Page 1

COURTROOMS AND CLIMATE CHANGE THE CURRENT STATE OF PLAY December 2020



COURTROOMS AND CLIMATE CHANGE THE CURRENT STATE OF PLAY December 2020

Funded by

Cover photo: Climate dipslacement is well underway across the planet, as evidenced by this image from Western Bangladesh. Kadir van Lohuizen / NOOR.


4

Image: Climate change will bring ever-worsening flooding and growing displacement. Tanintharyi, Myanmar. JosĂŠ Arraiza.


TABLE OF CONTENTS

5

FOREWORD 6 EXECUTIVE SUMMARY

7

I. INTRODUCTION

8

II. LEADING CLIMATE CHANGE JUDICIAL DECISIONS

16

The Netherlands 16 Urgenda (2015, et al) 16 New Zealand 64 Teitiota (2013, et al) 67 AC Tuvalu (2014) 106 AD (Tuvalu) (2014) 128 Pakistan 135 Leghari (2015) 135 Colombia 142 Future Generations (2018) 142 Norway 150 Greenpeace Nordic Association and Nature and Youth (2018) 150 Germany 186 Lliuya 186 Family Farmers and Greenpeace Germany 189 Austria 190 Vienna-Schwechat Airport Expansion (2017) 190 Switzerland 196 Union of Swiss Senior Women for Climate Protection (2017) 196 United Kingdom 196 R (Friends of the Earth) (2020) 196 Philippines 199 Greenpeace Southeast Asia and Others (2019) 199 United States Juliana

202 202

III. EMERGING TRENDS AND WHERE TO GO FROM HERE

213

IV. SOURCES

216


6

FOREWORD Climate change has been and will be an ever-constant presence in the 21st century. Its myriad adverse effects will impact on the lives and livelihoods of countless persons alive not just now, but also those of future generations. It adversely impacts on the habitat of countless species of animals and on the natural environment, changing the very face of planet. As perhaps the defining issue of the age, and one which spans a broad range of policy domains, climate change presents as the most fundamental global policy challenge of the 21st century; a challenge which has to date been imperfectly met by States and international institutions and processes. It is into this deficit between global policy need and policy response that law is beginning to make inroads. In this regard, this collection of significant case law to date, collated by Scott Leckie of Displacement Solutions, is an important resource for a number of reasons. First and foremost, as a snapshot of impacts of climate change on people’s lives. That the plaintiffs/claimants include a subsistence farmer from Kiribati, a Pakistani agriculturalist and a Peruvian farmer, as well as indigenous groups from Canada and Australia, speaks loudly the profound concerns people across the globe have as to how climate change will damage the wellbeing of themselves, their families and communities. The very human stories which lay behind these cases demand more ambitious policy responses and binding commitments. Second, as a clarion-call to collaborative action. The cases also reveal how civil society organisations concerned with the environment, with youth, with women’s and citizens’ rights, have worked with the legal profession to use law as a tool to confront the policy deficit, and seek to compel State responses which more closely align with the pressing need for meaningful action on climate change. Third, as a legal toolbox. The cases collected are notable for the range of legal sources they document as being brought to bear on the policy deficit, including the United Nations Framework Convention on Climate Change and Kyoto Protocol, core norms of international human rights law such as the right to life, freedom from arbitrary deprivation of life and the prohibition against cruel inhuman or degrading treatment, as well as constitutional law and the common law tort of negligence. While not every case collected in the book has been successful on the facts, as a collection, the cases highlight that there is a rich tapestry of existing legal frameworks, standards and principles which, to varying degrees, can already shape and/or reduce the size of the policy deficit, or provide a legally principled springboard for the development of future principles and standards. Together, the cases in this book illustrate clearly that climate change resonates not just across a range of policy domains, but also a range of legal domains. It is to be hoped that the legal profession – the judiciary included – becomes increasingly cognisant of the positive role law can play in meeting the challenges posed by climate change. This book provides a welcome source of inspiration. Bruce Burson Manager, Refugee and Protection Stream, New Zealand Immigration and Protection Tribunal 26 June 2020


EXECUTIVE SUMMARY Global attention to the question of climate change, including climate displacement, has expanded dramatically over the 14 years since Displacement Solutions initiated our efforts to find concrete, rights-based and land-based solutions to this crisis. One area, in particular, that has seen considerable advancement in recent years is the growing scope of judicial attention to various aspects of the climate change question, spanning international, regional and national judicial institutions. Globally, as of late-2020 nearly 1,500 cases have been filed addressing various aspects of the climate crisis over the past several years, and as a result, a rapidly growing body of case law is emerging from judicial organs that collectively give a sense of which climate change issues adjudicative bodies are willing to address, as well as the extent to which such judicial (and quasi-judicial) decisions are having a real world impact on the environmental and human impacts of global warming and all of its effects. This report explores some of the most significant judicial decisions relating to climate change and how judges and lawyers are increasingly addressing these themes within the courtrooms of the world. It examines various legal regimes where these issues have been addressed, and provides an overview of several of the groundbreaking cases that have been decided in courtrooms across the world. Given the scale of climate case law we could not possibly include coverage of every case, but we have carefully selected what we see as the truly ground-breaking and leading cases in national, regional and international settings that we see as influential in determining the scope of future efforts in this regard. Given the rapidly worsening climate crisis (to site just one example - recent reports point to over one billion people being forced to live in insufferable heat within 50 years1), we hope this publication will be of interest to lawyers, judges, public officials, and above all, people negatively affected by the very real effects of climate change, and that it convincingly shows the vital role to be played by courts in improving our collective prospects in tackling current climate change crises and bringing these to an equitable end. Finally, a special thanks to the government of Ministry of Foreign Affairs of the Principality of Liechtenstein for their financial support for this project, as well as to Bruce Burson for his excellent foreword and his extensive judicial attention to the climate change challenge. Special thanks, too, to lawyers Viraaj Akuthota and Jessica Wescott for their important inputs into this report. Scott Leckie Director and Founder December 2020

1

See: Jonathan Watts, ‘One billion people will live in insufferable heat within 50 years – study: Human cost of climate crisis will hit harder and sooner than previously believed, research reveals’ in The Guardian (5 May 2020). The article states that “Humanity is particularly sensitive because we are concentrated on land – which is warming faster than the oceans – and because most future population growth will be in already hot regions of Africa and Asia. As a result of these demographic factors, the average human will experience a temperature increase of 7.5C when global temperatures reach 3C, which is forecast towards the end of this century. At that level, about 30% of the world’s population would live in extreme heat – defined as an average temperature of 29C (84F). These conditions are extremely rare outside the most scorched parts of the Sahara, but with global heating of 3C they are projected to envelop 1.2 billion people in India, 485 million in Nigeria and more than 100 million in each of Pakistan, Indonesia and Sudan.”

7


8

I. INTRODUCTION 1.

Climate change and the serious problems it causes has been described as one of the greatest humanitarian2, human rights,3 development,4 security5 and potentially existential challenges of the 21st century.6 This means that the legal profession – judges, lawyers, academics and others – has a vital role to play in ensuring that effective measures are developed and implemented to address this crisis.

2. This report examines existing approaches throughout the world to the judicial attention given to climate change issues, which we hope will encourage judges, lawyers and other members of the legal profession to take an active role in contributing to finding viable solutions to the horrendous human impacts of worsening climate change. In some cases, this may be a simple matter of utilising existing national laws and international standards; in others it may involve the need for inventive and progressive application of the law; and yet in other situations it will require advocacy for the creation and implementation of effective laws, policies, and institutions where they do not already exist. In addition to providing information and motivation for the legal profession, this report is also designed to provide guidance for all stakeholders interested in designing and implementing effective legal and policy measures to protect the rights of people everywhere who are affected by the effects of climate change.

2

3

4

5

6

The Nansen Initiative, Agenda for the Protection of Cross-Border Displaced Persons in the Context of Disasters and Climate Change, Volume 1, December 2015, p. 14. “Climate change is the biggest human rights issue of the 21st century,” Mary Robinson Foundation, Position Paper: Human Rights and Climate Justice, 27 June 2014. In June 2015, the United Nations Human Rights Council expressed “concern that climate change has contributed to the increase of sudden-onset natural disasters and slow-onset events, and that these events have adverse effects on the full enjoyment of all human rights”, UN Doc. A/HRC/29/L.21, 30 June 2015. “Disasters caused by natural hazards are now among the greatest threats to long-term development worldwide. Over the last 20 years, they have killed 1.3 million people, affected 4.4 billion, and caused over US$ 2 trillion in economic losses.” IFRC and UNDP, Effective law and regulation for disaster risk reduction: a multi-country report, 2014. See, for example, NATO Parliamentary Assembly, Science and Technology Committee, Climate Change, International Security and the Way to Paris, Draft Special Report, 20 March 2015, para 26. “The entire populations of low-lying states such as the Maldives, Tuvalu, Kiribati and the Marshall Islands may in future be obliged to leave their own country as a result of climate change. Moreover, the existence of their State as such may be threatened…” UNHCR, IOM and NRC, Climate Change and Statelessness: An Overview, Submission to the 6th session of the Ad Hoc Working Group on Long-Term Cooperative Action (AWG-LCA 6) under the UN Framework Convention on Climate Change (UNFCCC) 1 to 12 June 2009, Bonn, Germany. Also, “Climate change is an existential threat. We are the first generation to fully understand the seriousness of climate change and the last generation with time to do something about it”, comments by Mary Robinson, President, Mary Robinson Foundation – Climate Justice, during a panel discussion on the topic “Where Do You Go When the World Disappears?” at the 6th Women in the World Summit, 24 April 2015; See also, International Bar Association, Climate Change Justice and Human Rights Task Force Report, Achieving Justice and Human Rights in an Era of Climate Disruption, July 2014, p. 3.


9

Image: Climate displaced people will need new land and new homes to replace those that they have lost. Here, a member of the Guna people celebrates freshly cleared land where she can begin to rebuild her life. Gunayala, Panama. Kadir van Lohuizen / NOOR.


10

3. Over the past decade, laws codifying national and international obligations to climate change have grown in number, specificity and importance.7 Recent research indicates that nearly 2,000 climate change-related laws and policies have been adopted by a majority of countries in recent years.8 Of these, almost 700 focused specifically on climate adaptation measures.9 The recent adoption of national climate displacement policies in

Image: Risning sea levels in Gunayala, Panama. Kadir van Lohuizen / NOOR

7

8

9

UN Environment, ‘The Status of Climate Change Litigation – A Global Review’, 2017, p. 4. See: Grantham Research Institute on Climate Change and the Environment and the Centre for Climate Change Economics and Policy, Policy brief - National laws and policies on climate change adaptation: a global review, LSE and University of Leeds, December 2019. In their analysis, they find that “91 countries have at least one law (passed by a legislative branch, e.g. parliament) that addresses climate change adaptation. Adaptation is now addressed in the executive policies of at least 170 countries. More than 120 countries have at least one framework document that addresses climate change adaptation (laws or policies that lay down the overarching and cross-sectoral obligations and principles, but often have more detailed subsidiary laws or policies that set out how these goals are achieved)....In general, countries have tended to pass adaptation laws after passing mitigation laws. To date, the most intense period of legislative activity was 2012/13 when 85 countries passed a total of 133 adaptation laws and policies.” p. 3. Ibid, pp. 4-5.


countries such as Fiji10, Vanuatu11, Bangladesh12 and others are indicative of the types of political engagement that has also emerged in some countries as global climatic conditions deteriorate. These and other policies, at least in part, have clearly been influenced by the 2013 Peninsula Principles on Climate Displacement Within States, among other standards.13

10

11

12

13

See Fiji, Planned Relocation Guidelines: A framework to undertake climate change related relocation, 2018. “A HumanCentered Approach that derives from the application of anthropocentric concepts in environmental management, and raises ethical issues when discussing the role of human beings in shaping and accessing environmental resources. This principle is to ensure that the community bottom- up perception is prioritized, that the interests of communities are considered, and the lessons learnt from Fiji’s past experiences with relocation processes -- where community movements have been associated with numerous social, cultural, gender, economic and environmental issues relating to tensions over land, dislocation of communities, inadequate resources and unsuitable sites -- are to be avoided in the future application of these Guidelines. A Livelihood- Based Approach to adaptation (rather than a sectoral approach) is an integral part of many rural livelihood strategies, as opposed to planned relocation being merely a reaction to climate change. This is to ensure that people who have relocated are not negatively affected and contribute to the process of “migration as adaptation”. It is also considered to reflect the fact that the planned relocation process needs to be sensitive to the specific needs of communities and households that may be on the move. Characterizing the communities and households’ profiles associated with climate related relocation will facilitate developing policy and operational options that build livelihood in respect to those climatic stressors. A Human- Rights Based Approach, that after the adoption of the Paris Agreement in 2015 becomes more present in positioning rights close to the mobility process, and associates inexorably to the climate change discourse. The Paris Agreement, together with the ICCPR and the ICESCR reflects the countries’ rationale to relate climate change triggers to rights belonging to the affected people, ensuring that men, women, elderly and persons with disabilities are meaningfully engaged and participate in the decision-making, planning, and implementation related to the planned relocation. The human rights–based approach is also the main component of the PARTICIPATION and CONSULTATION processes as stipulated by the Paris Agreement together with the TRANSPARENCY CONCEPT, as stated in Article 13 that established an enhanced transparency framework for action and support, with built-in flexibility which considers Parties’ different capacities and builds upon collective experience. The purpose of the framework for transparency of support is to provide clarity on support provided and received by relevant individual Parties in the context of climate change and related displacement actions (as mentioned by Article 8) and, to the extent possible, to provide a full overview of aggregate financial support provided, to inform the global stocktaking under Article 14, p. 8. See the Vanuatu National Policy on Climate Change and Disaster-Induced Displacement, 2018 - “Respect for custom – custom, culture and community are embodied in the Constitution and underpin life, land and spirit in Vanuatu. Respect for law, including the different customs and laws of each island especially as they relate to land dealings, must guide the process of establishing durable solutions. Human rights and dignity – all people have the right to safety, protection, dignity, health and well-being, freedom from discrimination of any kind, and many other rights as reflected in Vanuatu’s People’s Plan 2030. All efforts should be made to ensure these rights are extended to people affected by displacement, including internal migrants and host communities. Voluntary and informed choices – People affected by displacement have the right to make voluntary and informed choices about their future and have the right to participate in the planning and management of durable solutions so that they reflect their self-identified needs and aspirations. Gender equity and responsiveness – planning for durable solutions must be responsive to the different risks and needs all people, including women, men, children. All people must be included in durable solutions planning and have equal opportunities to lead community-driven recovery processes. Environmental and ecological sustainability – Durable solutions planning should safeguard the environment and incorporate elements of conservation and protection of biodiversity for surrounding ecosystems. Freedom of movement – human mobility is an important way of adapting to changing environmental and socioeconomic circumstances and in the context of displacement it can be life-saving. Freedom of movement is protected in the Constitution67 and efforts should be made to facilitate safe and well-managed mobility as an adaptive response to changing environmental and livelihood pressures. Fostering self-reliance – ensuring that displaced people are respected, empowered and viewed as economically productive members of society and agents of their own recovery, including promoting interventions which aim to strengthen people’s skills, assets, networks and agency. Strengthening resilience and coping capacities – reinforcing individual, household and community-level coping mechanisms, whilst recognizing that affected populations are not homogenous and will have different needs. Protection of traditional knowledge – Traditional knowledge, relating to land, ecology, agriculture, music and culture are part of Ni-Vanuatu identities and need to be mapped, cherished and protected to minimise the disruptive impacts of displacement. Traditional knowledge can also be a resource to assist communities mitigate and cope with displacement-related impacts. State’s primary responsibility – As reflected in the People’s Plan 2030, the Government of Vanuatu has the core responsibility to protect and deliver essential services to its population, to enable community resilience to flourish.68 The State also has the primary role to authorize, direct and coordinate the provision of humanitarian and development assistance from local and international partners to communities, p. 17. See: Displacement Solutions and YPSA, Bangladesh Housing, Land and Property (HLP) Rights Initiative Climate Displacement in Bangladesh: Stakeholders, Laws and Policies - Mapping the Existing Institutional Framework, July 2014. Available at: www.displacementsolutions.org. See, inter alia, Scott Leckie and Chris Huggins, Repairing Domestic Climate Displacement - The Peninsula Principles, Routledge, 2015; Khaled Hassine, Handling Climate Displacement, Cambridge University Press, 2019 and https:// displacementsolutions.org/peninsula-principles/.

11


12

4. As these laws and policies have recognised new rights and created new duties, it is natural that litigation seeking to enforce them or challenge their validity or particular application has followed.14 In particular, so too has strategic litigation aimed at holding governments and corporations to account, and pressing legislators and policymakers to be more ambitious and thorough in their approaches to climate change.15 Affected individuals, environmental groups and organisations have been formative in the growing global trend of the increasing number of climate change related actions being brought before the courts.16 Around the world, these matters have primarily targeted unresponsive governments and corporations for falling short of tackling climate change at a generic level.17 As a relatively new phenomenon, litigants have used various legal avenues to bring climate change cases before the courts, with actions based on the law of torts and administrative law to domestic statutes and international conventions. More broadly, recent matters below demonstrate the increasing prevalence of a rights-based approach to strategic climate litigation. Overall, nearly 1,500 climate change cases have thus far been filed in 28 countries, constituting roughly 15% of the world’s states.18 While China is currently the largest emitter of CO2 gases, of the cases recorded, 78% of these were filed in the United States, the country which historically has by far released more CO2 into the atmosphere than any other country. In addition, the next five countries measured by the number of climate change cases includes Australia (94 cases), the United Kingdom (53 cases), New Zealand (17 cases), Spain (13 cases), Brazil (5 cases) and Germany (5 cases).19 5. In many respects, we can chart the trajectory of climate change cases back some fifteen years to the path-breaking 2005 Petition to the Inter-American Commission on Human Rights Seeking Relief from Violations Resulting from Global Warming Caused by Acts and Omissions of the United States (Inuit Petition). This petition, filed by Sheila WattCloutier, an Inuk woman and Chair of the Inuit Circumpolar Conference sought relief from human rights violations resulting from global warming caused by acts and omissions of the United States. 20 The litigants argued that the entire Inuit population faced a threat to their life, principally due to the effects of global warming. Global warming has affected the ‘arctic environment to such an extent that the degradation threatens the life and personal security of Inuit people.’21 The variety of harms included food scarcity, inability to travel, thinning ice that causes life-threatening accidents, damage to Inuit’s subsistence ability and

14

15

16

See, for instance: https://www.cambridge.org/core/journals/transnational-environmental-law/article/rights-turn-inclimate-change-litigation/0E35456D7793968F37335429C1163EA1/core-reader# Ibid. See, for instance, Cambridge Core, ‘A Rights Turn in Climate Change Litigation?’, derived from a collection of articles growing out of the conference ‘A Rights-Based Approach to Climate Change’, held at QUT Law School, Brisbane (Australia), on 18-19 Feb 2016.

17

Ibid, p. 14.

18

Sandra Laville, ‘ Governments and firms in 28 countries sued over climate crisis - report ‘ in The Guardian (4 July 2019).

19

Ibid.

20

21

Petition To The Inter-American Commission on Human Rights Seeking Relief From Violations Resulting from Global Warming Caused By Acts and Omissions of the United States, <http://blogs2.law.columbia.edu/climate-changelitigation/wp-content/uploads/sites/16/non-us-case-documents/2005/20051208_na_petition-1.pdf>. Petition to The Inter-American Commission on Human Rights Seeking Relief From Violations Resulting from Global Warming Caused By Acts and Omissions of the United States, above n 40, 90.


unpredictable weather. 22 It is noteworthy that this petition, was not against their own State of Canada but against the United States, the litigants argued that the United States’ has breached their right to life. This was due to the United States’ disproportionate contribution to global warming. Since the United States has also ratified the International Covenant on Civil and Political Rights, they would also be obliged to enact adaptive measures to combat the threat of global warming. 23 At the time, this petition was entirely novel in asserting a human right against another State, even when displacement has not occurred over State boundaries. Reminiscent of the later Urgenda Case that we will address below, and which was just re-affirmed in 2019, the Inuit case requested the Inter-American Commission on Human Rights to recommend that the United States adopt mandatory measures to limits its greenhouse gas (GHG) emissions, consider the impacts of GHG emissions on the Arctic in evaluating all major government actions, establish and implement a plan to protect Inuit culture and resources and provide assistance necessary for Inuit to adapt to the impacts of climate change that cannot be avoided. 6. The Inter-American Commission on Human Rights (IACHR) declined to process the petition, stating that the petitioners had provided insufficient information for the IACHR to, “at present,” determine whether the alleged facts would characterize a violation of rights protected by the American Declaration. Subsequently, the IACHR allowed a special hearing in regard to the petition. The litigants argued that the Inuit possess the rights to property through traditional occupation and spiritual connection. In addition, argued that the State is responsible for actions or omissions by a third party acting in the acquiescence of the State. The culmination of these propositions of law led the litigants to state that: “United States government, therefore, has an obligation not to interfere with the Inuit’s use and enjoyment of their property through its failure to take effective action to reduce greenhouse gas emissions.”24 7. Fifteen years later, this ground-breaking climate change case - even though it provided no relief for those filing it - spurred massive climate change litigation around the world, leading to a situation today where nearly 1,500 climate change cases have come before courtrooms as of late-2020. A regularly updated database of judicial decisions relating to all climate change matters is hosted and managed by the Sabin Center for Climate Change Law at Colombia University in New York. 25 The Center divides these decisions into two categories. One contains US cases26 and the other non-US cases. 27 The US cases are divided into the following categories: Federal Statutory Claims - Clean Air Act (199 cases), Endangered Species Act and Other Wildlife Protection Statutes (132 cases), Clean Water Act (40 cases), National Environmental Policy Act (246 cases), Freedom of Information Act (67 cases) and Other Statutes and regulations (105 cases); Constitutional Claims - Commerce Clause (19

22

Ibid, p. 62.

23

Ibid, p. 90.

24

Petition To The Inter-American Commission on Human Rights Seeking Relief From Violations Resulting from Global Warming Caused By Acts and Omissions of the United States, above n 40, 100.

25

https://climate.law.columbia.edu/.

26

http://climatecasechart.com/us-climate-change-litigation/.

27

http://climatecasechart.com/non-us-climate-change-litigation/.

13


cases), First Amendment (8 cases), Fifth Amendment (10 cases), Fourteenth Amendment (12 cases) and Other Constitutional Claims (29 cases); Common Law Claims (22 cases); Public Trust Claims (25 cases); Securities and Financial Regulation (36 cases); Trade Agreements (1 case); and Adaptation - Other types of adaptation cases (1 case), Reverse Impact Assessment (16 cases), Actions seeking money damages for losses (22 cases), Insurance cases (3 cases), Challenges to adaptation measures (19 cases) and Actions seeking adaptation measures (25 cases); Climate Change Protestors and Scientists - Protesters (34 cases) and Scientists (12 cases); and Archived Categories - Challenges to Coal-Fired Power Plants (0 cases). 28 The non-US cases are divided into the following categories: Suits Against Governments - Public Assembly (0 cases), GHG emissions reduction and trading (119 cases), Access to information (11 cases), Environmental assessment and permitting (158 cases), Human rights (33 cases), Failure to adapt (1 case) Protecting biodiversity and ecosystems (11 cases) and Public trust (5 cases); Suits Against Corporations, Individuals - Corporations (35 cases), Protesters (8 cases) and Others (0 cases). 29

14

8. During the preparation of this report, all of these cases have been examined with an emphasis on those cases of direct relevance to the adaptation-side of climate change law, policy and practice, with a view to selecting a cross-section of the most important cases that have been judicially decided, with a view to providing an overview of how climate change issues have been judicially addressed thus far. In this regard, it is vital to point out that a vast array of climate change cases have been filed but not yet decided, and many of these have the potential to further enhance global jurisprudence on climate change issues. The scope and span of these cases is very considerable. There is a case pending in Ontario, Canada, for instance, where children have sued the provincial government using the Canadian Charter of Rights and Freedoms arguing that the 2030 greenhouse gas reduction targets violate their rights. 30 In Australia, a case has been submitted by Client Earth to the UN Human Rights Committee in May 2019, as of yet undecided, arguing that the Australian government denied the cultural rights of the indigenous people of the Torres Strait Islands by failing to adequately address the severe climate change impacts on their island homelands. 31 A well-known petition to the Inter-American Commission on Human Rights by the Arctic Athabaskan Peoples Resulting from Rapid Arctic Warming and Melting Caused by Emissions of Black Carbon by Canada, remains undecided despite record temperatures in the Arctic in 2020, and which argues that climate change effects severely undermine the pre-existing property rights of these indigenous peoples.32 Whatever decision does eventually emerge will need to bear in mind the February 2020 ruling of the Inter-American Court of Human Rights in the Indigenous Communities Members of the Lhaka Honhat Association v. Argentina case where it recognised for the first time the right to a healthy

28

http://climatecasechart.com/us-climate-change-litigation/ - accessed on 17 May 2020.

29

http://climatecasechart.com/non-us-climate-change-litigation/ - accessed on 17 May 2020.

30

See: Mathur, et al. v. Her Majesty the Queen in Right of Ontario, CV-19-00631627 (Ontario Superior Court of Justice).

31

32

See: https://auspublaw.org/2019/07/climate-change-and-human-rights-to-collide-before-the-united-nations-humanrights-committee/. Petition to the Inter-American Commission on Human Rights Seeking Relief from Violations of the Rights of Arctic Athabaskan Peoples Resulting from Rapid Arctic Warming and Melting Caused by Emissions of Black Carbon by Canada Climate Change Litigation <http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/ non-us-case-documents/2013/20130423_5082_petition.pdf>.


environment. 33 A major complaint was submitted to a range of UN Human Rights Special Rapporteurs in early 2020 on the Rights of Indigenous People in Addressing ClimateForced Displacement by the Alaska Institute for Justice on behalf of five indigenous tribes in the states of Alaska and Louisiana in the United States who are faced with climate-forced displacement. 34 Another potentially major case is currently pending in Lahore, Pakistan that argues that the Pakistan government’s inaction on climate change violated both the rights of women generally, as well as the rights of future generations to the right to a healthy environment and a climate capable of supporting human life.35 9. These are just some of the numerous climate change cases that are under consideration, with many more likely to be filed in coming months and years. These and other cases will doubtlessly refer to the important cases that have already been decided, and it is these that will constitute the remainder of this report. If we look closely into the many cases considered thus far, several critical patterns emerge. Firstly, four of five of the known cases stem from the United States, a country not only known for its disproportionate contribution to global warming, but also the only country to have withdrawn with the 2015 Paris Climate Change Convention. 36 Courts are seen as one of the few ways that climate change issues can be addressed in the US given the climate denial approach favoured by the Trump Administration. Secondly, we can surmise that a solid majority of the cases filed have dealt with mitigation issues rather than adaptation matters. Thirdly, of the adaptation cases, only a small fraction have dealt with specific human rights matters. And, fourth, despite the scale of current and future climate displacement, it is telling that no specific categories of such cases are listed in these databases, which may simply be a result of very few such cases thus far making it in front of judges.

33

34

35

36

https://www.asil.org/insights/volume/24/issue/14/inter-american-court-human-rights-recognizes-right-healthyenvironment. The tribes are: Isle de Jean Charles Band of Biloxi-Chitimacha-Choctaw Indians of Louisiana; Pointe-au-Chien Indian Tribe; Grand Caillou/Dulac Band of Biloxi-Chitimacha- Choctaw Tribe; and the Atakapa-Ishak Chawasha Tribe of the Grand Bayou Indian Village. See: http://climatecasechart.com/non-us-case/maria-khan-et-al-v-federation-of-pakistan-et-al/ See the statement on this decision by the US State Department: https://www.state.gov/on-the-u-s-withdrawal-from-theparis-agreement/.

15


16

II. LEADING CLIMATE CHANGE JUDICIAL DECISIONS 10. Given the mandate of Displacement Solutions and the specific climate change issues that are a focus of our work, this report will focus primarily, but by all means not exclusively, on the human rights and climate change links found within existing global climate change jurisprudence. We will focus on cases that have relied on the right to life, the right to seek asylum, housing, land and property rights, and the right to durable solutions for previously displaced persons and refugees. The report is organised on a country-by-country basis. A general effort has been made to organise the cases in order of their global significance in terms of precedence, potential application to jurisdictions other than where the case was decided and scope and originality both the petition and eventual judgments in the cases concerned. In each case profile we provide a brief analysis of the facts and the key elements of the subsequent judicial decision. These are followed by selected direct quotes from the relevant judgments, the most important of which will be displayed in highlighted boxes.

