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Advisory Opinion on Obligations of States in Respect of Climate Change: Potential Contribution of Human Rights Bodies

In: Climate Law
Author:
Rebecca McMenamin PhD Candidate, Faculty of Law, University of Vienna, Vienna, Austria

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Abstract

On 29 March 2023, the UN General Assembly adopted a resolution requesting an advisory opinion from the International Court of Justice on the obligations of states in respect of climate change. The icj’s opinion, if given, will be the first of an international court determining the elements of human rights obligations in the context of climate change. These issues have already been grappled with by UN human rights treaty bodies. I argue that the icj is entitled to take account of these jurisprudential developments, and should do so.

1 Introduction

The UN General Assembly’s adoption, in March 2023, of a resolution co-sponsored by 105 states,1 and adopted by consensus, requesting an advisory opinion from the International Court of Justice represents the first time the icj has been asked to adjudicate on climate law.2 The question put to the Court is as follows:

Having particular regard to the Charter of the United Nations, the [iccpr], the [icescr], the [unfccc], the Paris Agreement, the [unclos], 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,

  1. (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 greenhouse gases for States and for present and future generations;
  2. (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:
    1. (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?
    2. (ii)Peoples and individuals of the present and future generations affected by the adverse effects of climate change?3

There is a long tradition of states seeking advisory opinions as a means of clarifying significant questions of law.4 The icj’s advisory opinions are not binding,5 but are an ‘authoritative’ legal pronouncement.6 Several factors add to the persuasive authority of advisory opinions, including the icj’s status as the ‘principal judicial organ’ of the United Nations,7 its general reputation as an expert legal body whose interpretations of the law are entitled to deference, and the strength of the specific advisory opinion’s legal arguments.8 From a positivist view, the advisory opinion will state the law.9

According to the Court’s published timetable, written statements by states and other organizations are due by 22 January 2024 and written comments responding to states’ and other organizations’ statements are due by 22 April 2024.10 The Court has authorized various organizations—the Commission of Small Island States on Climate Change and International Law, the International Union for Conservation of Nature, and the European Union—to participate.11

2 Climate Litigation Context

The request to the icj is part of a body of climate litigation (including human rights litigation) at domestic, regional, and international levels. The newly established Commission of Small Island States on Climate Change and International Law (cosis)12 requested an advisory opinion from the International Tribunal on the Law of the Sea (itlos) in December 2022.13 It asks: ‘what are the specific obligations’ of unclos state parties to: (a) ‘prevent, reduce and control pollution’ of the marine environment in relation to the effects likely to result from climate change caused by anthropogenic greenhouse gas emissions; and (b) ‘protect and preserve the marine environment in relation to climate change impacts’? itlos has already received written submissions from parties14 and an oral hearing was set to begin on 11 September 2023.15 In January 2023, Chile and Colombia asked the Inter-American Court of Human Rights (IACtHR) to render an advisory opinion about human rights obligations to protect the environment with regard to climate change. That request addresses six topics, including duties of prevention stemming from human rights law, obligations to preserve the right to life, differential obligations to protect the rights of children and future generations, and obligations, including reparation, arising from equity and climate-justice principles.16

The leading ‘climate litigation’17 database reports that there are over 2,340 climate litigation cases at the domestic, regional, and now international levels.18 Two-thirds of these cases have been filed since the Paris Agreement.19 Many human-rights-based climate cases can be seen to seek to provide the post-Paris Agreement regime with procedural and substantive mechanisms for transforming the commitments in ndcs into domestically binding obligations.20 Around 125 cases plead human rights causes of action against states, with human rights treaties providing important legal and factual context.21 Domestic courts have found for the plaintiffs suing states in around half of the human-rights-based climate cases,22 and, in some cases, have ordered governments to take stronger climate action.23

The current center of regional activity is the European Court of Human Rights (ECtHR). Three applications are pending (of which two were heard in March 2023 and one in September 2023) and six others have been adjourned pending those decisions.24

At the international level, only the UN treaty bodies have adjudicated human rights issues in the climate change context, with views given in Billy v. Australia,25 Sacchi v. Argentina,26 and Teitiota v. New Zealand.27 Billy was the first success on the merits for authors bringing international human rights claims regarding the adequacy of a state’s climate change measures—but only the adaptation claim was successful.28

