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Edited by Lorenzo Squintani

Juliane Kokott and Christoph Sobotta

The enforcement of EU environmental law is of particular relevance because EU law provides most of the framework of environmental law in the Member States, including the UK. Supervision by the EU Commission ensures a certain general standard of compliance, especially as regards transposition of directives and conformity of transposing legislation. The practice of domestic courts is an essential complement to Commission action. In this respect the Luxembourg jurisprudence has in particular strengthened the judicial powers of UK courts and provided some protection against excessive costs of judicial proceedings. After brexit much of this contribution could continue to be relevant, in particular if the agreement that was negotiated with the EU should be ratified.

Charlotte Streck, Moritz von Unger and Nicole Krämer

The adoption of the “Paris rulebook” at Katowice in late 2018 marks the most significant milestone in international climate policy making since the adoption of the Paris Agreement in 2015. Through a package of decisions, Parties to the Paris Agreement fulfilled almost all of the Paris mandate and moved towards the full implementation of the treaty. With the exception of the discussion on the future of carbon markets, negotiators managed to find common ground across negotiation items ranging from mitigation action to ensuring transparency and follow-up, including through “global stocktakes”, climate finance and technology transfer. Most obligations will apply to all countries, replacing the “bifurcation” of the Kyoto Protocol with a common set of rules for all Parties. Developing countries can make the case for additional time and assistance to comply with the full set of requirements. Several matters are left for future sessions – concerning, in particular, the harmonization of the timeframes of mitigation goals, markets and finance mobilization– and structural challenges – not least concerning the integration of non-state actors – remain. However, in building on accountability, trust, and compliance through facilitation, the new Paris rules may ultimately prove decidedly more robust and sustainable than those of the Kyoto Protocol.

Annalisa Savaresi and Lucia Perugini

Under the recently adopted 2030 EU climate change policy framework, land use, land use change and forestry (lulucf) will for the first time contribute to the EU’s economy wide emission reduction target. This article looks at the history of the lulucf Regulation, analysing its contents in light of the history of international and regional efforts to regulate emissions and removals in this specific sector. It highlights the challenges associated with regulating this specific sector and reviews the regulation, assessing how well it has addressed these challenges.

Bernhard W. Wegener

The Gerechtshof in The Hague has condemned the Netherlands to take measures to ensure a reduction of at least 25% of Dutch greenhouse gas emissions by the end of 2020. The court thus confirms the first-instance Urgenda decision, which had attracted much attention worldwide and which serves as a model for a whole series of other climate change litigations, some of which have since failed, some are still pending or planned. Even bearing in mind the urgency of the climate protection goal pursued by these lawsuits, the idea of a world rescue through court decisions is ultimately misleading. It overestimates the power of the judicial branch and risks being lost in mere symbolism. Worse still, it shifts responsibilities and creates expectations that tend to further de-legitimize the constitutional democratic systems of the world and their concept of a separation of powers. Even from a solely environmental point of view, this constitutes a high risk, because there are no better alternatives of responsible government. Keeping this risk in mind, the fact that the specific “Urgenda”-decision is legally not convincing seems an almost minor aspect.

John H. Knox

This article provides a framework for considering how human rights norms have been, and may be, brought to bear on climate change. After describing how human rights norms have been applied to environmental issues generally, the article addresses the challenge of climate change, whose global nature complicates the application of environmental human rights norms. The third section summarizes the emerging human rights obligations of states with respect to climate change.

Annalisa Savaresi and Juan Auz

The adoption of the Paris Agreement has prompted a flurry of climate change litigation, both to redress the impacts of climate change and to put pressure on state and non-state actors to adopt more ambitious action to tackle climate change. The use of human rights law as a gap-filler to provide remedies where other areas of the law do not is not new, especially in the environmental context. It is therefore not a surprise that human rights arguments are increasingly being made, and human rights remedies increasingly being sought, in climate change litigation. While relatively few cases have been argued on human rights grounds so far, the trend is continuing and accelerating, with some striking results. This article takes stock of human rights arguments made in climate change litigation to date to gauge what they reveal about the evolving relationship between human rights and climate change law—and about possible future developments.

Sébastien Duyck

The adoption of the Paris Agreement in 2015 constituted an unprecedented step in the recognition by states of the importance of ensuring that their action on the climate is informed by human rights: for the first time a global environmental legal instrument referred explicitly to human rights. However, whether this provision will contribute to the shaping of climate policies depends significantly on the extent to which it is integrated into further guidance regarding the implementation of the Agreement. The adoption by states of guidance on most aspects of the Paris Agreement, at cop 24/cma1.3, in December 2018, is a litmus test on whether the implementation of the Agreement is likely to reflect a higher level of integration of human rights concerns into climate governance. Having noted the absence of explicit reference to human rights in the guidelines, this article reviews key aspects of the guidelines from the perspective of principles related to human rights, such as public participation, gender equality, and respect for the rights and knowledge of indigenous peoples. This review includes an analysis of the final provisions in key chapters of the guidelines. It is informed by the positions put forward by countries throughout the drafting process as well as by the evolution of negotiating texts prior to the finalization of the guidelines. The review finds that cop 24/cma1.3 failed, for the most part, to uphold the principles laid out in the preamble to the Paris Agreement, particularly in relation to human rights; the guidelines make only a few references to human-rights-related principles.