THE NETHERLANDS URGENDA (2015, ET AL) 11. The Urgenda Foundation v Kingdom of the Netherlands37 case is considered a landmark case in climate litigation, as for the first time, the tort of negligence was successfully used to hold a State liable for failing to adequately put in place prevention and mitigation policies to effectively tackle the issue of climate change. The defendants were able to successfully argue the need to pass more stringent legal obligations that extends beyond duties derived from international treaties and to include independent legal obligations toward the citizens. This landmark ruling for the first time held a government responsible for its national contribution to global greenhouse gas emissions and established a duty of care under Dutch law in the context of international and constitutional obligations. 12. The Urgenda Foundation, a citizen organisation that advocates for a sustainable Netherlands, on behalf of 886 individuals plaintiffs, brought a case before the District Court of the Hague in June 2015. It filed a petition seeking a court order requiring the Dutch Government to reduce its greenhouse gas emissions by 40 percent below the 1990 levels by the end of 202038.

37

38

The three decisions made to date, are in chronological order: The State of the Netherlands (Ministry of Economic Affairs and Climate Policy) v Stichting Urgenda (2019) Hoge Raad [the Supreme Court of the Netherlands], 19/000135 (20 December 2019) https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:HR:2019:2007; The State of the Netherlands (Ministry of Infrastructure and the Environment) v Urgenda Foundation) Gerechtshof Den Haag [The Hague Court of Appeal], C/09/456689/HA ZA 13-1396 (9 October 2018) https://uitspraken.rechtspraak.nl/ inziendocument?id=ECLI:NL:GHDHA:2018:2610; and Urgenda Foundation v Netherlands (Ministry of Infrastructure and the Environment) Rechtbank Den Haag [Hague District Court], C/09/456689/HA ZA 13-1396 (24 June 2015) https:// uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBDHA:2015:7196. Eleanor Stein and Alex Geert Castermans, ‘Case Comment – Urgenda v The State of the Netherlands: The “Reflex Effect” – Climate Change, Human Rights and the Expanding Definitions of the Duty of Care’, McGill Journal of Sustainable Development Law, 2017, 13(2), 306.


It asserted that this reduction was necessary in order for the State to do its part to ensure global temperatures do not exceed more than 2 degrees. According to Urgenda, the State had a systematic responsibility for total emission levels in the Netherlands and its failure to implement adequate climate policy substantially contributed to climate change. It alleged that in falling short of 2020 targets agreed to by IPCC agreements and commitments by the European Union, the State had failed to fulfil its duty of care towards the people of the Netherlands39. Urgenda Foundation sought to establish the duty of care pursuant to Article 21 of the Dutch Constitution which imposes an obligation on the state “to keep the country habitable and to protect and improve the environment”40 and Articles 2 and 8 of the European Convention on Human Rights that concerned the rights to life and privacy. 13. The court did not establish that the duty of care was directly derived from the Constitution, ECHR or other legal principles, but that they still held meaning and strongly influenced the scope of the State’s duty of care under Dutch law. Using the Constitution, international conventions and climate policies, the Court sought to derive a framework of analysis, and a set of principles, which it then applied to the duty of care applicable to Urgenda41. The Court held that Article 21 of the Constitution included a duty of care to the Dutch population in relation to the living environment42. The Court also noted that the Netherlands is a party to the UNFCC and Kyoto Protocols, which though do not directly create binding obligations on signatories towards their citizens, such conventions do inform the interpretation of domestic law and by consequence, may affect the obligations of the parties43. Similarly, the court also reasoned that rights under the ECHR also provided a source of interpretation in relation to the State’s duty of care44. In particular, it noted that in interpreting the protection of the right to life in Article 2, the European Court had held it to impose a positive obligation on States to take appropriate steps to safeguard the lives of those within their jurisdiction even when the threat to the protection is by persons or activities that are not directly connected with the State45. In determining whether the State had taken reasonable measures to address the impact of climate change and whether the State exercised due care, the Court considered the nature and extent of climate damage, the nature of the State’s acts or omissions, foreseeability, probability of climate damage, and the onerousness of precautionary measures. It ultimately held that “due to the severity of the consequences of climate change and the great risk of hazardous climate change occurring…the State has a duty of care to take mitigation measures” in accordance with the 2 degrees limit set by the IPCC. The Court concluded that the State’s climate policy of a 20% reduction target failed to fulfill its duty of care and thus the State had acted unlawfully and ordered that the State adopt a policy whereby greenhouse gas emissions must be reduced by at least 25% by the end of 2020 compared to the levels of 199046.

39

Ibid, 308-309.

40

Constitution of the Kingdom of the Netherlands, Article 21.

41

Eleanor Stein and Alex Geert Castermans, above n 4, 311.

42

Urgenda, para 4.36.

43

Ibid, para 4.42-4.43.

44

Ibid, para 4.49-4.50.

45

Ibid, para 4.63-4.73.

46

Ibid, para 4.85 and 5.1.

17


18

14. In granting Urgenda relief, and in setting environmental standards, there were concerns that the Court had forayed into exercising the legislative powers of policy-making and had violated the Dutch doctrine of trias politica. This formed a ground of the State’s appeal to The Hague Court of Appeal. The State argued that the system of the separation of powers is not one that should be interfered with, as it is not the courts, but the democratically elected government as the appropriate and legitimate body to make such policy determinations47. In foreseeing such criticisms of judicial intervention, the District Court in its ruling considered the roles of each governmental branch, and their distinct roles and responsibilities48. It held that the judiciary has the responsibility of resolving individual disputes, regardless of whether the resolution has implications beyond that of the parties, and that in its capacity as protector against the misuse of state power, decisions relating to the legality of government actions were within the purview of the court49. Further, it noted that though it had ordered the State to pursue additional greenhouse gas emission reductions, it did not prescribe any particular measures or methodology, allowing the State discretion to develop its own remedies50. On 9 October 2018, the District Court ruling was affirmed by The Hague Court of Appeal51 finding that the Dutch government had acted unlawfully in failing to reduce emissions by at least 25% by the end of 2020, and that these failures were contrary to the duty of care provided for in articles 2 and 8 under the European Convention on Human Rights. The Court of Appeal largely followed the earlier decision, dismissing the State’s defences as “unconvincing”52. In relation to the trias politica argument, it noted that the Court is obliged to apply provisions with the effect of treaties to which the State is a party to, including the ECHR, noting that such provisions form part of the Dutch jurisdiction, and take precedence over Dutch laws in instances of inconsistency53. In November 2018, the Dutch Government announced its intention to file a further appeal to the Supreme Court of the Netherlands54. 15. The national government of the Netherlands appealed the decision and the Supreme Court heard the appeal on 24 May 2019. After consideration, on 20 December 2019, the Supreme Court upheld the earlier decision under articles 2 and 8 of the ECHR. 16. Excerpts from the original judgment (2015), appeal (2018) and final appeal (2019) follow:

47

Urgenda Foundation v Kingdom of the Netherlands [2015] HAZA C/09/00456689, (The Hague Court of Appeal).

48

Ibid, para 4.94-4.95.

49

Ibid, para 4.98.

50

Ibid, para 4.96.

51

Urgenda, Court of Appeal, above n 13.

52

Ibid, para 70.

53

Ibid, para 69.

54

Urgenda, ‘Dutch Government Fights Obligations to Act on Climate Change’, <https://www.urgenda.nl/en/dutchgovernment-fights-obligations-to-act-on-climate-change/>


ORIGINAL JUDGMENT (2015)55 3. THE DISPUTE 3.1

In summary, after the amendment, Urgenda’s claim involves the court, with immediate effect: to rule that: (1) the substantial greenhouse gas emissions in the atmosphere worldwide are warming up the earth, which according to the best scientific insights, will cause dangerous climate change if those emissions are not significantly and swiftly reduced; (2) the hazardous climate change that is caused by a warming up of the earth of 2°C or more, in any case of about 4 °C, compared to the preindustrial age, which according to the best scientific insights is anticipated with the current emission trends, is threatening large groups of people and human rights; (3) of all countries which emit a significant number of greenhouse gases in the atmosphere, per capita emissions in the Netherlands are one of the highest in the world; (4) the joint volume of the current annual greenhouse gas emissions in the Netherlands is unlawful; (5) the State is liable for the joint volume of greenhouse gas emissions in the Netherlands; (6) principally: the State acts unlawfully if it fails to reduce or have reduced the annual greenhouse gas emissions in the Netherlands by 40%, in any case at least 25%, compared to 1990, by the end of 2020; alternatively: the State acts unlawfully if it fails to reduce or have reduced the annual greenhouse gas emissions in the Netherlands by at least 40% compared to 1990, by the end of 2030; and furthermore orders the State to: (7) principally: to reduce or have reduced the joint volume of annual greenhouse gas emissions in the Netherlands that it will have been reduced by 40% by the end of 2020, in any case by at least 25%, compared to 1990; alternatively: reduce or have reduced the joint volume of annual greenhouse gas emissions in the Netherlands that it will have been reduced by at least 40% by 2030, compared to 1990;

55

THE HAGUE DISTRICT COURT, Chamber for Commercial Affairs, case number / cause list number: C/09/456689 / HA ZA 13-1396, Judgment of 24 June 2015 in the case of the foundation URGENDA FOUNDATION, acting on its own behalf as well as in its capacity as representative ad litem and representative of the individuals included in the list attached to the summons, with its registered office and principal place of business in Amsterdam, claimant, lawyers mr.1R.H.J. Cox of Maastricht and Mr. J.M. van den Berg of Amsterdam, versus the legal person under public law THE STATE OF THE NETHERLANDS (MINISTRY OF INFRASTRUCTURE AND THE ENVIRONMENT), seated in The Hague, defendant, lawyers mr. G.J.H. Houtzagers of The Hague and mr. E.H.P. Brans of The Hague. Parties are hereinafter referred to as Urgenda and the State. See: http://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBDH... (Translation) Only the Dutch text of the ruling is authoritative.

19


20

Image: Fiji. Photo by Kadir van Lohuizen

(8) to publish or have published the text contained in the reply and also change of claim or a text to be drawn up by the court in the proper administration of justice immediately on the request of Urgenda, at a date to be determined by Urgenda and to be communicated to the State at least two weeks in advance, in no more than six national daily newspapers to be designated by Urgenda, full-page and page-filling, and by means of logos or other marks clearly and directly recognisable as originating from the State or the government; (9) to publish and keep published on the homepage of the website www. rijksoverheid.nl the text referred to in (8), starting on the date of publication and also during two consecutive weeks, in such a manner that the text appears on screen clearly legible for all visitors to the website, without the need for any mouse-clicking, and which has to be clicked to be closed before being able to go to other pages of the website; and (10) orders the State to pay the costs of these proceeding.


3.2 Briefly summarized, Urgenda supports its claims as follows. The current global greenhouse gas emission levels, particularly the CO2 level, leads to or threatens to lead to a global warming of over 2 °C, and thus also to dangerous climate change with severe and even potentially catastrophic consequences. Such an emission level is unlawful towards Urgenda, as this is contrary to the due care exercised in society. Moreover, it constitutes an infringement of, or is contrary to, Articles 2 and 8 of the ECHR, on which both Urgenda and the parties it represents can rely. The greenhouse gas emissions in the Netherlands additionally contribute to the (imminent) hazardous climate change. The Dutch emissions that form part of the global emission levels are excessive, in absolute terms and even more so per capita. This makes the greenhouse gas emissions of the Netherlands unlawful. The fact that emissions occur on the territory of the State and the State, as a sovereign power, has the capability to manage, control and regulate these emissions, means that the State has “systemic responsibility” for the total greenhouse gas emission level of the Netherlands and the pertinent policy. In view of this, the fact that the emission level of the Netherlands (substantially) contributes to one of several causes of hazardous climate change can and should be attributed to the State. In view of Article 21 of the Dutch Constitution, among other things, the State can be held accountable for this contribution towards causing dangerous climate change. Moreover, under national and international law (including the international-law “no harm” principle, the UN Climate Change Convention and the TFEU) the State has an individual obligation and responsibility to ensure a reduction of the emission level of the Netherlands in order to prevent dangerous climate change. This duty of care principally means that a reduction of 25% to 40%, compared to 1990, should be realised in the Netherlands by 2020. A reduction of this extent is not only necessary to continue to have a prospect of a limitation of global warming of up to (less than) 2°C, but is furthermore the most cost-effective. Alternatively, the Netherlands will need to have achieved a 40% reduction by 2030, compared to 1990. With its current climate policy, the State seriously fails to meet this duty of care and therefore acts unlawfully. 3.3 The State argues as follows – also briefly summarised. Urgenda partially has no cause of action, namely in so far as it defends the rights and interests of current or future generations in other countries. Aside from that, the claims are not allowable, as there is no (real threat of) unlawful actions towards Urgenda attributable to the State, while the requirements of Book 6, Section 162 of the Dutch Civil Code and Book 3, Section 296 of the Dutch Civil Code have also not been met. The State acknowledges the need to limit the global temperature rise up to (less than) 2°C, but its efforts are, in fact, aimed at achieving this objective. The current and future climate policies, which cannot be seen as being separate from the international agreements nor from standards and (emission) targets formulated by the European Union, are expected to make this feasible. The State has no legal obligation – either arising from national or international law – to take measures to achieve the reduction targets stated in Urgenda’s claims. The implementation of the Dutch climate policy, which contains mitigation and adaptation measures, is not in breach of Articles 2 and 8 of the ECHR. Allowing (part of) the claims is furthermore contrary to the State’s discretionary power. This would also interfere with the system of separation of powers and harm the State’s negotiating position in international politics.

21


22

3.4 The arguments of the parties are examined in more detail below, in so far as relevant. 4. THE ASSESSMENT A. Introduction 4.1

This case is essentially about the question whether the State has a legal obligation towards Urgenda to place further limits on greenhouse gas emissions – particularly CO2 emissions –in addition to those arising from the plans of the Dutch government, acting on behalf of the State. Urgenda argues that the State does not pursue an adequate climate policy and therefore acts contrary to its duty of care towards Urgenda and the parties it represents as well as, more generally speaking, Dutch society. Urgenda also argues that because of the Dutch contribution to the climate policy, the State wrongly exposes the international community to the risk of dangerous climate change, resulting in serious and irreversible damage to human health and the environment. Based on these grounds, which are briefly summarised here, Urgenda claims, except for several declaratory decisions, that the State should be ordered to limit, or have limited, the joint volume of the annual greenhouse gas emissions of the Netherlands so that these emissions will have been reduced by 40% and at least by 25% in 2020, compared to 1990. In case this claim is denied, Urgenda argues for an order to have this volume limited by 40% in 2030, also compared to 1990.

4.2 For its part, the State argues that the Netherlands – also based on European agreements – pursues an adequate climate policy. Therefore, and for many other reasons, the State believes Urgenda’s claims cannot succeed. The key motivation is that the State cannot be forced at law to pursue another climate policy. The terms “the State” and “the Netherlands” will be used interchangeably below, depending on the context. The term “the State” refers to the legal person that is party to these proceedings, while the term “the Netherlands” refers to the same entity in an international context. The government is the State’s executive body.

4.3 The court faces a dispute with complicated and “climate-related” issues. The court does not have independent expertise in this area and will base its assessment on that which the Parties have submitted and the facts admitted between them. This concerns both current scientific knowledge and (other) data the State acknowledges or deems to be correct. Many of these data are available under section 2 of this judgment (“The facts”). An analysis of these data, which are sometimes repeated, will enable the court to determine the severity of the climate change problem. Based on this information, the court will assess the claim and the defence put up against it. Prior to this, the court will assess Urgenda’s standing. If Urgenda is not in a position to confront the State about the issues that are the subject of these proceedings, the court is unable to proceed to assess the merits of the claim. This more in-depth assessment (if applicable) will contain all further questions, including those pertaining to the absence, or not, of the State’s legal obligation towards Urgenda, and the question whether the court’s options also include imposing the order claimed by Urgenda.


B. Urgenda’s standing (acting on its own behalf) 4.4 Under Book 3, Section 303 of the Dutch Civil Code, an individual or legal person is only entitled to bring an action to the civil court if he has sufficient own, personal interest in the claim. Under Book 3, Section 303a of the Dutch Civil Code, a foundation or association with full legal capacity may also bring an action to the court pertaining to the protection of general interests or the collective interests of other persons, in so far as the foundation or association represents these general or collective interests based on the objectives formulated in its by-laws. However, there is a proviso, namely that the legal person concerned can only bring its action to the court if he, in the given circumstances, has made sufficient efforts to enter into a dialogue with the defendant to achieve having his requirements met (paragraph 2). 4.5 The position of the State regarding Urgenda’s standing, in so far as this party acts on its own behalf, can be summarised as follows. The State does not challenge that Urgenda, in view of the interests it protects under its by-laws, has a case when on behalf of the current generations of Dutch citizens protests the emission of greenhouse gases from Dutch territory. Nor does the State contest Urgenda’s standpoint that the order to reduce emissions in these proceedings against the State in principle belongs to the group of claims the Dutch legislature finds allowable and has made possible with Book 3, Section 303a of the Dutch Civil Code. Regarding the question whether Urgenda has a case in so far as it defends the interests of future generations of Dutch citizens (and that “in perpetuity”), the State defers to the court’s opinion. The State argues that Urgenda has no case in so far as it defends the rights or interests of current or future generations in other countries. 4.6 The court finds as follows. Urgenda’s claims against the State indeed belong to the group of claims the Dutch legislature finds allowable and has wanted to make possible with Book 3, Section 303a of the Dutch Civil Code. It was set out in the Explanatory Memorandum that an environmental organisation’s claim in order to protect the environment without an identifiable group of persons needing protection, would be allowable under the proposed scheme. 4.7 Article 2 of Urgenda’s by-laws stipulate that it strives for a more sustainable society, “beginning in the Netherlands”. This demonstrates prioritisation – as it rightly argues – and not a limitation to Dutch territory. The interests Urgenda wants to defend appear to be – from its objective formulated in its by-laws – primarily but not solely Dutch interests. Moreover, the term “sustainable society” has an inherent international (and global) dimension. As based on its by-laws Urgenda is defending the interest of a “sustainable society”, it actually protects an interest that by its nature crosses national borders. Therefore, Urgenda can partially base its claims on the fact that the Dutch emissions also have consequences for persons outside the Dutch national borders, since these claims are directed at such emissions. 4.8 The term “sustainable society” also has an intergenerational dimension, which is expressed in the definition of “sustainability” in the Brundtland Report referred to under 2.3:

23


24

“Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs.” In defending the right of not just the current but also the future generations to availability of natural resources and a safe and healthy living environment, it also strives for the interest of a sustainable society. This interest of a sustainable society is also formulated in the legal standard invoked by Urgenda for the protection against activities which, in its view, are not “sustainable” and threaten to lead to serious threats to ecosystems and human societies. In this context, reference can also be made to Article 2 of the UN Climate Change Convention. Relying on Articles 2 and 8 ECHR, Urgenda’s claim is an extension of its objectives formulated in its by-laws. After all, these stipulations are also aimed at protecting the interests Urgenda seeks to defend. 4.9 Seeing as it is not in dispute that Urgenda has met the requirement of Book 3, Section 305a of the Dutch Civil Code that it has made sufficient efforts to attain its claim by entering into consultations with the State, the court concludes that Urgenda’s claims, in so far as it acts on its own behalf, are allowable to the fullest extent. 4.10 The court’s judgment about Urgenda’s standing is sufficient for now. On the pages below, the court will focus on Urgenda’s position for the time being. The position of the (886) principals on whose behalf Urgenda is also acting will be discussed at the end. D. Legal obligation of the State? Introduction 4.35 As mentioned briefly above, Urgenda accuses the State of several things, such as the State acting unlawfully by, contrary to its constitutional obligation (Article 21 of the Dutch Constitution), mitigating insufficiently as defined further in international agreements and in line with current scientific knowledge. In doing so, the State is damaging the interests it pursues, namely: to prevent the Netherlands from causing (more than proportionate) damage, from its territory, to current and future generations in the Netherlands and abroad. Furthermore, Urgenda argues that under Articles 2 and 8 of the ECHR, the State has the positive obligation to take protective measures. Urgenda also claims that the State is acting unlawfully because, as a consequence of insufficient mitigation, it (more than proportionately) endangers the living climate (and thereby also the health) of man and the environment, thereby breaching its duty of care. Urgenda asserts that in doing so the State is acting unlawfully towards Urgenda in the sense of Book 6, Section 162 of the Dutch Civil Code, whether or not in combination with Book 5, Section 37 of the Dutch Civil Code. The State contests that a duty of care arises from these sections for a further limitation of emissions than currently realised by it. The court finds as follows. Contravention of a legal obligation Article 21 of the Constitution and international conventions 4.36 Article 21 of the Dutch Constitution imposes a duty of care on the State relating to the liveability of the country and the protection and improvement of the living environment. For the densely populated and low-lying Netherlands, this duty of care concerns important issues, such as the water defences, water management and the


living environment. This rule and its background do not provide certainty about the manner in which this duty of care should be exercised nor about the outcome of the consideration in case of conflicting stipulations. The manner in which this task should be carried out is covered by the government’s own discretionary powers. 4.37 The realisation that climate change is an extra-territorial, global problem and fighting it requires a worldwide approach has prompted heads of state and government leaders to contribute to the development of legal instruments for combating climate change by means of mitigating greenhouse gas emissions as well as by making their countries “climate-proof” by means of taking mitigating measures. These instruments have been developed in an international context (in the UN), European context (in the EU) and in a national context. The Dutch climate policy is based on these instruments to a great extent. 4.38 The Netherlands has committed itself to UN Climate Change Convention, a framework convention which contains general principles and starting points, which form the basis for the development of further, more specific, rules, for instance in the form of a protocol. The Kyoto Protocol is an example of this. The COP with a number of subsidiary organs was set up for the further development and implementation of a climate regime. Almost all COP’s decisions are not legally binding, but can directly affect obligations of the signatories to the convention or the protocol. This applies, for instance, to several decisions taken pursuant to the Kyoto Protocol. These involve mechanisms which enable the trade in emission (reduction) allowances and which allow collaboration between the parties so that greenhouse gas emissions can be reduced where it is cheapest. 4.39 In this context, Urgenda also brought up the international-law “no harm” principle, which means that no state has the right to use its territory, or have it used, to cause significant damage to other states. The State has not contested the applicability of this principle. 4.40 The care and protection of the living environment is also increasingly determined by the EU. The basis for the European environmental policy is enclosed in Article 19 TFEU. For the development and implementation of the Community’s environmental policy use has mostly been made of directives These often concern minimum harmonisation, so that on the one hand the entire Union will have a basic protection level while on the other hand the Member States still have the power to establish stricter standards for their own territories. 4.41 In view of the obligation of Member States to take reduction measures, the implementation of the ETS Directive in Chapter 16 of the Environmental Management Act (see 2.70) is relevant to these proceedings. The Directive has introduced an emission allowance trading system, with the European Commission determining the CO2 emission ceiling for five year periods. The allowed emission level is allocated to the Member State concerned in the form of emission allowances. In the context of the EU, the Effort Sharing Decision (see 2.62) is also relevant. Based on these schemes, the Netherlands has committed itself to a 21% reduction of emissions that fall under the ETS in 2020, compared to 2005 and to a 16% reduction for non-ETS sectors in 2020, compared to 2005 (see 2.74).

25


26

4.42 From an international-law perspective, the State is bound to UN Climate Change Convention, the Kyoto Protocol (with the associated Doha Amendment as soon as it enters into force) and the “no harm” principle. However, this international-law binding force only involves obligations towards other states. When the State fails one of its obligations towards one or more other states, it does not imply that the State is acting unlawfully towards Urgenda. It is different when the written or unwritten rule of international law concerns a decree that “connects one and all”. After all, Article 93 of the Dutch Constitution determines that citizens can derive a right from it if its contents can connect one and all. The court – and the Parties – states first and foremost that the stipulations included in the convention, the protocol and the “no harm” principle do not have a binding force towards citizens (private individuals and legal persons). Urgenda therefore cannot directly rely on this principle, the convention and the protocol (see, among other things, HR 6 February 2004, ECLI:NL: HR:2004:AN8071, NJ 2004, 329, Vrede et al./State). 4.43 This does not affect the fact that a state can be supposed to want to meet its international-law obligations. From this it follows that an international-law standard – a statutory provision or an unwritten legal standard – may not be explained or applied in a manner which would mean that the state in question has violated an internationallaw obligation, unless no other interpretation or application is possible. This is a generally acknowledged rule in the legal system. This means that when applying and interpreting national-law open standards and concepts, including social proprietary, reasonableness and propriety, the general interest or certain legal principles, the court takes account of such international-law obligations. This way, these obligations have a “reflex effect” in national law. 4.44 The comments above regarding international-law obligations also apply, in broad outlines, to European law, including the TFEU stipulations, on which citizens cannot directly rely. The Netherlands is obliged to adjust its national legislation to the objectives stipulated in the directives, while it is also bound to decrees (in part) directed at the country. Urgenda may not derive a legal obligation of the State towards it from these legal rules. However, this fact also does not stand in the way of the fact that stipulations in an EU treaty or directive can have an impact through the open standards of national law described above. Violation of a personal right Articles 2 and 8 ECHR 4.45 In assessing the question whether or not the State with its current climate policy is breaching one of Urgenda’s personal rights, the court considers that Urgenda itself cannot be designated as a direct or indirect victim, within the meaning of Article 34 ECHR, of a violation of Articles 2 and 8 ECHR. After all, unlike with a natural person, a legal person’s physical integrity cannot be violated nor can a legal person’s privacy be interfered with (cf. ECtHR 12 May 2015, Identoba et al./Georgia, no. 73235/12).


Even if Urgenda’s objectives, formulated in its by-laws, are explained in such a way as to also include the protection of national and international society from a violation of Article 2 and 8 ECHR, this does not give Urgenda the status of a potential victim within the sense of Article 34 ECHR (cf. ECtHR 29 September 2009, Van Melle et al./ Netherlands, no. 19221/08). Therefore, Urgenda itself cannot directly rely on Articles 2 and 8 ECHR. 4.46 However, both articles and their interpretation given by the ECtHR, particularly with respect to environmental right issues, can serve as a source of interpretation when detailing and implementing open private-law standards in the manner described above, such as the unwritten standard of care of Book 6, Section 162 of the Dutch Civil Code. Therefore, the court will now – briefly – reflect on the environmental law principles and scope of protection of Articles 2 and 8 ECHR, such as those that can be derived from the ECtHR’s rulings. 4.47 At the recommendation of the Parliamentary Assembly and by order of (and under the responsibility of) the Committee of Ministers of the Council of Europe, a “Manual on human rights and the environment” was published for the first time, in 2005. The goal of this manual is to raise awareness among a wide audience about the relationship between the protection of the human rights under the ECHR and the environment, thereby contributing to the reinforcement of environmental law protection on a national level. With this goal in mind, the manual (and other documents) provides information about the rulings of the ECtHR in this area and also pays attention to the impact of the European Social Charter and the relevant explanation of this charter by the European Committee of Social Rights. The last version of the manual was published in 2012. In so far as an explanation is given of the ECtHR’s rulings below, the court concurs with it. 4.48 Part II of the manual describes the environmental principles that can be derived from the ECtHR’s rulings. The court deems the following passages from this part relevant: “(...) the Court has emphasised that the effective enjoyment of the rights which are encompassed in the Convention depends notably on a sound, quiet and healthy environment conducive to well-being. The subject-matter of the cases examined by the Court shows that a range of environmental factors may have an impact on individual convention rights, such as noise levels from airports, industrial pollution, or town planning. As environmental concerns have become more important nationally and internationally since 1950, the case-law of the Court has increasingly reflected the idea that human rights law and environmental law are mutually reinforcing. Notably, the Court is not bound by its previous decisions, and in carrying out its task of interpreting the Convention, the Court adopts an evolutive approach. Therefore, the interpretation of the rights and freedoms is not fixed but can take account of the social context and changes in society. As a consequence, even though no explicit right to a clean and quiet environment is included in the Convention or its protocols, the caselaw of the Court has shown a growing awareness of a link between the protection of the rights and freedoms of individuals and the environment. The Court has also

27


28

made reference, in its case law, to other international environmental law standards and principles (...). However, it is not primarily upon the European Court of Human Rights to determine which measures are necessary to protect the environment, but upon national authorities. The Court has recognised that national authorities are best placed to make decisions on environmental issues, which often have difficult social and technical aspects. Therefore, in reaching its judgments, the Court affords the national authorities in principle a wide discretion – in the language of the Court a wide “margin of appreciation” – in their decision-making in this sphere. This is the practical implementation of the principle of subsidiarity, which has been stressed in the Interlaken Declaration of the High Level Conference on the Future of the European Court of Human Rights. According to this principle, violations of the Convention should be prevented or remedied at the national level with the Court intervening only as a last resort. The principle is particularly important in the context of environmental matters due to their very nature.” 4.49 The scope of protection based on various articles of the ECHR regarding environmental issues has been detailed in separate chapters. In the context of this case, the court finds the following principles from the first chapter of part II (“Chapter I: the right to life and environment”) relevant, including the subsequent explanation (the footnotes referring to the rulings of the ECtHR concerned have not been included in the quotation): “(a) The right to life is protected under Article 2 of the Convention. This Article does not solely concern deaths resulting directly from the actions of the agents of a State, but also lays down a positive obligation on States to take appropriate steps to safeguard the lives of those within their jurisdiction. This means that public authorities have a duty to take steps to guarantee the rights of the Convention even when they are threatened by other (private) persons or activities that are not directly connected with the State. 1. (...) in some situations Article 2 may also impose on public authorities a duty to take steps to guarantee the right to life when it is threatened by persons or activities not directly connected with the State. (...) In the context of the environment, Article 2 has been applied where certain activities endangering the environment are so dangerous that they also endanger human life. 2. It is not possible to give an exhaustive list of examples of situations in which this obligation might arise. It must be stressed however that cases in which issues under Article 2 have arisen are exceptional. So far, the Court has considered environmental issues in four cases brought under Article 2, two of which relate to dangerous activities and two which relate to natural disasters. In theory, Article 2 can apply even though loss of life has not occurred, for example in situations where potentially lethal force is used inappropriately. (b) The Court has found that the positive obligation on States may apply in the context of dangerous activities, such as nuclear tests, the operation of chemical factories with toxic emissions or waste- collection sites, whether carried out by public authorities themselves or by private companies. In general, the extent of the obligations of public authorities depends on factors such as the harmfulness of the dangerous activities and the foreseeability of the risks to life. ( c) (...) ( d) In the first place, public authorities may be required to take measures to prevent infringements of the right to life as a result of dangerous activities or natural disasters. This entails, above all, the primary duty of a State to put in a place a legislative and administrative framework which includes: (...)”