3 Relevant Sources of International Law

The advisory opinion request refers to specific sources it asks the Court to have regard to. The Court may also rely on other sources. Under Article 38(1) of the icj Statute, sources of international law are treaties, customary law, general principles of law, and, as a subsidiary means for the determination of rules of law, judicial decisions and doctrine. Article 38 is widely considered to be an incomplete list of sources of international law and the Court has taken a flexible approach to it.29

Where does human-rights climate litigation fit in? There is a lot of literature about climate litigation using human rights law.30 But is any of it a source for the icj’s determination of the rules of law?31

The views of the Human Rights Committee in individual communications32 and associated commentary can give rise to subsequent practice for the purposes of treaty interpretation under Article 31(3)(b) of the Vienna Convention of the Law of Treaties (vclt) and Article 38(1)(a) of the icj Statute.33 This is so even where General Comments contain substantive normative guidance.34 Therefore, the views and commentary of the Human Rights Committee can be used by the icj when interpreting the iccpr in response to the advisory opinion request.35

Article 38(1)(d) offers another pathway, with a clear position for how the icj should consider the decisions of treaty bodies. There is a snag in terms of the language of Article 38(1)(d): treaty body views are not ‘judicial decisions’. While ‘authoritative’,36 views are not rendered by a court or a judge, and are not binding. Despite the non-binding nature of views, the icj has in practice considered, cited, and even relied on, such decisions.37 In Diallo, the icj referred to the Human Rights Committee’s ‘considerable body of interpretive case law’,38 built up ‘in particular’ by its views on individual communications, but also in its General Comments.39 The Court ascribes treaty bodies’ interpretations ‘great weight’, on the basis of the ‘necessary clarity and essential consistency of international law’.40 This is, as others have argued, based on Article 38(1)(d) of the icj Statute, and supported by the principle of systemic integration in Article 31(3)(c) of the vclt.41

The relevant body of practice by the treaty bodies are the views in the cases of Teitiota, Sacchi, and Billy, the Human Rights Committee’s General Comment No. 36 on the right to life,42 and the Committee on the Rights of the Child’s General Comment No. 26 on children’s rights and the environment with a special focus on climate change.43

The right thus far given the most attention is the right to life.44 The Committee has said that implementation of the obligation to respect and ensure the right to life depends (among other things) on ‘measures taken by States parties to preserve the environment and protect it against … climate change caused by public and private actors’.45 In Billy, the Committee noted, consistent with its earlier views in Teitiota and in General Comment No. 36, that the right to life of present and future generations may be threatened by climate change, even where death does not eventuate.46 The Committee observed 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’.47 However, applying those principles, the Committee found there was no such violation in either Billy48 or Teitiota.49

The only rights the Committee found violated was the Billy authors’ Article 17 and 27 rights. As to Article 17, the Committee found that environmental degradation of indigenous land in subsistence communities has a direct repercussion on the right to one’s home. Where the adverse consequences of those impacts are serious because of the harm they cause (such as flooding of ancestral burial lands), environmental degradation may constitute a foreseeable and serious violation of private and family life and the home, as it did in this case.50 On Article 27, the Committee in Billy found that the Torres Strait Islanders authors’ ability to maintain and enjoy their culture was closely associated with traditional fishing and farming, and Australia’s failure to adopt timely adaptation measures (such as building adequate seawalls) was a violation of the Article 27 obligation.51 Much of the Article 27 jurisprudence arises in the indigenous context,52 and indeed the Committee in Billy interpreted Article 27 in light of the UN Declaration on the Rights of Indigenous Peoples.53

What can the icj take from Billy? It should give ‘great weight’ to the following principles. First, climate change can threaten the right to life set out in Article 6 of the iccpr. Second, lack of timely and adequate adaptation to the effects of climate change may put a state in breach of Article 17 of the iccpr. Third, as many indigenous groups live in subsistence communities closely connected to the land and sea, they are particularly vulnerable to the adverse effects of climate change and their rights under Article 27 of the iccpr should be given particular consideration (along with others similarly vulnerable) by the icj in answering question (b)(ii).

The limitation is that treaty bodies have not yet determined that human rights law obliges climate mitigation action. The majority in Billy left questions of climate mitigation unaddressed.54 In a concurring opinion, Member Zyberi thought the majority in Billy should have linked the Article 27 obligation ‘more clearly to mitigation measures’ on the basis that ‘if no effective mitigation measures are undertaken in a timely manner, adaptation will eventually become impossible’.55 But the issue of whether human rights law can properly address mitigation has been controversial in scholarship,56 as well as in human-rights-based climate litigation in other fora.57 Mayer sees only a narrow role for human rights treaties in substantiating mitigation obligations, limited to climate mitigation that ‘effectively protect[s] the enjoyment of the right at issue by individuals within [the state’s] territory or under its jurisdiction’.58 This issue is squarely before the icj, given that Question (a) focuses on mitigation. Billy may be of relevance to Question (b), which opens the door to greater adaptation obligations for states that have caused ‘significant harm’ to the climate system and other parts of the environment.

