services. To that end, States Parties shall adopt appropriate measures to safeguard and promote the exercise of this right, inter alia:

a.  To foster the development of older persons to their full potential in harmony with nature;

b.  To ensure access for older persons, on an equal basis with others, to basic public drinking water and sanitation services, among others.”

(b)   The Inter-American Court of Human Rights

225.  On 15 November 2017 the Inter‑American Court of Human Rights delivered an Advisory Opinion entitled “The Environment and Human Rights”[147] in which it derived the right to a healthy environment from Article 26 of the American Convention (Economic, social, and cultural rights). The relevant concluding part of the Advisory Opinion reads as follows:

“Conclusion ...

242.  Based on the above, in response to the second and third questions of the requesting State, it is the Court’s opinion that, in order to respect and to ensure the rights to life and to personal integrity:

a.  States have the obligation to prevent significant environmental damage within or outside their territory, in accordance with paragraphs 127 to 174 of this Opinion.

b.  To comply with the obligation of prevention, States must regulate, supervise and monitor the activities within their jurisdiction that could produce significant environmental damage; conduct environmental impact assessments when there is a risk of significant environmental damage; prepare a contingency plan to establish safety measures and procedures to minimize the possibility of major environmental accidents, and mitigate any significant environmental damage that may have occurred, even when it has happened despite the State’s preventive actions, in accordance with paragraph 141 to 174 of this Opinion.

c.  States must act in keeping with the precautionary principle in order to protect the rights to life and to personal integrity in the case of potential serious or irreversible damage to the environment, even in the absence of scientific certainty, in accordance with paragraph 180 of this Opinion.

d.  States have the obligation to cooperate, in good faith, to protect against environmental damage, in accordance with paragraphs 181 to 210 of this Opinion.

e.  To comply with the obligation of cooperation, States must notify other potentially affected States when they become aware that an activity planned under their jurisdiction could result in a risk of significant transboundary harm and also in cases of environmental emergencies, and consult and negotiate in good faith with States potentially affected by significant transboundary harm, in accordance with paragraphs 187 to 210 of this Opinion.

f.  States have the obligation to ensure the right of access to information, established in Article 13 of the American Convention, concerning potential environmental impacts, in accordance with paragraphs 213 to 225 of this Opinion;

g.  States have the obligation to ensure the right to public participation of the persons subject to their jurisdiction established in Article 23(1)(a) of the American Convention, in policies and decision‑making that could affect the environment, in accordance with paragraphs 226 to 232 of this Opinion, and

h.  States have the obligation to ensure access to justice in relation to the State obligations with regard to protection of the environment set out in this Opinion, in accordance with paragraphs 233 to 240 of this Opinion.

243.  The obligations described above have been developed in relation to the general obligations to respect and to ensure the rights to life and to personal integrity, because these were the rights that the State referred to in its request (supra paras. 37, 38, 46 and 69). However, this does not mean that the said obligations do not exist with regard to the other rights mentioned in this Opinion as being particularly vulnerable in the case of environmental degradation (supra paras. 56 to 69).”

226.  In the 2020 case of the Indigenous communities of the Lhaka Honhat Association (Our Land) v. Argentina[148], the Inter‑American Court of Human Rights held Argentina responsible for violating indigenous communities’ human rights through its failure to recognise and protect their lands. In that case, the Court examined the rights to a healthy environment, adequate food, water, and cultural identity autonomously.

227.  In January 2023 a new request[149] for an Advisory Opinion was submitted to the Inter‑American Court of Human Rights by Colombia and Chile asking it to clarify the scope of State obligations, in their individual and collective dimension, in order to respond to the climate emergency within the framework of international human rights law, paying special attention to the differentiated impacts of this emergency on individuals from diverse regions and population groups, as well as on nature and on human survival on the planet.

(c)   The Inter-American Commission on Human Rights

228.  In March 2022, the Inter‑American Commission on Human Rights and the Office of the Special Rapporteur on Economic, Social, Cultural and Environmental Rights[150] published a resolution recognising that climate change was a human rights emergency.

229.  The relevant part of the African Charter on Human and Peoples’ Rights[151] reads as follows:

Article 24

“All people shall have the right to a general satisfactory environment favourable to their development.”

230.  On 14 May 2019, the African Commission on Human and Peoples’ Rights adopted a Resolution on the human rights impacts of extreme weather in Eastern and Southern Africa due to climate change[152] in which it addressed the implications of climate change on human rights.

231.  In the case of Social and Economic Action Rights Centre v. Nigeria[153], the African Commission held as follows (footnotes omitted):

“50.  The Complainants allege that the Nigerian government violated the right to health and the right to clean environment as recognized under Articles 16 and 24 of the African Charter ...

51.  These rights recognise the importance of a clean and safe environment that is closely linked to economic and social rights in so far as the environment affects the quality of life and safety of the individual. As has been rightly observed by Alexander Kiss, ‘an environment degraded by pollution and defaced by the destruction of all beauty and variety is as contrary to satisfactory living conditions and the development as the breakdown of the fundamental ecologic equilibria is harmful to physical and moral health.’

52.  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. Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), to which Nigeria is a party, requires governments to take necessary steps for the improvement of all aspects of environmental and industrial hygiene. The right to enjoy the best attainable state of physical and mental health enunciated in Article 16(1) of the African Charter and the right to a general satisfactory environment favourable to development (Article 16(3)) already noted obligate governments to desist from directly threatening the health and environment of their citizens. The State is under an obligation to respect the just noted rights and this entails largely non‑interventionist conduct from the State for example, not from carrying out, sponsoring or tolerating any practice, policy or legal measures violating the integrity of the individual.

53.  Government compliance with the spirit of Articles 16 and 24 of the African Charter must also include ordering or at least permitting independent scientific monitoring of threatened environments, requiring and publicising environmental and social impact studies prior to any major industrial development, undertaking appropriate monitoring and providing information to those communities exposed to hazardous materials and activities and providing meaningful opportunities for individuals to be heard and to participate in the development decisions affecting their communities.