4.50 The following principles from Chapter II (“respect for private and family life as well as the home and the environment”), with explanation, are relevant: “(a) (...) (b) Environmental degradation does not necessarily involve a violation of Article 8 as it does not include an express right to environmental protection or nature conservation. (c) For an issue to arise under Article 8, the environmental factors must directly and seriously affect private and family life or the home. Thus, there are two issues which the Court must consider – whether a causal link exists between the activity and the negative impact on the individual and whether the adverse have attained a certain threshold of harm. The assessment of that minimum threshold depends on all the circumstances of the case, such as the intensity and duration of the nuisance and its physical or mental effects, as well as on the general environmental context. (...) 15. In the Kyrtatos v. Greece case, the applicants brought a complaint under Article 8 alleging that urban development had led to the destruction of a swamp adjacent to their property, and that the area around their home had lost its scenic beauty. The Court emphasised that domestic legislation and certain other international instruments rather than the Convention are more appropriate to deal with the general protection of the environment. The purpose of the Convention is to protect individual human rights, such as the right to respect for the home, rather than the general aspirations or needs of the community taken as a whole. The Court highlighted in this case that neither Article 8 nor any of the other articles of the Convention are specifically designed to provide general protection of the environment as such. In this case, the Court found no violation of Article 8. (d) While the objective of Article 8 is essentially that of protecting the individual against arbitrary interference by public authorities, it may also imply in some cases an obligation on public authorities to adopt positive measures designed to secure the rights enshrined in this article. This obligation does not only apply in cases where environmental harm is directly caused by State activities but also when it results from private sector activities. Public authorities must make sure that such measures are implemented so as to guarantee rights protected under Article 8. The Court has furthermore explicitly recognised that public authorities may have a duty to inform the public about environmental risks. Moreover, the Court has stated with regard to the scope of the positive obligation that it is generally irrelevant of whether a situation is assessed from the perspective of paragraph 1 of Article 8 which, inter alia, relates to the positive obligations of State authorities, or paragraph 2 asking whether a State interference was justified, as the principles applied are almost identical. (...)” Book 5, Section 37 of the Dutch Civil Code 4.51 In so far as Urgenda has relied on Book 5, Section 37 of the Dutch Civil Code (nuisance), the court is of the opinion that in addition to that which is stated below about the duty of care, this section does not have an independent meaning.

29


30

Intermediate conclusion about the duty of care 4.52 The foregoing leads the court to conclude that a legal obligation of the State towards Urgenda cannot be derived from Article 21 of the Dutch Constitution, the “no harm” principle, the UN Climate Change Convention, with associated protocols, and Article 191 TFEU with the ETS Directive and Effort Sharing Decision based on TFEU. Although Urgenda cannot directly derive rights from these rules and Articles 2 and 8 ECHR, these regulations still hold meaning, namely in the question discussed below whether the State has failed to meet its duty of care towards Urgenda. First of all, it can be derived from these rules what degree of discretionary power the State is entitled to in how it exercises the tasks and authorities given to it. Secondly, the objectives laid down in these regulations are relevant in determining the minimum degree of care the State is expected to observe. In order to determine the scope of the State’s duty of care and the discretionary power it is entitled to, the court will therefore also consider the objectives of international and European climate policy as well as the principles on which the policies are based. Breach of standard of due care observed in society, discretionary power 4.53 The question whether the State is in breach of its duty of care for taking insufficient measures to prevent dangerous climate change, is a legal issue which has never before been answered in Dutch proceedings and for which jurisprudence does not provide a ready-made framework. The answer to the question whether or not the State is taking sufficient mitigation measures depends on many factors, with two aspects having particular relevance. In the first place, it has to be assessed whether there is a unlawful hazardous negligence on the part of the State. Secondly, the State’s discretionary power is relevant in assessing the government’s actions. From case law about government liability it follows that the court has to assess fully whether or not the State has exercised or exercises sufficient care, but that this does not alter the fact that the State has the discretion to determine how it fulfils its duty of care. However, this discretionary power vested in the State is not unlimited: the State’s care may not be below standard. However, the test of due care required here and the discretionary power of the State are not wholly distinguishable. After all, the detailing of the duty of care of the person called to account will also have been included in his specific position in view of the special nature of his duty or authority. The standard of care has been attuned to this accordingly. Factors to determine duty of care 4.54 Urgenda has relied on the “Kelderluik” ruling of the Supreme Court (HR 5 November 1965, ECLI:NL:HR:1965:AB7079, NJ 1966, 136) and on jurisprudence on the doctrine of hazardous negligence developed later to detail the requirement of acting with due care towards society. Understandably, the State has pointed out the relevant differences between this jurisprudence and this case. This case is different in that the central focus is on dealing with a hazardous global development, of which it is uncertain when, where and to what extent exactly this hazard will materialise. Nevertheless, the doctrine of hazardous negligence, as explained in the literature, bears a resemblance to the theme of hazardous climate change, so that several criteria stated below can be derived from hazardous negligence jurisprudence in order to detail the concept of acting negligently towards society.


4.55 In principle, the extent to which the State is entitled to a scope for policymaking is determined by the statutory duties and powers vested in the State. As has been stated above, under Article 21 of the Constitution, the State has a wide discretion of power to organise the national climate policy in the manner it deems fit. However, the court is of the opinion that due to the nature of the hazard (a global cause) and the task to be realised accordingly (shared risk management of a global hazard that could result in an impaired living climate in the Netherlands), the objectives and principles, such as those laid down in the UN Climate Change Convention and the TFEU, should also be considered in determining the scope for policymaking and duty of care. 4.56 The objectives and principles of the international climate policy have been formulated in Articles 2 and 3 of the UN Climate Change Convention (see 2.37 and 2.38). The court finds the principles under (i), (ii), (iii) and (iv) particularly relevant for establishing the scope for policymaking and the duty of care. These read as follows, in brief: (i) protection of the climate system, for the benefit of current and future generations, based on fairness; (iii) the precautionary principle; (iv) the sustainability principle. 4.57 The principle of fairness (i) means that the policy should not only start from what is most beneficial to the current generation at this moment, but also what this means for future generations, so that future generations are not exclusively and disproportionately burdened with the consequences of climate change. The principle of fairness also expresses that industrialised countries have to take the lead in combating climate change and its negative impact. The justification for this, and this is also noted in literature, lies first and foremost in the fact that from a historical perspective the current industrialised countries are the main causers of the current high greenhouse gas concentration in the atmosphere and that these countries also benefited from the use of fossil fuels, in the form of economic growth and prosperity. Their prosperity also means that these countries have the most means available to take measures to combat climate change. 4.58 With the precautionary principle (ii) the UN Climate Change Convention expresses that taking measures cannot be delayed to await full scientific certainty. The signatories should anticipate the prevention or limitation of the causes of climate change or the prevention or limitation of the negative consequences of climate change, regardless of a certain level of scientific uncertainty. In making the consideration that is needed for taking precautionary measures, without having absolute certainty whether or not the actions will have sufficient effects, the Convention states that account can be taken of a cost-benefit ratio: precautionary measures which yield positive results worldwide at as low as possible costs will be taken sooner. 4.59 The sustainability principle (iv) expresses that the signatories to the Convention will promote sustainability and that economic development is vital for taking measures to combat climate change. 4.60 The objectives of the European climate policy have been formulated in Article 191, paragraph 1 TFEU (see 2.53). The following are the principles relevant to this case (as evidenced by paragraph 2 of this article): - the principle of a high protection level; the precautionary principle; - the prevention principle.

31


32

4.61 With the principle of a high protection level, the EU expresses that its environmental policy has high priority and that it has to be implemented strictly, with account taken of regional differences. The precautionary principle also means that the Community should not postpone taking measures to protect the environment until full scientific certainty has been achieved. In short, the prevention principle means: “prevention is better than cure”; it is better to prevent climate problems (pollution, nuisance, in this case: climate change) than combating the consequences later on. 4.62 Article 191, paragraph 3 TFEU also means that in determining its environmental policy, the EU takes account of: - the available scientific and technical information; - the environmental circumstances in the various EU regions; - the benefits and nuisances that could ensue from taking action or failing to take action; - the economic and social development of the Union as a whole and the balanced development of its regions. 4.63 The objectives and principles stated here do not have a direct effect due to their international and private-law nature, as has been considered above. However, they do determine to a great extent the framework for and the manner in which the State exercises its powers. Therefore, these objectives and principles constitute an important viewpoint in assessing whether or not the State acts wrongfully towards Urgenda. With due regard for all the above, the answer to the question whether or not the State is exercising due care with its current climate policy depends on whether according to objective standards the reduction measures taken by the State to prevent hazardous climate change for man and the environment are sufficient, also in view of the State’s discretionary power. In determining the scope of the duty of care of the State, the court will therefore take account of: (i) the nature and extent of the damage ensuing from climate change; (ii) the knowledge and foreseeability of this damage; (iii) the chance that hazardous climate change will occur; (iv) the nature of the acts (or omissions) of the State; (v) the onerousness of taking precautionary measures; (vi) the discretion of the State to execute its public duties – with due regard for the public-law principles, all this in light of: - the latest scientific knowledge; - the available (technical) option to take security measures, and - the cost-benefit ratio of the security measures to be taken. Duty of care (i-iii) the nature and extent of the damage ensuing from climate change, the knowledge and foreseeability of this damage and the chance that hazardous climate change will occur 4.64 As has been stated before, the Parties agree that due to the current climate change and the threat of further change with irreversible and serious consequences for man and the environment, the State should take precautionary measures for its citizens. This concerns the extent of the reduction measures the State should take as of 2020. 4.65 Since it is an established fact that the current global emissions and reduction targets of the signatories to the UN Climate Change Convention are insufficient to realise the 2° target and therefore the chances of dangerous climate change should be considered as very high – and this with serious consequences for man and the environment, both in the Netherlands and abroad – the State is obliged to take measures in its own territory to prevent dangerous climate change (mitigation


measures). Since it is also an established fact that without far-reaching reduction measures, the global greenhouse gas emissions will have reached a level in several years, around 2030, that realising the 2° target will have become impossible, these mitigation measures should be taken expeditiously. After all, the faster the reduction of emissions can be initiated, the bigger the chance that the danger will subside. In the words of Urgenda: trying to slow down climate change is like trying to slow down an oil tanker that has to shut down its engines hundreds of kilometres off the coast not to hit the quay. If you shut down the engines when the quay is in sight, it is inevitable that the oil tanker will sooner or later hit the quay. The court also takes account of the fact that the State has known since 1992, and certainly since 2007, about global warming and the associated risks. These factors lead the court to the opinion that, given the high risk of hazardous climate change, the State has a serious duty of care to take measures to prevent it. (iv) the nature of the acts (or omission) of the State 4.66 The State has argued that it cannot be seen as one of the causers of an imminent climate change, as it does not emit greenhouse gases. However, it is an established fact that the State has the power to control the collective Dutch emission level (and that it indeed controls it). Since the State’s acts or omissions are connected to the Dutch emissions a high level of meticulousness should be required of it in view of the security interests of third parties (citizens), including Urgenda. Apart from that, when it became a signatory to the UN Climate Change Convention and the Kyoto Protocol, the State expressly accepted its responsibility for the national emission level and in this context accepted the obligation to reduce this emission level as much as needed to prevent dangerous climate change. Moreover, citizens and businesses are dependent on the availability of non-fossil energy sources to make the transition to a sustainable society. This availability partly depends on the options for providing “green energy” (compare, for instance, legislative proposal 34 058, Wind energy at sea, which is currently being reviewed by the Senate). The State therefore plays a crucial role in the transition to a sustainable society and therefore has to take on a high level of care for establishing an adequate and effective statutory and instrumental framework to reduce the greenhouse gas emissions in the Netherlands. (v) the onerousness of taking precautionary measures 4.67 In answering the question if and if so, to what extent, the State has the obligation to take precautionary measures, it is also relevant to find out whether taking precautionary measures is onerous. Various aspects can be discerned in this. For instance, it is important to know whether the measures to be taken are costly. Moreover, it may also be important to establish whether the precautionary measures are costly in relation to the possible damage. The effectiveness of the measures can also be relevant. Finally, significance should be attached to the availability of the (technical) possibilities to take the required measures. 4.68 Subject of the dispute between the Parties is the question if the reduction target intended by the State or the reduction target ordered by Urgenda is the most cost effective. This concerns macro economic costs of a particular mitigation policy. The IPCC reports describe prognoses per scenario.

33


34

4.69 Urgenda has argued that it is more cost-effective to maintain the (stricter) reduction target of 25-40% in 2020. Referring to European policy documents, the State has alleged that it is also cost-effective to realise a 40% reduction in 2030 and 80% in 2050 (see 2.64 and 2.66). The court finds as follows. 4.70 Assuming – as has been considered above – that in its foreign policy the State for a long time has started from a required reduction of 25-40% in 2020 for Annex I countries, compared to 1990 and consequently has committed to the EU’s aim to formulate a 30% reduction target for 2020. Up to about 2010, the Netherlands had had a national reduction target of 30% for 2020 (compared to 1990). According to the then cabinet, in 2009, a scientifically established emission reduction of 25-40% by 2020 was needed in order to attain the 2°C target and to “stay on a plausible route to keep [that] target within reach” (see 2.73). Apparently, this reduction target was then deemed to be cost-effective. The State has not argued that the decision to let go of this national reduction target of 30% and instead follow the EU target of 20% for 2020, compared to 1990 (which according to the current prognoses comes down to a reduction in the Netherlands of about 17%), was driven by improved scientific insights or because it was allegedly not economically responsible to continue to maintain that 30% target. Nor did the State issue concrete details from which it could be derived that the reduction path of 25-40% in 2020 would lead to disproportionately high costs, or would not be cost-effective in comparison with the slower reduction path for other reasons. On the contrary: at the hearing of 14 April 2015, the State confirmed that it would be possible for the Netherlands to meet the EU’s 30% target for 2020 provided that the condition for that target was met in the short term. Based on this, the court concludes that there is no serious obstacle from a cost consideration point of view to adhere to a stricter reduction target. 4.71 The court also considers that in climate science and the international climate policy there is consensus that the most serious consequences of climate change have to be prevented. It is known that the risks and damage of climate change increase as the mean temperature rises. Taking immediate action, as argued by Urgenda, is more cost-effective, is also supported by the IPCC and UNEP (see 2.19 and 2.30). The reports concerned also prove that mitigation of greenhouse gas emissions in the short and long term is the only effective way to avert the danger of climate change. Although adaptation measures can reduce the effects of climate change, they do not eliminate the danger of climate change. Mitigation therefore is the only really effective tool. 4.72 The court has deduced from the various reports submitted by the Parties that mitigation can be realised in various ways. This could include the limitation of the use of fossil fuels by means of, among other things, emissions trading or tax measures, the introduction of renewable energy sources, the reduction of energy consumption and reforestation and combating deforestation. The State has also referred to new technologies such as CO2 capture and storage. The court deems the State’s viewpoint that a high level of CO2 reduction can be expected to be achieved in the future through CO2 capture and storage insufficiently supported. Such an expectation would be relevant if it has been established that the use of these techniques would


enable such a reduction that the emission between now and 2050, as depicted in the first graph above, could be compensated. Without sufficient objection from the State, Urgenda has argued that in so far as these techniques are sufficiently available (CO2 capture and storage are still in the experimental phase) it is not plausible that techniques of this nature can be applied in the short term and therefore in time. Urgenda has also referred to the further regulations required for that. At the hearing, it was brought up that initiatives have been taken in various areas, such as for renewable energy (the legislative proposal 34 058 for wind energy at sea, referred to above) and for CO2 capture and storage, but that these initiatives are still in the preliminary stages without any concrete prospect of success. In the UNEP and IPCC reports, which the Parties have referred to, it is therefore emphasised that later intervention increases the need for new technologies, while the risks and options of these technologies are still uncertain. 4.73 Based on its considerations here, the court concludes that in view of the latest scientific and technical knowledge it is the most efficient to mitigate and it is more cost-effective to take adequate action than to postpone measures in order to prevent hazardous climate change. The court is therefore of the opinion that the State has a duty of care to mitigate as quickly and as much as possible. (vi) the discretion of the State to execute its public duties – with due regard for the public-law principles 4.74 In answering the question whether the State is exercising enough care with its current climate policy, the State’s discretionary power should also be considered, as stated above. Based on its statutory duty – Article 21 of the Constitution – the State has an extensive discretionary power to flesh out the climate policy. However, this discretionary power is not unlimited. If, and this is the case here, there is a high risk of dangerous climate change with severe and life-threatening consequences for man and the environment, the State has the obligation to protect its citizens from it by taking appropriate and effective measures. For this approach, it can also rely on the aforementioned jurisprudence of the ECtHR. Naturally, the question remains what is fitting and effective in the given circumstances. The starting point must be that in its decision-making process the State carefully considers the various interests. Urgenda has stated that the State meets its duty of care if it applies a reduction target of 40%, 30% or at least 25% for the year 2020. The State has contested this with reference to the intended adaptation measures. 4.75 The court emphasises that this first and foremost should concern mitigation measures, as adaptation measures will only allow the State to protect its citizens from the consequences of climate change to a limited level. If the current greenhouse gas emissions continue in the same manner, global warming will take such a form that the costs of adaptation will become disproportionately high. Adaptation measures will therefore not be sufficient to protect citizens against the aforementioned consequences in the long term. The only effective remedy against hazardous climate change is to reduce the emission of greenhouse gases. Therefore, the court arrives at the opinion that from the viewpoint of efficient measures available the State has limited options: mitigation is vital for preventing dangerous climate change.

35


36

4.76 The State’s options are limited further by the private-law principles applicable to the State and mentioned above. After all, these principles were developed in response to the special risk of climate change and therefore limit the State’s options. This also applies, for instance, to the circumstance that Annex I countries, including the Netherlands, have taken the lead in taking mitigation measures and have therefore committed to a more than proportional contribution to reduction, in view of a fair distribution between industrialised and developing countries. Due to this principle of fairness, the State, in choosing measures, will also have to take account of the fact that the costs are to be distributed reasonably between the current and future generations. If according to the current insights it turns out to be cheaper on balance to act now, the State has a serious obligation, arising from due care, towards future generations to act accordingly. Moreover, the State cannot postpone taking precautionary measures based on the sole reason that there is no scientific certainty yet about the precise effect of the measures. However, a cost-benefit ratio is allowed here. Finally, the State will have to base its actions on the principle of “prevention is better than cure”. 4.77 To all these principles it applies that if the State wants to deviate from them, it will have to argue and prove sufficient justification for the deviation. A justification could be the costs. The State should not be expected to do the impossible nor may a disproportionately high burden be placed on it. However, as has been considered above, it has neither been argued, nor has it become evident that the State has insufficient financial means to realise higher reduction measures. It can also not be concluded that from a macro economic point of view there are obstructions to choosing a higher emission reduction level for 2020. 4.78 The State has argued that allowing Urgenda’s claim, which is aimed at a higher reduction of greenhouse gas emission in the Netherlands, would not be effective on a global scale, as such a target would result in a very minor, if not negligible, reduction of global greenhouse gas emissions. After all, whether or not the 2°C target is achieved will mainly depend on the reduction targets of other countries with high emissions. More specifically, the States relies on the fact that the Dutch contribution to worldwide emissions is currently only 0.5%. If the reduction target of 25-40% from Urgenda’s claim were met the State argues that this would result in an additional reduction of 23.75 to 49.32 Mt CO2-eq (up to 2020), representing only 0.04-0.09% of global emissions. Starting from the idea that this additional reduction would hardly affect global emissions, the State argues that Urgenda has no interest in an allowance of its claim for additional reduction. 4.79 This argument does not succeed. It is an established fact that climate change is a global problem and therefore requires global accountability. It follows from the UNEP report that based on the reduction commitments made in Cancun, a gap between the desired CO2 emissions (in order to reach the climate objective) and the actual emissions (14-17 Gt CO2 ) will have arisen by 2030. This means that more reduction measures have to be taken on an international level. It compels all countries, including the Netherlands, to implement the reduction measures to the fullest extent as possible. The fact that the amount of the Dutch emissions is small compared to other countries does not


affect the obligation to take precautionary measures in view of the State’s obligation to exercise care. After all, it has been established that any anthropogenic greenhouse gas emission, no matter how minor, contributes to an increase of CO2 levels in the atmosphere and therefore to hazardous climate change. Emission reduction therefore concerns both a joint and individual responsibility of the signatories to the UN Climate Change Convention. In view of the fact that the Dutch emission reduction is determined by the State, it may not reject possible liability by stating that its contribution is minor, as also adjudicated mutatis mutandis in the Potash mines ruling of the Dutch Supreme Court (HR 23 September 1988, NJ 1989, 743). The rules given in that ruling also apply, by analogy, to the obligation to take precautionary measures in order to avert a danger which is also the subject of this case. Therefore, the court arrives at the opinion that the single circumstance that the Dutch emissions only constitute a minor contribution to global emissions does not alter the State’s obligation to exercise care towards third parties. Here too, the court takes into account that in view of a fair distribution the Netherlands, like the other Annex I countries, has taken the lead in taking mitigation measures and has therefore committed to a more than proportionate contribution to reduction. Moreover, it is beyond dispute that the Dutch per capita emissions are one of the highest in the world. 4.80 Finally, the State has put forward that higher emission reductions in the ETS sector are not allowed. In support of this argument, the State has referred to the emission ceiling for the ETS sector as adopted by the EU, which is intended to have led to an EU-wide emission reduction of 21% by 2020, compared to 2005. In view of this ceiling and of the principles of EU law laid down in the TFEU, the State argues that it is not possible to impose a stricter (or less strict) reduction target of over 21% on ETS businesses established in the Netherlands. In so far as the State hereby argues that in allocating the emission allowances (emission allocation) among the ETS businesses the State should act in accordance with EU legislation and observe the ceiling stated therein, then this is correct. However, the court does not follow the State in this argument in so far as this means that a Member State is not allowed to reduce more than the amount adopted in EU policy. As has been stated previously, the State has determined a higher reduction target for the period up to 2010, namely 30%. Urgenda was right in arguing that regardless of the ceiling Member States have the option to influence (directly or indirectly) the greenhouse gas emissions of national ETS businesses by taking own, national measures. In its argument, Urgenda has named several of such measures taken in other Member States, such as increasing the share of sustainable energy in the national electricity network in Denmark and the introduction of the carbon price floor in the United Kingdom, with which the price of CO2 emission has been increased. In response to Urgenda’s argument, the State acknowledged in a more general sense that it is legally and practically possible to develop a national ETS sector policy that is more far-reaching than the EU’s policy. It is of the opinion of the court that the European legislation discussed here does not prevent the State from pursuing a higher reduction for 2020.

37


38

4.81 The court also does not follow the State’s argument that other European countries will neutralise reduced emissions in the Netherlands, and that greenhouse gas emission in the EU as a whole will therefore not decrease. The phenomenon the State refers to and which could occur at various levels (between countries, but also between provinces, regions or on a global scale) and which could have various causes, is also known as the “waterbed effect” or “carbon leakage”. AR5/2013 describes research results from 2012, which show that a mean 12% of carbon losses will have to be taken into account. The accompanying document to the announcement of the European Commission of 22 January 2014 (“summary of the effect assessment”) referred to in 2.66 states that “so far there have been no signs” of carbon leakage. In view of this, it cannot be maintained that extra reduction efforts of the State would be without substantial influence. 4.82 In so far as the State argues that a higher reduction path will decrease the “level playing field” for Dutch businesses, it failed to provide adequate explanations or supporting documents. This road would have been open to the State, as the Parties agree that some of the countries neighbouring the Netherlands have implemented a stricter national climate policy (United Kingdom, Denmark and Sweden) and as there are no indications that this has created an unlevel “playing field” for business in those countries. It is furthermore unclear which businesses the State is referring to: the climate policy can have a negative effect on one sector, while it can also have a positive effect on another sector. It is also unclear if and if so, to what extent, on a global level a stricter climate policy in the Netherlands will have any sort of effect on the position of businesses (including multinationals) compared tot heir nationally and internationally operating competitors. This argument is therefore rejected.

Image: Weather patterns are changing – leading to more frequent and more violent storms – which increasingly often destroy homes. Colombia. Kadir van Lohuizen / NOOR.


Conclusion about the duty of care and determining the reduction target 4.83 Due to the severity of the consequences of climate change and the great risk of hazardous climate change occurring – without mitigating measures – the court concludes that the State has a duty of care to take mitigation measures. The circumstance that the Dutch contribution to the present global greenhouse gas emissions is currently small does not affect this. Now that at least the 450 scenario is required to prevent hazardous climate change, the Netherlands must take reduction measures in support of this scenario. 4.84 It is an established fact that with the current emission reduction policy of 20% at most in an EU context (about 17% in the Netherlands) for the year 2020, the State does not meet the standard which according to the latest scientific knowledge and in the international climate policy is required for Annex I countries to meet the 2°C target. 4.85 Urgenda is correct in arguing that the postponement of mitigation efforts, as currently supported by the State (less strict reduction between the present day and 2030 and a significant reduction as of 2030), will cause a cumulation effect, which will result in higher levels of CO2 in the atmosphere in comparison to a more even procentual or linear decrease of emissions starting today. A higher reduction target for 2020 (40%, 30% or 25%) will cause lower total, cumulated greenhouse gas emissions across a longer period of time in comparison with the target of less than 20% chosen by the State. The court agrees with Urgenda that by choosing this reduction path, even though it is also aimed at realising the 2°C target, will in fact make significant contributions to the risk of hazardous climate change and can therefore not be deemed as a sufficient and acceptable alternative to the scientifically proven and acknowledged higher reduction path of 25-40% in 2020. 4.86 This would only be different if the reduction target of 25-40% was so disproportionately burdensome for the Netherlands (economically) or for the State (due to its limited financial means) that this target should be deviated from to prevent a great potential danger. However, the State did not argue that this is the case. On the contrary: the State also argues that a higher reduction target is one of the possibilities. This leads the court to the conclusion regarding this issue of the dispute that the State, given the limitation of its discretionary power discussed here, in case of a reduction below 25-40% fails to fulfil its duty of care and therefore acts unlawfully. Although it has been established that the State in the past committed to a 30% reduction target and it has not been established that this higher reduction target is not feasible, the court sees insufficient grounds to compel the State to adopt a higher level than the minimum level of 25%. According to the scientific standard, a reduction target of this magnitude is the absolute minimum and sufficiently effective, for the Netherlands, to avert the danger of hazardous climate change, but the obligation to adhere to a higher percentage clashes with the discretionary power vested in the State, also with due regard for the limitation discussed here.

39


40

Attributability 4.87 From the aforementioned considerations regarding the nature of the act (which includes the omission) of the government it ensues that the excess greenhouse gas emission in the Netherlands that will occur between the present time and 2020 without further measures, can be attributed to the State. After all, the State has the power to issue rules or other measures, including community information, to promote the transition to a sustainable society and to reduce greenhouse gas emission in the Netherlands. Damages 4.88 The State has argued that an allowance of one of Urgenda’s claims, although it requests preventative legal protection, there is at least the possibility of damages in the form of a decrease in assets or loss of benefits. Although the State acknowledges that it is not required for damages to actually have been incurred, the State believes that it has to be established that Urgenda’s interests are concretely at risk of being affected. The State also argues that it is insufficient that there is a risk in abstract terms or that there is a chance that anywhere in the world a risk of loss will occur for anyone. Urgenda has responded by stating that it has a sufficiently concrete interest. 4.89 The court finds as follows. It is an established fact that climate change is occurring partly due to the Dutch greenhouse gas emissions. It is also an established fact that the negative consequences are currently being experienced in the Netherlands, such as heavy precipitation, and that adaptation measures are already being taken to make the Netherlands “climate-proof”. Moreover, it is established that if the global emissions, partly caused by the Netherlands, do not decrease substantially, hazardous climate change will probably occur. In the opinion of the court, the possibility of damages for those whose interests Urgenda represents, including current and future generations of Dutch nationals, is so great and concrete that given its duty of care, the State must make an adequate contribution, greater than its current contribution, to prevent hazardous climate change. Causal link 4.90 From the above considerations, particularly in 4.79, it follows that a sufficient causal link can be assumed to exist between the Dutch greenhouse gas emissions, global climate change and the effects (now and in the future) on the Dutch living climate. The fact that the current Dutch greenhouse gas emissions are limited on a global scale does not alter the fact that these emission contribute to climate change. The court has taken into consideration in this respect as well that the Dutch greenhouse emissions have contributed to climate change and by their nature will also continue to contribute to climate change.