It remains a contested question whether adaptation obligations may be owed by states to people outside their territories. Extraterritoriality is an issue of relevance to the question put to the icj. Will the Court draw on the work of UN treaty bodies? The Committee on the Rights of the Child in Sacchi extended the notion of jurisdiction59 in the climate change context in a new direction for the UN treaty bodies, following the position of the IACtHR on the extraterritorial application of human rights treaties.60 The Committee held that when transboundary harm occurs, children are under the jurisdiction of the state on whose territory the emissions originated if there is a causal link between the acts or omissions of the state and the negative impact on the rights of children located outside its territory, when the state exercises ‘effective control over the sources of the emissions’ in question.61 The harm must be ‘significant’ (more than ‘detectable’, but it does not need to be at the level of ‘serious’ or ‘substantial’) and must lead to a real detriment in matters such as health, property, or environment, which is measurable by factual and objective standards.62

There are a few qualifications to the icj’s potential use of Sacchi. First, Sacchi is an (in)admissibility decision; that is, the Committee on the Rights of the Child did not consider the merits of the rights invoked. It is unclear whether the Sacchi finding on jurisdiction was just a prima facie finding that would have allowed the Committee to look further into the question if the communication had been otherwise admissible,63 or whether it was a final finding. Moreover, Sacchi is a decision about the Convention of the Rights of the Child (crc), which is not one of the treaties the advisory opinion request asks the icj to have ‘particular regard’ to.64 Further, the jurisdictional provisions in the iccpr and the crc differ. Whether the extraterritorial interpretation of the crc extends to the iccpr has not yet been tested or determined. As a result, if Sacchi is given weight by the icj under Diallo, it may be given less weight than the merits decisions of Billy and Teitiota on the iccpr.

While the jurisprudence of regional human rights courts is less relevant to the question because the advisory opinion request focuses on international human rights treaties, in Diallo the icj explained that it ‘must take due account of the interpretation’ of a regional human rights treaty by a regional human rights court on the basis that the court is independent and was ‘specifically created’ ‘to monitor the sound application of the treaty in question’.65 This is on the basis of Article 38(1)(d) of the icj Statute.

4 Conclusion

The request for an icj advisory opinion rests on the assumption that international law as a system – including climate law, human rights law, and the law of the sea – provide a fuller answer about states’ obligations to protect the climate system from significant harm for present and future generations – and about the consequences of those obligations. In this commentary, I have emphasized the context and contribution of human-rights-based climate litigation to the icj advisory opinion request. I have argued that there are mechanisms by which the icj can and should consider human-rights-based climate litigation in its opinion. In particular, the Court should give ‘great weight’ to the treaty bodies’ findings on the rights to life, home life, and culture, and the extraterritorial reach of (at least some) human rights treaties.

The icj cannot, on its own, close the climate ambition or implementation gaps or deliver climate justice. It cannot replace treaty-making under which states agree to reduce greenhouse gas emissions. But the function of litigation in international society is ‘never an end in itself’ but rather ‘a step towards a solution of the problem’.66 If the icj gives an opinion, it will contribute to multi-level climate governance including future climate litigation seeking to ensure that political actors take climate action guided by the suite of laws that apply to climate change, including human rights law.

1

The Agenda item lists the co-sponsoring states: Request for an Advisory Opinion of the International Court of Justice on the Obligations of States in respect of Climate Change, UN General Assembly, UN Doc. A/77/L.58 (2023).

2

Request for an Advisory Opinion of the International Court of Justice on the Obligations of States in respect of Climate Change, UN General Assembly, UN Doc. a/res/77/276 (2023). See also <www.vanuatuicj.com/home>.

3

Obligations of States in Respect of Climate Change (Request for an Advisory Opinion), icj Order, General List No. 187, 12 April 2023 (icj Order).

4

See Tim Stephens, ‘Environmental Litigation by Asia Pacific States at the icj’, 21 mjil 653 (2021).

5

Charter of the United Nations, Art. 94(1); and Statute of the icj, Art. 59.