...

68.  The uniqueness of the African situation and the special qualities of the African Charter on Human and Peoples’ Rights imposes upon the African Commission an important task. International law and human rights must be responsive to African circumstances. Clearly, collective rights, environmental rights, and economic and social rights are essential elements of human rights in Africa. The African Commission will apply any of the diverse rights contained in the African Charter. It welcomes this opportunity to make clear that there is no right in the African Charter that cannot be made effective. As indicated in the preceding paragraphs, however, the Nigerian Government did not live up to the minimum expectations of the African Charter.”

232.  Of the forty‑six Council of Europe member States only five have not ratified the Aarhus Convention.[154] In a great majority of the thirty-eight member States surveyed by the Court[155], environmental non-governmental associations are allowed to bring cases in the interests of the protection of the environment and/or in the interests of private individuals who may be affected by specific environmental hazards or industrial projects (in at least thirty‑four States).

233.  However, the non‑governmental association in question has to fulfil certain criteria. In almost all the member States surveyed, the corporate goals of the association have to be linked to the interests it seeks to protect. In eleven member States such associations have to have existed, or to have been actively involved in the protection of the environment, for some time before bringing a case, and in eight member States the association bringing a case has to operate in a particular geographical zone. Some member States provide for additional criteria for recognising the standing of associations, but these are less common: the size of the association; prior participation in the decision‑making process; internal organisation; prohibition for the association or its leadership to participate in for‑profit activities; and a general requirement of the lawfulness of the activities of the association. Moreover, in some systems the question of the standing of the association may depend on the question of the standing of natural persons who may be directly affected by the environmental hazards. The standing of the association may be established directly by the court or, in six member States, through a mechanism of preliminary accreditation by an administrative authority.

234.  As to climate‑change cases, in most member States, it appears that while a theoretical possibility of an environmental association bringing a climate‑change case may exist, or cannot be ruled out, there is no conclusive case‑law on the matter, or no case‑law at all. In seven member States such claims by an environmental association would probably not be acceptable in the national legal order, while in five others a possibility for an environmental association to bring legal cases concerning climate change, under certain conditions (linked to the actionability of the claim), has been examined by domestic courts (Belgium, France, Germany, Ireland and the Netherlands).

235.  The following overview of domestic case‑law provides extracts from some cases on climate change brought before national courts in Council of Europe member States.

(a)   The Grande-Synthe case

236.  The detailed circumstances of the Grande‑Synthe case of the Conseil d’État are set out in the case of Carême v. France (dec.) [GC], no. 7189/21, 9 April 2024. In that case, upon an action brought by Mr Carême acting on his own behalf and in his capacity as mayor of Grande‑Synthe, and in the name and on behalf of the latter municipality, the Conseil d’État declared admissible the action brought by the municipality and inadmissible the action brought by Mr Carême. The Conseil d’État found that the measures taken by the authorities to tackle climate change had not been sufficient and ordered the authorities to take additional measures by 31 March 2022 to meet the GHG emissions reduction targets set out in the domestic legislation and Annex I of Regulation (EU) 2018/842.

(b)   Applications for judicial review seeking to secure compliance with the limit values for concentrations of particulate matter and nitrogen dioxide

237.  By a decision of 12 July 2017, the Conseil d’État, on an application for judicial review, set aside the tacit refusals of the President of the Republic, the Prime Minister and the Ministers responsible for the environment and health and ordered the Prime Minister and the Minister responsible for the environment to take all appropriate measures before 31 March 2018 and to draw up plans in accordance with Article 23 of Directive 2008/50/EC of 21 May 2008 in order to reduce the concentrations of particulate matter and nitrogen dioxide throughout the national territory (Conseil d’État (plenary), 10 July 2020, Association Les Amis de la Terre France et autres, no. 428409).

238.  Referring in particular to the limit values for concentrations of particulate matter and nitrogen dioxide laid down by the Directive of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe[156] and to the fact that, in certain areas of French territory, those values had been exceeded each year between 2012 and 2014, the Conseil d’État found that the regulatory authority had failed to fulfil its obligations by omitting to draw up air‑quality plans for the areas concerned in accordance with the provisions of the Directive and those transposing the Directive into domestic law.

239.  The Conseil d’État stated in that judgment that the setting‑aside of the decisions tacitly refusing to take action necessarily entailed taking all the measures necessary to ensure that the appropriate air‑quality plans were drawn up and implemented.

(c)   Full administrative-law actions seeking to secure compliance with GHG emissions reduction targets

240.  In another more recent case, known as the “Case of the century”, which concerned GHG emissions reduction targets, the Paris Administrative Court, drawing on the Grande‑Synthe case, acknowledged, this time in the context of a full administrative‑law action and in a judgment of 3 February 2021, that environmental associations were “justified in arguing that, to the extent [that the State] had made commitments which it had not complied with in the context of the first carbon budget, [it should] be regarded as liable for part of the ecological damage within the meaning ... of Article 1246 of the Civil Code”. That Article, as amended by Law no. 2016‑1087 of 8 August 2016 on the recovery of biodiversity, nature and landscapes, provides that “[a]ny person who causes ecological damage has the duty to afford redress” (Paris Administrative Court, 3 February 2021, Oxfam France et autres, no. 1904967).

