A Swiss human rights budget?

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In his vigorous, thoroughly readable, partly dissenting opinion to the recent ECtHR climate change ruling (Verein KlimaSeniorinnen Schweiz and Others v. Switzerland), Judge Eicke wonders whether the court has ‘tried to run before it could walk’ (para. 68). In particular, he is exercised by the Court’s attempt to apply a set of criteria by which to oversee national climate policies, listed in para. 550 of the ruling. Drawing a contrast with a parallel UNFCCC process—in which a team of 21 expert reviewers assessed a 297 page ‘densely typed’ report on Switzerland’s compliance with its ‘clearly quantified’ Kyoto targets—Eicke commented:

13. It seems to me to be clear that the Court … does not, in fact, have the capacity to engage in anything approaching such a review process to ensure, as the majority seems to envisage, that Contracting Parties have [citing para. 545] ‘adopt[ed], and … effectively appl[ied] in practice, regulations and measures capable of mitigating the existing and potentially irreversible, future effects of climate change’.

Whether or not the charge is justified, there is no doubt the European Court did in fact wade into the intricacies of climate science in its effort to decide whether Swiss climate policy violated ECHR art 8. In doing so, it found itself in complex terrain already traversed by the German Constitutional and Dutch Supreme Courts, in the Neubauer and Urgenda cases. And like them, the Court leaned heavily on the publications and conceptual apparatuses of the Intergovernmental Panel on Climate Change (IPCC). The IPCC does not, though, provide instructions on individual country policies (indeed it is prohibited from doing so), and the link between any country’s emissions and human rights impacts in that country is, in any case, ‘tenuous’ (para. 439). So the Court, as courts must, improvised with the materials to hand. This is especially apparent in paras 569-572, the climactic run-up to its conclusion on the merits. There the Court reviews what it refers to as ‘the remaining Swiss carbon budget’ (569), as supplied by the Applicant (ie KlimaSeniorinnen Schweiz):

569. … Referring to the relevant IPCC assessment of the global carbon budget, and the data of the Swiss greenhouse gas inventory, the applicant association provided an estimate according to which, assuming the same per capita burden-sharing for emissions from 2020 onwards, Switzerland would have a remaining carbon budget of 0.44 GtCO2 for a 67% chance of meeting the 1.5°C 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 [ie the Swiss official targets], Switzerland would have used the remaining budget by around 2034 (or 2030 for an 83% change [sic]). Thus, under its current climate strategy, Switzerland allowed for more GHG emissions than even an ‘equal per capita emissions’ quantification approach would entitle it to use.

That last line is interesting, implying that ‘equal per capita emissions’ is an obvious or unremarkable methodological basis for a national mitigation policy. This might surprise seasoned climate observers, for whom, indeed, the very notion of ‘national carbon budgets’ may raise questions. The IPCC makes no mention of national budgets in the almost 11,000 pages of its Sixth Assessment Report (AR6). Switzerland has not adopted one, and—as opposed to the IPCC’s ‘global carbon budget’ (beyond which temperature limits are likely breached)—the term appears relatively infrequently and inconsistently in a vast climate literature. The Swiss government complained ‘that there was no established methodology to determine a country’s carbon budget’ and ‘argued that Swiss national climate policy could be considered as being similar in approach to establishing a carbon budget … [as] expressed in its NDCs’ (570). This is presumably a reference to Switzerland’s official targets of net-zero by 2050, 75% reduction from 1990 levels by 2040, 50% by 2030, and 35% by 2025 (paras 563-4; see too Swiss Nationally Determined Contribution (NDC), 21). The Court, however, was ‘not convinced that an effective regulatory framework concerning climate change could be put in place without quantifying, through a carbon budget or otherwise, national GHG emissions limitations’. The Court continues (references modified):

571. In this regard the Court cannot but note that the IPCC has stressed the importance of carbon budgets and policies for net-zero emissions [citing IPCC AR6, 20-23], which can hardly be compensated for by reliance on the State’s NDCs under the Paris Agreement, as the Government seemed to suggest. The Court also finds convincing the reasoning of the [German Federal Constitutional Court], which rejected the argument that it was impossible to determine the national carbon budget, pointing to, inter alia, the principle of common but differentiated responsibilities under the UNFCCC and the Paris Agreement [citing Neubauer, paras 215-29]…

572. In these circumstances, while acknowledging that the measures and methods determining the details of the State’s climate policy fall within its wide margin of appreciation, in the absence of any domestic measure attempting to quantify the respondent State’s remaining carbon budget, the Court has difficulty accepting that the State could be regarded as complying effectively with its regulatory obligation under Article 8 of the Convention (see paragraph 550 above).