Relativity 4.91 The government’s care for a safe living climate at least extends across Dutch territory. In view of the fact that Urgenda also promotes the interests of persons living on this territory now and in the future, the court has arrived at the opinion that the breached security standard – exercising due care in combating climate change – also extends to combating possible damages incurred by Urgenda as a result of this, thereby meeting the so-called relativity requirement. 4.92 No decision needs to be made on whether Urgenda’s reduction claim can als be successful in so far as it also promotes the rights and interests of current and future generations from other countries. After all, Urgenda is not required to actually serve that wide “support base” to be successful in that claim, as the State’s unlawful acts towards the current or future population of the Netherlands is sufficient. Conclusion regarding the State’s legal obligation 4.93 Based on the foregoing, the court concludes that the State – apart from the defence to be discussed below – has acted negligently and therefore unlawfully towards Urgenda by starting from a reduction target for 2020 of less than 25% compared to the year 1990. 5. THE RULING The court: 5.1 orders the State to limit the joint volume of Dutch annual greenhouse gas emissions, or have them limited, so that this volume will have reduced by at least 25% at the end of 2020 compared to the level of the year 1990, as claimed by Urgenda, in so far as acting on its own behalf; 5.2 orders the State to pay the costs of the proceedings incurred by Urgenda (acting on its own behalf) and estimates these costs at € 13,521.82, plus statutory interest, as from fourteen days following this judgment; 5.3 declares this judgment provisionally enforceable to this extent; 5.4 compensates the other costs of the proceedings, in the sense that the Parties bear their own costs to this extent; 5.5 rejects all other claims. This judgment was passed by mr. H.F.M. Hofhuis, mr. J.W. Bockwinkel and mr. I. Brand and pronounced in open court on 24 June 2015. (Footnotes Omitted)

41


42

INITIAL APPEAL AND FINAL SUPREME COURT RULING (2019)56 Summary of the Decision The issue in this case is whether the Dutch State is obliged to reduce, by the end of 2020, the emission of greenhouse gases originating from Dutch soil by at least 25% compared to 1990, and whether the courts can order the State to do so. Urgenda’s claim and the opinions of the District Court and the Court of Appeal Urgenda sought a court order directing the State to reduce the emission of greenhouse gases so that, by the end of 2020, those emissions will have been reduced by 40%, or in any case at by at least 25%, compared to 1990. In 2015, the District Court allowed Urgenda’s claim, in the sense that the State was ordered to reduce emissions by the end of 2020 by at least 25% compared to 1990. In 2018, the Court of Appeal confirmed the District Court’s judgment. Appeal in cassation The State instituted an appeal in cassation in respect of the Court of Appeal’s decision, asserting a large number of objections to that decision. The deputy Procurator General and the Advocate General advised the Supreme Court to reject the State’s appeal and thus to allow the Court of Appeal’s decision to stand. Opinion of the Supreme Court The Supreme Court concludes that the State’s appeal in cassation must be rejected. That means that the order which the District Court issued to the State and which was confirmed by the Court of Appeal, directing the State to reduce greenhouse gases by the end of 2020 by at least 25% compared to 1990, will stand as a final order. The Supreme Court’s opinion rests on the facts and assumptions which were established by the Court of Appeal and which were not disputed by the State or Urgenda in cassation. In cassation, the Supreme Court determines whether the Court of Appeal properly applied the law and whether, based on the facts that may be taken into consideration, the Court of Appeal’s opinion is comprehensible and adequately substantiated. The grounds for the Supreme Court’s judgment are laid down below in sections 4-8 of the judgment. These grounds will be summarised below. This summary does not supersede the grounds for this judgment and does not fully reflect the Supreme Court’s opinion. Dangerous climate change (see paras. 4.1-4.8, below) Urgenda and the State both endorse the view of climate science that a genuine threat exists that the climate will undergo a dangerous change in the coming decades. There is a great deal of agreement on the presence of that threat in climate science and the international community. In that respect and briefly put, this comes down to the following. The emission of greenhouse

56

Date 20 December 2019, JUDGMENT, In the matter between: THE STATE OF THE NETHERLANDS (MINISTRY OF ECONOMIC AFFAIRS AND CLIMATE POLICY), seated in The Hague, CLAIMANT in cassation, referred to hereinafter as: ‘the State’, counsel: attorneys K. Teuben, M.W. Scheltema and J.W.H. van Wijk, and STICHTING URGENDA, having its office in Amsterdam, RESPONDENT in cassation, referred to hereinafter as: ‘Urgenda’, counsel: attorney F.E. Vermeulen. Source: https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:HR(2019, Hoge Raad, 19/00135 (Engels) 1/13/20, 1(48 PM).


gases, including CO2, is leading to a higher concentration of those gases in the atmosphere. These greenhouse gases retain the heat radiated by the earth. Because over the last century and a half since the start of the industrial revolution, an ever-increasing volume of greenhouse gases is being emitted, the earth is becoming warmer and warmer. In that period, the earth has warmed by approximately 1.1°C, the largest part of which (0.7°C) has occurred in the last forty years. Climate science and the international community largely agree on the premise that the warming of the earth must be limited to no more than 2°C, and according to more recent insights to no more than 1.5°C. The warming of the earth beyond that temperature limit may have extremely dire consequences, such as extreme heat, extreme drought, extreme precipitation, a disruption of ecosystems that could jeopardise the food supply, among other things, and a rise in the sea level resulting from the melting of glaciers and the polar ice caps. That warming may also result in tipping points, as a result of which the climate on earth or in particular regions of earth changes abruptly and comprehensively. All of this will jeopardise the lives, welfare and living environment of many people all over the world, including in the Netherlands. Some of these consequences are already happening right now. Protection of human rights based on the ECHR (see paras. 5.2.1-5.5.3, below) The European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR) requires the states which are parties to the convention to protect the rights and freedoms established in the convention for their inhabitants. Article 2 ECHR protects the right to life, and Article 8 ECHR protects the right to respect for private and family life. According to the case law of the European Court of Human Rights (ECtHR), a contracting state is obliged by these provisions to take suitable measures if a real and immediate risk to people’s lives or welfare exists and the state is aware of that risk. The obligation to take suitable measures also applies when it comes to environmental hazards that threaten large groups or the population as a whole, even if the hazards will only materialise over the long term. While Articles 2 and 8 ECHR are not permitted to result in an impossible or disproportionate burden being imposed on a state, those provisions do oblige the state to take measures that are actually suitable to avert the imminent hazard as much as reasonably possible. Pursuant to Article 13 ECHR, national law must offer an effective legal remedy against a violation or imminent violation of the rights that are safeguarded by the ECHR. This means that the national courts must be able to provide effective legal protection. Global problem and national responsibility (see paras. 5.6.1-5.8, below) The risk of dangerous climate change is global in nature: greenhouse gases are emitted not just from Dutch territory, but around the world. The consequences of those emissions are also experienced around the world. The Netherlands is a party to the United Nations Framework Convention on Climate Change (UNFCCC). The objective of that convention is to keep the concentration of greenhouse gases in the atmosphere to a level at which a disruption of the climate system through human action can be prevented. The UNFCCC is based on the premise that all member countries must take measures to prevent climate change, in accordance with their specific responsibilities and options. Each country is thus responsible for its own share. That means that a country cannot escape its own share of the responsibility to take measures by arguing that compared to the rest of the world, its own emissions are relatively limited in scope and that a reduction of its own emissions would have very little impact on a global scale.

43


44

The State is therefore obliged to reduce greenhouse gas emissions from its territory in proportion to its share of the responsibility. This obligation of the State to do ‘its part’ is based on Articles 2 and 8 ECHR, because there is a grave risk that dangerous climate change will occur that will endanger the lives and welfare of many people in the Netherlands. What, specifically, does the State’s obligation to do ‘its part’ entail? (see paras. 6.1-7.3.6, below) When giving substance to the positive obligations imposed on the State pursuant to Articles 2 and 8 ECHR, one must take into account broadly supported scientific insights and internationally accepted standards. Important in this respect are, among other things, the reports from the IPCC. The IPCC is a scientific body and intergovernmental organisation that was set up in the context of the United Nations to handle climatological studies and developments. The IPCC’s 2007 report contained a scenario in which the warming of the earth could reasonably be expected to be limited to a maximum of 2°C. In order to achieve this target, the Annex I countries (these being the developed countries, including the Netherlands) would have to reduce their emissions in 2020 by 25-40%, and in 2050 by 80-95%, compared to 1990. At the annual climate conferences held in the context of the UNFCCC since 2007, virtually every country has regularly pointed out the necessity of acting in accordance with the scenario of the IPCC and achieving a 25-40% reduction of greenhouse gas emissions in 2020. The scientifically supported necessity of reducing emissions by 30% in 2020 compared to 1990 has been expressed on multiple occasions by and in the EU. Furthermore, since 2007, a broadly supported insight has arisen that, to be safe, the warming of the earth must remain limited to 1.5°C, rather than 2°C. The Paris Agreement of 2015 therefore expressly states that the states must strive to limit warming to 1.5°C. That will require an even greater emissions reduction than was previously assumed. All in all, there is a great degree of consensus on the urgent necessity for the Annex I countries to reduce greenhouse gas emissions by at least 25-40% in 2020. The consensus on this target must be taken into consideration when interpreting and applying Articles 2 and 8 ECHR. The urgent necessity for a reduction of 2540% in 2020 also applies to the Netherlands on an individual basis. The policy of the State (see paras. 7.4.1-7.5.3, below) The State and Urgenda are both of the opinion that it is necessary to limit the concentration of greenhouse gases in the atmosphere in order to in order to achieve either the 2°C target or the 1.5°C target. Their views differ, however, with regard to the speed at which greenhouse gas emissions must be reduced. Until 2011, the State’s policy was aimed at achieving an emissions reduction in 2020 of 30% compared to 1990. According to the State, that was necessary to stay on a credible pathway to keep the 2°C target within reach. After 2011, however, the State’s reduction target for 2020 was lowered from a 30% reduction by the Netherlands to a 20% reduction in an EU context. After the reduction in 2020, the State intends to accelerate the reduction to 49% in 2030 and 95% in 2050. Those targets for 2030 and 2050 have since been laid down in the Dutch Climate Act. The State has not explained, however, that – and why – a reduction of just 20% in 2020 is considered responsible in an EU context, in contrast to the 25-40% reduction in 2020, which is internationally broadly supported and is considered necessary. There is a broad consensus within


45

Image: Climate displaced persons will very soon outnumber todays global refugee and IDP populations. Karenni refugee camp in Thailand. Scott Leckie.


46

climate science and the international community that the longer reduction measures to achieve the envisaged final target are postponed, the more comprehensive and more expensive they will become. Postponement also creates a greater risk of an abrupt climate change occurring as the result of a tipping point being reached. In light of that generally endorsed insight, it was up to the State to explain that the proposed acceleration of the reduction after 2020 would be feasible and sufficiently effective to meet the targets for 2030 and 2050, and thus to keep the 2°C target and the 1.5°C target within reach. The State did not do this, however. The Court of Appeal was thus entitled to rule that the State must comply with the target, considered necessary by the international community, of a reduction by at least 25% in 2020. The courts and the political domain (see paras. 8.1-8.3.5, below) The State has asserted that it is not for the courts to undertake the political considerations necessary for a decision on the reduction of greenhouse gas emissions. In the Dutch system of government, the decision-making on greenhouse gas emissions belongs to the government and parliament. They have a large degree of discretion to make the political considerations that are necessary in this regard. It is up to the courts to decide whether, in taking their decisions, the government and parliament have remained within the limits of the law by which they are bound. Those limits ensue from the ECHR, among other things. The Dutch Constitution requires the Dutch courts to apply the provisions of this convention, and they must do so in accordance with the ECtHR’s interpretation of these provisions. This mandate to the courts to offer legal protection, even against the government, is an essential component of a democratic state under the rule of law. The Court of Appeal’s judgment is consistent with the foregoing, as the Court of Appeal held that the State’s policy regarding greenhouse gas reduction is obviously not meeting the requirements pursuant to Articles 2 and 8 ECHR to take suitable measures to protect the residents of the Netherlands from dangerous climate change. Furthermore, the order which the Court of Appeal issued to the State was limited to the lower limit (25%) of the internationally endorsed, minimum necessary reduction of 25-40% in 2020. The order that was issued leaves it up to the State to determine which specific measures it will take to comply with that order. If legislative measures are required to achieve such compliance, it is up to the State to determine which specific legislation is desirable and necessary. Conclusion In short, the essence of the Supreme Court’s judgment is that the order which the District Court issued to the State and which was confirmed by the Court of Appeal, directing the State to reduce greenhouse gases by the end of 2020 by at least 25% compared to 1990, will be allowed to stand. Pursuant to Articles 2 and 8 ECHR, the Court of Appeal can and may conclude that the State is obliged to achieve that reduction, due to the risk of dangerous climate change that could have a severe impact on the lives and welfare of the residents of the Netherlands.


(d) Judgment of the Court of Appeal 2.3.2 The Court of Appeal confirmed the District Court’s judgment. In so doing, the Court of Appeal held as follows. Urgenda’s standing Dutch law determines who is permitted access to the Dutch courts, including, in the case of Urgenda in these proceedings, Article 3:305a DCC, which provides for class actions brought by interest groups. Since individuals who fall under the State’s jurisdiction may rely on Articles 2 and 8 ECHR, which have direct effect in the Netherlands, Urgenda may also do so on behalf of these individuals, pursuant to Article 3:305a DCC. (para. 36) The parties do not dispute that Urgenda has standing to pursue its claim to the extent it is acting on behalf of the current generation of Dutch nationals against the emission of greenhouse gases in Dutch territory. It is entirely plausible that the current generation of Dutch nationals, in particular but not limited to the younger individuals in this group, will have to deal with the adverse effects of climate change in their lifetime if global emissions of greenhouse gases are not adequately reduced. (para. 37) Their interests lend themselves to consolidation as is required for instituting a claim pursuant to Article 3:305a DCC. (para. 38) Articles 2 and 8 ECHR The State has a positive obligation pursuant to Article 2 ECHR to protect the lives of citizens within its jurisdiction, while Article 8 ECHR obliges the State to protect their right to their home life and private life. This obligation applies to all activities, public and non-public, which could jeopardise the rights protected in these articles, and certainly in the face of industrial activities which by their very nature are dangerous. If the government knows that there is a real and imminent threat, the State must take precautionary measures to prevent infringement as far as possible. (paras. 39-43) Genuine threat of dangerous climate change The established facts and circumstances imply that there is a real threat of dangerous climate change, resulting in the serious risk that the current generation of Dutch inhabitants will be confronted with losing their lives or having their family lives disrupted. Articles 2 and 8 ECHR imply that the State has a duty to protect against this genuine threat. (paras. 44-45) Is the State acting unlawfully by not reducing by at least 25% by the end of 2020? The end goal is clear and is not disputed between the parties. By the year 2100, global greenhouse gas emissions must have ceased entirely. Nor do the parties hold differing opinions as to the required interim target of 80-95% reduction relative to 1990 by 2050, and Urgenda endorses the reduction target of 49% relative to 1990 by 2030, as established by the government. The dispute between the parties specifically concerns the question of whether the State can be required to achieve a reduction of at least 25% relative to 1990 by the end of 2020. (para. 46) A significant effort will have to be made between now and 2030 to reach the 49% target in 2030; more efforts than the limited efforts the Netherlands has undertaken so far. It has also

47


48

been established that it would be advisable to start the reduction efforts at as early a stage as possible to limit the total emissions in this period. Delaying the reduction will lead to greater risks for the climate. A delay would, after all, allow greenhouse gas emissions to continue in the meantime; greenhouse gases which would linger in the atmosphere for a very long time and further contribute to global warming. An even distribution of reduction efforts over the period up to 2030 would mean that the State should achieve a substantially higher reduction in 2020 than 20%. An even distribution is also the starting point of the State for its reduction target of 49% by 2030, which has been derived in a linear fashion from the 95% target for 2050. If extrapolated to the present, this would result in a 28% reduction by 2020, as confirmed by the State in answering the Court of Appeal’s questions.” (para. 47) In AR4, the IPCC concluded that a concentration level not exceeding 450 ppm in 2100 is permissible to keep the two-degree target within reach. Following an analysis of the various reduction scenarios, the IPCC concluded that in order to reach this concentration level, the total greenhouse gas emissions in 2020 of Annex I countries, of which the Netherlands is one, must be 25-40% lower than 1990 levels. In AR5, the IPCC also assumed that a concentration level of 450 ppm may not be exceeded in order to achieve the two-degree target. (para. 48) It is highly uncertain whether it will be possible – as AR5 assumes – to use certain technologies to extract CO2 from the atmosphere. Given the current state of affairs, climate scenarios based on such technologies bear little resemblance to reality. AR5 might thus have painted too rosy a picture, and it cannot be assumed outright, as the State does, that the ‘multiple mitigation pathways’ listed by the IPCC in AR5 could, as a practical matter, lead to the achievement of the two-degree target. Furthermore, it is plausible that no reduction percentages as of 2020 were included in AR5, because, in 2014, the IPCC’s focus was on targets for 2030. Therefore, the AR5 report does not give cause to assume that the reduction scenario laid down in AR4 has been superseded and that a reduction of less than 25-40% by 2020 would now be sufficient to achieve the two-degree target. In order to assess whether the State has met its duty of care, the Court of Appeal will take as a starting point that an emission reduction of 25-40% in 2020 is required to achieve the two-degree target. (para. 49) The 450 ppm scenario and the related necessity to reduce CO2 emissions by 25-40% by 2020 are absolutely not overly pessimistic starting points to use as a basis for determining the State’s duty of care. It is not certain whether the two-degree target can be achieved with this scenario. Furthermore, climate science has now acknowledged that a temperature rise of 1.5°C is much more likely to be safe than a rise of 2°C. (para. 50) The IPCC report which states that a reduction of 25-45% by the end of 2020 is needed to achieve the two-degree target (AR4) dates all the way back to 2007. Since that time, virtually all COPs (in Bali, Cancun, Durban, Doha and Warsaw) have referred to this 25-40% standard and Annex I countries have been urged to align their reduction targets accordingly. This may not have established a legal standard with a direct effect, but it does confirm the fact that a reduction of at least 25-40% in CO2 emissions is needed to prevent dangerous climate change. (para. 51) Until 2011, the Netherlands assumed its own reduction target to be 30% in 2020. A letter dated 12 October 2009 from the Minister of VROM shows that the State itself was convinced that a scenario with a reduction of less than 25%-40% in 2020 would lack credibility to keep the two-degree target within reach. The Dutch reduction target for 2020 was subsequently


adjusted downwards. But a substantiation based on climate science was never given, while it is an established fact that postponing reductions in the meantime will cause continued emissions of CO2, which in turn will contribute to further global warming. More specifically, the State failed to give reasons why a reduction of only 20% by 2020 (at the EU level) should currently be regarded as credible, for instance by presenting a scenario which proves how – in concert with the efforts of other countries – the currently proposed postponed reduction could still lead to achieving the two-degree target. The EU itself also deemed a reduction of 30% for 2030 necessary to prevent dangerous climate change. (para. 52) The State’s Defences The State asserts that a ‘waterbed effect’ would result if the Netherlands takes measures to reduce greenhouse gas emissions that fall within the scope of the ETS. Specifically, those measures would create leeway for other EU countries to emit more greenhouse gases. Therefore, according to the State, national measures to reduce greenhouse gas emissions within the framework of the ETS are pointless. This argument does not hold. Just like the Netherlands, other EU countries bear their own responsibility for reducing CO2 emissions as much as possible. It cannot automatically be assumed that the other Member States will take less far-reaching measures than the Netherlands. On the contrary, compared to Member States such as Germany, the United Kingdom, Denmark, Sweden and France, Dutch reduction efforts are lagging far behind. (paras. 55 and 56) The State also pointed out the risk of ‘carbon leakage’, which the State understands to be the risk that companies will move their production to other countries with less strict greenhouse gas reduction obligations. The State has failed to substantiate that this risk will actually occur if the Netherlands were to increase its efforts to reduce greenhouse gas emissions before the end of 2020. (para. 57) The State has also argued that adaptation and mitigation are complementary strategies to limit the risks of climate change and that Urgenda has failed to appreciate the adaptation measures that the State has taken or will take. This argument also fails. Although it is true that the consequences of climate change can be cushioned by adaptation, it has not been made clear or plausible that the potentially disastrous consequences of excessive global warming can be adequately prevented with adaptation. So while it is certainly logical for the State also to take adaptation measures, this does not diminish its obligation to reduce CO2 emissions quicker than it has planned. (para. 59) The State has furthermore argued that the emission reduction percentage of 25-40% in 2020 is intended for the Annex I countries as a whole, and that this percentage can therefore not be taken as a starting point for the emission reduction an individual Annex I country, such as the Netherlands, should achieve. The State has failed to provide substantiation for why a lower emission reduction percentage should apply to the Netherlands than to the Annex I countries as a whole. That is not obvious, considering a distribution in proportion to the per capita GDP, which inter alia has been taken as a starting point in the EU’s Effort Sharing Decision for distributing the EU emission reductions among the Member States. It can be assumed that the Netherlands has one of the highest per capita GDPs of the Annex I countries and the per capita GDP in any case is far above the average of those countries. That is also evident from Appendix II of the Effort Sharing Decision, in which the Netherlands is allocated a reduction percentage (16%

49


50

relative to 2005) that is among the highest of the EU Member States. It is therefore reasonable to assume that what applies to the Annex I countries as a whole should at least also apply to the Netherlands. (para. 60) The State has also asserted that Dutch greenhouse gas emissions, in absolute terms and compared with global emissions, are minimal, that the State cannot solve the problem on its own, that the worldwide community must cooperate. These arguments are not such that they warrant the absence of more ambitious, genuine action. The Court of Appeal, too, acknowledges that this is a global problem and that the State cannot solve this problem on its own. However, this does not release the State from its obligation to take measures in/on its territory, within its capabilities, which in concert with the efforts of other states provide protection from the hazards of dangerous climate change. (paras. 61 and 62) The fact that full scientific certainty regarding the efficacy of the ordered reduction scenario is lacking does not mean, given the due observance of the precautionary principle, that the State is entitled to refrain from taking measures. The high degree of plausibility of that efficacy is sufficient. (para. 63) The existence of a real risk of the danger for which measures have to be taken is sufficient to issue an order. It has been established that this is the case. Moreover, if the opinion of the State were to be followed, an effective legal remedy for a global problem as complex as this one would be lacking. After all, each state held accountable would then be able to argue that it does not have to take measures if other states do not do so either. That is a consequence that cannot be accepted, also because Urgenda does not have the option to summon all eligible states to appear in a Dutch court. (para. 64) Regarding the plea of a lack of the required relativity as meant in Article 6:163 DCC, the Court of Appeal notes at the outset that these proceedings constitute an action for an order and not an action for damages. The standards that have been violated (Articles 2 and 8 ECHR) do seek to protect Urgenda (or those it represents). (para. 65) The State argues that the system of the separation of powers should not be interfered with because it is not the courts, but the democratically legitimised government, that is the appropriate body to make the attendant policy choices. This argument is rejected in this case, also because the State violates human rights, which calls for the provision of measures, while at the same time the order to reduce emissions gives the State sufficient room to decide how it can comply with the order. (para. 67) The District Court correctly held that Urgenda’s claim is not intended to create legislation, either by parliament or by lower government bodies, and that the State retains complete freedom to determine how it will comply with the order. The order also will in no way prescribe the substance which this legislation must have. For this reason alone, the order is not an ‘order to enact legislation’. Moreover, the State has failed to substantiate why compliance with the order can only be achieved through creating legislation by parliament or by lower government bodies. (para. 68)


Conclusion of the Court of Appeal The foregoing implies that, up to now, the State has done too little to prevent dangerous climate change and is doing too little to catch up, at least in the short term (up to the end of 2020). Targets for 2030 and beyond do not diminish the fact that a dangerous situation is imminent which requires intervention right now. In addition to the risks in that context, the social costs also come into play. The later reduction actions are taken, the sooner the available carbon budget will be depleted, which in turn would require considerably more ambitious measures to be taken at a later stage, as is acknowledged by the State, to ultimately achieve the desired level of 95% reduction by 2050. (para. 71) The State cannot hide behind the reduction target of 20% by 2020 at EU level. First of all, also the EU deems a greater reduction in 2020 necessary from a climate science perspective. In addition, the EU as a whole is expected to achieve a reduction of 26-27% in 2020; much higher than the agreed 20%. Also taken into consideration is the fact that, in the past, the Netherlands, as an Annex I country, acknowledged the severity of the climate situation time and again and, mainly based on climate scientific arguments, for years premised its policy on a reduction of 25-40% by 2020, with a concrete policy target of 30% by then. After 2011, this policy objective was adjusted downwards to 20% by 2020 at EU level, without any scientific substantiation and despite the fact that more and more was becoming known about the serious consequences of greenhouse gas emissions for global warming. (para. 72) Based on this, the Court of Appeal held that the State was failing to fulfil its duty of care pursuant to Articles 2 and 8 ECHR by not wanting to reduce emissions by at least 25% by the end of 2020. A reduction of 25% should be considered a minimum, in connection with which recent insights about an even more ambitious reduction in connection with the 1.5°C target have not even been taken into consideration. There is a genuine chance that the reduction by 2020 will prove to be (substantially) lower than 25%. Such a margin of uncertainty is unacceptable. Since there also are clear indications that the current measures will be insufficient to prevent dangerous climate change, even leaving aside the question of whether the current policy will actually be implemented, measures have to be chosen, also in view of the precautionary principle, that are safe, or at least as safe as possible. The very serious dangers, not contested by the State, associated with a temperature rise of 2°C or 1.5°C – let alone higher – also preclude such a margin of uncertainty. (para. 73) (a) The meaning of Articles 1, 2 and 8 ECHR; positive treaty obligations 5.2.1 Article 1 ECHR provides that the contracting parties must secure to everyone within their jurisdiction the rights and freedoms defined in Section I of the ECHR. In other words, ECHR protection is afforded to the persons who fall within the states’ jurisdiction. In the Netherlands this regards, primarily and to the extent relevant in this case, the residents of the Netherlands. 5.2.2 Article 2 ECHR protects the right to life. According to established ECtHR case law, this provision also encompasses a contracting state’s positive obligation to take appropriate steps to safeguard the lives of those within its jurisdiction. According to that case law, this obligation applies, inter alia, if the situation in question entails hazardous industrial activities, regardless of whether these are

51


52

conducted by the government itself or by others, and also in situations involving natural disasters. The ECtHR has on multiple occasions found that Article 2 ECHR was violated with regard to a state’s acts or omissions in relation to a natural or environmental disaster. It is obliged to take appropriate steps if there is a real and immediate risk to persons and the state in question is aware of that risk. In this context, the term ‘real and immediate risk’ must be understood to refer to a risk that is both genuine and imminent. The term ‘immediate’ does not refer to imminence in the sense that the risk must materialise within a short period of time, but rather that the risk in question is directly threatening the persons involved. The protection of Article 2 ECHR also regards risks that may only materialise in the longer term. 5.2.3 Article 8 ECHR protects the right to respect for private and family life. This provision also relates to environmental issues. The ECHR may not entail a right to protection of the living environment, but according to established ECtHR case law, protection may be derived from Article 8 ECHR in cases in which the materialisation of environmental hazards may have direct consequences for a person’s private lives and are sufficiently serious, even if that person’s health is not in jeopardy. According to that case law, when it comes to environmental issues, Article 8 ECHR encompasses the positive obligation to take reasonable and appropriate measures to protect individuals against possible serious damage to their environment. The ECtHR has found that Article 8 ECHR was violated in various cases involving environmental harm. The obligation to take measures exists if there is a risk that serious environmental contamination may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely. That risk need not exist in the short term. 5.2.4 According to the ECtHR, when it comes to activities that are hazardous to the environment, the positive obligation implied by Article 8 ECHR largely overlaps with the obligation implied by Article 2 ECHR. The case law regarding the former obligation therefore applies to the latter obligation. In the case of environmentally hazardous activities, the state is expected to take the same measures pursuant to Article 8 ECHR that it would have to take pursuant to Article 2 ECHR. Therefore, the obligations pursuant to Articles 2 and 8 ECHR will be referred to collectively below. 5.3.1 The protection afforded by Articles 2 and 8 ECHR is not limited to specific persons, but to society or the population as a whole. The latter is for instance the case with environmental hazards. In the case of environmental hazards that endanger an entire region, Articles 2 and 8 ECHR offer protection to the residents of that region. 5.3.2 The obligation to take appropriate steps pursuant to Articles 2 and 8 ECHR also encompasses the duty of the state to take preventive measures to counter the danger, even if the materialisation of that danger is uncertain. This is consistent with the precautionary principle. If it is clear that the real and immediate risk referred to above in paras. 5.2.2 and 5.2.3 exists, states are obliged to take


appropriates steps without having a margin of appreciation. The states do have discretion in choosing the steps to be taken, although these must actually be reasonable and suitable. The obligation pursuant to Articles 2 and 8 ECHR to take appropriate steps to counter an imminent threat may encompass both mitigation measures (measures to prevent the threat from materialising) or adaptation measures (measures to lessen or soften the impact of that materialisation). According to ECtHR case law, which measures are suitable in a given case depends on the circumstances of that case. 5.3.3 The court may determine whether the measures taken by a state are reasonable and suitable. The policy a state implements when taking measures must be consistent and the state must take measures in good time. A state must take due diligence into account in its policy. The court can determine whether the policy implemented satisfies these requirements. In many instances found in ECtHR case law, a state’s policy has been found to be inadequate, or a state has failed to provide sufficient substantiation that its policy is not inadequate. In its judgment in Jugheli et al./Georgia, for example, the ECtHR held as follows: “76. The Court reiterates that it is not its task to determine what exactly should have been done in the present situation to reduce the impact of the plant’s activities upon the applicants in a more efficient way. However, it is within the Court’s jurisdiction to assess whether the Government approached the problem with due diligence and gave consideration to all the competing interests. In this respect the Court reiterates that the onus is on the State to justify, using detailed and rigorous data, a situation in which certain individuals bear a heavy burden on behalf of the rest of the community (see Fadeyeva, cited above, § 128). Looking at the present case from this perspective, the Court notes that the Government did not present to the Court any relevant environmental studies or documents informative of their policy towards the plant and the air pollution emanating therefrom that had been affecting the applicants during the period concerned.” 5.3.4 Articles 2 and 8 ECHR must not result in an impossible or under the given circumstances disproportionate burden being imposed on a state. If a state has taken reasonable and suitable measures, the mere fact that those measures were unable to deter the hazard does not mean that the state failed to meet the obligation that had been imposed on it. The obligations ensuing from Articles 2 and 8 ECHR regard measures to be taken by a state, not the achievement, or guarantee of the achievement, of the envisaged result. (d) Do Articles 2 and 8 ECHR apply to the global problem of the danger of climate change? 5.6.1 Pursuant to Articles 93 and 94 of the Dutch Constitution, Dutch courts must apply every provision of the ECHR that is binding on all persons. Because the ECHR also subjects the Netherlands to the jurisdiction of the ECtHR (Article 32 ECHR), Dutch courts must interpret those provisions as the ECtHR has, or interpret them premised on the same interpretation standards used by the ECtHR.33 This means that the findings above in paras. 5.2.1-5.5.3 must also be used as a premise by the Dutch courts.