241.  As regards the commitments of the French State and the general obligation to combat climate change, the Paris Administrative Court found support in the same texts referred to in the Grande‑Synthe case, namely: France’s commitments under the UNFCCC, the Paris Agreement, Decision No 406/2009/EC of 23 April 2009 on the effort of Member States to reduce their GHG emissions, and Regulation (EU) 2018/842 of 30 May 2018 on binding annual GHG emission reductions; and Article L. 100‑4 of the Energy Code and Article L. 222‑1 B of the Environment Code. The Administrative Court also referred to Article 3 of the Environment Charter, which recalls the existence of the preventive principle already enshrined in law, and provides that “[e]veryone shall, in accordance with the conditions laid down by law, avoid causing any damage to the environment or, failing that, limit its consequences”. The Administrative Court inferred that it was clear from all the above provisions that the French State “[had] recognised the urgency of combating current climate change and acknowledged its capacity to take effective action in relation to that phenomenon in order to limit the causes and mitigate the adverse consequences” and “[had] chosen ... to exercise its regulatory powers, in particular by pursuing a public policy of reducing GHG emissions from French territory, through which it [had] undertaken to achieve, within specific and successive deadlines, a certain number of targets in this sphere ...”.

242.  As to the implementation of those State commitments in the light of the GHG emissions reduction targets, the Administrative Court concluded that “the State [had to] be regarded as having failed to adhere to the first carbon budget and [as not having] ... carried out the actions which it itself [had] recognised as apt to reduce GHG emissions”. In reaching that conclusion the Administrative Court found support, inter alia, in the same reports of the High Council on Climate cited by the Conseil d’État in its decision in the Grande‑Synthe case.

243.  Observing that “the State [could not] be held liable for the alleged ecological damage ... except in so far as the failure to adhere to the first carbon budget [had] contributed to the increase in GHG emissions”, the Administrative Court, in an interlocutory judgment, ordered further investigations. It found that, as the evidence stood, it could not determine the specific measures to be ordered to enable the State to achieve the targets that France had set itself in terms of reducing GHG emissions.

244.  Following that investigative measure, in a subsequent judgment of 14 October 2021, the Administrative Court ordered the Prime Minister and the competent ministers to take, by 31 December 2022, all appropriate measures to remedy the environmental damage and prevent aggravation of the damage, in an amount equal to the uncompensated share of GHG emissions under the first carbon budget, namely 15 Mt CO2e, and subject to an adjustment in line with the CITEPA’s (Interprofessional Technical Centre for Studies on Air Pollution – Centre interprofessionnel technique d’études de la pollution atmosphérique) estimated data as at 31 January 2022. In the Administrative Court’s view, those concrete measures were apt to afford redress for the alleged damage (Paris Administrative Court, 14 October 2021, Oxfam France et autres, no. 1904967). The court did not impose a coercive fine at that stage.

245.  In his opinion on the second decision of the Conseil d’État of 1 July 2021 in the Grande‑Synthe case, the public rapporteur set out the following considerations regarding the specific nature of the climate cases examined in France compared with other European States:

“The case before you belongs ... [to the category of actions directed against the States’ climate policy], applications for judicial review, within which climate-related cases again take various forms. One of the main distinctions between these cases is the rule relied upon in seeking the setting‑aside of the decision. The application may be based on an alleged breach of human rights, as recognised in particular by the Supreme Court of the Netherlands in the Urgenda case, or on specific GHG emission standards that are binding on States or governments. These standards may be derived from international law, where it can be relied upon before the national courts, from constitutional law, as in the case before the [German Constitutional Court] ..., or from legislation, as in the present case and in the Friends of the Irish Environment case.

The last aspect to be addressed in order to determine the case before you is undoubtedly the most delicate: all these cases seek to criticise shortcomings in climate policy.”

246.  In an address to the Court of Cassation on 21 May 2021 entitled “L’environnement: les citoyens, le droit, les juges”[157] (“The environment: citizens, the law and judges”), the Vice‑President of the Conseil d’État, Bruno Lasserre, made the following remarks on the first decisions given by the administrative courts (the decision of the Conseil d’État of 19 November 2020 in the Grande‑Synthe case, the decision of the Conseil d’État, sitting in plenary, of 10 July 2020 in the case of Association Les Amis de la Terre France, and the ruling of the Paris Administrative Court of 3 February 2021 in the “Case of the century”):

“... [one of the innovations of this line of case‑law] concerns the legal scope conferred, first, on the Paris Agreement, which the Conseil d’État, followed by the Paris Administrative Court, recognised for the first time as having interpretative force; and, secondly, on the [GHG] emissions reduction targets laid down in EU law and national law, since the Administrative Court took a decisive step in finding that those targets are not merely aspirational, but binding. Thus, the Conseil d’État has opened a new avenue in relation to climate cases, which the [national] courts had hitherto viewed mainly through the lens of fundamental rights, at least in their most emblematic decisions. These include, for example, the Urgenda decisions, based on Articles 2 and 8 of the European Convention on Human Rights, and the recent decision of the Karlsruhe Constitutional Court based on a provision of the Basic Law protecting ‘the natural foundations of life’. However, the approach of the courts varies significantly depending on whether they are verifying the State’s compliance with specific and detailed undertakings or examining whether its actions are compatible with such general principles as the right to life or the right to respect for private life. Two standards which therefore influence the method and, more fundamentally, the stance adopted by the courts. ...

Finally, the Conseil d’État has adapted to current efforts to tackle climate change by inaugurating a new type of review, which could be termed a ‘pathway review’. The time‑limits laid down in law for achievement of the targets may be distant – 2030, 2040, and even 2050 – but for the courts to wait ten, twenty or thirty years to verify whether they have been achieved would mean denying the urgency of taking action now and depriving their review of all meaningful effect from the outset, given the very high inertia of the climate system. A pathway review is thus akin to monitoring compliance in advance. This means that the court must be satisfied, at the point at which it takes its decision, not that the targets have been achieved, but that they may be achieved, that they are in the process of being achieved, that they form part of a credible and verifiable pathway.”

