Legal Imagination, and the Turn to Rights in Climate Litigation: A Rejoinder to Zahar

In the most recent issue of EJIL, I discuss whether anthropogenic climate change can and should be understood as a human rights issue, particularly at the European Court of Human Rights (ECtHR). In a reply to my piece, Alexander Zahar has voiced concerns about the over-extension of human rights law, invoking the perils of the ‘wish to commandeer an existing body of law to address a new problem type’. In this post, I counter what I see as Zahar’s three main objections to my piece. In doing so, I discuss the role of courts and of scholars in the dynamic interpretation of human rights law, emphasize the autonomy of human rights law as a legal regime, and discuss fundamental principles of the European Convention on Human Rights (ECHR).

Scholarly intentions and interpretative possibilities

A growing body of scholarship now identifies climate-related risks to the enjoyment of human rights and analyses the ‘turn to rights’ in climate litigation (including on this blog, e.g. here, here, here, here and here). Zahar accordingly situates my work within an ‘already long line of well-intentioned, yet (…) flawed, papers on human rights law and climate change’. To preface my comments, I must note that I cannot speak for the authors of these other pieces. Nor can I presume their agreement with the positions taken in my article: this is still a new area of research, and discussions about the applicable standards – and the legitimacy and appropriate scope of rights-based climate litigation – are ongoing.

Regarding my own piece, Zahar’s concerns about efforts to ‘commandeer’ the law evoke recent debates about so-called ‘scholactivism’, or Benoit Mayer’s allegation that climate cases risk using human rights treaties ‘as a Trojan horse at the service of extraneous objectives’. The intention of my piece is not to pre-empt the ECtHR’s analysis, or to reach a pre-determined result. Still, it has become inevitable that the Court will engage with climate change in some way, given that it is facing a growing number of climate cases (at the time of writing the article, there were five such applications pending; the number is now up to at least ten, including three cases relinquished to the Grand Chamber). My aim is to stimulate the legal imagination regarding these cases. This means outlining the possible rights-based responses to climate change, and indicating why some possibilities are preferable to others.

Much of the unease around a rights-based approach to climate change relates to the law’s legitimacy. Worries concern the over-extension of the law into new terrain (the inflation objection), positions based on deference to the democratic process, and arguments about the ability of human rights law to provide an appropriate and effective response. These objections are as old as the Convention itself. They relate to the subsidiarity of the ECHR system and states’ margin of appreciation, which have been emphasized as a way of dealing with backlash against the Court. For reasons of space, the present post cannot engage with these debates in depth. However, because these arguments lend themselves to majoritarian and originalist understandings of rights, my position is that they should not be accepted uncritically.

The interpretation of human rights law evolves over time, allowing static treaties to maintain their relevance by tackling unforeseen situations. In the case of the ECHR, evolutive potential is expressed through the ‘living instrument’ doctrine. The outcomes of the Convention’s dynamic interpretation can be controversial, and have spawned discussions about judicial overreach, particularly e.g. in the United Kingdom. However, the legality of the ‘living instrument’ approach has been clear since the 1978 Tyrer case. ‘New’ issues can thus achieve human rights protection without requiring a previous amendment of the ECHR.

In short, it is legally possible that the Court will find that the Convention applies to and protects against climate-related harms. That being said, Zahar’s disagreement seems less concerned with the legal possibility of an ECHR response to climate change, and instead concerns its normative desirability. He in essence raises three criticisms, arguing that (i) my piece conflates mitigation and adaptation measures, that (ii) it creates false comparisons between the ECtHR’s pending climate cases and its existing environmental case-law, and that (iii) it concocts artificial opposition between the people and the state in terms of climate ambitions. In the remainder of this post, I will focus on this triptych of disagreement, which should not be taken to indicate agreement with the other points made in Zahar’s Reply.

Mitigation or adaptation, and human rights impacts

Zahar’s argument about the conflation of mitigation and adaptation is central to his triptych of disagreement. At stake is the distinction between preventing climate change impacts (adaptation) and preventing climate change causes (mitigation, i.e. emissions reductions). The mitigation demand, he argues, is too unlike any existing problem to be captured through litigation: ‘the distance between individual action (emitting or non-mitigating conduct) and a force of nature operating as one thing on a global scale (climate change) is absolutely unbridgeable in our world as it is’.

To be clear, some of the climate cases currently pending before the Court demand both adaptation and mitigation. However, because the ECtHR does not hear claims in abstracto, and applicants must demonstrate that they have been directly affected by a given measure, each case is linked to a concrete harm. As a result, even in those pending cases geared at mitigation, the applicants have not complained of purely abstract failures to reduce emissions. Instead, their complaints are linked to concrete harms, i.e. forest fires, psychological suffering, health impacts, and interferences with their homes and schooling.

It is thus not the failure to adhere to specific emission reductions targets per se, but the resulting harms to human life, health, and other protected values that constitute a human rights issue. While establishing causation and responsibility for the causes of these harms is legally complex, it is not impossible, as my article’s discussion of the foreseeable risk test (among others) shows. Here, care is required so that discussing these difficulties does not go so far as to negate the well-documented causal relationship between greenhouse gas emissions and climate change.

Zahar pre-empts attention to climate-related harms by arguing that no source of law requires adherence to specific mitigation obligations: therefore, there is no harm. He writes off not just the ‘gimmick’ of the Paris Agreement, but human rights law as a whole, stating that it ‘does not create any obligation for a state to reduce its greenhouse gas emissions because human rights law applies only to cases where one party harms another.’ However, importantly, it is the ECHR itself that represents the potential legal basis for states’ obligations here. Because Convention’s object and purpose is to guarantee practical and effective protection of ECHR rights, it entails both negative and positive obligations, which together can capture action, omission, and regulatory failures. It is this distinction between negative obligations and positive ones – and not that between mitigation and adaptation measures – that structures an ECHR-based response to climate change. At the same time, it should be noted that there is no mutually exclusive distinction between adaptation and mitigation: these two pillars of international climate change law, along with the third pillar (loss and damage), are deeply interrelated.