Several of the Court’s procedural criteria laid out in para. 550 are at issue, but a key one among them is para. 550(a), which expects states to

adopt general measures specifying a target timeline for achieving carbon neutrality and the overall remaining carbon budget for the same time frame, or another equivalent method of quantification of future GHG emissions …

My interest in this post is with the Court’s apparent preference for ‘national carbon budgets’—not merely as the primary mode of ‘quantification’ cited in para. 550(a) but also as a touchstone for national climate mitigation policy, recurring throughout the ruling with the regularity of a mantra, and especially in the key paragraphs on merit (569-573). At one point (in para. 571), the Court refers approvingly to EU legislation endorsing the term (the European Climate Law speaks of an ‘indicative Union budget’, which is distributed across sectors rather than countries). Indeed, among the ruling’s many notable contributions—which several scholars have laid out already—might be included these two: (i) foregrounding of a particular methodological frame—national carbon budgets, and (ii) infusion within that frame of a particular methodological premise: equal global per capita emissions. And yet the Court did not mandate either of these; rather they percolate through the ruling, gathering whatever legitimacy ECtHR patronage can bestow. Still, a lot may ride on these apparently arcane points of methodology.

A brief history of national carbon budgets

In contrast to the arduous peer review process preceding each individual IPCC statement, the Applicant’s methodology reproduced in para. 569 essentially applies back-of-the-envelope maths to the IPCC’s global carbon budget, apportioned to Switzerland on an ‘equal per capita’ emissions basis (that is, the total global carbon budget for a >50% chance of limiting average warming to 1.5°C, multiplied by the Swiss proportion of global population: see too Applicant’s Response, 13 October 2021, para. 55). As the ruling indicates, the German Constitutional Court had applied a similar per capita calculus to arrive at a similar conclusion—that Germany’s ‘national’ carbon budget would be essentially exceeded before 2030 (Neubauer, 213-237) on current policies. The German Court appears to be the main source of authority for the ECtHR’s reliance on national budgets.

The Neubauer Court had, in turn, taken both the notion of a ‘national carbon budget’ and the methodology of ‘equal per capita emissions’ from a report by the German Advisory Council on Global Change, an independent body of scientists, featuring a number of prominent IPCC authors (see especially 41-42). Writing in 2014, and invoking the UNFCCC principle of equity, the Advisory Council aimed to influence the then-in-progress Paris negotiations. The Council provided two possible modes of calculating a German ‘national emissions budget’. A first was based on ‘historical responsibility’—which, since Germany’s past emissions were high, was already depleted by 2009. The second was based on ‘future responsibility’ and simply distributed the remaining global carbon budget among states on an equal per capita basis. Even so, Germany’s share was projected to be depleted by 2024.

But there is more. The Advisory Council’s more stringent ‘historical responsibility’ model is, in fact, less arduous than an influential rival methodology circulated in 2009 by the Stockholm Environmental Institute (also including an IPCC author) and EcoEquity. Their ‘greenhouse development rights’ framework gave each country an emissions allowance based both on historical responsibility and relative ‘capability’—aiming to ‘operationalize’ the UNFCCC principle of ‘common but differentiated responsibilities and respective capabilities’. GDRs did not provide ‘equal per capita emissions’: wealthy states had, on this model, already used up most of their share; to compensate for current emissions, they were to finance emission reductions abroad. The GDR authors do mention ‘budgets’ but neither systematically nor often; in later iterations, the authors prefer the term ‘fair shares’. And long before GDRs, a proposal known as ‘contraction and convergence’ sashayed through international climate negotiations, gaining much support but ultimately waning. Their various authors and activists spoke of national ‘shares’ or ‘accounts’, converging to per-capita equality from a steadily contracting ‘global carbon budget’.

So it appears to be the German Advisory Council who, from 2009, actively championed the frame of ‘national emissions budgets’, and they also promoted ‘future responsibility’ (ie global per capita equality) as the preferred methodology. Like SEI, they too proposed that countries could make up any shortfall in meeting their budgets by financing emission reductions abroad (through emissions trading or technology transfer, p2). The German Constitutional Court avoided this latter element of the budgetary concept (as did the European Court), and while observing the likelihood of Germany breaching its notional ‘emissions budget’, the Court sidestepped the question as to whether this would give rise to illegality—given ‘the uncertainties regarding the global and national emission possibilities’ (Neubauer, 236).