(d)   Examples of orders and coercive fines imposed in climate cases

247.  In the case of Association Les Amis de la Terre France et autres, on an application for judicial review, the Conseil d’État, having ordered the Prime Minister and the Minister responsible for the environment to take all necessary measures by 31 March 2018, gave a decision on 10 July 2020 in which it ordered the State to pay a coercive fine unless it could demonstrate, within six months of service of the decision, that it had implemented the decision of 12 July 2017 in each of the areas concerned. The Conseil d’État fixed the amount of the fine at EUR 10 million for each six‑month period until the date of enforcement (Conseil d’État, 10 July 2020, Association Les Amis de la Terre France et autres, no. 428409).

248.  The Conseil d’État subsequently assessed the interim amount of the fine.

249.  By a decision of 4 August 2021, it ordered the State to pay the sum of EUR 10 million in respect of the six‑month period from 11 January to 11 July 2021.

250.  In his opinion on this case, the public rapporteur made the following remarks concerning the issue of the proper recipient of the sums payable by the State by way of fines in climate cases:

“4.  ... This is where the innovative reasoning of your plenary judgment comes in, since the applicable provision is the second sub‑paragraph of Article L. 911‑8, according to which the portion not paid to the applicant is allocated to the State budget: ‘However, since the purpose of the coercive fine is to compel a public‑law entity ... to perform the obligations imposed on it by a court decision, those provisions are not applicable where the coercive fine in question is payable by the State. In such cases, where it appears necessary for effective enforcement of the judicial decision, the court may, even of its own motion, and having obtained the observations of the parties and of the legal entity or entities concerned on this point, decide to allocate that portion to a public‑law entity which has sufficient autonomy vis‑à‑vis the State and whose activities relate to the subject matter of the dispute, or to a private‑law, non‑profit entity which, in accordance with its articles of association, carries out actions in the general interest that are likewise connected to that subject matter.’ That is the wording of your plenary judgment.

4.1  In order to determine which persons other than the State may receive the proceeds of all or part of the coercive fine, ... it is important to bear in mind the purpose of coercive fines, which is to compel the State to enforce a judicial decision as is incumbent upon it in accordance with the rule of law.”

251.  In line with that opinion, the Conseil d’État therefore ordered that the sum of EUR 10 million be paid out as follows: EUR 8,800,000 mainly to four public institutions active in the environmental field, namely the Environment and Energy Management Agency (ADEME), the Centre for Studies and Expertise on Risk, Environment, Mobility and Planning (CEREMA), the National Health, Food, Environment and Work Safety Agency (ANSES) and the National Institute for the Industrial Environment and Risk (INERIS), with the remainder to be paid to the air‑quality monitoring associations in the most affected regions.

252.  In a decision of 17 October 2022, the Conseil d’État again assessed the interim amount of the coercive fine, for the two six‑month periods from 12 July 2021 to 12 July 2022, and ordered the State to pay the sum of EUR 20 million, of which EUR 16,950,000 was to be paid out mainly to the same public institutions. In a further decision of 24 November 2023, the Conseil d’État found that the decision of 12 July 2017 had been partially executed and ordered the State to pay the sum of EUR 10 million to the above‑mentioned public institutions and associations, as well as to the association Les Amis de la Terre France.

253.  Lastly, that case also resulted in a judgment of the CJEU finding an infringement in view of France’s failure to comply with the limit values for concentrations of nitrogen dioxide and particulate matter laid down in Directive 2008/50/EC (judgment of 24 October 2019 in Commission v. France, C‑636/18, EU:C:2019:900, paragraphs 44‑45).

254.  In the case of Neubauer and Others v. Federal Republic of Germany[158], the German Federal Constitutional Court (“the GFCC”) examined four constitutional complaints directed against certain provisions of the Federal Climate Change Act of 12 December 2019 (Bundes‑Klimaschutzgesetz) and against the State’s failure to take further measures to reduce GHG emissions.

255.  The applicants grounded their claims on the right to life and integrity (Article 2 § 2, first sentence, of the Basic Law), the right to property and the right of inheritance (Article 14 § 1 of the Basic Law), as well as on a fundamental right to a future consistent with human dignity and a fundamental right to an ecological minimum standard of living, which they derived from Article 2 § 1 in conjunction with Article 20a and from Article 2 § 1 in conjunction with Article 1 § 1, first sentence, of the Basic Law.

256.  The GFCC held that the provisions of the Federal Climate Change Act were incompatible with fundamental rights in so far as they lacked sufficient specifications for further emission reductions from 2031 onwards. In all other respects, the constitutional complaints were rejected. The GFCC held that it could not be ascertained that the legislature, in introducing these provisions, had violated its constitutional duty to protect the complainants from the risks of climate change or failed to satisfy the obligation arising from Article 20a of the Basic Law to take climate action. However, the challenged provisions did violate the freedoms of the complainants, some of whom were still very young, because the provisions irreversibly shifted major emission reduction burdens into periods after 2030. The fact that GHG emissions had to be reduced followed from the Basic Law, among other things the constitutional climate goal arising from its Article 20a. These future obligations to reduce emissions had an impact on practically every type of freedom because virtually all aspects of human life still involved the emission of GHG and were thus potentially threatened by drastic restrictions after 2030. Therefore, the legislature should have taken precautionary steps to mitigate these major burdens in order to safeguard the freedoms guaranteed by fundamental rights.

257.  The official Headnotes of the Order summarised the findings as follows:

“1.  The protection of life and physical integrity under Art. 2(2) first sentence of the Basic Law encompasses protection against impairments of constitutionally guaranteed interests caused by environmental pollution, regardless of who or what circumstances are the cause. The state’s duty of protection arising from Art. 2(2) first sentence of the Basic Law also encompasses the duty to protect life and health against the risks posed by climate change. It can furthermore give rise to an objective duty to protect future generations.