6

Robert Jennings, Rosalyn Higgins, and Peter Tomka, ‘General Introduction’, in The Statute of the International Court of Justice: A Commentary, 3rd ed., edited by Andreas Zimmerman, et al. (Oxford: Oxford University Press, 2019), 24.

7

UN Charter, Art. 92.

8

Daniel Bodansky, ‘Advisory Opinions on Climate Change: Some Preliminary Questions’, 32 reciel 185 (2023), 190.

9

Jennings, Higgins, and Tomka, supra note 6, 49.

10

icj Order, supra note 3. The timetable includes a three-month extension: Obligations of States in Respect of Climate Change (Request for an Advisory Opinion) icj Order, General List No. 187, 9 August 2023.

11

Obligations of States in Respect of Climate Change (Request for an Advisory Opinion), icj Order, Press Release 2023/29, 14 June 2023; idem, Press Release 2023/32, 22 June 2023; and idem, Press Release 2023/33, 23 June 2023.

12

cosis was created specifically to do this: Agreement for the Establishment of the Commission of Small Island States on Climate Change and International Law (signed and entered into force 31 October 2021), Art. 2(2). See also itlos, ‘Rules of the Tribunal’, itlos/8 (25 March 2021), r. 138; and Malgorzata Materna, ‘Agreement for the Establishment of the Commission of Small Island States on Climate Change and International Law’, 61 ilm 739 (2022).

13

See Brian McGarry, ‘The Competence of the International Tribunal for the Law of the Sea in Its New Advisory Proceedings on Climate Change’, ejil: Talk!, 16 December 2022, <www.ejiltalk.org/>.

14

See submissions: itlos List of Cases, ‘Request for an Advisory Opinion submitted by the Commission of Small Island States on Climate Change and International Law’, <www.itlos.org/>.

15

Request for an Advisory Opinion Submitted by the Commission of Small Island States on Climate Change and International Law, itlos Order 2023/4 (30 June 2023).

16

‘Chile and Colombia agree to consult with the Inter-American Court on the impact of the environmental crisis on human rights’ (Cancilleria, 9 January 2023), <www.cancilleria.gov.co>.

17

The Sabin Centre for Climate Change Law at Columbia Law School adopts a ‘fairly narrow’ definition of climate litigation, that is, cases before judicial and quasi-judicial bodies that involve material issues of climate change science, policy or law: Joanna Setzer and Catherine Higham, ‘Global Trends in Climate Change Litigation: 2023 Snapshot’ (London: lse Grantham Research Institute on Climate Change and the Environment, 2023), 8.

18

Ibid., 2.

19

Ibid.

20

Cesar Rodríguez-Garavito (ed.), Litigating the Climate Emergency: How Human Rights, Courts, and Legal Mobilization can Bolster Climate Action (Cambridge, UK: Cambridge University Press, 2023), 16; and Jacqueline Peel and Hari M. Ofosky, ‘A Rights Turn in Climate Change Litigation?’, 7 tel 37 (2018).

21

The figures draw on the lse Grantham Institute database; the Sabin Centre for Climate Change Law’s database; and Rodríguez-Garavito, supra note 20, 40.

22

Rodríguez-Garavito, supra note 20, fig. 1.3.

23

For example: Leghari v. Pakistan, 92015 wp No. 25501/201; Urgenda Foundation v. The Netherlands, Case no. 19/00135 (Supreme Court, 2019); Demanda Generaciones Futuras v. Colombia, Case no. stc4360-2018 (Supreme Court Colombia, 2018); Partido Socialista Brasileiro (psb) v. União Federal, Case no. adpf 708 (Supreme Court Brazil, 2020); and Neubauer v. Germany, Case no. 1 BvR 2656/18 (Constitutional Court Germany, 2021).

24

Verein KlimaSeniorinnen Schweiz v. Switzerland, App. no. 53600/20 (ECtHR Grand Chamber), and Carême v. France, App. no. 7189/21 (ECtHR Grand Chamber), both heard 29 March 2023; and Agostinho v. Portugal and 32 Other States, App. no. 39371/20, heard in September 2023. Two other applications have been declared inadmissible: Council of Europe/ECtHR, ‘Factsheet – Climate Change’ (March 2023), <www.echr.coe.int>.

25

Billy v. Australia, UN Doc. ccpr/c/135/d/3624/2019 (2022) (hereafter Billy).

