INTRODUCTION

Climate change is one of the most serious existential threats to the long-term survival of life on our planet today. The consecutive, scorching heatwaves that hit the European continent in June and July 2022, shattering temperature records in many countries, painfully illustrate that prolonged periods of persistent droughts, raging wildfires and record-breaking temperatures are becoming normal because of climate change. Recent reports showcase the existence of a large emission gap, with the signatories to the Paris Agreement's current pledges only capable of reducing carbon by about 7.5% by 2030, compared with previous unconditional nationally determined contributions (NDCs), whereas the Intergovernmental Panel on Climate Change (IPCC) indicated that in order to meet the internationally agreed climate targets, emissions should be reduced by 45% by 2030 compared to 2010. In order to meet these objectives, however, the Parties to the Paris Agreement must double their climate efforts if they are to reach the overarching goal of limiting global temperature rise well below 2°C by the end of the century.

Against this worrisome backdrop, strategic climate change lawsuits have recently emerged as a new and, in an increasing number of cases, unexpectedly successful lever to force governments to tackle climate change more decisively and systematically. As of May 2022, more than 1,800 climate lawsuits have been filed in more than 40 different jurisdictions.

INTRODUCTION

Despite a widespread sense of urgency in the climate discourse, the latest national climate pledges set the world on track for a global temperature increase of 2.7°C.Thus, the realistic chances of delivering the 1.5°C target are fast decreasing, with alarming implications for the most vulnerable populations and ecosystems in the world. Against this background, the number of climate cases challenging national mitigation policies have recently grown into a new wave of climate litigation. Following the lead of the Urgenda case, in Europe alone 15 cases have been filed with the aim of compelling more ambitious and thorough policies. These cases, defined by Maxwell, Mead and Van Berkel as ‘systemic mitigation cases’,go as far as requesting that governments comply with specific reduction pathways, in line with the most ambitious 1.5°C target.

Overall, systemic mitigation lawsuits pursue a climate justice purpose: to make industrialised countries take responsibility for climate change: a global problem for which they were major contributors, but whose consequences will hit more severely those who are the least responsible for it. Their goals are both material and symbolic, as they aim to change policies while also influencing the political discourse. As emphasised by Tessa Khan, former co-director of the Climate Litigation Network, by exposing the governments and fossil fuel industry's contribution to the climate crisis, these cases support the climate justice movement in drawing ‘a clear narrative of responsibility’.

INTRODUCTION

In times of rapidly increasing climate change, not only do parliaments and governments have to play their part in combating the emerging crisis, but also courts: the number of climate change-related cases is growing worldwide .Since climate change is a global problem that requires a global solution, it is of the utmost importance to assess internationally effective carbon reduction ambitions of nation-States as well as companies. Many national courts in recent years seem to have been well aware of the problem that their respective States cannot stop climate change on their own, but still acknowledge that this does not release them from any reduction obligations. This is an important first step towards internationally minded climate protection by States. Nevertheless, most courts struggle in finding an appropriate yardstick for State obligations beyond national borders. Apparently, this is not necessarily the case when assessing corporate reduction obligations, where indirect Scope 3 emissions – occurring anywhere in the supply chain of a product – can already be included, such as in the Milieudefensie case.

While most national climate protection policies as well as courts focus in their assessments only on territorial State emissions, this chapter attempts to highlight the role of indirect ‘imported’ emissions at State level. By including them in national policies, the national impact area increases substantially and reflects the true potential of national climate protection measures in enforcing international climate action.

INTRODUCTION

In late 2021, the 26th Conference of the Parties to the UN climate regime (COP26) took place in Glasgow. This conference's number, together with the fact that these events take place annually, reminds us that the international community has been debating the problem of climate change for more than a quarter of a century. The UN climate regime forms the institutional context of these deliberations. Many issues that shaped the evolution of the three treaties and decisionsof the UN climate regime reoccurred during the annual climate conferences and preparatory meetings, generally putting developed and developing countries in opposing camps. One example is the vaguely defined right to development, as will be shown below. In the context of mitigating climate change, this right is about preserving a carbon-intensive path to 3 economic growth, in order to realise social progress for future generations.

During the climate negotiations in the late 1990s, government representatives of developing countries insisted that their countries first needed to achieve economic growth before they would be able to address climate change, as was the case with other forms of environmental degradation. At the time, climate negotiators understood the phenomenon of human-induced climate change as an environmental problem. The institutionalisation of international climate cooperation thus followed the model of other multilateral environmental agreements. The need to balance development and environmental protection has influenced the evolution of the UN climate regime from the outset.