2.  Art. 20a of the Basic Law obliges the state to take climate action. This includes the aim of achieving climate neutrality.

a.  Art. 20a of the Basic Law does not take absolute precedence over other interests. In cases of conflict, it must be balanced against other constitutional interests and principles. Within the balancing process, the obligation to take climate action is accorded increasing weight as climate change intensifies.

b.  If there is scientific uncertainty regarding causal relationships of environmental relevance, a special duty of care imposed upon the legislator by Art. 20a of the Basic Law – also for the benefit of future generations – entails an obligation to take account of sufficiently reliable indications pointing to the possibility of serious or irreversible impairments.

c.  As an obligation to take climate action, Art. 20a of the Basic Law has an international dimension. The fact that no state can resolve the problems of climate change on its own due to the global nature of the climate and global warming does not invalidate the national obligation to take climate action. Under this obligation, the state is compelled to engage in internationally oriented activities to tackle climate change at the global level and is required to promote climate action within the international framework. The state cannot evade its responsibility by pointing to [GHG] emissions in other states.

d.  In exercising its mandate and prerogative to specify the law, the legislator has formulated the climate goal of Art. 20a of the Basic Law in a constitutionally permissible manner, currently setting out that the increase in the global average temperature should be limited to well below 2oC and preferably to 1.5oC above pre‑industrial levels.

e.  Art. 20a of the Basic Law is a justiciable legal provision designed to commit the political process to a favouring of ecological interests, partly with a view to future generations.

3.  Compatibility with Art. 20a of the Basic Law is required in order to justify under constitutional law any state interference with fundamental rights.

4.  Under certain conditions, the Basic Law imposes an obligation to safeguard fundamental freedom over time and to spread the opportunities associated with freedom proportionately across generations. In their subjective dimension, fundamental rights – as intertemporal guarantees of freedom – afford protection against the [GHG] reduction burdens imposed by Art. 20a of the Basic Law being unilaterally offloaded onto the future. Furthermore, in its objective dimension, the protection mandate laid down in Art. 20a of the Basic Law encompasses the necessity to treat the natural foundations of life with such care and to leave them in such condition that future generations who wish to carry on preserving these foundations are not forced to engage in radical abstinence.

Respecting future freedom also requires initiating the transition to climate neutrality in good time. In practical terms, this means that transparent specifications for the further course of [GHG] reduction must be formulated at an early stage, providing orientation for the required development and implementation processes and conveying a sufficient degree of developmental urgency and planning certainty.

5.  The legislator itself must set out the necessary provisions specifying the overall emission amounts that are allowed for certain periods. As regards the method by which the legal framework for the allowed emission amounts is adopted, the legislative process cannot be replaced by a reduced form of parliamentary involvement in which the Bundestag merely approves the Federal Government’s ordinances. This is because it is precisely the special public function of the legislative process that makes the adoption of parliamentary legislation necessary here. It is true that having parliamentary legislation in areas of law that are constantly subject to new developments and knowledge can in some cases be detrimental to the protection of fundamental rights. This notion draws on the concept of dynamic fundamental rights protection (foundationally, see BVerfGE 49, 89 <137>). However, this concept cannot be used here as an objection against the requirement for parliamentary legislation. The challenge is not to protect fundamental rights by ensuring that the legal framework keeps pace with new developments and knowledge. The challenge is to create a framework that makes further developments aimed at protecting fundamental rights possible in the first place.”

258.  In the case of Friends of the Irish Environment CLG v. the Government of Ireland, Ireland and the Attorney General[159], the Supreme Court of Ireland was asked to examine the adequacy of domestic measures taken in relation to climate change in the light of statutory provisions enacted in 2015, as well as rights‑based arguments under the Constitution and the Convention in relation to the right to life and the right to bodily integrity.

259.  The relevant concluding part of the judgment, delivered by the then Chief Justice, reads as follows:

“9.1  In this judgment I first consider the argument put forward by FIE to the effect that the Plan does not comply with its legislative remit under the 2015 Act and is, therefore, ultra vires. It is noted that there was no question raised at the hearing as to the standing of FIE to make arguments along those lines. For the reasons set out in this judgment I conclude that, contrary to the submissions made on behalf of the Government, FIE should be entitled to pursue the wider range of argument on this issue addressed in their written submissions. I also conclude that the issues are justiciable and do not amount to an impermissible impingement by the courts into areas of policy. What might once have been policy has become law by virtue of the enactment of the 2015 Act.

9.2  I also conclude that the 2015 Act, and in particular s.4, requires a sufficient level of specificity in the measures identified in a compliant plan that are required to meet the National Transitional Objective by 2050 so that a reasonable and interested person could make a judgement both as to whether the plan in question is realistic and as to whether they agree with the policy options for achieving the NTO which such a plan specifies. The 2015 Act as a whole involves both public participation in the process leading to the adoption of a plan but also transparency as to the formal government policy, adopted in accordance with a statutory regime, for achieving what is now the statutory policy of meeting the NTO by 2050. A compliant plan is not a five‑year plan but rather a plan covering the full period remaining to 2050. While the detail of what is intended to happen in later years may understandably be less complete, a compliant plan must be sufficiently specific as to policy over the whole period to 2050.

9.3  For the reasons also set out in this judgment, I have concluded that the Plan falls well short of the level of specificity required to provide that transparency and to comply with the provisions of the 2015 Act. On that basis, I propose that the Plan be quashed.

9.4  I have also considered in this judgment whether it is appropriate to go on to deal with any of the further issues raised, given that I propose that the Plan be quashed and that it follows that an identical plan cannot be made in the future. However, as the issues of standing debated in this appeal could well arise in any future challenge to a new plan, I do address those questions. For the reasons set out in this judgment I conclude that FIE, as a corporate entity which does not enjoy in itself the right to life or the right to bodily integrity, does not have standing to maintain the rights based arguments sought to be put forward whether under the Constitution or under the ECHR. I also conclude that it has not been shown that it is necessary to allow FIE to have standing under the exception to the general rule, which arises in circumstances where refusing standing would make the enforcement of important rights either impossible or excessively difficult.