26

Sacchi v. Argentina and others, UN Doc. crc/c/88/d/104/2019 (2021) (hereafter Sacchi).

27

Teitiota v. New Zealand, UN Doc. ccpr/c/127/d/2728/2016 (2020) (hereafter Teitiota).

28

The majority of the Committee addressed only adaptation and found that Arts 17 (home, private life and family) and 27 (culture) were violated but that Art. 6 (life) was not: Billy, supra note 25, at paras 8.6 and 8.14.

29

Alain Pellet and Daniel Müller, ‘Competence of the Court, Article 38’, in The Statute of the International Court of Justice: A Commentary, 3rd ed., edited by Andreas Zimmerman, et al. (Oxford: Oxford University Press, 2019), 75–83.

30

See for example Rodríguez-Garavito, supra note 20; Margaretha Wewerinke-Singh, State Responsibility, Climate Change and Human Rights under International Law (Hart, 2019); John Knox, ‘Human Rights’, in The Oxford Handbook of International Environmental Law, 2nd ed., edited by Lavanya Rajamani and Jacqueline Peel (Oxford: Oxford University Press, 2021), ch. 45; Monica Feria-Tinta, ‘Climate Change as a Human Rights Issue’, in Climate Change Litigation: Global Perspectives, edited by Ivano Alogna, Christine Bakker, et al. (Brill Nijhoff, 2021), ch. 14; Peel and Osofsky, supra note 21; Annalisa Savaresi and Joana Setzer, ‘Rights-Based Litigation in the Climate Emergency: Mapping the Landscape and New Knowledge Frontiers’, 13(1) Journal of Human Rights and the Environment 7 (2022); and Helen Keller and Corina Heri, Climate Rights and Remedies Project (University of Zurich). On mitigation, see Alexander Zahar, ‘Human Rights Law and the Obligation to Reduce Greenhouse Gas Emissions’, 23 Human Rights Review 385 (2022); and Benoit Mayer, International Law Obligations on Climate Change Mitigation (Oxford: Oxford University Press, 2022), ch. 4.

31

Benoit Mayer, ‘International Advisory Proceedings on Climate Change’, 44 Michigan Journal of International Law 41 (2023), 99ff. considers the icj potentially referring to Urgenda, supra note 23, arguing, at 100, that the Dutch Supreme Court erred in finding a principle according to which developed states should reduce their emissions at the same pace, or to Friends of the Irish Environment v. Ireland [2020] iesc 49 (Supreme Court, Ireland), arguing, at 102, that the icj simply clarifying that ndcs must be clear and specific ‘fall[s] short of what the proponents of an advisory opinion hope to see’. But Mayer does not consider the novel extensions of human rights law that arise from this body of cases as applicable sources of law, or the treaty body cases.

32

That is, an individual’s case against his or her state for breach of a human rights treaty, heard by the treaty body: e.g. First Optional Protocol to the International Covenant on Civil and Political Rights, 999 unts 171 (adopted 19 December 1966, entered into force 23 March 1976), Art. 1.

33

Vienna Convention on the Law of Treaties, 1155 unts 331 (opened for signature 23 May 1969, entered into force 27 January 1980). International Law Commission, ‘Draft Conclusions on Subsequent Agreements and Subsequent Practice In Relation To the Interpretation of Treaties’, ii(2) yilc (2018), Conclusion, para. 13.3. See also Machiko Kanetake, ‘Cooperation Between Human Rights Bodies and Domestic Courts’ (last updated October 2021), in The Max Planck Encyclopedia of Public International Law, edited by Anne Peters and Rüdiger Wolfrum (Oxford: Oxford University Press), at 13; and Danae Azaria, ‘The Legal Significance of Expert Treaty Bodies Pronouncements for the Purpose of the Interpretation of Treaties’, 22 International Community Law Review 33 (2022).

34

Hinako Takata and Shotaro Hamamoto, ‘Human Rights, Treaty Bodies, General Comments/Recommendations’ (last updated January 2023), in Max Planck Encyclopedia, supra note 33.

35

International Covenant on Civil and Political Rights, 999 unts 171 (adopted 19 December 1966, entered into force 23 March 1976) (hereinafter iccpr).

36

Human Rights Committee, General Comment No. 33, UN Doc. ccpr/c/gc/33 (2009), paras 11–13.

37

See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion), [2004] icj Rep 136, paras 109–110 (hereafter Wall); and Diallo (Guinea v. Democratic Republic of the Congo) (Merits), [2010] icj Rep 639, para. 66 (hereafter Diallo). See also Azaria, supra note 33.