Human rights litigation is not climate law and policy by another name: the ECHR is an autonomous protective regime, with its own underlying rules and constraints. Human rights adjudicators, like the ECtHR, must decide whether human rights law entails mitigation or adaptation obligations, and what form these obligations should take. At the same time, human rights bodies draw on context, including international hard and soft law. This facilitates systemic integration and reflects the interpretative regime set out in Article 31(3)(c) VCLT. Thus, the Paris Agreement mitigation targets represent a potential guiding standard for human rights bodies. This does not mean the ECtHR should become the Paris Agreement’s missing enforcement arm.

Climate change and the ‘greening’ of the ECHR: a false comparison?

In the article, I draw on the Court’s existing environmental case-law to explore what its response to climate cases could look like. Zahar is critical of this choice: to him, it creates a false equivalence between environmental harms, such as those at stake in the Cordella case, and the distinct phenomenon of climate change.

Certainly, the issue of global climate change is very different from the local pollution caused, for example, by the single Italian steel plant in Cordella. The Court’s willingness to engage with scientific evidence about environmental risks concerning the steel plant is different, in terms of scale and complexity, from climate cases. But the two are not epistemologically different, in the sense that scientific reports can be the basis for the Court’s assessment and knowledge of both types of cases. Likewise, both situations demand a contextual understanding of human life, as dependent on its physical environment and vulnerable to changes in it.

My piece does not argue that climate cases are an extension of existing environmental case-law. We do not yet know how the Court will decide climate cases, which present it with unparalleled institutional, factual, evidentiary, substantive and remedial challenges. While the environmental case-law is not directly comparable to climate cases, the ECHR’s progressive ‘greening’ – i.e. the Court’s recognition that the Convention can apply to environmental harms – offers the logical starting point for analysing climate cases. This ‘greening’ underscores the fact that nominally new issues can attract human rights protection. And, last but not least, it is worth noting that the Court itself considers climate cases to be part of its environmental case-law.

‘Concocting’ opposition between the state and the people

To Zahar, climate change should not be a matter for existing (human rights) law. Citing the diffuse nature of climate-related harms and the length and complexity of IPCC reports, he argues that ‘[t]his sort of problem is not meaningfully reducible to individual contributions’, and leaves its resolution up to political choice. This political choice, Zahar argues, has adopted a fossil fuel-driven economy as a ‘shared way of life’, and human rights courts will be unlikely to ‘mess’ with the fact that ‘the use of fossil fuels avoids at least as much human suffering as it creates.’ This brings me to the third part of the triptych.

It is Zahar’s position (as previously iterated elsewhere) that, in mitigation cases, ‘the state in no way harms its people. Instead, it is the people who, through their own deliberate conduct – their emissions (…) – harm themselves.’ As a result, in his third core point, he argues that my piece ‘concocts’ opposition between the state and the people. I must note that this ‘concoction’ is in fact the essence of human rights law: it places demands on the state to safeguard respect for certain fundamental values necessary in a democratic society. Not every conceivable problem is necessarily a human rights issue, but human rights can and do apply in all areas of life, including in counter-majoritarian ways.

Zahar’s argument, here, is that the state cannot be made responsible for the collective effects of rational individuals’ informed emissions. From a human rights perspective, this argument is flawed. States are primarily responsible for ensuring human rights for individuals in their jurisdiction, and not vice versa. Leaving aside here discussions on ‘human duties’ and on the extraterritorial obligations, it must be made clear that the ECHR can also require states to regulate and prevent harms caused by private actors or legitimated by majority opinion or common practice.

Additionally, Zahar’s argument about the universal public acceptance of emissions disintegrates when interrogated from perspectives of climate justice. The unequal distribution and causation of the harms caused by greenhouse gas emissions has been clearly demonstrated. It is thus difficult to accept fossil fuel-dependent economies as self-justifying and universally desirable. Today, the idea of a unitary ‘people’ who value the burning of fossil fuels over all other interests is being actively challenged, including by movements for global and inter-generational justice, climate litigants, and efforts to develop alternative energy sources. Human rights law offers a way of dealing with these conflicts of interests, and conflicts of rights.

Even within the scope of my Europe-centric piece, it is untenable to argue that greenhouse gas emissions are of equal benefit and desirability to all. Arguing that climate change is not a human rights issue because ‘the people’ consider its benefits more important than its harms reduces human rights law to a nullity and undermines its protective purpose. It also renders the law incapable of challenging the status quo regarding any issue, not just climate change. In making this argument, Zahar ignores the role of power (as expressed e.g. in policy, regulation, and corporate influence) and the resulting structural factors that shape individuals’ choices.

Conclusion

Climate change is a complex and large-scale global phenomenon with diffuse causes and impacts. I do not argue that human rights law can – or should – resolve this issue alone; questions around the concrete contours of a legitimate, just and effective rights-based response likewise remain. However, these challenges do not exempt climate-related matters from the application of human rights law. In fact, they provide all the more reason for exploring the argumentative possibilities at hand.

The ECHR is capable of meeting new challenges, and it can define a baseline for what is expected of states – including in the context of climate change. In doing so, it could provide a useful framework for understanding and assessing climate-related impacts on different areas of life. It could also help to understand their causes in the form of state action, omission, and regulatory failures. As we begin to think these possibilities through, it is a mistake to give up on rights-based litigation pre-emptively.