9.5  On that basis I did not consider it appropriate to address the rights-based arguments put forward, but do offer views on the question of whether there is an unenumerated or, as I would prefer to put it, derived right under the Constitution to a healthy environment. While not ruling out the possibility that constitutional rights and obligations may well be engaged in the environmental field in an appropriate case, I express the view that the asserted right to a healthy environment is either superfluous (if it does not extend beyond the right to life and the right to bodily integrity) or is excessively vague and ill‑defined (if it does go beyond those rights). As thus formulated, I express the view that such a right cannot be derived from the Constitution. I would reserve the position of whether, and if in what form, constitutional rights and state obligations may be relevant in environmental litigation to a case in which those issues would prove crucial.”

260.  In State of the Netherlands v. Stichting Urgenda (20 December 2019, NL:HR:2019:2007), the Supreme Court of the Netherlands upheld the lower courts’ order directing the State to reduce GHG by the end of 2020 by at least 25% compared to 1990.

261.  The official summary of the judgment reads as follows:

“The issue in this case is whether the Dutch State is obliged to reduce, by the end of 2020, the emission of [GHG] originating from Dutch soil by at least 25% compared to 1990, and whether the courts can order the State to do so.

Urgenda’s claim and the opinions of the District Court and the Court of Appeal

Urgenda sought a court order directing the State to reduce the emission of [GHG] so that, by the end of 2020, those emissions will have been reduced by 40%, or in any case at by at least 25%, compared to 1990.

In 2015, the District Court allowed Urgenda’s claim, in the sense that the State was ordered to reduce emissions by the end of 2020 by at least 25% compared to 1990.

In 2018, the Court of Appeal confirmed the District Court’s judgment.

Appeal in cassation

The State instituted an appeal in cassation in respect of the Court of Appeal’s decision, asserting a large number of objections to that decision.

The deputy Procurator General and the Advocate General advised the Supreme Court to reject the State’s appeal and thus to allow the Court of Appeal’s decision to stand.

Opinion of the Supreme Court

The Supreme Court concludes that the State’s appeal in cassation must be rejected. That means that the order which the District Court issued to the State and which was confirmed by the Court of Appeal, directing the State to reduce [GHG] by the end of 2020 by at least 25% compared to 1990, will stand as a final order.

The Supreme Court’s opinion rests on the facts and assumptions which were established by the Court of Appeal and which were not disputed by the State or Urgenda in cassation. In cassation, the Supreme Court determines whether the Court of Appeal properly applied the law and whether, based on the facts that may be taken into consideration, the Court of Appeal’s opinion is comprehensible and adequately substantiated. The grounds for the Supreme Court’s judgment are laid down below in sections 4-8 of the judgment. These grounds will be summarised below. This summary does not supersede the grounds for this judgment and does not fully reflect the Supreme Court’s opinion.

Dangerous climate change (see paras. 4.1‑4.8, below)

Urgenda and the State both endorse the view of climate science that a genuine threat exists that the climate will undergo a dangerous change in the coming decades. There is a great deal of agreement on the presence of that threat in climate science and the international community. In that respect and briefly put, this comes down to the following.

The emission of [GHG], including CO2, is leading to a higher concentration of those gases in the atmosphere. These [GHG] retain the heat radiated by the Earth. Because over the last century and a half since the start of the industrial revolution, an ever‑increasing volume of [GHG] is being emitted, the Earth is becoming warmer and warmer. In that period, the Earth has warmed by approximately 1.1oC, the largest part of which (0.7oC) has occurred in the last forty years. Climate science and the international community largely agree on the premise that the warming of the Earth must be limited to no more than 2oC, and according to more recent insights to no more than 1.5oC. The warming of the Earth beyond that temperature limit may have extremely dire consequences, such as extreme heat, extreme drought, extreme precipitation, a disruption of ecosystems that could jeopardise the food supply, among other things, and a rise in the sea level resulting from the melting of glaciers and the polar ice caps. That warming may also result in tipping points, as a result of which the climate on Earth or in particular regions of the Earth changes abruptly and comprehensively. All of this will jeopardise the lives, welfare and living environment of many people all over the world, including in the Netherlands. Some of these consequences are already happening right now.

Protection of human rights based on the ECHR (see paras. 5.2.1‑5.5.3, below)

The European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR) requires the states which are parties to the convention to protect the rights and freedoms established in the convention for their inhabitants. Article 2 ECHR protects the right to life, and Article 8 ECHR protects the right to respect for private and family life. According to the case law of the European Court of Human Rights (ECtHR), a contracting state is obliged by these provisions to take suitable measures if a real and immediate risk to people’s lives or welfare exists and the state is aware of that risk.

The obligation to take suitable measures also applies when it comes to environmental hazards that threaten large groups or the population as a whole, even if the hazards will only materialise over the long term. While Articles 2 and 8 ECHR are not permitted to result in an impossible or disproportionate burden being imposed on a state, those provisions do oblige the state to take measures that are actually suitable to avert the imminent hazard as much as reasonably possible. Pursuant to Article 13 ECHR, national law must offer an effective legal remedy against a violation or imminent violation of the rights that are safeguarded by the ECHR. This means that the national courts must be able to provide effective legal protection.

Global problem and national responsibility (see paras. 5.6.1‑5.8, below)

The risk of dangerous climate change is global in nature: [GHG] are emitted not just from Dutch territory, but around the world. The consequences of those emissions are also experienced around the world.

The Netherlands is a party to the United Nations Framework Convention on Climate Change (UNFCCC). The objective of that convention is to keep the concentration of [GHG] in the atmosphere to a level at which a disruption of the climate system through human action can be prevented. The UNFCCC is based on the premise that all member countries must take measures to prevent climate change, in accordance with their specific responsibilities and options.

Each country is thus responsible for its own share. That means that a country cannot escape its own share of the responsibility to take measures by arguing that compared to the rest of the world, its own emissions are relatively limited in scope and that a reduction of its own emissions would have very little impact on a global scale. The State is therefore obliged to reduce [GHG] emissions from its territory in proportion to its share of the responsibility. This obligation of the State to do ‘its part’ is based on Articles 2 and 8 ECHR, because there is a grave risk that dangerous climate change will occur that will endanger the lives and welfare of many people in the Netherlands.