But other methodologies too surfaced in KlimaSeniorinnen. The Swiss government had itself submitted a paper by Zurich-based economist, Lucas Bretschger, providing an ‘equitable’ methodology for national carbon budgets, this time geared towards breaking political deadlock (Bretschger had long been a member of the Swiss national delegations to the UNFCCC COPs). As the critique submitted by the Applicants pointed out (at 5), Bretschger’s methodology gave incumbent high emitters a larger than per capita emissions allowance. And yet, even on this methodology (which the Swiss government did not in fact endorse), Swiss targets fell below a notional national budget, now requiring net-zero by 2040 (KlimaSeniorinnen, 323). In addition, the Applicants themselves put forward (in their response, paras 56-62) several supplementary methodologies (here, here, and here)—premised on the Paris Agreement provision that each country’s NDC reflect ‘its highest possible ambition’ (Paris, art 4(3))—each of which indicates that Switzerland will have exceeded its budget by 2030. A terminology of ‘fair shares’ dominates in these texts, rather than ‘national carbon budgets’.

Discursive authority?

In short, then, much as an equal per capita approach to global greenhouse gas emission allocation is historically grounded, politically modest (within the range of options), and—on most accounts—moderately equitable, neither the budgetary frame nor the per-capita methodology are agreed by scholars, adopted by states, endorsed by the IPCC, or implied in the Paris Agreement. The Swiss government is quite correct to note that ‘there [is] no established methodology to determine a country’s carbon budget’ (if by ‘established’ is meant ‘agreed’). It is not just that states cannot agree—high emitting states in particular have repeatedly objected to the responsibility acknowledged in any per-capita formulation; it is that the Paris Agreement as finally endorsed is arguably premised on abandoning ‘top-down’ formulae of any kind for allocating national emissions targets (see, for example, this account), a point the Swiss government appeals to rather feebly (KlimaSeniorinnen, 352, 360). For the same reason, states may hew to the Paris Agreement—which is not terribly prescriptive—to defend relatively vague NDCs. (The Court is quite right, from this perspective, not to accept a statement in an NDC as ‘compensating’ for ‘domestic measures’.)

By championing the language of ‘national carbon budgets’, then, the Strasbourg Court steers the ruling (and, presumably, the law) in the direction of the German Advisory Council’s proposal and the prehistory of ‘equitable’ emission allocations. The Court does not, however, go so far as to mandate an equal per capita methodology. In fact, the ruling is relatively undemanding: the Court essentially asks that Swiss emission limitation targets be quantified, detailed and timely—and ideally expressed in a budgetary register. The court’s intervention here might be characterised as exercising discursive authority—the budgetary register potentially importing with it a methodological normativity.

Interestingly and contrastingly, the UK has done what the Court apparently seeks, taking a national carbon budget ‘approach’ to its targets (just under 1 Gt CO2e in the period 2033-37 down from c. 3 Gt CO2e in 2008-12). But its budgetary figures are emphatically not premised on per capita global emissions (much less historical responsibility). Rather, the UK took their stated percentage targets from a 1990 baseline (in the case of CO2) and translated these directly into amounts of CO2e (see the policy framework here, updates here).[1] There is, from this perspective, little difference between the British and Swiss approaches to mitigation policy, at least as regards para. 550(a)—but it is difficult to see the British policy failing at the ECtHR on that criterion (this has not stopped British politicians from using the ruling to call for Britain’s exit from the Council of Europe).

Extraterritoriality by other means?

The Swiss case was notably hampered by having subjected its climate legislation to a referendum in 2021, which it then lost (Swiss government account here, 7-10), leaving them without a formal legal policy in place at the time of the ruling (KlimaSeniorinnen, 94-5, 561). According to the government, a majority of the Swiss public was more concerned about high petrol prices than climate impacts. The Court was clearly unhappy about the ‘legislative lacunae’ resulting from that democratic exercise (562-3) as well as Switzerland’s barely missed target of 20% reductions by 2020 (87, 358, 558-9, 753)—a more appropriate target of 25% is suggested (shades of Urgenda), but the Court does not insist.[2] There is no doubt Swiss climate law was in disarray (558-68).

The ruling nevertheless indicates an apparent dissatisfaction with Swiss targets. The Court underlines the IPCC conclusion that existing NDCs, viewed cumulatively, will not in fact attain the Paris targets (108,111), although it leaves it to the applicants to point out how profoundly unambitious Switzerland’s own NDC is (78). There appears to be a struggle between the clear inadequacy of the Swiss targets (and, by implication, those of most or all Council of Europe states) to the Paris objectives—given the evidence before the Court—and the Court’s mandate. The difficulty is, in part, that the local human rights harms entailed by Swiss policy do not appear to meet the Court’s ‘especially high’ (488) ‘victim’ threshold in climate matters (478-488 and 531-535 on the individual applicants in this case). Although the Court does not say so, this ‘high’ threshold is more likely to be met elsewhere in the world, where climate impacts are more palpable and the capacity to adapt more attenuated. That is: despite historical responsibility, the human rights impact of low European mitigation ambition is largely felt abroad.