53


54

5.6.2 Pursuant to the findings above in paras. 5.2.1-5.3.4, no other conclusion can be drawn but that the State is required pursuant to Articles 2 and 8 ECHR to take measures to counter the genuine threat of dangerous climate change if this were merely a national problem. Given the findings above in paras. 4.2- 4.7, after all, this constitutes a ‘real and immediate risk’ as referred to above in para. 5.2.2 and it entails the risk that the lives and welfare of Dutch residents could be seriously jeopardised. The same applies to, inter alia, the possible sharp rise in the sea level, which could render part of the Netherlands uninhabitable. The fact that this risk will only be able to materialise a few decades from now and that it will not impact specific persons or a specific group of persons but large parts of the population does not mean – contrary to the State’s assertions – that Articles 2 and 8 ECHR offer no protection from this threat (see above in para. 5.3.1 and the conclusion of paras. 5.2.2 and 5.2.3). This is consistent with the precautionary principle (see para. 5.3.2, above). The mere existence of a sufficiently genuine possibility that this risk will materialise means that suitable measures must be taken. 5.6.3 As the State has asserted, the ECtHR has not yet issued any judgments regarding climate change or decided any cases that bear the hallmarks that are particular to issues of climate change. Those hallmarks are, briefly put, the dangers presented by a globally occurring activity – the emission of greenhouse gases all over the world, and not just from Dutch territory – whose consequences will have a worldwide impact, including in the Netherlands. The question is whether the global nature of the emissions and the consequences thereof entail that no protection can be derived from Articles 2 and 8 ECHR, such that those provisions impose no obligation on the State in this case. 5.6.4 The Supreme Court considers the answer to this question to be sufficiently clear. It will therefore give the answer to this question itself and will not submit it to the ECtHR for an advisory opinion, as is possible but not compulsory under Protocol no. 16 to the ECHR, which entered into effect on 1 June 2019. In addition, both parties have asked the Supreme Court to hand down its judgment before the end of 2019, in view of the time to which the District Court’s order, upheld by the Court of Appeal, relates, which is the end of 2020. (e) Joint responsibility of the states and partial responsibility of individual states 5.7.1 The answer to the question referred to in 5.6.3 above is in the opinion of the Supreme Court, that, under Articles 2 and 8 ECHR, the Netherlands is obliged to do ‘its part’ in order to prevent dangerous climate change, even if it is a global problem. This is based on the following grounds. 5.7.2 The UNFCCC is based on the idea that climate change is a global problem that needs to be solved globally. Where emissions of greenhouse gases take place from the territories of all countries and all countries are affected, measures will have to be taken by all countries. Therefore, all countries will have to do the necessary. The preamble to this convention states, among other things, the following in this context: “Acknowledging that the global nature of


climate change calls for the widest possible cooperation by all countries and their participation in an effective and appropriate international response, in accordance with their common but differentiated responsibilities and respective capabilities and their social and economic conditions, (...). Recalling also that States have (...) the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.” 5.7.3 The objective of the UNFCCC is to stabilise greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous human induced interference with the climate system (Article 2). Article 3 contains various principles to achieve this objective. For instance, Article 3(1) provides that the parties “should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities”. Article 3(3) provides that the parties “should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects”. And Article 4 provides, put succinctly, that all parties will take measures and develop policy in this area. It follows from these provisions that each state has an obligation to take the necessary measures in accordance with its specific responsibilities and possibilities. 5.7.4 At the annual climate change conferences held on the basis of the UNFCCC since 1992, the provisions mentioned above in 5.7.3 have been further developed in various COP decisions. In each case these are based first and foremost on an acknowledgement of the above understanding: all countries will have to do the necessary. Articles 3 et seq. of the 2015 Paris Agreement reiterates this in so many words. 5.7.5 This understanding corresponds to what is commonly referred to as the ‘no harm principle’, a generally accepted principle of international law which entails that countries must not cause each other harm. This is also referred to in the preamble to the UNFCCC (in the section cited in 5.7.2 above). Countries can be called to account for the duty arising from this principle. Applied to greenhouse gas emissions, this means that they can be called upon to make their contribution to reducing greenhouse gas emissions. This approach justifies partial responsibility: each country is responsible for its part and can therefore be called to account in that respect. 5.7.6 This partial responsibility is in line with what is adopted in national and international practice in the event of unlawful acts that give rise to only part of the cause of the damage. Partial responsibility is in line with, inter alia, the Draft Articles on Responsibility of States for Internationally Wrongful Acts, as proposed by the UN International Law Commission and adopted by the UN General Assembly. This is apparent, for example, in the explanatory notes to Article 47(1) thereof, in which the following is remarked: “6. According to paragraph 1 of article 47, where several States are responsible for the

55


56

same internationally wrongful act, the responsibility of each State may be invoked in relation to that act. The general rule in international law is that of separate responsibility of a State for its own wrongful acts and paragraph 1 reflects this general rule. (...) 8. Article 47 only addresses the situation of a plurality of responsible States in relation to the same internationally wrongful act. The identification of such an act will depend on the particular primary obligation, and cannot be prescribed in the abstract. Of course, situations can also arise where several States by separate internationally wrongful conduct have contributed to causing the same damage. For example, several States might contribute to polluting a river by the separate discharge of pollutants. (...) In such cases, the responsibility of each participating State is determined individually, on the basis of its own conduct and by reference to its own international obligations.” Many countries have corresponding rules in their liability law system. It is true that Article 3(1) UNFCCC referred to in 5.6.3 above entails that the distribution of the measures to be taken against climate change must not be based solely on the basis of responsibility for past emissions by a country, and that consideration must also be given to the possibilities for countries to reduce their emissions. But that does not detract from the fact that the underlying principle of these widely accepted rules is always that, in short, ‘partial fault’ also justifies partial responsibility. 5.7.7 Partly in view of the serious consequences of dangerous climate change as referred to in 4.2 above, the defence that a state does not have to take responsibility because other countries do not comply with their partial responsibility, cannot be accepted. Nor can the assertion that a country’s own share in global greenhouse gas emissions is very small and that reducing emissions from one’s own territory makes little difference on a global scale, be accepted as a defence. Indeed, acceptance of these defences would mean that a country could easily evade its partial responsibility by pointing out other countries or its own small share. If, on the other hand, this defence is ruled out, each country can be effectively called to account for its share of emissions and the chance of all countries actually making their contribution will be greatest, in accordance with the principles laid down in the preamble to the UNFCCC cited above in 5.7.2. 5.7.8 Also important in this context is that, as has been considered in 4.6 above about the carbon budget, each reduction of greenhouse gas emissions has a positive effect on combating dangerous climate change, as every reduction means that more room remains in the carbon budget. The defence that a duty to reduce greenhouse gas emissions on the part of the individual states does not help because other countries will continue their emissions cannot be accepted for this reason either: no reduction is negligible. 5.7.9 Climate change threatens human rights, as follows from what has been considered in 5.6.2 above. This is also recognised internationally outside the context of the Council of Europe.37 In order to ensure adequate protection from the threat to those rights resulting from climate change, it should be


possible to invoke those rights against individual states, also with regard to the aforementioned partial responsibility. This is in line with the principle of effective interpretation, referred to in 5.4.1 above, that the ECtHR applies when interpreting the ECHR and also with the right to effective legal protection guaranteed by Article 13 ECHR, referred to 5.5.1-5.5.3 above. 5.8 In view of the considerations in 5.7.2-5.7.9 above, the Supreme Court finds that Articles 2 and 8 ECHR relating to the risk of climate change should be interpreted in such a way that these provisions oblige the contracting states to do ‘their part’ to counter that danger. In light both of the facts set out in 4.2-4.7 and of the individual responsibility of the contracting states, this constitutes an interpretation of the positive obligations laid down in those provisions that corresponds to its substance and purport as mentioned in 5.2.1-5.3.3 above. This interpretation is in accordance with the standards set out in 5.4.1-5.4.3 that the ECtHR applies when interpreting the ECHR and that the Supreme Court must also apply when interpreting the ECHR. (f) Can this obligation pursuant to Articles 2 and 8 ECHR also be relied upon in a case involving a claim pursuant to Article 3:305a DCC? 5.9.1 It follows from the above that, as the Court of Appeal has ruled, the State is obliged on the basis of Articles 2 and 8 ECHR to take appropriate measures against the threat of dangerous climate change, in accordance with its share as referred to in 5.8 above. 5.9.2 Urgenda, which in this case, on the basis of Article 3:305a DCC, represents the interests of the residents of the Netherlands with respect to whom the obligation referred to in 5.9.1 above applies, can invoke this obligation. After all, the interests of those residents are sufficiently similar and therefore lend themselves to being pooled, so as to promote efficient and effective legal protection for their benefit. Especially in cases involving environmental interests, such as the present case, legal protection through the pooling of interests is highly efficient and effective. This is also in line with Article 9(3) in conjunction with Article 2(5) of the Aarhus Convention, which guarantees interest groups access to justice in order to challenge violations of environmental law, and in line with Article 13 ECHR (see 5.5.1-5.5.3 above). 5.9.3 As the Court of Appeal rightly held in para. 35, the fact that Urgenda does not have a right to complain to the ECtHR on the basis of Article 34 ECHR, because it is not itself a potential victim of the threatened violation of Articles 2 and 8 ECHR, does not detract from Urgenda’s right to institute proceedings. After all, this does not deprive Urgenda of the power to institute a claim under Dutch law in accordance with Article 3:305a DCC on behalf of residents who are in fact such victims.

57


58

7. THE 25-40% TARGET FOR ANNEX I COUNTRIES 7.1

The first question to be addressed in these proceedings is whether the 25% to 40% reduction in greenhouse gas emissions in 2020 compared to 1990, which is based on AR4 (hereinafter: ‘the 25-40% target’), formulated as a target for the Annex I countries, represents a corresponding obligation for the state. The State rightly argues that this target is not a binding rule or agreement in and of itself. The question is therefore whether this target nevertheless binds the State on one or more of the grounds mentioned above in 6.3-6.5. The first question that needs to be answered in this context is (a) to what extent there is support within the international community for the 25-40% target. This question will be dealt with in 7.2.1-7.2.11 below. The next question is (b) whether this target also applies to the Netherlands as an individual country. This question will be dealt with in 7.3.1-7.3.6 below. After that (c) the State’s policy to combat dangerous climate change is discussed in 7.4.1-7.4.6. Lastly (d) in 7.5.1-7.5.3 the question is answered whether it follows from all this that the Netherlands is obliged to meet the 25-40% target, as ruled by the District Court and Court of Appeal. This is based on the facts established by the Court of Appeal.

(c) The State’s policy regarding measures to counter climate change 7.4.1 As considered in 4.8 above, the State acknowledges the need of the target of a maximum concentration of greenhouse gases in the atmosphere of 430 or 450 ppm by 2100, with global warming reasonably expected to be limited to no more than 1.5°C or 2°C. In this context, the State also endorsed the targets set out in the AR4 scenario. As regards that scenario’s targets of 80% to 95% reduction by 2050 and of 450 ppm by 2100 (now 430 ppm by 2100), it still endorses them. For the year 2020, the State assumed a reduction target of 30% until 2011. According to the letter from the Minister of Housing, Spatial Planning and the Environment dated 12 October 2009 cited above in 2.1(27), the State, like the EU (see 7.2.6 and 7.3.3 above), was at the time of the opinion that a reduction of 25% to 40% by 2020 was necessary to stay on a credible track to keep the 2°C target within reach. 7.4.2 After 2011, the State adjusted its target for 2020 downwards to the 20% reduction at EU level as referred to in 7.3.1 above. In these proceedings, the State argues that, on closer inspection, achieving a 25% to 40% reduction by 2020 is not necessary, because the same result can be achieved by accelerating the reduction of greenhouse gas emissions in the Netherlands after 2020. The State argues that it intends to have this accelerated reduction take place after 2020 and that it prefers this reduction path over the AR4 scenario. The question, however, is whether an accelerated reduction of greenhouse gas emissions in the Netherlands after 2020 can indeed achieve the same result. In this context, the following facts taken into account by the Court of Appeal are relevant. 7.4.3 All greenhouse gas emissions lead to a reduction in the carbon budget still available (see also 4.6 above). Any postponement of the reduction of emissions therefore means that emissions in the future will have to be reduced on an


increasingly large scale in order to make up for the postponement in terms of both of time and size. This means that, in principle, for each postponement of emissions reductions, the reduction measures to be taken at a later date will have to be increasingly far-reaching and costly in order to achieve the intended result, and it will also be riskier. The UNEP already warned about this in its 2013 annual report (see 2.1(22) above). 7.4.4 Following AR4, it became clear that in order to prevent dangerous climate change even greater reductions of greenhouse gas emissions are actually needed in the short term and that this need is becoming increasingly urgent, both before 2020 and in the subsequent period up to 2030 (see also 7.2.87.2.9 above). Also according to the Netherlands Environmental Assessment Agency (Planbureau voor de Leefomgeving) (the PBL) – which is an independent research institute that is part of the Ministry of Infrastructure and the Environment – a policy is needed, in view of the Paris Agreement, that goes far beyond the current policies of the countries in question. According to the PBL in a 2016 report, the Dutch policy should be tightened in the short time in order to align it with the Paris Agreement. 7.4.5 The State acknowledges the fact referred to in 7.4.3 above (para. 71 of the Court of Appeal’s judgments) and does not contest the facts mentioned in 7.4.4 above. Moreover, it has meanwhile formulated a reduction target for 2030 of 49% and for 2050 of 95% (these targets have been laid down in the Dutch Climate Act after the date of the Court of Appeal’s judgment45). The target of 49% for 2030 was derived linearly from the target of 95% for 2050. On request, the State informed the Court of Appeal that if this line were extended to 2020 this would result in a target of 28% for that year (para. 47). 7.4.6 In view of the considerations in 7.4.3-7.4.5 above, there may be serious doubts as to whether, with the 20% reduction envisaged by the State at EU level by 2020, the overall reduction over the next few decades, which the State itself believes to be necessary in any case, is still feasible. After all, the need for this reduction requires the State to aim for a reduction in greenhouse gas emissions by more than 25% by 2020, rather than a reduction that is lower. The State has not explained that and why, despite the above and taking into account the precautionary principle applicable in this context, a policy aimed at 20% reduction by 2020 can still be considered responsible. The State has not provided any insight into which measures it intends to take in the coming years, let alone why these measures, in spite of the above, would be both practically feasible and sufficient to contribute to the prevention of dangerous climate change to a sufficient extent in line with the Netherlands’ share. The State has confined itself to asserting that there “are certainly possibilities” in this context. (d) Must the State adhere to the 25-40% target? 7.5.1 In view of the above, the Court of Appeal was allowed to rule in para. 52 that the State has insufficiently substantiated that it would be possible for a responsible policy to prevent dangerous climate change to include a

59


60

greenhouse gas emissions reduction target of less than at least 25% by 2020. Therefore, in accordance with the foregoing considerations in 6.3-6.5, there is reason to come to the conclusion that the State should in any event adhere to the target of at least 25% reduction by 2020. As stated above, there is a large degree of consensus in the international community and climate science that at least this reduction by the Annex I countries, including the Netherlands, is urgently needed (see 7.2.11 and 7.3.6 above). Proper legal protection means that this consensus can be invoked when implementing the positive obligations incumbent on the State pursuant to Articles 2 and 8 ECHR. The target of achieving a reduction of at least 25% by 2020 is also in line with what the State itself considers necessary for other years (2030, 2050 and 2100 (see 7.4.17.4.5 above). In the context of the positive obligation on the State under Articles 2 and 8 ECHR to take appropriate measures to prevent dangerous climate change, this target can therefore be regarded as an absolute minimum. As the State has not been able to provide a proper substantiation of its claim that deviating from that target is nevertheless responsible (see 7.4.6 above), it must adhere to the target of 25%. It should therefore strive to achieve at least this reduction by 2020, as the Court of Appeal rightly held in para. 53. 7.5.2 The State has also argued, in ground for cassation 8.2, that it meets its obligations under Articles 2 and 8 ECHR by taking adaptation measures, whether or not in combination with mitigation measures already taken and proposed, and that it therefore does not have to meet the 25-40% target. In para. 59, however, the Court of Appeal established fully comprehensibly that although it is correct that the consequences of climate change can be mitigated by taking adaptation measures, it has not been demonstrated or made plausible that the potentially disastrous consequences of excessive global warming can be adequately prevented by such measures. This finding also implies that even if account is taken of the fact that the State is taking adaptation measures, mitigation measures that reduce emissions by at least 25% by 2020 are urgently needed, also for the Netherlands. The State’s aforementioned argument therefore does not hold. 7.5.3 It should also be noted that the Court of Appeal’s judgment implies in paras. 57 and 66 that the State has not sufficiently substantiated that the reduction of at least 25% by 2020 is an impossible or disproportionate burden, as referred to in 5.3.4 above. In this context, the State only referred to the short time remaining until the end of 2020 and to the impairment of the level playing field of the Dutch business community in an international context. In connection with the first argument, the Court of Appeal took into account that the District Court’s order to the State dates back to 2015, i.e. has been in force since then, and that the State has moreover been aware of the seriousness of the climate problem for some time and initially pursued a policy aimed at a 30% reduction by 2020 (para. 66). With respect to the second argument, the Court of Appeal took into account that other EU countries pursue much stricter climate policies and that the State has not explained this argument in more detail (para. 57). By doing so, the Court of Appeal has comprehensibly rejected the State’s assertion


that there would be an impossible or disproportionate burden. Ground for cassation 8.4, which accuses the Court of Appeal of not having investigated this assertion, is therefore unfounded. (e) Assessment of complaints in cassation 7.6.1 The complaints referred to in 4.237-4.248 of the Opinion proffered by the deputy Procurator General and the Advocate General cannot lead to cassation for the reasons stated there. 7.6.2 Insofar as complaints from grounds for cassation 4-8 have not been dealt with in the foregoing, these cannot lead to cassation either. With regard to Article 81(1) DJOA, this does not require any further substantiation since the complaints do not require answers to legal questions in the interest of unity of law or legal development. 8. PERMISSIBILITY OF THE ORDER ISSUED; POLITICAL DOMAIN 8.1 The State argues in ground for cassation 9 that the District Court’s order to reduce Dutch greenhouse gas emissions by at least 25% in 2020 compared to 1990 levels, which was upheld by the Court of Appeal, is impermissible for two reasons. The first reason is that the order amounts to an order to create legislation, which according to Supreme Court case law is not permissible. The second reason is, briefly put, that it is not for the courts to make the political considerations necessary for a decision on the reduction of greenhouse gas emissions. The following is considered in response to these arguments. (a) Order to create legislation 8.2.1 If the government is obliged to do something, it may be ordered to do so by the courts, as anyone may be, at the request of the entitled party (Article 3:296 DCC). This is a fundamental rule of constitutional democracy, which has been enshrined in our legal order. As far as the rights and freedoms set out in the ECHR are concerned, this rule is consistent with the right to effective legal protection laid down in Article 13 ECHR referred to above in 5.5.1-5.5.3. Partly in connection with this fundamental rule, the Dutch Constitution stipulates that civil courts have jurisdiction over all claims, so that they can always grant legal protection if no legal protection is offered by another court. 8.2.2 It follows from the considerations in 5.1.7-6.2 above that, in this case, the State has a legal duty by virtue of the protection it must provide to residents of the Netherlands on the basis of Articles 2 and 8 ECHR in order to protect their right to life and their right to private and family life. It may therefore be ordered to comply with this duty by the courts, unless there are grounds for an exception in accordance with Article 3:296 DCC. Under that provision, an exception arises if the law so provides or if it follows from the nature of the obligation or the legal act. The Supreme Court case law relating to orders to create legislation constitutes an application of this exception.

61


62

8.2.3 This case law is based on two considerations. First of all, there is the consideration that the courts should not intervene in the political decisionmaking process involved in the creation of legislation. Secondly, there is the consideration that such an order should create an arrangement that also applies to parties other than the parties to the proceedings. 8.2.4 The first consideration does not mean that courts cannot enter the field of political decision-making at all. In the case law referred to above, therefore, the earlier case law of the Supreme Court has been reiterated, which dictates that, on the basis of Article 94 of the Dutch Constitution, the courts must disapply legislation if any binding provisions of treaties entail such. It has also been decided in that case law that the courts may issue a declaratory decision to the effect that the public body in question is acting unlawfully by failing to enact legislation with a particular content. The first consideration on which the case law referred to in 8.2.2 is based must therefore be understood to mean that the courts should not interfere in the political decision-making process regarding the expediency of creating legislation with a specific, concretely defined content by issuing an order to create legislation. In view of the constitutional relationships, it is solely for the legislator concerned to determine for itself whether legislation with a particular content will be enacted. Therefore, the courts cannot order the legislator to create legislation with a particular content. 8.2.5 The second consideration on which the case law referred to in 8.2.2 above is based relates to the circumstance that the civil courts only pronounce binding decisions between the parties to the dispute (cf. Article 236 DCCP). The courts do not have the power to decide in a manner binding on everyone how a statutory provision should read. An order to create legislation is therefore subject to the objection that third parties, which are not involved in the proceedings and are therefore not bound by the judgment, would still be bound (indirectly) by that order by virtue of the fact that that legislation would also apply to them. This objection does not arise in the case of an order not to apply statutory provisions, which applies only to a particular claimant, or in the case of a declaratory decision. The same applies to a general order to take measures, while respecting the legislator’s freedom, as referred to in the second paragraph of 8.2.4 above, to create or not to create legislation with a particular content. After all, the courts in that case do not determine the content of the statutory provision by issuing their order; this determination is still reserved to the legislator in question. 8.2.6 It follows from the above that the courts are only not permitted to issue an order to create legislation with a particular, specific content. After all, only then do the objections arise which are raised in the consideration on which the case law referred to in 8.2.2 above is based. Therefore, the courts are not prevented to issue a declaratory decision to the effect that the omission of legislation is unlawful (see 8.2.4 above). They may also order the public body in question to take measures in order to achieve a certain goal, as long as that order does


not amount to an order to create legislation with a particular content. In the Supreme Court judgment of 9 April 2010 (SGP), the impermissibility of courts issuing an order to create legislation is for that reason limited to this case. 8.2.7 In light of the foregoing, the District Court’s order, upheld by the Court of Appeal, constitutes an application of the main rule of Article 3:296 DCC. Indeed, this order does not amount to an order to take specific legislative measures, but leaves the State free to choose the measures to be taken in order to achieve a 25% reduction in greenhouse gas emissions by 2020. This is not altered by the fact that many of the possible measures to be taken will require legislation, as argued by the State. After all, it remains for the State to determine what measures will be taken and what legislation will be enacted to achieve that reduction. The exception to Article 3:296 DCC made in the case law referred to in 8.2.2 above therefore does not apply in this case. (b) Political domain 8.3.1 This brings the Supreme Court to the assessment of the State’s more general argument that it is not for the courts to make the political considerations necessary for a decision on the reduction of greenhouse gas emissions. 8.3.2 As considered in 6.3 above, in the Dutch constitutional system of decisionmaking on the reduction of greenhouse gas emissions is a power of the government and parliament. They have a large degree of discretion to make the political considerations that are necessary in this regard. It is up to the courts to decide whether, in availing themselves of this discretion, the government and parliament have remained within the limits of the law by which they are bound. 8.3.3 The limits referred to in 8.3.2 above include those for the State arising from the ECHR. As considered in 5.6.1 above, the Netherlands is bound by the ECHR and the Dutch courts are obliged under Articles 93 and 94 of the Dutch Constitution to apply its provisions in accordance with the interpretation of the ECtHR. The protection of human rights it provides is an essential component of a democratic state under the rule of law. 8.3.4 This case involves an exceptional situation. After all, there is the threat of dangerous climate change and it is clear that measures are urgently needed, as the District Court and Court of Appeal have established and the State acknowledges as well (see 4.2-4.8 above). The State is obliged to do ‘its part’ in this context (see 5.7.1-5.7.9 above). Towards the residents of the Netherlands, whose interests Urgenda is defending in this case, that duty follows from Articles 2 and 8 ECHR, on the basis of which the State is obliged to protect the right to life and the right to private and family life of its residents (see 5.1-5.6.4 and 5.8-5.9.2 above). The fact that Annex I countries, including the Netherlands, will need to reduce their emissions by at least 25% by 2020 follows from the view generally held in climate science and in the international community, which view has been established by the District Court and the Court of Appeal (see 7.2.1-7.3.6 above). The policy that the State pursues since

63


2011 and intends to pursue in the future (see 7.4.2 above), whereby measures are postponed for a prolonged period of time, is clearly not in accordance with this, as the Court of Appeal has established. At least the State has failed to make it clear that its policy is in fact in accordance with the above (see 7.4.6 and 7.5.1 above).