38

Diallo, supra note 37.

39

Ibid., para. 66.

40

Ibid.

41

See the compelling argument developed by Mads Andenas and Johann R. Leiss, ‘The Systemic Relevance of “Judicial Decisions” in Article 38 of the icj Statute’, 77 Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht 907 (2017).

42

Human Rights Committee, General Comment No. 36, UN Doc. ccpr/c/gc/36 (2019).

43

Committee on the Rights of the Child, General Comment No. 26, UN Doc. crc/c/cg/26 (22 August 2023).

44

iccpr, supra note 35, Art. 6.

45

General Comment No. 36, supra note 42, para. 62.

46

Billy, supra note 25, para. 8.3; Teitiota, supra note 27, para. 9.4: applying General Comment No. 36, supra note 42, para. 62.

47

Billy, supra note 25, para. 8.5, citing the Committee’s environmental jurisprudence on the right to life.

48

Ibid., para. 8.6. The finding of no Art. 6 violation in Billy has been criticized by scholars: see Nicole Barrett and Aishani Gupta, ‘Why Did the UN Human Rights Committee Refuse Broader Protections for Climate Change Victims?’, Opinio Juris (5 October 2022), <http://opiniojuris.org/>; and Verena Kahl, ‘Rising Before Sinking: The UN Human Rights Committee’s Landmark Decision in Daniel Billy et al v Australia’, Verfassungsblog (3 October 2022), <https://verfassungsblog.de>. See also the disagreement by members of the Committee itself: Billy, supra note 25, concurring opinion of Zyberi, para. 6, dissenting opinion of Laki Muhumuza, paras 10–17, and separate opinion of Bulkan, Kran, and Sancin, paras 2–3.

49

Teitiota, supra note 27, para. 10.

50

Billy, supra note 25, para. 8.12.

51

Ibid., para. 8.14.

52

William Schabas, Nowak’s ccpr Commentary: UN International Covenant on Civil and Political Rights, 3rd ed. (np Engel, 2019), 809–12.

53

Billy, supra note 25, para. 8.13.

54

Riccardo Luporini and Annalisa Savaresi, ‘International Human Rights Bodies and Climate Litigation: Don’t Look Up?’, 23 reciel 267 (2023), 275.

55

Billy, supra note 25, Concurring opinion of Zyberi, para. 6; and dissenting opinion of Laki Muhumuza, paras 10–17, citing Urgenda, supra note 23.

56

See, for example, Corina Heri, ‘Climate Change before the European Court of Human Rights: Capturing Risk, Ill-Treatment and Vulnerability’, 33(3) ejil 925 (2022); and Alexander Zahar, ‘The Limits of Human Rights Law: A Reply to Corina Heri’, 33(3) ejil 953 (2022).

57

Some domestic human rights cases have found that human rights law obliges climate mitigation: e.g. Shrestha v. Nepal, Order No. 074-wo-0283 (Supreme Court of Nepal, 2018); Demanda Generaciones Futuras v. Colombia, Case No. stc4360-2018 (Supreme Court of Colombia, 2018); Urgenda, supra note 23; Partido Socialista Brasileiro (psb) v. União Federal, Case No. adpf 708 (Supreme Court of Brazil, 2020); and Neubauer v. Germany, Case no. 1 BvR 2656/18 (Constitutional Court of Germany, 2021).

58

Mayer, supra note 30, 135. And see Benoit Mayer, ‘Climate Change Mitigation as an Obligation under Human Rights Treaties?’, 115 ajil 409 (2021).

59

Jurisdiction in human rights law is not about whether a state is entitled to act but rather it is a threshold criterion that must be satisfied in order for a state’s treaty obligations to arise: Marko Milanovic, Extraterritorial Application of Human Rights Treaties: Law, Principles, Policy (Oxford: Oxford University Press, 2011), 19.

60

The Environment and Human Rights, Advisory Opinion, IACtHR, Case no. oc-23/17 (2018), para. 81.

61

Sacchi, supra note 26, para. 10.12.

62

Ibid., citing The Environment and Human Rights, supra note 60.

63

Ultimately the Sacchi case was held to be inadmissible because the authors had not exhausted domestic remedies.

64

Supra note 2.

65

Diallo, supra note 37, para. 67.

66

Vaughan Lowe, ‘The Function of Litigation in International Society’, 61 iclq 209 (2012), 221.

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