The Court does not enter into this complexity. Rather it turns to the Paris Agreement as an anchor for ambitious targets (546-8)—but Paris provides a poor hook for strong obligations, given its general imprecision; its vague global target (‘well below’ 2°C); the relative paucity of detail on the NDCs; and its minimally intrusive enforcement. (Indeed, arguably the whole strategic point of turning to human rights litigation is to provide courts with a stronger normative hook to mandate more stringent targets than the UNFCCC process has supplied.) Certainly, had the Court found it possible to lean more firmly on equal per capita allocations—or some middle-ground basis for tightened ambition within the Council of Europe—it would have entrenched greater human rights protections—globally—against climate change.

Here, what is perhaps most interesting is the suppressed appeal to ‘fairness’ running through the Court’s pronouncements. The Applicants repeatedly refer to Switzerland’s ‘fair share’ of the global climate mitigation burden, as do the intervenors (and even the Government); the same notion of ‘fair-shares’ underpins the per-capita model of emissions allocation; and all of the six-odd ‘national carbon budget’ methodologies arising in the proceedings are premised on the UNFCCC principle of equity. Everyone, it seems, other than the Court itself, is concerned with the global nature of the climate problem: local policies giving rise to distant effects, and the responsibility this entails. The Court, however, in its assessment of the merits, avoids all mention of fairness (the word ‘equity’ creeps in quietly near the end, 571). Is this perhaps because the register of ‘fairness’— ‘equity’ as it appears (six times) in the Paris Agreement—risks leading the court into the dreaded forests of extraterritoriality? (A concern that Neubauer comfortably dismisses (178), as this Court does in the companion ruling on Duarte Agostinho, 181-213)?[3] In fact, no explanation is given for the late return to ‘equal per capita’ allocations in para. 569, other than the Applicants’ having invoked it.

And yet this crucial passage—right at the end of the merits—is nevertheless a moment where the Court silently acknowledges the inestimable human rights concerns at stake in this case, and in European states’ mitigation policies generally—which is, in practice, their profoundly extraterritorial dimension: the fact that rich world emissions are—now, today, as I write—causing poor world havoc, unleashing floods, hurricanes and droughts, and setting people on the move. It is as though universal human rights have become the norm that dare not speak its name.

Connecting rising temperatures to human rights, as it does (KlimaSeniorinnen, 542), the Court is clearly aware that the Swiss carbon budget is also a human rights budget. The concept of ‘equal per capita emissions’ amounts, from this perspective, to an articulation of equality under law. An appeal to equal per capita emissions is in effect an appeal to the human rights of non-Europeans. What could be wrong with that? Whereas to ratify an outsized European budget—as the Court has done here—is in effect to deny them. Unlike Neubauer, though, the Court does not lean on Switzerland’s adaptation obligations to its own citizens—which risk diluting mitigation commitments and (so) undermining human rights more broadly: Switzerland can clearly afford to ameliorate local effects of global temperature rise (533), but this is not true everywhere. In practice, it is impossible to delink local emissions from global human rights in the climate context. The Court’s inconclusive championing of per capita emissions allocations in the guise of ‘national carbon budgets’ appears both to recognise and struggle with this facet of the ‘common concern of humankind’ that climate change, so the court says (451, 489, 499), embodies. There may be avenues to substitute for the doomed register of extraterritoriality in addressing the fatality, in human rights terms, of unambitious targets. But next time may be too late.

On balance, I do not believe Judge Eicke is right to balk at judicial engagement with the complexities of climate science, fraught though it is. The judges set much complexity aside—to do in particular with the international offsets and removals European states typically build into their targets—but what they do is done well. What is truly difficult, though, is to descend capably into the registers of climate science, ethics and politics, and still emerge a confident champion of human rights.

 

[1] The ‘e’ stands for ‘equivalent’—meaning all GHGs measured in terms of their CO2 equivalence (the Court occasionally uses ‘eq’ to the same end). The need to quantify, in any budget, between incommensurable greenhouse gases produces its own complexities, a point not lost on the Neubauer Court.

[2] There is, as Judge Eicke hints, a tension between the strong procedural requirements imposed by the court at para. 554(b) and ‘actually existing democracy’ (Eicke Opinion, para. 21).

[3] The Court avoids raising the extraterritorial dimensions of climate change except, obliquely, in regard to ‘embedded emissions’ in trade and consumption.

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