64

8.3.5 In this case, therefore, the Court of Appeal was allowed to rule that the State is in any case obliged to achieve the aforementioned reduction of at least 25% by 2020. (c) Assessment of the complaints in cassation 8.4 Ground for cassation 9 therefore cannot lead to cassation either. 9. DECISION The Supreme Court: • rejects the appeal; • orders the State to pay the costs of the proceedings in cassation, up to this decision estimated on the part of Urgenda at EUR 882.34 in disbursements and EUR 2,200 in fees. This judgment rendered by Vice President C.A. Streefkerk as chairman and justices G. Snijders, M.V. Polak, T.H. Tanja-van den Broek and H.M. Wattendorff, and pronounced in open court by Vice President C.A. Streefkerk on 20 December 2019. (Footnotes omitted)

NEW ZEALAND 17. The importance of the Urgenda case within the growing body of climate jurisprudence cannot be overestimated, but in terms of case law on climate displacement New Zealand is the current world leader. After a series of cases in 2000 where Pacific Islanders sought to seek asylum due to climate change at the New Zealand Refugee Status Appeals Authority, there were no notable climate change cases heard up until its replacement in 2010.57 The subsequent authority, the Immigration and Protection Tribunal, has since engaged with the argument from appellants that the effects of climate change ought to be recognised under the Convention. There seems to have been slight progress upon deliberation that climate change effects will at least influence whether a person is eligible for refugee or humanitarian status, even if it cannot form the total basis. 18. Far and above the most well-known climate displacement case anywhere in the world is the now famous Teitiota case which was initially filed in 2013 with the Immigration and Protection Tribunal which found that Teitiota did not have a right to remain in New Zealand

57

Ministry of Justice, Immigration and Protection, New Zealand Government <https://www.justice.govt.nz/tribunals/ immigration/immigration-and-protection/>.


despite climate change-related challenges facing him in Kiribati. He subsequently appealed the decision, which this was again rejected. In 2015, Teitiota again appealed the High Court previous decisions to reject his appeal of refugee status with claims his home island was no longer liveable.58 He claimed ‘to an entitlement to be recognised as a refugee on the basis of changes to his environment in Kiribati caused by sea-level-rise’.59 The Tribunal in its initial stage again noted that the hardships outlined by Mr Teitiota ‘were faced by the population generally’.60 It referred to and it was noted that ‘these claims had all been dismissed because the indiscriminate nature of these environmental events did not point to any nexus with a convention ground’.61 At the High Court appeal this assertion was largely supported. Mr Teitiota’s appeal was conducted through six questions of law, one of which contended fact that ‘green house gasses are responsible for rising sea levels and changes of weather patterns, and as such constitute an indirect but worldwide agency’.62 However the High Court rejected the claim that the ‘international community could be tantamount to the persecutor’.63 Priestley J stated this would not work with the Convention’s framework, as this would suggest that ‘the claimant is seeking refuge within the very countries that are allegedly persecuting him’.64 The Tribunal’s decision was upheld, and Mr Teitiota and his family were deported back to Kiribati.65 He then submitted a complaint to the UN Human Rights Committee which essentially upheld the New Zealand court decisions, but did assert that climate displaced persons could not be arbitrarily returned to their countries if climate change conditions there threatened their rights. All of these decisions are included below. 19. In another important case which is also included below, in 2014 Sigeo Alesana sought protection as a Tuvaluan man. Amongst other family matters, he claimed that he was ‘at risk of suffering the adverse impacts of climate change’.66 It was noted in the court’s deliberation that ‘life became increasingly more difficult due to the effects of climate change’67 for Mr Alesana in Tuvalu. Mr Alesana’s family was afforded humanitarian protection in New Zealand, it was wrongly reported that the case saw recognition of the world’s first climate refugees.68 While consideration of the impacts of climate change on Mr Alesana’s human rights were deliberated by the tribunal, they were not utilised as a basis for persecution under the Convention. Rather they were noted as a ‘humanitarian factor’ 69 in the case, and was one of the matters ‘taken into account on a cumulative basis’,70 that it was determined Mr Alesana’s family ought not be removed from New Zealand.

58

Teitiota v Chief Executive, Ministry of Business Innovation and Employment [2014] NZAR 162.

59

Ibid 7.

60

Ibid 30.

61

Ibid 28.

62

Ibid 40.

63

Ibid 55.

64

Ibid 55.

65

N.b. The family was not eligible for the humanitarian visa that Mr Alesana’s family received as they had overstayed their initial visa.

66

AD (Tuvalu) [2014] NZIPT 501370-371, 2.

67

Ibid 9.

68

Harriet Farquhar, ‘Migration with Dignity: Towards a New Zealand Response to Climate Change Displacement in the Pacific’ (2015) 46 Victoria University of Wellington Law Review 29.

69

Ibid 27.

70

Ibid 30.

65


66

20. These two cases captured media attention around the world for the potential introduction of ‘climate change refugees’.71 In particular, the case of Mr Teitiota as it went through the appeal process all the way to the High Court. Academic reports have since labelled some of this reporting as ‘sensationalist’ and ‘wrong’.72 Neither case, at any stage of appeal, saw official recognition of climate refugees. Rather, climate change was finally given weighting in refugee related decision-making. In regards to Mr Alesana, considerations of climate change helped see his protection claim for humanitarian assistance under New Zealand Immigration Law accepted73. This demonstrated, for the time being, that ‘while climate change may be a factor which will be considered in determining (a refugee claim), the impacts of climate change alone will not be sufficient’74. This in itself is a derogation from the earlier 2000 tribunal decisions, where climate change was simply regarded as an “unfortunate” scenario independent of asylum claims. In the case of Mr Teitiota, the most significant aspect of his eventual failed claim, was the official court recognition that current refugee law could be construed more widely or is otherwise insufficient. At the initial tribunal hearing, the Tribunal Member stated ‘the requirement of human agency does not mean that environmental degradation… can never create pathways into the Refugee Convention or protected person jurisdiction’.75 This statement was repeated throughout the appeal including in the High Court.76 While it had no bearing on the final decision of the case, it is a substantial move toward finding potential for the persecution element to be construed as inclusive of climate refugees. This statement indicates that while the court regarded Mr Teitiota’s claim as an attempt to the stand the Convention on its head’,77 there is clearly a judicial desire for some kind of alternate approach to refugee claims based on climate change. This sentiment was summed up by Wild J in the final remarks of the Supreme Court Appeal: “No-one should read this judgement as downplaying the importance of climate change. It is a major and growing concern for the international community. The point this judgement makes is that climate change and its effect on countries like Kiribati is not appropriately addressed under the Refugee Convention.”78 21. Where current international legislation has fallen short of affording the kind of protection New Zealand’s judiciary has indicated it may like to apply, other domestic avenues are being explored. Partly in response to the rejected cases of Alesana and Teitiota, Jacinta Ardern’s government has cited plans to introduce a new kind of visa for people displaced by rising seas in the Pacific.79 If the plan is followed through, it is thought that it could be used as a model for other refugee receiving nations to find a way to assist victims of climate change in

71

Treasa Dunworth, ‘REVIEW: International Law Review’ (2015) New Zealand Law Review 285, 309.

72

Ibid 310.

73

Harriet Farquhar, ‘Migration with Dignity: Towards a New Zealand Response to Climate Change Displacement in the Pacific’ (2015) 46 Victoria University of Wellington Law Review 29.

74

Ibid 31.

75

AF (Kiribati) [2013] NZIPT 800413, 55.

76

Teitiota v Chief Executive, Ministry of Business Innovation and Employment [2014] NZAR 162, 25.

77

Treasa Dunworth ‘REVIEW: International Law Review’ (2015) New Zealand Law Review 285, 310.

78

Teitiota v Chief Executive of Ministry of Business, Innovation and Employment [2014] NZCA 173, 41.

79

Charles Anderson, ‘New Zealand considers creating climate change refugee visas’, The Guardian (online), 31 October 2017 <https://www.theguardian.com/world/2017/oct/31/new-zealand-considers-creating-climate-change-refugee-visas>.


spite of the Convention’s inability to construe climate refugees.80 This could in turn see the pursuit of ‘legal arrangements on a bi-lateral or regional basis’81 as a means of addressing the impending climate migrant crisis. It seems that in New Zealand the political will exists to determine a viable solution in the imminent future, particularly for their Pacific Island neighbours. It will be important to follow their developments, as they are on of the few states who are ‘working proactively towards creating a toolkit of mobility responses’.82

TEITIOTA (2013, ET AL) INITIAL CONSIDERATION - IMMIGRATION AND PROTECTION TRIBUNAL (2013)83 INTRODUCTION [1]

This is an appeal against a decision of a refugee and protection officer, declining to grant refugee status and/or protected person status to the appellant, a citizen of Kiribati.

[2]

The appellant claims an entitlement to be recognised as a refugee on the basis of changes to his environment in Kiribati caused by sea-level-rise associated with climate change. The issue for determination is whether the appellant is able to bring himself within the Refugee Convention or New Zealand’s protected person jurisdiction on this basis.

COUNTRY INFORMATION AND EXPERT EVIDENCE ON KIRIBATI The 2007 National Adaptation Programme of Action (the 2007 NAPA) [5]

The 2007 NAPA, filed by Kiribati under the United Nations Framework Convention on Climate Change sets out the relevant human and physical geography. It states at pp4-5: Kiribati is situated in the Central Pacific Ocean and consists of 33 atolls with a total land area of about 800 sq km. The atolls exist in three separate groups – the Gilberts, Line and Phoenix. Each group has a separate Exclusive Economic Zone, with the total EEZ for Kiribati being around 3.5 million sq km. The atolls have a maximum height of 3 to 4 m above mean sea level. Not all of the atolls are inhabited, and some are not capable of being inhabited. The total population of Kiribati during the 2000 census was 84494 and grew during the preceding 5 years at an annual growth rate of 1.7%. For the great majority, the livelihood is at the subsistence level, dependent heavily on natural environment resources. Monetized socioeconomic systems are predominating in urban Tarawa and on Kiritimati Island, but there is strong interdependency between these systems and that of the quality of the state of the environment.

80

81

82

83

Rick Noack, ‘A New Zealand visa could trigger the era of ‘climate refugees’’, The Sydney Morning Herald (online), 1 November 2017 <https://www.smh.com.au/world/a-new-zealand-visa-could-trigger-the-era-of-climate-changerefugees-20171101-gzchd7.html>. Ibid. Jane McAdam, ‘The emerging New Zealand jurisprudence on climate change, disasters and displacement’ (2015) 3(1) Migration Studies 131, 138. AF (Kiribati) [2013] NZIPT 800413.

67


68

Image: Bangladesh. Photo by Kadir van Lohuizen / NOOR


Subsistence and sustainable means of livelihood are based on indigenous tree crops, namely coconut tree, pandanus tree, bwabwai (giant taro), breadfruit and banana. The productivity of these tree crops is dependent on a healthy environment. The coconut tree produces the important export product, copra; the pandanus tree bears fruits which are traditionally preserved for consumption especially during drought years; bwabwai is a prestigious crop; breadfruit and banana are the only fruit trees that provide varied diet from the mainstay of coconut, bwabwai, and fish. Larger atolls contain a fresh groundwater lens which ‘floats’ on seawater. The quality and depth of the groundwater lens varies within an atoll, and affects the agricultural productivity of crops, particularly bwabwai plantations. For most people the groundwater lens is the only source of potable water. Recharge to the groundwater lens is from precipitation of about 2350 mm per year, with the Northern Gilbert and Line Islands being wetter than the Southern Gilbert. Risks to the land resource based livelihood of the people are from droughts, inundation of land from storm surges, salt water intrusion to water lenses, and excessive rainfall creating runoff into drinking groundwater wells. Global temperature increase affects coral growth and sea level. It is known that the heat content of the oceans has increased, and this could mean increase in internal energy (turbidity enhancement) of the oceans and/or increase in sea level. In Kiribati, coastal erosion, sea water from storm surges inundating the land, extensive sea spray, and coral bleaching are being observed - quite consistent with what to expect from climate change. These changes are adversely affecting the people’s livelihood. Tuna resources are seasonal but are abundant within Kiribati EEZ during El Nino. Kiribati could lose out if climate change causes the tuna fisheries to migrate further to the north. Inshore fisheries are also known to be less productive during drought conditions, normally associated with the La Nina. [6]

The 2007 NAPA goes on to detail a range of issues arising from existing and projected effects of climate change related events and processes in the areas of housing, land and property (HLP), fisheries and agriculture, and health. In relation to HLP issues, it notes, at pp10-12, that land is privately owned, often “by multiple owners of clear lineal connection, but registered under the most senior among them”. The most likely climate change affecting HLP is coastal erosion and accretion. Traditional methods of checking erosion were no longer effective as coastal land erosion became “more extensive, intensive, and persistent”. Protection of public assets such as roads from erosion was performed by the Government, while owners of private assets protected those. Protection took the form of sea-defence of various designs and construction but none had been “totally effective”. Existing causeways and seawalls needed upgrading and strengthening. New causeways and seawalls, however, continued to be constructed. For the whole of South Tarawa, the total number of constructed seawalls was 60 in 2005.

[7]

Storm surges or extra high spring tides had caused flooding of residential areas. Traditional houses have raised floors, and this design had proved appropriate in times of flooding for the time being. Where flooding leads to erosion, or when persistent, people have to relocate themselves or retreat.

[8]

As regards South Tarawa specifically, increasing urbanisation was one of the “key drivers” to changes to the shoreline. Other problems cited included illegal settlement (squatters), and unclear rights between landowners and land leased by the Government.

69


70

[16] Rapid population growth and urbanisation in South Tarawa has had a damaging effect on the fresh water supply. No island in Kiribati has surface fresh water. The water supply comes from a fresh water lens sitting just beneath the atoll. Increased population pressure has meant water is being extracted from the lens at a greater rate than it can be refilled through percolation of rain water. Furthermore, there is no mainline sewage system on Kiribati and the discharge of human waste by the burgeoning population on Tarawa has contributed to pollution of the fresh water lens. This has rendered some of five underground water reserves unfit for the supply of fresh drinking water. On Tarawa there are three main sources of water: rain water, household dug wells and public utilities board piped water. Of these, rain water catchment systems are only available in permanent material homes and most of these private homes have roof gutters. Household dug wells in high density housing areas are increasingly contaminated and not used for consumption. [17] Sea-level-rise and other environmental factors have compounded this problem. Rising sea level causes more regular and frequent breaches of sea walls. More intense storms generate stronger storm surges which further inundate the land. Salt water is seeping into the fresh water lens, affecting those reserves which have not already been rendered unfit for human consumption as a result of population pressure. While sea walls are in place, they are typically not high enough to prevent salt water intrusion over the land in the high tides. While people build sea walls, the materials come from beaches and other locations of the island which is an unsatisfactory solution. The vegetation has died back in many places, leaving a barren land. [26] Life generally became progressively more insecure on Tarawa as a result of sea-levelrise. From the late 1990s onwards, Tarawa suffered significant amounts of coastal erosion during high tides. Also the land surface was regularly flooded and land could be submerged up to knee-deep during king tides. Transportation was affected as the main causeway separating north and south Tarawa was often flooded. [27] This caused significant hardship for the appellant, his wife and family as well as other inhabitants on Tarawa. The wells upon which they depended for water became salty. Salt water was deposited onto the ground destroying crops. Crops were difficult to grow and the land was stripped of vegetation in many places. [28] The sea wall in front of the appellant’s parents-in-law’s house was often damaged and required constant repair. The family existed largely by subsistence fishing and agriculture. One of the appellant’s brothers-in-law works at a local government port agency and provides cash income for the whole family as best as he is able. However life is generally becoming more difficult. The Government’s supplies of water are coming under pressure through overpopulation and because people can increasingly no longer rely on well-water for an alternative source. [29] The appellant and his wife wished to have a family. However they were concerned that the information they were receiving from television, media and from other sources meant that there would be no possibility of living on Tarawa. They therefore decided to emigrate to New Zealand. The appellant’s parents live on his home island but they face similar environmental pressures and population pressures.


[30] The appellant was aware that the Government was taking what steps it could. The Government has bought land in Fiji to grow crops to sustain the livelihoods of the people in Kiribati. In his area the Government has also built sea walls but these are ineffective and are prone to frequent damage. However, it was powerless to stop sea-level-rise. [31] He also accepted that his experiences were common to people throughout Kiribati. He had been in contact with his family and understood they were facing similar problems in his home island. His relatives whom he had lived with when he initially moved to Tarawa moved to another island and they too were experiencing similar problems. There was simply no land anywhere in Kiribati for the family to relocate and avoid the onset of sea-level-rise. ASSESSMENT [36] Under section 198 of the Immigration Act 2009, on an appeal under section 194(1)(c) the Tribunal must determine (in this order) whether to recognise the appellant as: (a) a refugee under the 1951 Convention Relating to the Status of Refugees (“the Refugee Convention”) (section 129); and (b) a protected person under the 1984 Convention Against Torture (section 130); and (c) a protected person under the 1966 International Covenant on Civil and Political Rights (“the ICCPR”) (section 131). [37] In determining whether the appellant is a refugee or a protected person, it is necessary first to identify the facts against which the assessment is to be made. That requires consideration of the credibility of the appellant’s account. Credibility and Findings [38] The Tribunal finds the appellant to be credible. His account was told candidly and openly. It is accepted in its entirety. [40] As for the appellant, the Tribunal finds the appellant is from Kiribati and has been living with his wife’s family in their village on South Tarawa. For a number of years prior to coming to New Zealand in 2007, he was unemployed, relying on subsistence agriculture and fishing, supplemented by support from his wife’s brother who is in employment there. Concerned about the coastal erosion which he witnessed from 2000 onwards and the increasing intrusion of salt water onto the land during high tides, and aware of the debate around climate change, the appellant and his wife came to New Zealand in 2007. They have three children born here. [41] The appellant does not wish to return to Kiribati because of the difficulties they faced due to the combined pressures of over-population and sea-level-rise. The house they were living in on South Tarawa is no longer available to them on a long term basis. Although their families have land on other islands, these face similar environmental pressures and the land available is of limited size and has other family members living there.

71


72

Assessment of the Claim to Refugee Status General Principles [45] Mr Kidd submits that the appellant is an internally displaced person (IDP) and “has the right to claim refugee status in New Zealand as an internally displaced person”. In support, he cites Principle 15 of the Guiding Principles on Internal Displacement (the Guiding Principles) which states: Internally displaced persons have: (a) The right to seek safety in another part of the country; (b) The right to leave their country; (c) The right to seek asylum in another country; and (d) The right to be protected against forcible return to or resettlement in any place where their life, safety, liberty and/or health would be at risk. [46] While it is accepted, as Mr Kidd submits, that the Tribunal must have regard to relevant international human rights instruments, the Guiding Principles are not relevant in this case. The Guiding Principles is a soft-law instrument designed to deal with a scenario different to the Refugee Convention. Whatever Principle 15 might state, the former relates, as the name implies, to internal movement only; the latter to cross-border movement. As observed by Walter Kaelin ‘The Legal Dimension’ (2003) Forced Migration Review: When Does Internal Displacement End 17, at p15: As soon as an IDP leaves his or her country of origin, the Guiding Principles are no longer applicable. Such a person is no longer in the situation of internal displacement but instead becomes a refugee or a migrant as the case may be. Here, displacement ends when the person concerned crosses the frontier of that country. [47] By definition, internally displaced persons cannot meet the requirement of the Refugee Convention. A fundamental element of the Article 1A(2) refugee definition is that the claimant is “outside their country of nationality”. Unless or until cross-border movement takes place, the Refugee Convention simply has no application. While the causes and consequences of any internal displacement that occurs prior to the cross-border movement may well be relevant matters of enquiry in the context of refugee status determination, the status of any refugee claimant as a former IDP does not confer refugee status. [48] In any event, at no stage was the appellant ever an internally displaced person, which the Guiding Principles define as follows: 2. For the purposes of these Principles, internally displaced persons are persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border.


[49] Migration is generally regarded as existing somewhere along a voluntary – forced spectrum. While a substantial grey area exists between the ends and no bright-line demarcation can be made, displacement typically occurs towards the ‘forced’ end of this spectrum. In this case, it is clear to the Tribunal that this appellant has undertaken what may be termed a voluntary adaptive migration – that is, to adapt to changes in the environment in South Tarawa detailed in the 2007 NAPA, by migrating to avoid the worst effects of those environmental changes. While there is some degree of compulsion in his decision to migrate, his migration cannot be considered ‘forced’ and was to another country, New Zealand, and not to another place in Kiribati. [50] Mr Kidd also cites Principle 12 of the Pinhiero Principles on housing and property restitution for refugees and displaced persons. The relevance of this principle, which relates to the need for states to establish appropriate procedures, institutions, mechanisms to assess and enforce housing, land, and property restitution claims, to the refugee inquiry is not immediately apparent and is not developed in any detail by Mr Kidd in his submissions. [51] Mr Kidd also submits that the concept of ‘being persecuted’ does not require human agency and that the word ‘refugee’ is capable of encompassing persons having to flee irrespective of the cause. In support, counsel cites the Latin etymology of the word ‘persecute’ which, he submits, has a “passive voice of fleeing from something or an active quality of following somebody”. Accordingly, persecution does not require an actor in the passive sense. In the appellant’s case, it is the “act of fleeing climate change because of the serious harm it will do him and his family. The Kiribati Government is unwilling or unable to deal with factors “instituted by climate change”. [52] This submission must be rejected. It draws on what has been described by Astri Suhkre in “Environmental Degradation and Population Flows” 47(2) Journal of International Affairs at p482 as a distinction between a ‘sociological conception’ of refugee-hood and a legal one. The fundamental difficulty Mr Kidd’s submission faces is that the former is broader than the latter. The legal concept is governed by the refugee definition contained in Article 1A(2) of the Refugee Convention. Section 129 only permits recognition as a refugee if the requirements of the Convention are met. It is the legal conception which applies, not the sociological one relied on by Mr Kidd. This legal conception requires that the applicant establish that he is at risk of ‘being persecuted’, and that status be linked to one of the five Convention grounds. [53] New Zealand refugee law has for some time adopted and applied the Hathaway concept of “being persecuted” as the sustained or systemic violation of core human rights, demonstrative of a failure of state protection. For a full account of the human rights approach, see Refugee Appeal No 74665 (7 July 2004), at [36]-[90]. The application of this approach in the context of economic social and cultural rights emphasised by counsel in his submissions, is fully explored in BG (Fiji) [2012] NZIPT 800035, at [85]-[133]. The risk of being persecuted must be “well-founded” under Article 1A(2) of the Convention. In determining what is meant by “well-founded”, the Tribunal, like the Refugee Status Appeals Authority (RSAA) before it, has adopted the approach in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, where it was held that a fear of being persecuted

73


74

is established as well-founded when there is a real, as opposed to a remote or speculative, chance of it occurring. The standard is entirely objective – see Refugee Appeal No 76044 (11 September 2008), at [57]. Environmental degradation and international human rights law [60] The question of whether there exists a human right to a healthy environment has been a matter of some debate for at least 25 years. Nevertheless, within international human rights law there is now a growing recognition that states can have responsibilities in respect of environmental matters under existing human rights treaties in both the civil/ political and socio- economic spheres. [61] The International Covenant on Civil and Political Rights contains a number of important participatory rights such as the right to freedom of belief (Article 18); the right to freedom of expression, including the right to receive and impart information (Article 19); and the right to freedom of assembly (Article 21). This framework of participatory rights, along with substantive rights regarding freedom from arbitrary arrest and detention and the right not to be subjected to torture or cruel, inhuman or degrading treatment (Article 7) provides a framework by which the predicament of individuals who raise concerns about development or despoliation of the environmental can fall within the bounds of the existing protection mechanisms. [62] As is reflected in the 2005 Hyogo Declaration and the 2005-1015 Hyogo Framework for Disaster Reduction, in respect of which over 160 states were present for its adoption, it is now generally accepted that states have a primary responsibility to protect persons and property on their territory from the impact of disasters and to undertake disaster risk reduction measures. Consistent with this understanding, the European Court of Human Rights (ECtHR) has examined the duty to protect the right to life in the context of natural disasters. In Oneryaldiz v Turkey, [2004] ECHR 657 at para 89 and Budayeva & Ors v Russia Application No 15339/02 (20 March 2008), the ECtHR found a violation of the right to life of those killed because the authorities in each case had not discharged positive obligations to protect life against risks from known and imminent environmental hazards. For a fuller discussion see, W Kaelin and J Kunzli The Law of International Human Rights Protection (Oxford, University Press, Oxford, 2010) at pp104-105; J Ginnetti and N Schrepfer ”Predicting Disasters and Protecting Rights” 41 Forced Migration Review, at pp13-14. [63] In the socio-economic sphere, although there is no right to a healthy environment contained in the International Convention on Economic, Social and Cultural Rights (ICESCR), Article 11 does provide a right to an adequate standard of living. Plainly, where natural disasters and environmental degradation occur with frequency and intensity, this can have an adverse effect on the standard of living of persons living in affected areas. Also relevant in this context is Article 12(1) which provides for a right “to the highest attainable standard of physical and mental health”. In General Comment No 14 The Right to the Highest Attainable Standard of Health E/C12/2000 (11 August 2000) at [14], the Committee on Economic Social and Cultural Rights stated that Article 12(2)(b) obliges states to take steps aimed at the prevention and reduction of the population’s exposure to “detrimental environmental conditions that directly or indirectly impact on human health”.


In the context of the right to adequate food, the Committee has stated that “States have a core obligation to take the necessary action to mitigate and alleviate hunger... even in times of natural or other disasters” General Comment No 12 The Right to Adequate Food (Art11) E/C12/1999/5 (12 May 1999) at [6]. [64] What these observations illustrate is that generalised assumptions about environmental change and natural disasters and the applicability of the Refugee Convention can be overstated. While in many cases the effects of environmental change and natural disasters will not bring affected persons within the scope of the Refugee Convention, no hard and fast rules or presumptions of non-applicability exist. Care must be taken to examine the particular features of the case. [65] A word of caution is warranted, however. While there is no presumption of non-applicability, no special rules exist either. It is indubitably correct that natural disasters and environmental degradation can involve significant human rights issues. Nevertheless, like any other case, in cases where such issues form the backdrop to the claim, the claimant must still establish that they meet the legal criteria set out in Article 1A(2) of the Refugee Convention (or, for that matter, the relevant legal standards in the protected person jurisdiction). This involves an assessment not simply of whether there has been breach of a human right in the past, but the assessment of a future risk of being persecuted. In the New Zealand context, the claimant’s predicament must establish a real chance of a sustained or systemic violation of a core human right demonstrative of a failure of state protection which has sufficient nexus to a Convention ground. Environmental Degradation and New Zealand’s Refugee and Protection Jurisprudence [66] This reality of a complex interrelationship between environmental degradation, vulnerability to natural hazards and international protection is reflected in New Zealand’s refugee jurisprudence. [67] A number of cases in 2000, relating to claimants from Tuvalu, argued that environmental factors such as inundation, coastal erosion, salination of the water table, combined with factors at the individual and household levels, meant that the appellants should be recognised as refugees. The claims were dismissed because the indiscriminate nature of these events and processes gave rise to no nexus to a Convention ground; see Refugee Appeal No 72185 (10 August 2000); Refugee Appeal No 72186 (10 August 2000); Refugee Appeal Nos 72189-72195 (17 August 2000); Refugee Appeal Nos 72179-72181 (31 August 2000); Refugee Appeal No 72313 (19 October 2000); Refugee Appeal No 72314 (19 October 2000); Refugee Appeal No 72315 (19 October 2000); Refugee Appeal No 72316 (19 October 2000). [68] In Refugee Appeal No 74665 (7 July 2004) at [89], the RSAA remarked, in the context of discussing its human rights approach to being persecuted, that “the right to life (Article 6 ICCPR) in conjunction with the right to adequate food (Article 11 ICESCR) should permit a finding of ’being persecuted’ where an individual faces a real risk of starvation”. This would encompass the discriminatory denial of food in the wake of a drought, which could support a finding of being persecuted.

75


76

[69] It has also been recognised that post-disaster humanitarian relief work can become highly politicised. Such circumstances occurred in the wake of Cyclone Nargis in Burma in May 2008 and, in Refugee Appeal No 76374 (28 October 2009), refugee status was granted to a person who assisted in such relief work on the basis such activity would be perceived as the expression of an anti-regime political opinion. [70] In BG (Fiji) [2012] NZIPT 800091, at [90]-[93], the Tribunal confirmed the relevance of the ICESCR to the refugee inquiry. It was also recognised that persons displaced by environmental degradation may also, over time, face problems with the host community which can give rise to protection needs. This case failed, not as a matter of principle, but on the facts. The appellant could not establish that he faced a real chance of serious harm arising from a sustained or systemic denial of his core human rights. [71] With these observations in mind, it is now possible to turn to the facts of this case. Objectively, on the facts as found, is there a real chance of the appellant being persecuted if returned to Kiribati? [72] The general observations earlier regarding the potential for environmental degradation and natural disasters to result in conflict is demonstrated in the case of Kiribati. Credible evidence has been given that this can cause tension over land which has given rise to physical assaults and even deaths. However, the appellant himself had not been subjected to any such dispute in the past and is not involved in any land dispute. There is no evidence he faces a real chance of suffering serious physical harm from violence linked to HLP disputes in the future. [73] Although the house in which he lived is no longer available to him in the long-term, the wife’s father is negotiating with the new owner of the land and an arrangement has been made whereby he is given time to relocate his family back to their home island in the south. The appellant told the Tribunal that it would be difficult to move to his wife’s family’s island or his own, as both face the same environmental pressures. Even assuming he cannot find a place to live in Tarawa and has to return to one or other of the home islands, land will be available to him there. While he would need to share the available land with other members of the kin group, it will be available for him and he can utilise this to provide accommodation for himself and his family. This land can provide them with access to sufficient resources to sustain themselves to an adequate level. There is no evidence to support Mr Kidd’s contention that the appellant is unable to grow food or obtain potable water. His evidence was that food has become difficult to grow with salt water intrusion onto the land, not impossible. Nor was it his evidence that he had no access to potable water. [74] There is no evidence establishing that the environmental conditions that he faced or is likely to face on return are so parlous that his life will be placed in jeopardy, or that he and his family will not be able to resume their prior subsistence life with dignity. The appellant’s brother-in-law, who remains in employment, will be able to provide continued support to the family, as he has done in the past, so as to allow them to continue to enjoy an adequate standard of living. While the appellant’s standard of living will be less than that which he would enjoy in New Zealand that, in itself, does not amount to serious harm for the purposes of the Refugee Convention.