INTRODUCTION

The nature of greenhouse gas (GHG) emissions poses unique challenges for the conduct of climate change litigation. Arguably, GHG emissions result in harms affecting two types of interests. They affect the personal interests of a large number of individuals (divisible interests) as well as a collective good of a society (indivisible/diffused interest). Given these challenges, collective redress procedures offer procedural flexibility to cater for the nature of the interests involved whilst promoting efficiency in climate litigation. Such procedures achieve two objectives – they facilitate access to justice for claimants who would not normally seek such justice, and they assist in the enforcement of the law in a legal system.

However, the collective redress procedural landscape within the EU is not uniform across EU Member States. In particular, the architecture of collective redress procedures is diverse. Arguably, this state of procedural and conceptual fragmentation leads to uneven protection and challenges effective access to justice, particularly for GHG harms.

This chapter contends that in light of procedural reforms necessitated by Directive 2020/1828 for consumers, Member States are presented with an opportunity to enact domestic procedural changes to effectively enable representative organisationsto better act in claims relating to climate change. The chapter argues that the Directive's approach to standing, information provision and ‘redress’ remedies could, if transposed to the environmental sphere, enhance access to justice for climate change victims.

SUMMARY OF PARTS I AND II OF THIS EDITED VOLUME

Parts I and II of this edited volume provided valuable insights into climate change litigation in Europe, from not only comparative but also sectoral perspectives. Starting with Part I on ‘Climate Change Litigation in Europe: Regional and Comparative Perspectives’, Lavrysen and Bouquelle laid out the foundation for climate change and the courts. As became apparent throughout their chapter, climate cases will continue to be filed, especially as long as climate science confirms that States are ‘not on track to deliver the Paris Agreement goals’. At the same time, follow-up questions regarding the enforcement of – from the claimant's perspective successful – decisions arise. For example, Lavrysen and Bouquelle asked ‘[w]hat if a plan or a programme has been adopted by the government or corporation following the judgment, but is not or is insufficiently implemented?’ Taking the Urgenda case of June 2015 as an example, Lavrysen and Bouquelle pointed out that seven years after that judgment, the Dutch government has still not achieved the required greenhouse gas (GHG) emissions reduction, which makes one wonder whether this will ‘give rise to follow-up cases and what types of remedies will be available’.

Next, Alogna and Billiet analysed the role of European regional courts in climate change litigation, as resulting from the expert discussion between Marc Willers KC and Judge Tim Eicke KC. Given that, as of February 2022, the European Court of Human Rights (ECtHR) has not yet issued decisions in the pending climate cases, the authors pointed out the far-reaching implications that successful ECtHR decisions might have for future European, and international, climate change litigation.

INTRODUCTION

Amid the controversies surrounding investment arbitration, the single most salient criticism is probably that of a perceived impairment of sovereign States’ power to legislate in highly sensitive public interest areas such as human rights, human health, the environment or the energy transition, including so-called ‘procedural chill’. Testament to the extent of what can be described as investment arbitration's crisis are the many attempts at inserting and/or strengthening responsive substantive provisions in investment protection agreements, including the recognition of environmental protection as a treaty objective, the right of States to regulate environmental matters, or the continuing duty of States to enforce and promote environmental protection measures. These attempts have been thoroughly described,but they do not appear to have remedied the situation, atleast not to a sufficient extent.

Climate change considerations, although they may not have been as present in actual disputes so far, are more or less directly relevant to all these highly sensitive public interest areas: climate change may have adverse impacts on human rights, health, the environment or the energy transition. Conversely, a ‘climate litigation’ trendrelies on a wide array of legal bases, including increasingly human rights and fundamental rights, in an attempt to trigger stronger responses from public authorities and from the private sector. Indeed, substantive provisions relating to climate change have also been considered in the context of investment protection treaties, such as the 2018 Netherlands Model Bilateral Treaty according to which ‘Contracting Parties reaffirm their obligations under the multilateral agreements in the field of environmental protection …, such as the Paris Agreement’. Yet the prospects for international arbitration of climate-related disputes are hardly doubtful and have already been established.4

INTRODUCTION

Climate change is becoming a hot topic in constitutional law. In a ground-breaking ruling, the Dutch Supreme Court ordered the Dutch State in December 2019 to quickly reduce carbon dioxide (CO2) emissions in the Netherlands. This decision was followed in Europe by similar rulings from the French Council of State and the German Constitutional Court. In France, a citizen assembly had moreover already been used to come up with climate change mitigation measures that would have wide popular support. Similar assemblies had been used in Ireland, albeit as part of a series of assemblies, and in the UK. These developments come on top of a steady trend of integrating environmental objectives and rights into constitutions over the last decades. Climate change mitigation is also rising as a priority for many governments and organisations, for example in the EU through the European Green Deal (EGD). This may lead to conflicts concerning the priority of climate change mitigation vis-à-vis (other) constitutional objectives and rights.