What, specifically, does the State’s obligation to do ‘its part’ entail? (see paras. 6.1‑7.3.6, below)

When giving substance to the positive obligations imposed on the State pursuant to Articles 2 and 8 ECHR, one must take into account broadly supported scientific insights and internationally accepted standards. Important in this respect are, among other things, the reports from the IPCC. The IPCC is a scientific body and intergovernmental organisation that was set up in the context of the United Nations to handle climatological studies and developments. The IPCC’s 2007 report contained a scenario in which the warming of the Earth could reasonably be expected to be limited to a maximum of 2oC. In order to achieve this target, the Annex I countries (these being the developed countries, including the Netherlands) would have to reduce their emissions in 2020 by 25‑40%, and in 2050 by 80 95%, compared to 1990.

At the annual climate conferences held in the context of the UNFCCC since 2007, virtually every country has regularly pointed out the necessity of acting in accordance with the scenario of the IPCC and achieving a 25‑40% reduction of [GHG] emissions in 2020. The scientifically supported necessity of reducing emissions by 30% in 2020 compared to 1990 has been expressed on multiple occasions by and in the EU.

Furthermore, since 2007, a broadly supported insight has arisen that, to be safe, the warming of the Earth must remain limited to 1.5oC, rather than 2oC. The Paris Agreement of 2015 therefore expressly states that the states must strive to limit warming to 1.5oC. That will require an even greater emissions reduction than was previously assumed.

All in all, there is a great degree of consensus on the urgent necessity for the Annex I countries to reduce [GHG] emissions by at least 25‑40% in 2020. The consensus on this target must be taken into consideration when interpreting and applying Articles 2 and 8 ECHR. The urgent necessity for a reduction of 25‑40% in 2020 also applies to the Netherlands on an individual basis.

The policy of the State (see paras. 7.4.1‑7.5.3, below)

The State and Urgenda are both of the opinion that it is necessary to limit the concentration of [GHG] in the atmosphere in order to achieve either the 2C target or the 1.5C target. Their views differ, however, with regard to the speed at which [GHG] emissions must be reduced.

Until 2011, the State’s policy was aimed at achieving an emissions reduction in 2020 of 30% compared to 1990. According to the State, that was necessary to stay on a credible pathway to keep the 2C target within reach.

After 2011, however, the State’s reduction target for 2020 was lowered from a 30% reduction by the Netherlands to a 20% reduction in an EU context. After the reduction in 2020, the State intends to accelerate the reduction to 49% in 2030 and 95% in 2050. Those targets for 2030 and 2050 have since been laid down in the Dutch Climate Act. The State has not explained, however, that – and why – a reduction of just 20% in 2020 is considered responsible in an EU context, in contrast to the 25‑40% reduction in 2020, which is internationally broadly supported and is considered necessary.

There is a broad consensus within climate science and the international community that the longer reduction measures to achieve the envisaged final target are postponed, the more comprehensive and more expensive they will become. Postponement also creates a greater risk of an abrupt climate change occurring as the result of a tipping point being reached. In light of that generally endorsed insight, it was up to the State to explain that the proposed acceleration of the reduction after 2020 would be feasible and sufficiently effective to meet the targets for 2030 and 2050, and thus to keep the 2C target and the 1.5C target within reach. The State did not do this, however. The Court of Appeal was thus entitled to rule that the State must comply with the target, considered necessary by the international community, of a reduction by at least 25% in 2020.

The courts and the political domain (see paras. 8.1‑8.3.5, below)

The State has asserted that it is not for the courts to undertake the political considerations necessary for a decision on the reduction of [GHG] emissions.

In the Dutch system of government, the decision‑making on [GHG] emissions belongs to the government and parliament. They have a large degree of discretion to make the political considerations that are necessary in this regard. It is up to the courts to decide whether, in taking their decisions, the government and parliament have remained within the limits of the law by which they are bound. Those limits ensue from the ECHR, among other things. The Dutch Constitution requires the Dutch courts to apply the provisions of this convention, and they must do so in accordance with the ECtHR’s interpretation of these provisions. This mandate to the courts to offer legal protection, even against the government, is an essential component of a democratic state under the rule of law.

The Court of Appeal’s judgment is consistent with the foregoing, as the Court of Appeal held that the State’s policy regarding [GHG] reduction is obviously not meeting the requirements pursuant to Articles 2 and 8 ECHR to take suitable measures to protect the residents of the Netherlands from dangerous climate change. Furthermore, the order which the Court of Appeal issued to the State was limited to the lower limit (25%) of the internationally endorsed, minimum necessary reduction of 25‑40% in 2020.

The order that was issued leaves it up to the State to determine which specific measures it will take to comply with that order. If legislative measures are required to achieve such compliance, it is up to the State to determine which specific legislation is desirable and necessary.

Conclusion

In short, the essence of the Supreme Court’s judgment is that the order which the District Court issued to the State and which was confirmed by the Court of Appeal, directing the State to reduce [GHG] by the end of 2020 by at least 25% compared to 1990, will be allowed to stand. Pursuant to Articles 2 and 8 ECHR, the Court of Appeal can and may conclude that the State is obliged to achieve that reduction, due to the risk of dangerous climate change that could have a severe impact on the lives and welfare of the residents of the Netherlands.”

262.  In a judgment of 22 December 2020[160], the Supreme Court of Norway ruled on the compliance with the right to a healthy environment (Article 112 of the Constitution) of a Royal Decree of 10 June 2016 concerning petroleum production licences awarded for blocks on the Norwegian continental shelf in the marine areas (referred to as the south Barents Sea South and the southeast Barents Sea). The case also raised the issue of whether the decisions complied with Article 93 on the right to life or Article 102 on the right to respect for private and family life, and with the corresponding Articles 2 and 8 of the Convention. The Supreme Court concluded that the decision in question to award the licences violated neither Article 2 nor Article 8 of the Convention. Nor did it find a violation of Article 112 of the Constitution. The case is currently pending before the Court (Greenpeace Nordic and Others v. Norway, application no. 34068/21).