77

Image: Everyone, everywhere who is displaced by climate change should have an effective remedy to their displacement - including this woman in the Solomon Islands. Ben Knight.

Is there a Convention reason for the persecution? [75] In any event, the appellant’s claim under the Refugee Convention must necessarily fail because the effects of environmental degradation on his standard of living were, by his own admission, faced by the population generally. The sad reality is that the environmental degradation caused by both slow and sudden- onset natural disasters is one which is faced by the Kiribati population generally. The photographic evidence produced by Mr Corcoran in the hearing graphically demonstrated that the underlying environmental events and processes favour no civil or political status. Nor has it been suggested that the Government of Kiribati has in some way failed to take adequate steps to protect him from such harm as it is able to for any applicable Convention ground.


78

Conclusion on Claim to Refugee Status [76] For these reasons the appellant’s refugee claim must fail. The appellant is not entitled to be recognised as a refugee under section 129 of the Act. Assessment of the Claim under the ICCPR As to the arbitrary deprivation of life [80] Mr Kidd refers to the statement by the Office of the High Commissioner for Human Rights that one of the rights “most directly affected” by global warming will be the right to life. This statement may be broadly agreed with, insofar as the effects of global warming can be expected to negatively impact on some people’s ability to hunt, fish, or undertake subsistence farming or agriculture to such an extent that their ability to sustain life may be imperilled. [81] Article 6 of the ICCPR provides: 1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. [82] The Human Rights Committee has stated that the right to life under Article 6, in keeping with its ‘inherent’ nature and importance to the enjoyment of other rights, must be interpreted broadly; General Comment No 06: The Right to Life (Art 6) (30 April 1982) at [5]. In this regard, the Committee considered that “it would be desirable for States parties to take all possible measures to reduce infant mortality and to increase life expectancy, especially in adopting measures to eliminate malnutrition and epidemics”. Consistent with this understanding, J Schultz and M Castan The International Covenant on Civil and Political Rights: Cases, Material and Commentary (Oxford University Press, Oxford, 2004) point to comments made by the Committee in Concluding Observations on States’ reports on issues such as homelessness, infant mortality, and increased life expectancy for women in the context of Article 6. They also cite the decision of the Committee in E H P v Canada (1980) in which it was held, at [8], that a complaint regarding the threats of cancer and genetic defects arising from the proximity of a nuclear waste dump-site to a residential area “raised serious issues, with regard to the obligation of states to protect human life”. [83] Section 131 provides for protection from “arbitrary deprivation of life”. In other words, it is not all risks to life which fall within the ambit of section 131, just those risks to life which arise by means of an “arbitrary deprivation”. In contrast to ‘torture’ and ‘cruel treatment’, the other statutory components of the Tribunal’s protected person jurisdiction, what constitutes arbitrary deprivation of life has not been statutorily defined. [84] As to this, there have been few individual communications to the Human Rights Committee relating to arbitrary deprivation of life. Nevertheless, academic commentary on the international jurisprudence, including relevant regional analogues to Article 6, shows that to constitute an ‘arbitrary’ deprivation of life, the interference must be one which is: (a) not prescribed by law; (b) not proportional to the ends sought; and (c) not necessary in the particular circumstances of the case


[85] As noted by W Kaelin and J Kunzli (op cit) at p273: Despite its name (right to life) it does not guarantee human existence as such. Rather, it protects against deprivation of life by state action or as a consequence of its omissions. [86] At p298, they include as a component of the right to life an “obligation to take measures to enhance the protection of life”. This is described as operating at a “programmatic level” and requires concrete steps to be taken to protect life in areas such as infant mortality, life expectancy or other areas where life is “particularly endangered”. [87] In light of the above, it is accepted that the prohibition on arbitrary deprivation of life must take into account the positive obligation on the state to fulfil the right to life by taking programmatic steps to provide for the basic necessities for life. Having regard to the decisions of the ECtHR in Budeyeva and Oneryiliz, it is accepted that states will have positive duties to protect life from risks arising from known natural hazards and that failure to do so may, in principle, constitute an omission in the sense articulated by Kaelin and Kunzli. [88] However, the appellant cannot point to any act or omission by the Kiribati Government which might indicate a risk that he will be ‘arbitrarily deprived’ of his life within the scope of Article 6 of the ICCPR. The Kiribati Government is active on the international stage concerning the threats posed to both the state as a sovereign entity and its population by climate changerelated events and processes. The 2007 NAPA shows that the Kiribati Government is acutely aware of the problems posed and is taking many steps at the regulatory and programme level in relation to these risks. The appellant himself acknowledged that the Government had been taking steps to protect inhabitants and property from sea- level-rise where it is able. It was building sea walls and provide potable water. [89] A further reason why the appellant’s claim under this aspect of section 131 must fail is that he cannot establish that there is a sufficient degree of risk to his life, or that of his family, at the present time. The case law of the Committee requires that, to be a victim for the purposes of bringing a complaint under the First Optional Protocol, the risk of violation of an ICCPR right must be “imminent”. In Aaldersberg and ors v Netherlands CCPR/ C/87/D/1440/2005 (14 August 2006), a complaint was made by over 2,000 Dutch citizens that Dutch law, which recognised the lawfulness of the potential use of nuclear weapons, put their and many others lives at risk. The complaint was declared inadmissible. The Committee stated: [6.3] For a person to claim to be a victim of a violation of a right protected by the Covenant, he or she must show either that an act or an omission of a State party has already adversely affected his or her enjoyment of such right, or that such an effect is imminent, for example on the basis of existing law and/or judicial or administrative decision or practice. The issue in this case is whether the State’s stance on the use of nuclear weapons presented the authors with an existing or imminent violation of their right to life, specific to each of them. The Committee finds that the arguments presented by the authors do not demonstrate that they are victims whose right to life is violated or under any imminent prospect of being violated. Accordingly, the Committee concludes that the authors cannot claim to be “victims” within the meaning of article 1 of the Optional Protocol.

79


80

[90] Imminence should not be understood as imposing a test which requires the risk to life be something which is, at least, likely to occur. Rather, the concept of an ‘imminent’ risk to life is to be interpreted in light of the express wording of section 131. This requires no more than sufficient evidence to establish substantial grounds for believing the appellant would be in danger. In other words, these standards should be seen as largely synonymous requiring something akin to the refugee ‘real chance’ standard. That is to say, something which is more than above mere speculation and conjecture, but sitting below the civil balance of probability standard. See here AI (South Africa) [2011] NZIPT 80050 at [80]-[85]. [91] The Tribunal accepts that, given the greater predictability of the climate system, the risk to the appellant and his family from sea-level-rise and other natural disasters may, in a broad sense, be regarded as more ‘imminent’ than the risk posed to the life of complainants in Aaldersberg. Nevertheless, the risk to the appellant and his family still falls well short of the threshold required to establish substantial grounds for believing that they would be in danger of arbitrary deprivation of life within the scope of Article 6. It remains firmly in the realm of conjecture or surmise. As noted in relation to his refugee claim, there is no evidence establishing that his situation in Kiribati would be so precarious that his or his family’s life is “in danger”. The Tribunal notes the fear of the wife in particular that the young children could be drowned in a tidal event or storm surge. No evidence has been provided to establish that deaths from these events are occurring with such regularity as to raise the prospect of death occurring to the appellant or his family member to a level which rises beyond conjecture and surmise at all, let alone a risk which can be characterised as an arbitrary deprivation of life in the sense outlined above. [92] For these reasons, there are no substantial grounds for believing that the appellant (or any of his family members for that matter) will be in danger of being subjected to arbitrary deprivation of life. Cruel treatment [93] As to whether it amounts to cruel treatment to return the appellant to Kiribati, in BG (Fiji) [2012] NZIPT 80035 at [180]-[184], the Tribunal considered developments by the ECtHR in which the regional analogue to Article 7 ICCPR was held to extend “in very exceptional cases” to situations where there was no qualifying treatment in the receiving country. The rationale behind such a development appears to be that it is inhuman to remove someone to a known situation of serious harm. The Tribunal noted, however, that the scope of application of this principle was a matter of some doctrinal controversy within the ECtHR given the absolute nature of the prohibition, and had not been followed more broadly in the international jurisprudence in relation to the scope of its interpretation of Article 7. Accordingly, the Tribunal has declined to follow this lead.


[94] New Zealand’s protected person jurisdiction is a creature of statute. It is derived from the ICCPR and the Tribunal is bound by the wording of section 131. In BG (Fiji) it was held that the gaze of section 131 is firmly on qualifying treatment in the receiving state and that cases of the kind envisaged under the expanded ECtHR approach were, in the context of New Zealand’s legislative framework, to be dealt with under the separate humanitarian appeal provisions of the Act. [95] The appellant has not established that there are substantial grounds for believing that he is in danger of being subjected to cruel treatment, as that is defined in the Act, by reason of some act or omission that will occur in Kiribati. Conclusion on Claim under ICCPR [96] The appellant is not entitled to be recognised as a protected person under section 131 of the Act. CONCLUSION [97] For the foregoing reasons, the Tribunal finds that the appellant: (a) is not a refugee within the meaning of the Refugee Convention; (b) is not a protected person within the meaning of the Convention Against Torture; (c) is not a protected person within the meaning of the Covenant on Civil and Political Rights. [98] The appeal is dismissed. “B L Burson” B L Burson Member (Footnotes omitted)

81


82

HIGH COURT APPEAL (2013)84 REFUGEES [1]

The immediate aftermath of the Second World War presented the then international community with a number of challenges. One such challenge was to provide some mechanism for the protection of human beings who were the victims of persecution.

[2]

The League of Nations, which some hoped would prevent or curtail warfare by collective security arrangements, had clearly failed. The Axis powers in Europe, spearheaded by Hitler’s Third Reich, had systematically persecuted and killed millions of people, singling them out for concentration camps upon the grounds of their ethnicity, race, or religion.

[3]

The defeat of Fascism in 1945 did not end persecution. Riding into central European countries behind the tanks of the Red Armies came communist regimes. These governments, nurtured by the Soviet Union (which had already tipped its hand with the execution of Polish middle class leaders and army officers in the forests at Katyn) set about imposing Marxist-Leninist regimes which were to blight the lives of millions of people for two generations. Class enemies were persecuted by imprisonment or execution. Additionally, the post-war adjustment of European borders resulted in populations being uprooted and minorities displaced.

[4]

This judgment will not detail (fascinating though the story is) the negotiation and approval, under the auspices of the United Nations, of the 1951 Convention relating to the Status of Refugees (the Refugee Convention) which was subsequently supplemented by the 1967 Protocol. The Refugee Convention is declaratory of international law. Nations have acceded to it. It has been incorporated into New Zealand domestic law by virtue of the Immigration Act 2009 (the Act).

[5]

Although, as initially negotiated by the international community between 1945 and 1950 and adopted by the United Nations (which set up the office of the High Commissioner for Refugees to cope with pressing refugee problems), the Refugee Convention extended only to pre-1951 refugees, the effect of the 1967 Protocol was to remove geographic and temporal limitations.

[6]

A refugee to whom the Refugee Convention and its Protocol applies (called for the purposes of this judgment a convention refugee) is a person who in terms of Article 1A(2): ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country....

84

Teitiota v Chief Executive of the Ministry of Business Innovation and Employment [2013] NZHC 3125 (26 November 2013) (Source: www.nzlii.org/nz/cases/NZHC/2013/3125.html). Last Updated: 26 November 2013. IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY, CIV-2013-404-3528 [2013] NZHC 3125, BETWEEN IOANE TEITIOTA Applicant AND THE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS INNOVATION AND EMPLOYMENT Respondent, Hearing: 16 October 2013, Appearances: M J Kidd for the Applicant, R E Savage for the Respondent, Judgment: 26 November 2013. This judgment was delivered by me on Tuesday 26 November 2013 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules.


[7]

Thus, a person who finds him or herself in a country which has acceded to the Refugee Convention (New Zealand being one) and who has a well founded fear (being a fear which is objective and factually based) of being persecuted on one of the five stipulated convention grounds, is entitled to claim successfully refugee status and look to the protection, not of the country of the claimant’s nationality, but instead of the country in which refugee status is being claimed.

[8]

“Persecution” is not defined in the Refugee Convention but clearly encompasses well founded fears to life or freedom on a convention ground, some form of serious harm, or serious violations of civil or human rights. New Zealand has adopted James Hathaway’s “human rights” approach to the definition of persecution, which defines persecution as the sustained or systemic violation of basic human rights demonstrative of a failure of state protection. This definition of persecution is also applied in Canada and the United Kingdom.

[9]

The word “refugee”, of course, is not limited to the definition of a convention refugee. The New Shorter Oxford English Dictionary defines “refuge” from the Latin refugium, as shelter from danger or trouble; protection; aid. “Refugee” has a related and primary meaning as “a person driven from his or her home to seek refuge, esp. in a foreign country, from war, religious persecution, political troubles, natural disaster etc.; a displaced person”.

[10] A person may properly be described as a refugee for reasons other than a well-founded fear of persecution on one of the five convention grounds. Natural disasters such as earthquakes, volcanic eruptions, severe weather events, and tsunamis can turn people into refugees. So too can warfare. And arguably, so too might climate change. Increased aridity of agricultural land on the fringe of deserts; the reduction or contamination of water tables; and the effect of rising sea levels and violent weather over decades on coastal lands and islands; all have the capacity to drive people from their traditional or historic homes. [11]

Such refugees of this non-convention variety at times are worthy objects of assistance and relief by the international community, the United Nations High Commissioner for Refugees, and non-government organisations. But it is abundantly clear that the displacement of such refugees has not been caused by persecution. Nor, importantly, have they become refugees because of persecution on one of the five stipulated Refugee Convention grounds. A person who becomes a refugee because of an earthquake or growing aridity of agricultural land cannot possibly argue, for that reason alone, that he or she is being persecuted for reasons of religion, nationality, political opinion, or membership of a particular social group.

Why does the applicant think he is a refugee? [12] In the peculiar circumstances which surround his refugee claim the applicant does not seek name suppression. Normally a refugee claimant’s name is not published. There are a number of reasons for this. The most important include the risk that a successful claimant who makes out a well founded fear of persecution might expose his or her family, still living in the country where persecution is taking place, to some form of retaliation or reprisal. Secondly, even in situations where a refugee claim is unsuccessful, publication of a claimant’s name might trigger adverse consequences on his or her return to the country

83


84

of origin. The applicant is not a convention refugee in the normal sense. There is no risk to him or his relatives of adverse consequences of the type described. His counsel did not seek suppression of his name. [13] The applicant is a citizen of Kiribati. He is in his mid 30s. Kiribati is an island group situated in the south-west Pacific Ocean. The islands straddle the Equator and spread over approximately 3.5 million square kilometres of ocean. There are some 32 atolls and one raised coral island (Banaba). The island group, named the Gilbert Islands after the British naval captain who was the first European to sight them, became a British protectorate along with the adjacent Ellice Islands in 1892 and were administered from Fiji. The Gilbert and Ellice Islands became a Crown colony in 1916. Most of the islands were occupied by the Japanese during the Second World War and Tarawa was the scene of an extremely bloody battle in November 1943, when the United States Marine Corps invaded the island to oust the Japanese. During the 1950s and early 1960s some of the islands were used by the United States and the United Kingdom to test hydrogen bombs. On independence in 1978 and 1979, the Gilbert group became known as Kiribati whilst the Ellice Islands became Tuvalu. [14] Overcrowding is a problem which the Kiribati government has had to confront. A long term problem for the Kiribati government is steadily rising ocean levels attributable to climate change. [15] There is the perception that the inhabitants of Kiribati will be obliged to leave their islands because of rising ocean levels and environmental degradation. This has led to the applicant’s claim for refugee status. [16] A refugee and protection officer declined to grant the applicant refugee status and/ or protected person status. The applicant exercised his statutory right of appeal to the Immigration and Protection Tribunal (the Tribunal). In a lengthy and carefully considered decision released on 25 June 2013 the Tribunal held that the applicant was neither a refugee nor a protected person. Before the IPT [17] The applicant gave evidence before the Tribunal. His account was accepted in its entirety. He was found to be credible. [18] The Tribunal accepted in evidence the 2007 National Adaptation Programme of Action which had been filed by the Kiribati government under the United Nations Framework Convention on Climate Change (UNFCCC). It is not necessary to detail that evidence. Pertinent issues included storm surges, extreme high spring tides, flooding of residential areas, raised floors of residences, depletion of fishing stocks, diminution of arable land, contamination of drinking water by salt water, sewage contamination of water tables, and deterioration of the population’s health. [19] The applicant himself gave evidence about his personal history. Once the applicant completed his secondary schooling he went to live with relatives on Tarawa. In the mid-1990s he became unemployed. He married in 2002. He and his wife considered life on Tarawa was becoming progressively insecure as a result of ocean inundation. Because he and his wife wished to have children and saw little future in living on Tarawa


they decided to emigrate to New Zealand. They came to New Zealand in 2007. On the expiration of their permits they continued to live here illegally. The couple have produced three children all of whom are New Zealand born but who in terms of the relevant legislation are not entitled to New Zealand citizenship. Relevant portions of the IPT decision [20] As already stated, the Tribunal accepted the evidence of the applicant and the detailed country information produced in support. The applicant and his wife gave evidence, as did a New Zealand resident, Mr Corcoran, who was a former clerk of the Chief Justice of Kiribati. The Tribunal regarded Mr Corcoran as an appropriately qualified expert on matters of urbanisation, climate change, and their impacts upon the population of Kiribati. [21] The relevant evidence of the applicant was accurately summarised by the Tribunal thus: [39] The Tribunal finds that the limited capacity of South Tarawa to carry its population is being significantly compromised by the effects of population growth, urbanisation, and limited infrastructure development, particularly in relation to sanitation. The negative impacts of these factors on the carrying capacity of the land on Tarawa atoll are being exacerbated by the effects of both sudden onset environmental events (storms) and slow-onset processes (sea-level-rise). [40] As for the appellant, the Tribunal finds the appellant is from Kiribati and has been living with his wife’s family in their village on South Tarawa. For a number of years prior to coming to New Zealand in 2007, he was unemployed, relying on subsistence agriculture and fishing, supplemented by support from his wife’s brother who is in employment there. Concerned about the coastal erosion which he witnessed from 2000 onwards and the increasing intrusion of salt water onto the land during high tides, and aware of the debate around climate change, the appellant and his wife came to New Zealand in 2007. They have three children born here. [41] The appellant does not wish to return to Kiribati because of the difficulties they faced due to the combined pressures of over-population and sea-level-rise. The house they were living in on South Tarawa is no longer available to them on a long term basis. Although their families have land on other islands, these face similar environmental pressures and the land available is of limited size and has other family members living there. [22] The Tribunal then referred to s 129(1) of the Act which obliges New Zealand to recognise as a refugee a person who is a refugee within the meaning of the Refugee Convention, Article 1A(2) of which is set out above. [23] The Tribunal went on to assess the applicant’s submission that he was an internally displaced person who, as such, had the right to claim refugee status in New Zealand. Counsel had cited Principle 15 of the Guiding Principles on Internal Displacement (the Guiding Principles). The Tribunal accepted the Guiding Principles were a relevant international human rights instrument but saw them as a “soft law instrument” dealing with situations very different from the Refugee Convention. An internally displaced person, as the name suggests, is a person displaced inside his or her country. As soon as such a person leaves his or her country of origin, the Guiding Principles are no longer applicable. Such a person then becomes either a refugee or a migrant.

85


86

[24] I am satisfied the Tribunal was correct in its decision that an internally displaced person cannot meet the requirements of the Refugee Convention, quite simply because such a person, in terms of Article 1A(2), is not “outside their country of nationality”. [25] The Tribunal then summarised, correctly in my judgment, the general principles of New Zealand’s refugee law as they were originally developed by the former Refugee Status Appeals Authority, many of the decisions of which have been scrutinised and upheld by the High Court and the Court of Appeal. [53] New Zealand refugee law has for some time adopted and applied the Hathaway concept of “being persecuted” as the sustained or systemic violation of core human rights, demonstrative of a failure of state protection. For a full account of the human rights approach, see Refugee Appeal No 74665 (7 July 2004), at [36]-[90]. The application of this approach in the context of economic social and cultural rights emphasised by counsel in his submissions, is fully explored in BG (Fiji) [2012] NZIPT 800035, at [85]- [133]. The risk of being persecuted must be “well-founded” under Article 1A(2) of the Convention. In determining what is meant by “well-founded”, the Tribunal, like the Refugee Status Appeals Authority (RSAA) before it, has adopted the approach in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, where it was held that a fear of being persecuted is established as wellfounded when there is a real, as opposed to a remote or speculative, chance of it occurring. The standard is entirely objective – see Refugee Appeal No 76044 (11 September 2008), at [57]. [54] The legal concept of ‘being persecuted’ rests on human agency. Although, historically, there has been variation in state practice on the issue, international refugee law has, in recent years, coalesced around the notion that it can emanate from the conduct of either state or non-state actors. In the former case, the failure of state protection derives from the inability of the state or lack of will to control its own international human rights law. In the latter case, it derives from the failure of the state, via its human agents tasked with the requisite legal or regulatory authority, to take steps within their power to reduce the risk of harm being perpetrated by non-state actors. [55] But this requirement of some form of human agency does not mean that environmental degradation, whether associated with climate change or not, can never create pathways into the Refugee Convention or protected person jurisdiction. [26] The Tribunal next considered overseas authorities which set out the obvious proposition that people fleeing natural disaster cannot, for that reason alone, obtain protection outside their country under the Refugee Convention. [56] Courts of high judicial authority have made general statements that “persons fleeing natural disaster” cannot obtain Convention-based protection: see Applicant A v Minister of Immigration and Multiethnic Affairs [1998] INLR 1 at p19 and AH (Sudan) v Secretary of State [2007] 3 WLR 832, 844. Insofar as these statements point out that the effects of natural disasters are often felt indiscriminately and do not distinguish on grounds of race, religion, nationality, membership of a particular social group or political opinion they are uncontroversial. This statement of principle


will hold true in many cases, if not most cases, involving natural disasters. See here, W Kaelin and N Scherepfer Protecting People Crossing Borders In The Context Of Climate Change: Normative Gaps and Possible Approaches, UNHCR Legal and Protection Policy Research Series (February 2012), at p31; J McAdam Climate Change Displacement and Complementary Protection Standards UNHCR Legal and Protection Policy Research Series (May 2011). [27] But, as the Tribunal correctly recognised, there is a complex inter-relationship between natural disasters, environmental degradation and human vulnerability. Sometimes a tenable pathway to international protection under the Refugee Convention can result. Environmental issues sometimes lead to armed conflict. There may be ensuing violence towards or direct repression of an entire section of a population. Humanitarian relief can become politicised, particularly in situations where some group inside a disadvantaged country is the target of direct discrimination. [28] The Tribunal went on to review a number of refugee appeals relating to claimants from Tuvalu, who had similarly argued that environmental factors such as inundation, coastal erosion, or water contamination might lead to refugee status. These claims had all been dismissed because the indiscriminate nature of these environmental events did not point to any nexus with a convention ground. [29] The Tribunal then turned to examine the central issue of whether the applicant faced a real chance of being persecuted if he returned to Kiribati. The Tribunal saw no such evidence. [74] There is no evidence establishing that the environmental conditions that he faced or is likely to face on return are so parlous that his life will be placed in jeopardy, or that he and his family will not be able to resume their prior subsistence life with dignity. The appellant’s brother-in-law, who remains in employment, will be able to provide continued support to the family, as he has done in the past, so as to allow them to continue to enjoy an adequate standard of living. While the appellant’s standard of living will be less than that which he would enjoy in New Zealand that, in itself, does not amount to serious harm for the purposes of the Refugee Convention. [30] The Tribunal additionally considered that the refugee claim must fail because the effects of environmental degradation on Kiribati and on the applicant’s standard of living were faced by the population generally. The photographic evidence and the evidence of Mr Corcoran: ... graphically demonstrate that the underlying environmental events and processes favour no civil or political status. Nor has it been suggested that the government of Kiribati has in some way failed to take adequate steps to protect [the applicant] from such harm as it is able to for any applicable Convention ground. [31] The Tribunal also examined s 131 of the Act which provides that a person must be recognised as a protected person in New Zealand (a different status from refugee status) under the International Covenant on Civil and Political Rights (ICCPR) if there were substantial grounds for believing that person would be in danger of being subjected to arbitrary deprivation of life or cruel treatment if deported from New Zealand.

87


88

[32] Article 6 of the ICCPR states every human being has an inherent right to life which must be protected and that no one should be arbitrarily deprived of life. There is no evidence that any act or omission of the Kiribati government pointed to any risk that the applicant would be arbitrarily deprived of his life under Article 6. There were thus no “substantial grounds” for believing the applicant or his family would be in danger of being subjected to arbitrary deprivation of life. [33] Other arguments were briefly raised before the Tribunal based on other international covenants. It is not necessary to detail these since they were not pursued in this Court. Grounds for relief of the High Court [34] There is no automatic right of appeal to this Court from the Tribunal. Like many other countries, in the interests of finality and avoiding protraction (tactical or otherwise), New Zealand’s Parliament has placed limits on appeal rights. Points of law must be involved. [35] Section 245 of the Act provides: 245 Appeal to High Court on point of law by leave (1) Where any party to an appeal to, or matter before, the Tribunal (being either the person who appealed or applied to the Tribunal, an affected person, or the Minister, chief executive, or other person) is dissatisfied with any determination of the Tribunal in the proceedings as being erroneous in point of law, that party may, with the leave of the High Court (or, if the High Court refuses leave, with the leave of the Court of Appeal), appeal to the High Court on that question of law. (2) Every appeal under this section must be brought— (a) not later than 28 days after the date on which the decision of the Tribunal to which the appeal relates was notified to the party appealing; or (b) within such further time as the High Court may allow on application made before the expiry of that 28-day period. (3) In determining whether to grant leave to appeal under this section, the court to which the application for leave is made must have regard to whether the question of law involved in the appeal is one that by reason of its general or public importance or for any other reason ought to be submitted to the High Court for its decision. (4) On the appeal, the High Court must determine the question or questions of law arising in the proceedings, and may then— (a) confirm the decision in respect of which the appeal has been brought; or (b) remit the matter to the Tribunal with the opinion of the High Court, together with any directions as to how the matter should be dealt with; or (c) make such other orders in relation to the matter as it thinks fit.


(5) Subject to subsection (2), every appeal under this section must be dealt with in accordance with the rules of the court, with any modifications necessary to reflect the provisions of this Act, including any ancillary general practices and procedures developed under section 260. [36] An applicant must point to an error of law. As was observed by Kos J in Taafi v Minister of Immigration,19 there are prerequisites to engaging s 245. A simple factual error alone will not suffice. The first is that an applicant must show a seriously arguable case that the Tribunal’s factual findings are incorrect. Given that there was no challenge to the appellant’s evidence before the Tribunal, it would be difficult to engage that requirement. [37] Secondly an applicant must show that the factual errors, in combination with the Tribunal’s decision, are sufficiently grave to constitute an error of law. Thirdly, and relevantly here, there must be a question of law which is one of general public importance (a reference to s 245(3)). [38] In short there must be an error of law discernible from the Tribunal’s decision which is of sufficient general or public importance for this Court to consider on appeal. [39] The central thrust of the Tribunal’s decision was clearly its rejection of the applicant’s claim that climate change driven problems faced by the inhabitants of Kiribati fell inside Article 1A(2) of the Refugee Convention. What are the applicant’s questions of law? [40] Mr Kidd advanced six questions of law which were, with respect, somewhat imprecise. They were: (a) The word “refugee” extends to people who are refugees from climate change and its effects and that by referring to such people as “sociological refugees” the Tribunal had erred. (b) The Tribunal erred in finding that because all people in Kiribati suffer from the same results of “global warming” this disqualifies the applicant from claiming refugee status. (c) Green house gases are responsible for rising sea levels and changes of weather patterns (inherent in climate change) and, as such, constitute an indirect but worldwide “human agency”. (d) The Tribunal had failed to consider Articles 2, 3(a) and 24(1) of the ICCPR as they might relate to the three children of the applicant and had further failed to consider Articles 24(1) and 2(a)-(c) of the United Nations Convention on the Rights of the Child (UNCROC). (e) The Tribunal erred in law in not considering the situation of the applicant’s children separately, particularly as regards the effect on them of water and food deprivation as New Zealand born children who, if returned to Kiribati where they had never lived,would suffer serious harm.

89


(f) The factual finding of the Tribunal that the applicant’s food and water supply were adequate was a “misdirection” because of the evidence of the effects severe overcrowding and future climate change would have on the applicant and his children.