A comprehensive account of the relevance of climate change for constitutional law is lacking. Currently, climate change and mitigation measures are mainly seen in constitutional law from the perspective of human rights. The point of this chapter is to show that climate change has broader ramifications for constitutional law and that a human rights approach is therefore too narrow. This is shown by analysing several of the developments mentioned above: the ruling by the Dutch Supreme Court (section 2), and the European Green Deal (section 3). The last section (section 4) sets out a direction for constitutional scholarship to engage with the new questions and discusses the role of citizen councils.

Climate law scholars and practitioners master perhaps one of the most difficult law disciplines of our times. In essence, we have to cope with many developments, uncertainties and massive complexity regarding science, society and law. This is also true on the European continent. First, there is an enormous production and updating of regulatory tools, particularly by the EU legislator and subsequently the European Commission, but also by Member States and subnational entities. Meanwhile, the outcome of elections determining the political directions of those who occupy regulatory seats is uncertain yet tremendously important. Secondly, whether states, authorities and other actors addressed with obligations, including companies, will duly implement these climate laws is one of the most difficult questions of our time. As lawyers know, when a norm is adopted it is often not clear how it will play out in specific situations, including what (social and economic) efforts it will take to comply with it. Nonetheless, when non-compliance takes place, courts may be addressed to enforce the climate obligations. So indeed, thirdly, climate litigation is on the rise on the European continent, not only to enforce commitments, but also to step up the emission reduction actions of governments and companies. Climate change-related case law is present in many, if not all, national jurisdictions in Europe, as well as at the supranational level, such as before the Court of Justice of the European Union and the European Court of Human Rights. The fact that there is consideration about changing the competence for providing preliminary rulings specifically regarding the EU greenhouse gas emissions trading scheme, which is the flagship of the EU climate legislation, is a sign of a court busy with core climate change legislation.

ABSTRACT

Literature and practice outlining the relationship between human rights and unilateral economic sanctions veer in two opposite directions. One strand of literature advocates for sanctions to redress grave human rights violations. This position has been epitomised in the legislation allowing the imposition of economic sanctions for human rights violations occurring abroad (Magnitskystyle sanctions ). The opposing voice criticises unilateral economic sanctions irrespective of their objectives and forms, mainly by emphasising their negative repercussions on the enjoyment of human rights. This position is officially adopted by the Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights, and is reflected in numerous reports on the matter, which are traditionally supported by the most-sanctioned countries.

Th is contribution aims to explore perplexing and multifaceted relations between human rights and unilateral economic sanctions, an issue that is politically tainted, and which has been insufficiently analysed from a legal standpoint. Retreating from the clashes between these prevailing old, unworkable dichotomies, this contribution argues for a more nuanced portrayal of the subject matter.

INTRODUCTION

The debate surrounding the legality of unilateral economic sanctions has intensified over the past few years, especially in recent months. This has been a recurring theme, carrying along strong political overtones. Against the background of these discussions, this contribution focuses on the twisted relationship between unilateral economic sanctions and human rights. It aims to explore perplexing and multifaceted relations between human rights and unilateral economic sanctions, an issue that is politically charged, and which has been insufficiently analysed from a legal standpoint.

The term ‘economic sanction’ can be used to denote any one of a broad range of diverse restrictions. These can be classified based on the actors that employ them (collective, regional, unilateral and private), depending on their scope (comprehensive and targeted), according to the reasons for their imposition (to counter terrorism, to oppose unconstitutional changes of government, to limit the proliferation of nuclear weapons, to remedy grave human rights violations, etc.).

Discussion of the economic sanctions’ legality is closely intertwined with the actors who impose these restrictions. Sanctions authorised by the United Nations Security Council (UNSC) according to Chapter VII of the Charter of the United Nations (UN Charter), i.e. collective economic sanctions, are presumed to be legal under international law.