263.  The relevant parts of the judgment read as follows:

“Subject matter

(2)  This case concerns the validity of a royal decree of 10 June 2016. The decree – the decision – concerns ten petroleum production licences awarded for a total of 40 blocks or parts of blocks on the Norwegian continental shelf in the marine areas referred to as the south Barents Sea South and the southeast Barents Sea – the 23rd licensing round.

(3)  The decision has its legal basis in section 3‑3 of the Petroleum Act. The key issue raised is the decision’s compliance with Article 112 of the Constitution on the right to a healthy environment. The case also raises the issue of whether the decisions complies with Article 93 on the right to life or Article 102 on the right to respect for private and family life, and with the corresponding Articles 2 and 8 of the European Convention on Human Rights – ECHR – or whether the decision is otherwise invalid due to procedural errors. The crux of the matter is the interpretation of Article 112 of the Constitution and to which extent it confers substantive rights on individuals that may be asserted in court.

(4)  The parties agree that we are facing major challenges related to climate change, that at least a considerable share of the last century’s temperature increase on Earth is due to [GHG] emissions, and that these emissions must be reduced to halt, and hopefully reverse, the trend.

(5)  The overall constitutional issue is which role the courts are to play in the environmental work. The case touches upon the principle of separation of powers and the tripartite system of the legislature, the executive and the judiciary.

...

Is the decision incompatible with Article 2 or 8 of the ECHR, or Article 93 or 102 of the Constitution?

(167)  There is no doubt that the consequences of climate change in Norway may lead to loss of human lives, for instance through floods or landslides. The question is yet whether there is an adequate link between production licences in the 23rd licensing round and possible loss of human lives, which would meet the requirement of ‘real and immediate’ risk.

(168)  In my view, the answer is no. First, it is uncertain whether or to which extent the decision will actually lead to [GHG] emissions. Second, the possible impact on the climate will be discernible in the more distant future. Although the climate threat is real, the decision does not involve, within the meaning of the ECHR, a ‘real and immediate’ risk of loss of life for citizens in Norway. Thus, no violation of Article 2 of the ECHR is found.

...

(171)  To this point, the Court of Human Rights has not assessed applications related to climate. However, the Court has recently communicated an application from six youths against Norway and 32 other countries. The case concerned the failure to cut emissions with particular reference to forest fires and heatwaves in Portugal in 2017 and 2018. Nonetheless, there is nothing in present case law to suggest that the subject matter in climate cases will differ from that in cases concerning environmental harm in general. With the significance the Court until now has ascribed to ‘direct and immediate’, I find it clear that the effects of possible future emissions due to the licences awarded in the 23rd licensing round do not fall within Article 8 of the ECHR.

(172)  During the appeal hearing, particular attention has been given to the Urgenda case from the Netherlands. In this case, a declaratory judgment was sought by the Dutch environmental organisation Urgenda against the Dutch State. Urgenda requested a judgment affirming that the Dutch state had a duty within 2020 to reduce [GHG] emissions by 40 percent, or at least 25 percent, compared with 1990. The Dutch Supreme Court – Hoge Raad – upheld in a judgment 20 December 2019 (ECLI:NL:HR:2019:2007, unofficial English translation) the rulings of the lower instances, ordering the Dutch state to reduce [GHG] emissions by 25 percent within 2020, compared with 1990. Among other things, Hoge Raad cited Articles 2 and 8 of the ECHR.

(173)  The judgment from the Netherlands has little transfer value to the case at hand. First, the Urgenda case questioned whether the Dutch government could reduce the general emission targets it had already set. It was thus not a question of prohibiting a particular measure or possible future emissions. Secondly, it was not a question of challenging the validity of an administrative decision.

(174)  The environmental groups have finally mentioned that the Court of Human Rights may identify the content of the rights on the basis of international agreements constituting ‘common ground’ between the Member States, see the Grand Chamber judgment 12 November 2008 Demir and Baykara v. Turkey paragraphs 85–86. Such a principle may hardly be applied to environmental issues, as the ECHR does not have a separate environment provision. In any case, it has not been demonstrated that the production licences constitute a breach of our international obligations.

(175)  I add that most of the supporting documents that have been submitted and added to the case in accordance with section 15‑8 of the Dispute Act, generally relate to international obligations, both under the ECHR and international law in general. These contain nothing that changes my assessments.

(176)  Against this background, the decision is not a violation of Article 2 or 8 of the ECHR.”

264.  In the case of Greenpeace Spain and Others v. Spain, several associations and five individuals challenged the relevant national Energy and Climate Plan on the grounds that its GHG emissions reduction target (reduction of GHG emissions of 23% by 2030, compared to 1990 levels) did not comply with the Paris Agreement. They asked the courts to modify the Plan by imposing a 55% GHG reduction target, compared to 1990 levels, by 2030.

265.  On 24 July 2023 the Supreme Court (STS 3556/2023) dismissed the claimants’ action holding that under the relevant domestic law, courts could not impose on the government a measure such as that requested in the present case unless there was a clear conflict of regulations with a higher norm that left no discretion to the executive, which had not been the case in the case at hand. The Supreme Court noted that GHG reduction targets had very significant implications for the national economy and the government’s socio‑economic policies. Tightening them would impose significant sacrifices on present generations and granting the claim would amount to an excessive invasion into the prerogatives of the government. Moreover, the Plan was compliant with EU law, which reflected ambitious efforts in the fight against climate change. The European Union was in the process of updating its GHG reduction targets and Spain would have to coordinate its actions with EU law.