Domestic Courts as ‘Norm Sustainers’ of International Climate Change Law

By Anmol Gulecha

Anmol Gulecha is a PhD candidate at Tilburg University, researching the judicial lawmaking in a global legal order. Before joining Tilburg University, she graduated from Leiden University with an Advanced Masters in Public International law. Twitter: @GulechaAnmol LinkedIn: /AnmolGulecha

The recent Nationally Determined Contributions Synthesis Report from the Intergovernmental Panel on Climate Change (IPCC) indicates that the current state specific climate mitigation ambitions are not on track to meet the goals of the Paris Agreement. Additionally the Special report of the IPCC supports this finding with scientific evidence which goes on to state that the world is set to miss the Paris Agreement target of capping temperatures to 2 degrees Celsius. Even after reduced emissions in 2020 due to the COVID-19 pandemic, the United Nations Environment Programme (UNEP) in its Emissions Gap Report 2020 predicts that, world temperature will be in excess of 3 degrees in this century. 

Along with this grim prediction, there are positive steps, such as the increase in domestic and regional climate change litigation, which aim to fight increasing global temperature. As per the latest UNEP report Global Climate Litigation Report: 2020 Status Review  on page 4, it states that multiple actors have turned to ‘courts to seek relief through the enforcement of existing climate laws’. As on 1 July 2020, around 1550 climate litigation cases were filed in 38 countries.

Climate Change Litigation

After the cold war, agreements negotiated at the international level seem to affect domestic law; one such example is the United Nations Framework Convention on Climate Change (UNFCCC). The UNFCCC specifically aims to stabilize the greenhouse gas concentrations in the atmosphere. However, it is primarily the domestic law in the different UN member states that regulate GHG emissions. However, such international agreements, rules and laws, according to Antonios Tzanakopoulos are inward looking, which  mean that domestic courts have the potential to make a greater contribution to the development of international climate change law than national legislatures. Currently we are witnessing this litigation proliferation mainly due to the lack of climate action at the executive and legislative levels.

As seen from the introduction, the exponential increase in climate change litigation raises one question; what is the contribution of domestic courts in the field of international climate change law? 

This blog post follows the definition of climate change litigation by David Markell and J.B. Ruhl who state that climate change litigation are those cases  which ‘raise material issues of law or fact relating to climate change mitigation, adaptation, or the science of climate change.’ Cases, which mention or rely on climate change indirectly, are beyond the scope of this blog post. Additionally, the blog post will concentrate on litigation where the defendant is a specific state government. 

The government as the defendant enables the plaintiff to challenge specific state policies or executive actions. For example, in the Urgenda Foundation vs. State of the Netherlands (Urgenda case), the plaintiff argued that the Dutch governments’ failure to reduce GHG infringed with Articles 2 and 8 of the European Convention on Human Rights. The Supreme Court of the Netherlands on page 3 and 6 of its judgment directed the ‘State to reduce greenhouse gases by the end of 2020 by at least 25% compared to 1990.’ This case is a classic example of how the plaintiff directly challenged the state’s action as opposed to challenging a specific private project.

Along similar lines the Supreme Court of Ireland, the Switzerland Supreme Court, the Supreme Court of Norway, the Conseil d’Etat in France and the Tribunal Administratif de Paris, the Lahore High Court in Pakistan, The Brazilian Supreme Court, the European Court of Human Rights and the Court of Justice of the European Union dealt or are dealing with climate change litigation. Cases brought before these courts rely on climate change obligations stemming from constitutional law and international commitments, such as, the Paris Agreement or the European Convention of Human Rights (ECHR). All these cases have a significant impact on domestic governance and international climate change obligations. The next section will demonstrate how the above-mentioned courts through climate change litigations are ‘norm sustainers’ of international climate change law. 

Domestic Courts as Norm Sustainers

Sharmila L Murthy, from a United States of America perspective, has identified certain non-state actors and even cities within a federal State as ‘norm sustainers’.  She writes, a country, by agreeing to a new international treaty/agreement/norm on climate change and incorporating the exact treaty language, the country\countries become the ‘norm sponsors’. However, even as ‘norm sponsors’, countries may not fulfill the treaty/agreement targets (such as in the case of Urgenda). In such cases, this blog post claims that litigation and access to court become a medium of norm sustenance.

Most governments derive their domestic climate change obligations from international agreements such the UNFCCC or the ECHR. When these international commitments form part of the domestic law through either incorporation or transformation by an act of the respective country (as ‘norm sponsors’), failure to abide by them will lead to litigation at the domestic level. Sometimes litigation aims to bring the domestic legislation/policy in line with international obligations, for example in the case before the Tribunal Administratif de Paris, the plaintiff urged the court to recognize the breach of legal obligations, amongst others, in the Paris Agreement. Therefore, the international climate change obligations under the UNFCCC read with the Paris Agreement become a threshold for domestic climate mitigation measure(s) at the national level. Given the impact of these domestic cases, one would believe that it is an old concept; however, the importance of domestic cases is of recent interest.

In 2005, domestic litigation was not a topic of interest for furthering climate change efforts. This changed after the Preamble to 2015 Paris Agreement recognized ‘the importance of the engagements of all levels of government and various actors.’ Additionally, Jacqueline Peel and Hari M Osofsky building the on the findings of Joana Setzer and Lisa Vanhala state that there is increasing scholarly interest in climate change litigation and its impact after few high profile judgments such as the one in Urgenda. 

Further analyzing the role of ‘norm sustainer’, here again Peel and Osofsky conclude that climate change litigation aligns the ‘energy market’ and the national laws to Paris Agreement targets. This way, the domestic courts, through their judgments, contribute as ‘norm sustainers’ in the field of international climate change law. As ‘norm sustainers’, the domestic court, through judicial review, aim to make sure that countries take credible steps to meet the right objective. Finally, according to Peel and Osofsky, domestic litigation enjoys a sense of credibility, which results in systemic changes in governance. This means that domestic litigation can shift governmental policy shifts, thereby aligning the latter to international mitigation targets.

Conclusion

Scott L. Cummings and Deborah L. Rhode state, ‘litigation is an imperfect but indispensable strategy of social change.’ Due to the ‘inward looking’ nature of the international climate change law, domestic litigation ensures that the State does not violate international climate change law. This means that domestic courts become ‘norm sustainers’ of international law, but at the national level. Domestic court, as norm sustainers may well be the next institutions to lead the world towards faster climate mitigation measures.

[None of the views and opinions represented in this article are necessarily representative of the official views and opinions of Jus Cogens Blog, or any institutes the author may be affiliated with.]

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