90

ANALYSIS [41] I am of the clear view that this application for leave to appeal is misguided. [42] The plight of the inhabitants of Kiribati, of which the Kiribati government is itself aware, raises, assuming environmental degradation continues, medium-term humanitarian concerns. The predicament of the applicant himself and more importantly his three New Zealand-born children also raises humanitarian considerations. [43] Unfortunately for the applicant, because he has chosen to remain illegally in New Zealand, he is, under current law, precluded from applying for an immigration permit on humanitarian grounds. Changes to New Zealand citizenship law in 2005 prevent his three children from claiming New Zealand citizenship. [44] Humanitarian concerns and the issues of economic and environmental migrants or refugees are topics which individual states in the international community generally have to consider. But the Refugee Convention is not an available avenue for such migrants and refugees. Certainly it is not available to this applicant and his family. [45] Mr Kidd made a number of submissions to the contrary. He candidly submitted, however, that he had been unable to find any New Zealand, Australian, Canadian, United Kingdom, United States, or European authority which had extended the protection of the Refugee Convention to a person adversely affected by climate change. To the contrary, there are many decisions rejecting claims by people from Kiribati, Tuvalu, Tonga, Bangladesh, and Fiji on the grounds that the harm feared (environmental problems in low-lying countries attributable to climate change) does not amount to persecution and there were no differential impacts on the applicants. [46] Counsel’s primary submission was that a person who established his way of life is seriously impaired by warfare or climate change should be entitled to the protection of the Refugee Convention. Such a person has been harmed indirectly by human agency (climate change being caused by two centuries of carbon emissions). An additional indirect human agency was overpopulation. [47] The Tribunal, submitted Mr Kidd, had erred when it held there was no evidence the applicant or his family would die if they were to return to Kiribati. The central Refugee Convention requirement of “persecution” equated to serious harm, not to death alone. [48] Turning to the applicant’s children, the Tribunal had failed to consider the obligations of the Care of Children Act 2004 and the various international law obligations which New Zealand had accepted by ratifying the United Nations Convention on the Rights of the Child (UNCROC).


Image: Bangladesh. Photo by Kadir van Lohuizen / NOOR

91


92

[49] With reference to the Supreme Court authority of Ye v Minister of Immigration, although accepting that the circumstances were different, Mr Kidd referred to the dictum that a child’s interests were always important and were to be assessed against all other relevant circumstances. Counsel referred to the Kiribati Adaptation Programme and repeated the various environmental and resource threats faced by Kiribati which had been placed before the Tribunal. [50] Lying at the core of the Refugee Convention, submitted Mr Kidd, was the need to establish a well-founded fear of persecution coupled with the absence of state protection. Such a fear of persecution was present here. Persecution of inhabitants of Kiribati was actually occurring. It was not remote or speculative. [51] Novel and optimistic though these submissions are, they are unconvincing and must fail. On a broad level, were they to succeed and be adopted in other jurisdictions, at a stroke, millions of people who are facing medium-term economic deprivation, or the immediate consequences of natural disasters or warfare, or indeed presumptive hardships caused by climate change, would be entitled to protection under the Refugee Convention or under the ICCPR. It is not for the High Court of New Zealand to alter the scope of the Refugee Convention in that regard. Rather that is the task, if they so choose, of the legislatures of sovereign states. States, particularly those in the Pacific region, have not been oblivious to the adverse effects of climate change. The 1992 UNFCCC; the Kyoto Protocol (inspired by the UNFCCC); the 2010 Ambo Declaration involving 12 countries (including New Zealand, Australia, China, Japan, and Brazil), which was a precursor to the 2010 Cancun Adaptation Framework; and indeed the Niue Declaration flowing from the 2008 Pacific Islands Forum, are but a few examples of international and First World focus on the plight of such states as Kiribati. [52] The history of the last 3,000 years of human kind records huge movements of people, driven in some cases by overpopulation or scarce resources. But the globe is currently divided between independent sovereign states which would certainly resist unimpeded migration across state boundaries. [53] But it is unnecessary to decide this application on some “thin end of the wedge” basis. The six propositions of law advanced by the applicant are untenable. [54] For the reasons apparent in previous sections of this judgment, a “sociological” refugee or person seeking to better his or her life by escaping the perceived results of climate change is not a person to whom Article 1A(2) of the Refugee Convention applies. The economic environment of Kiribati might certainly not be as attractive to the applicant and his fellow nationals as the economic environment and prospects of Australia and New Zealand. But he would not, if he returns, be subjected to individual persecution. By returning to Kiribati, he would not suffer a sustained and systemic violation of his basic human rights such as the right to life under Article 6 of the ICCPR or the right to adequate food, clothing and housing under Article 11 of ICESCR. His position does not appear to be different from that of any other Kiribati national. And certainly there is no persecution or serious harm which will be visited on him for any of the five stipulated convention grounds.


[55] The appellant raised an argument that the international community itself was tantamount to the “persecutor” for the purposes of the Refugee Convention. This completely reverses the traditional refugee paradigm. Traditionally a refugee is fleeing his own government or a non-state actor from whom the government is unwilling or unable to protect him. Thus the claimant is seeking refuge within the very countries that are allegedly “persecuting” him. The Australia Refugee Review. Tribunal has stated: In this case the Tribunal does not believe that the element of an attitude or motivation can be identified, such that the conduct feared can be properly considered persecution for reasons of a Convention characteristic as required... There is simply no basis for concluding that countries which can be said to have been historically high emitters of carbon dioxide or other greenhouse gases, have any element of motivation to have any impact on residents of low lying countries such as Kiribati, either for their race, religion, nationality, membership of a particular social group or political opinion. Furthermore, even if there was persecution (which I do not accept), that persecution is indiscriminate rather than based on one of the five Convention grounds. [56] On the second question of law, that the Tribunal erred in finding that because all people on Kiribati suffer the same results of global warming this disqualifies the applicant from claiming refugee status, the Tribunal did not reach its decision on that ground alone, nor did it make a precise finding to that effect. It instead concluded that whilst the applicant’s standard of living, if he returned to Kiribati, would be less than what he enjoyed in New Zealand, this did not constitute serious harm for Refugee Convention purposes. Nor was the serious harm which the applicant alleged attributable to a Refugee Convention reason. The second question of law is no more than a reformulation of the first. [57] The third question of law is the Tribunal failed to consider an indirect human agency given that “general worldwide human agency” produced green house gases which promoted rising sea levels and changing weather patterns inherent in climate change. [58] Again this alleged question of law is repetitive. Quite simply the Tribunal did consider the position and the phenomenon of climate change and its causes generally. [59] The fourth and fifth questions of law relate to the applicant’s three children and the Tribunal’s alleged failure to consider the relevant domestic law and the effects of UNCROC and the ICCPR. These matters are not questions of law. The Tribunal had before it an appeal solely from the applicant. It is apparent from the notes of evidence before the Tribunal that it was not considering an appeal in respect of the applicant’s children or his wife. The Tribunal specifically raised with the applicant and his counsel why refugee claims were not filed for the applicant’s children. Counsel confirmed that no such claims had been filed and gave reasons for this. Similarly, at the outset of the hearing, the Tribunal clarified that the applicant’s wife was not a claimant but was merely appearing as a witness. Section 133 requires each person and every family member who seeks recognition as a refugee or protected person to make an individual claim. This was not done. Rather the position of the applicant’s wife and his children is covered by the provision of humanitarian appeals under ss 206 and 207. The considerations are different, as is the Tribunal’s jurisdiction.

93


94

[60] Sympathetic though one might be to the position of the applicant’s family, there is no identifiable error of law. Certainly the fourth and fifth questions of law do not raise matters of general public importance. [61] The sixth question challenges the Tribunal’s factual finding33 that supplies of food and water for the applicant and his family would be adequate were he to return to Kiribati. In submissions this was expanded to include the difficulties which would be caused to the applicant’s New Zealand born children because of their susceptibility to disease, overcrowding on Kiribati, and the future effects of climate change. [62] This question is essentially a question of fact not of law, and even if it were a question of law would be no more than a supplement to the applicant’s first two questions. In any event the factual finding of the Tribunal in that regard was clearly open to it on the evidence before it. RESULT [63] For the reasons which are apparent in the previous sections of this judgment and particularly the “Analysis” section, leave to appeal under s 245 from the 25 June 2013 decision of the Immigration and Protection Tribunal on the grounds that the decision was erroneous on points of law is refused. The attempt to expand dramatically the scope of the Refugee Convention and particularly Article 1A(2) is impermissible. The optimism and novelty of the applicant’s claim does not, in the context of well settled law and the current concerns of the international community, convert the unhappy position of the applicant and other inhabitants of Kiribati into points of law. [64] The decision of the Tribunal is confirmed. Costs [65] Since the respondent has been successful it is entitled to costs on the 2B scale. I did not understand Mr Kidd to argue to the contrary. Priestley J (Footnotes omitted) SUPREME COURT DECISION (2015)85 [11]

85

As we have said, Mr Teitiota’s application for leave identifies the same six questions of law that were before the High Court and the Court of Appeal. In his written submissions in support of the application for leave, Dr Kidd identifies the key issue as being:

Teitiota v Ministry of Business Innovation and Employment [2015] NZSC 107 (20 July 2015).


[W]hether New Zealand’s refugee law extends protection to a person who faces environmental displacement and the operation of a number of International Conventions, most importantly relating to the care of his three children under the age of six born in NZ. He then submits that the proposed appeal raises four points: (a) Whether as a matter of public international law an “environmental refugee” qualifies for protection under art 1A(2) of the Refugee Convention. (b) Whether, in the alternative, the manner in which art 1A(2) is incorporated into New Zealand law provides a basis for a broader interpretation of “refugee” in s 129(1) of the Immigration Act. (c) Whether the United Nations Convention on the Rights of the Child[14] is relevant to the assessment of “harm” for the purposes of the Refugee Convention. (d) Whether the right to life under the ICCPR includes a right of a people not to be deprived of its means of subsistence. [12] We agree with the Courts below that, in the particular factual context of this case (even with the addition of the new evidence), the questions identified raise no arguable question of law of general or public importance. In relation to the Refugee Convention, while Kiribati undoubtedly faces challenges, Mr Teitiota does not, if returned, face “serious harm” and there is no evidence that the Government of Kiribati is failing to take steps to protect its citizens from the effects of environmental degradation to the extent that it can. Nor do we consider that the provisions of the ICCPR relied on have any application on these facts. Finally, we are not persuaded that there is any risk of a substantial miscarriage of justice. [13] That said, we note that both the Tribunal[15] and the High Court,[16] emphasised their decisions did not mean that environmental degradation resulting from climate change or other natural disasters could never create a pathway into the Refugee Convention or protected person jurisdiction. Our decision in this case should not be taken as ruling out that possibility in an appropriate case. DECISION [14] The application for leave to appeal is dismissed. Given the circumstances of the application, there is no order for costs.86

86

Source: Teitiota v Ministry of Business Innovation and Employment [2015] NZSC 107 (20 July 2015), Supreme Court of New Zealand (SC7/2015, [2015] NZSC 107. Court: Elias CJ, William Young, Glazebrook, Arnold and O’Regan JJ, Counsel: M J Kidd for Applicant C A Griffin and M F Clark for Respondent.

95


96

UN HUMAN RIGHTS COMMITTEE VIEWS (2020)87 CONSIDERATION OF THE MERITS 9.1 The Committee has considered the communication in the light of all the information made available to it by the parties, as provided for under article 5 (1) of the Optional Protocol. 9.2 The Committee notes the author’s claim that by removing him to the Republic of Kiribati, the State party subjected him to a risk to his life in violation of article 6 of the Covenant, and that the State party’s authorities did not properly assess the risk inherent in his removal. 9.3 The Committee recalls paragraph 12 of its general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant, in which it refers to the obligation of States parties not to extradite, deport, expel or otherwise remove a person from their territory when there are substantial grounds for believing that there is a real risk of irreparable harm such as that contemplated by articles 6 and 7 of the Covenant. The Committee has also indicated that the risk must be personal, that it cannot derive merely from the general conditions in the receiving State, except in the most extreme cases,88 and that there is a high threshold for providing substantial grounds to establish that a real risk of irreparable harm exists.89 The obligation not to extradite, deport or otherwise transfer pursuant to article 6 of the Covenant may be broader than the scope of the principle of non-refoulement under international refugee law, since it may also require the protection of aliens not entitled to refugee status.90 Thus, States parties must allow all asylum seekers claiming a real risk of a violation of their right to life in the State of origin access to refugee or other individualized or group status determination procedures that could offer them protection against refoulement.91 Thus, all relevant facts and circumstances must be considered, including the general human rights situation in the author’s country of origin.92 The Committee recalls that it is generally for the organs of States parties to examine the facts and evidence of the case in order to determine whether such a risk exists, unless it can be established that this assessment was clearly arbitrary or amounted to a manifest error or a denial of justice.93 9.4 The Committee recalls that the right to life cannot be properly understood if it is

87

88

89

See: https://www.theguardian.com/world/2020/jan/20/climate-refugees-cant-be-returned-home-says-landmark-unhuman-rights-ruling. General comment No. 36 (2018) on article 6 of the Covenant on the right to life (CCPR/C/GC/36), para. 30. See, inter alia, B.D.K. v. Canada (CCPR/C/125/D/3041/2017), para. 7.3; and K v. Denmark (CCPR/C/114/D/2393/2014), para. 7.3.

90

General comment No. 36 (CCPR/C/GC/36), para. 31.

91

General comment No. 36 (CCPR/C/GC/36), para. 31.

92

See, inter alia, X v. Sweden (CCPR/C/103/D/1833/2008), para. 5.18.

93

See, inter alia, M.M. v. Denmark (CCPR/C/125/D/2345/2014), para. 8.4; B.D.K. v. Canada (CCPR/C/125/D/3041/2017), para. 7.3; see also Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial (CCPR/C/GC/32) (2007).


interpreted in a restrictive manner, and that the protection of that right requires States parties to adopt positive measures. The Committee also recalls its general comment No. 36, in which it established that the right to life also includes the right of individuals to enjoy a life with dignity and to be free from acts or omissions that would cause their unnatural or premature death.94 The Committee further recalls that the obligation of States parties to respect and ensure the right to life extends to reasonably foreseeable threats and life-threatening situations that can result in loss of life.95 States parties may be in violation of article 6 of the Covenant even if such threats and situations do not result in the loss of life.96 Furthermore, the Committee recalls that environmental degradation, climate change and unsustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life.97 9.5 The Committee also observes that it, in addition to regional human rights tribunals, have established that environmental degradation can compromise effective enjoyment of the right to life,98 and that severe environmental degradation can adversely affect an individual’s well-being and lead to a violation of the right to life.99 9.6 In the present case, the Committee recalls that it must assess whether there was clear arbitrariness, error or injustice in the evaluation by the State party’s authorities of the author’s claim that when he was removed to the Republic of Kiribati he faced a real risk of a threat to his right to life under article 6 of the Covenant. The Committee observes that the State party thoroughly considered and accepted the author’s statements and evidence as credible, and that it examined his claim for protection separately under both the Refugee Convention and the Covenant. The Committee notes that in their decisions, the Immigration and Protection Tribunal and the Supreme Court both allowed for the possibility that the effects of climate change or other natural disasters could provide a basis for protection. Although the Immigration and Protection Tribunal found the author to be entirely credible, and accepted the evidence he presented, the Tribunal considered that the evidence the author provided did not establish that he faced a risk of an imminent, or likely, risk of arbitrary deprivation of life upon return to Kiribati. In particular, the Tribunal

94

95

General comment No. 36 (CCPR/C/GC/36), para. 3; see Portillo Cáceres et al. v. Paraguay (CCPR/C/126/D/2751/2016), para. 7.3. See Toussaint v. Canada (CCPR/C/123/D/2348/2014), para. 11.3; Portillo Cáceres et al. v. Paraguay (CCPR/ C/126/D/2751/2016), para. 7.5.

96

See, inter alia, Portillo Cáceres et al. v. Paraguay (CCPR/C/126/D/2751/2016), para. 7.3.

97

General comment No. 36 (CCPR/C/GC/36), para. 62.

98

99

Portillo Cáceres et al. v. Paraguay (CCPR/C/126/D/2751/2016), para. 7.4 ; Inter-American Court of Human Rights, Advisory opinion OC-23/17 of 15 November 2017 on the environment and human rights, series A, No. 23, para. 47; Kawas Fernández v. Honduras, judgment of 3 April 2009, series C, No. 196, para. 148. See also African Commission on Human and People’s Rights, general comment No. 3 on the African Charter on Human and Peoples’ Rights: The Right to Life (article 4), para. 3 (States’ responsibilities to protect life “extend to preventive steps to preserve and protect the natural environment, and humanitarian responses to natural disasters, famines, outbreaks of infectious diseases, or other emergencies.”) See also European Court of Human Rights, application Nos. 54414/13 and 54264/15, Cordella and Others v. Italy, judgment of 24 January 2019, para. 157 (serious environmental harm may affect individuals’ well-being and deprive them of the enjoyment of their domicile, so as to compromise their right to private life). See European Court of Human Rights, M. Özel and others v. Turkey, judgment of 17 November 2015, paras. 170, 171 and 200; Budayeva and others v. Russia, judgment of 20 March 2008, paras. 128–130, 133 and 159; Öneryildiz v. Turkey, judgment of 30 November 2004, paras. 71, 89, 90 and 118.

97


found that there was no evidence that: (a) the author had been in any land dispute in the past, or faced a real chance of being physically harmed in such a dispute in the future; (b) he would be unable to find land to provide accommodation for himself and his family; (c) he would be unable to grow food or access potable water; (d) he would face life-threatening environmental conditions; (e) his situation was materially different from that of every other resident of Kiribati; or (f) the Government of Kiribati had failed to take programmatic steps to provide for the basic necessities of life, in order to meet its positive obligation to fulfill the author’s right to life. The Tribunal observed that the Government of Kiribati had taken steps to address the effects of climate change, according to the 2007 National Adaptation Programme of Action submitted by Kiribati under the United Nations Framework Convention on Climate Change.

98

9.7 In assessing whether the State party’s authorities provided the author with an adequate and individualized assessment of the risk of a threat to his right to life, the Committee first notes the author’s claim that the increasing scarcity of habitable land on Tarawa has led to violent land disputes that have produced fatalities. In this connection, the Committee considers that a general situation of violence is only of sufficient intensity to create a real risk of irreparable harm under articles 6 or 7 of the Covenant in the most extreme cases, where there is a real risk of harm simply by virtue of an individual being exposed to such violence on return,100 or where the individual in question is in a particularly vulnerable situation.101 In assessing the author’s circumstances, the Committee notes the absence of a situation of general conflict in the Republic of Kiribati. It observes that the author refers to sporadic incidents of violence between land claimants that have led to an unspecified number of casualties, and notes the author’s statement before the domestic authorities that he had never been involved in such a land dispute. The Committee also notes the Tribunal’s statement that the author appeared to accept that he was alleging not a risk of harm specific to him, but rather a general risk faced by all individuals in Kiribati. The Committee further notes the absence of information from the author about whether protection from the State would suffice to address the risk of harm from non-state actors who engage in acts of violence during land disputes. While the Committee does not dispute the evidence proffered by the author, it considers that the author has not demonstrated clear arbitrariness or error in the domestic authorities’ assessment as to whether he faced a real, personal and reasonably foreseeable risk of a threat to his right to life as a result of violent acts resulting from overcrowding or private land disputes in Kiribati. 9.8 The Committee also notes the author’s claims before the domestic authorities that he would be seriously harmed by the lack of access to potable water on Tarawa, as fresh water lenses had been depleted due to saltwater contamination produced by sea level rise. In this regard, the Committee notes that according to the report and testimony of the climate change researcher John Corcoran, 60 per cent of the residents of South Tarawa obtained fresh water from rationed supplies provided by the public utilities

100

101

Cf., European Court of Human Rights, Sufi and Elmi v. United Kingdom, application Nos. 8319/07 and 11449/07, judgment of 28 June 2011, paras. 218, 241. See Jasin v. Denmark (CCPR/C/114/D/2360/2014), paras. 8.8, 8.9; Warsame v. Canada (CCPR/C/102/D/1959/2010), para. 8.3.


board. The Committee notes the findings of the domestic authorities that there was no evidence that the author would lack access to potable water in the Republic of Kiribati. While recognizing the hardship that may be caused by water rationing, the Committee notes that the author has not provided sufficient information indicating that the supply of fresh water is inaccessible, insufficient or unsafe so as to produce a reasonably foreseeable threat of a health risk that would impair his right to enjoy a life with dignity or cause his unnatural or premature death. 9.9 The Committee further notes the author’s claim before the domestic authorities that his right to life had been violated because he had been deprived of his means of subsistence, as his crops had been destroyed due to salt deposits on the ground. The Committee observes the finding of the domestic authorities that, while the author stated that it was difficult to grow crops, it was not impossible. The Committee recognizes that in certain places, the lack of alternatives to subsistence livelihoods may place individuals at a heightened risk of vulnerability to the adverse effects of climate change. However, the Committee notes the lack of information provided by the author on alternative sources of employment and on the availability of financial assistance to meet basic humanitarian needs in the Republic of Kiribati. The Committee further notes the Tribunal’s observation that most nutritious crops remained available in the Republic of Kiribati. The information made available to the Committee does not indicate that when the author’s removal occurred, there was a real and reasonably foreseeable risk that he would be exposed to a situation of indigence, deprivation of food, and extreme precarity that could threaten his right to life, including his right to a life with dignity. The Committee therefore considers that the author has not established that the assessment of the domestic authorities was clearly arbitrary or erroneous in this regard, or amounted to a denial of justice. 9.10 Finally, the Committee notes the author’s assertion that he faces a risk to his right to life because of overpopulation and frequent and increasingly intense flooding and breaches of sea walls. The Committee also notes the author’s argument that the State party’s courts erred in determining the timeframe within which serious harm to the author would occur in the Republic of Kiribati, and did not give sufficient weight to the expert testimony of the climate change researcher. The Committee notes that in his comments submitted in 2016, the author asserted that the Republic of Kiribati would become uninhabitable within 10 to 15 years. 9.11 The Committee takes note of the observation of the Immigration and Protection Tribunal that climate change-induced harm can occur through sudden-onset events and slow-onset processes. Reports indicate that sudden-onset events are discrete occurrences that have an immediate and obvious impact over a period of hours or days, while slow-onset effects may have a gradual, adverse impact on livelihoods and resources over a period of months to years. Both sudden-onset events (such as intense storms and flooding) and slow-onset processes (such as sea level rise, salinization, and land degradation) can propel cross-border movement of individuals seeking protection from climate change-related harm.102 The Committee is of the view that without robust

102

See Global Compact for Safe, Orderly and Regular Migration (A/RES/73/195), para. 18 (h), (i), (l).

99


100

national and international efforts, the effects of climate change in receiving states may expose individuals to a violation of their rights under articles 6 or 7 of the Covenant, thereby triggering the non-refoulement obligations of sending states. Furthermore, given that the risk of an entire country becoming submerged under water is such an extreme risk, the conditions of life in such a country may become incompatible with the right to life with dignity before the risk is realized. 9.12 In the present case, the Committee accepts the author’s claim that sea level rise is likely to render the Republic of Kiribati uninhabitable. However, it notes that the timeframe of 10 to 15 years, as suggested by the author, could allow for intervening acts by the Republic of Kiribati, with the assistance of the international community, to take affirmative measures to protect and, where necessary, relocate its population. The Committee notes that the State party’s authorities thoroughly examined this issue and found that the Republic of Kiribati was taking adaptive measures to reduce existing vulnerabilities and build resilience to climate change-related harms. Based on the information made available to it, the Committee is not in a position to conclude that the assessment of the domestic authorities that the measures by taken by the Republic of Kiribati would suffice to protect the author’s right to life under article 6 of the Covenant was clearly arbitrary or erroneous in this regard, or amounted to a denial of justice. 9.13 In the light of these findings, the Committee considers that the State party’s courts provided the author with an individualized assessment of his need for protection and took note of all of the elements provided by the author when evaluating the risk he faced when the State party removed him to the Republic of Kiribati in 2015, including the prevailing conditions in Kiribati, the foreseen risks to the author and the other inhabitants of the islands, the time left for the Kiribati authorities and the international community to intervene and the efforts already underway to address the very serious situation of the islands. The Committee considers that while the author disagrees with the factual conclusions of the State party, the information made available to it does not demonstrate that the conduct of the judicial proceedings in the author’s case was clearly arbitrary or amounted to a manifest error or denial of justice, or that the courts otherwise violated their obligation of independence and impartiality. 9.14 Without prejudice to the continuing responsibility of the State party to take into account in future deportation cases the situation at the time in the Republic of Kiribati and new and updated data on the effects of climate change and rising sea-levels thereupon, the Committee is not in a position to hold that the author’s rights under article 6 of the Covenant were violated upon his deportation to the Republic of Kiribati in 2015. 10. The Human Rights Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the facts before it do not permit it to conclude that the author’s removal to the Republic of Kiribati violated his rights under article 6 (1) of the Covenant.


FACTS The author of the communication is Ioane Teitiota, a national of the Republic of Kiribati born in the 1970s. His application for refugee status in New Zealand was rejected. He claims that the State party violated his right to life under the Covenant, by removing him to Kiribati in September 2015. The Optional Protocol entered into force for the State party on 26 August 1989. The author is represented by counsel. 1.2 On 16 February 2016, pursuant to rule 92 of its rules of procedure, the Committee, acting through its Special Rapporteur on new communications and interim measures, decided not to request the State party to refrain from removing the author to the Republic of Kiribati while the communication was under consideration by the Committee. Factual background 2.1 The author claims that the effects of climate change and sea level rise forced him to migrate from the island of Tarawa in the Republic of Kiribati to New Zealand. The situation in Tarawa has become increasingly unstable and precarious due to sea level rise caused by global warming. Fresh water has become scarce because of saltwater contamination and overcrowding on Tarawa. Attempts to combat sea level rise have largely been ineffective. Inhabitable land on Tarawa has eroded, resulting in a housing crisis and land disputes that have caused numerous fatalities. Kiribati has thus become an untenable and violent environment for the author and his family. 2.2 The author has sought asylum in New Zealand, but the Immigration and Protection Tribunal issued a negative decision concerning his claim for asylum. Still, the Tribunal did not exclude the possibility that environmental degradation could “create pathways into the Refugee Convention or protected person jurisdiction.” The Court of Appeal and the Supreme Court each denied the author’s subsequent appeals concerning the same matter. 2.3 In its decision of 25 June 2013, the Immigration and Protection Tribunal first examined in detail the 2007 National Adaptation Programme of Action filed by the Republic of Kiribati under the United Nations Framework Convention on Climate Change. As described by the Tribunal, the National Adaptation Programme of Action stated that the great majority of the population had subsistence livelihoods that were heavily dependent on environmental resources. The Programme of Action described a range of issues that had arisen from the existing and projected effects of climate changerelated events and processes. Among the effects of climate change, coastal erosion and accretion were most likely to affect housing, land and property. In South Tarawa, 60 sea walls were in place by 2005. However, storm surges and high spring tides had caused flooding of residential areas, forcing some to relocate. Attempts were being made to diversify crop production, for example, through the production of cash crops. Most nutritious crops were available and could be prepared into long-term preserved food. However, the health of the population had generally deteriorated, as indicated by vitamin A deficiencies, malnutrition, fish poisoning, and other ailments reflecting the situation of food insecurity.

101


102

Image: The sea giveth, and the sea increasingly taketh away. Gunayala Panama. Kadir van Lohuizen / NOOR.


2.4 The Tribunal next considered the expert testimony of John Corcoran, a doctoral candidate researching climate change in Kiribati at the University of Waikato in New Zealand. Mr. Corcoran, a national of the Republic of Kiribati, characterized the country as a society in crisis owing to climate change and population pressure. The islands constituting the country rose no more than three meters above sea level. Soils were generally poor and infertile. Unemployment was high. The population of South Tarawa had increased from 1,641 in 1947 to 50,000 in 2010. In Tarawa and certain other islands of Kiribati, the scarcity of land engendered social tensions. Violent fights often broke out and sometimes led to injuries and deaths. Rapid population growth and urbanization in South Tarawa had compromised the supply of fresh water. No island in Kiribati had surface fresh water. As a result of the increase in population, the rate of water extraction from the freshwater lens exceeded the rate of its replenishment through the percolation of rainwater. Waste contamination from Tarawa had contributed to pollution of the freshwater lens, rendering some of the five underground water reserves unfit for the supply of fresh drinking water. Increasingly intense storms occurred, submerging the land in certain places on South Tarawa and rendering it uninhabitable. This often occurred three or four times a month. Rising sea levels caused more regular and frequent breaches of sea walls, which were in any case not high enough to prevent saltwater intrusion over the land during high tides. Household wells in high-density housing areas could not be used as a water supply due to increasing contamination, and rainwater catchment systems were only available in homes constructed of permanent materials. Thus, approximately 60 per cent of the population of South Tarawa obtained fresh water exclusively from rationed supplies provided by the public utilities board. Trash washed onto the beach posed health hazards for local landowners. According to Mr. Corcoran, the Government of the Republic of Kiribati was taking some steps to address this. It had a Programme of Action in place to help communities adapt to climate change.103 2.5 Next, the Tribunal examined the testimony given by the author during the appeal hearing. According to the Tribunal’s description of the testimony, the author was born on an islet situated north of Tarawa, a journey of several days away by boat. He completed secondary school and obtained employment for a trading company, which ended in the mid-1990s when the company folded. He had not been able to find work since then. In 2002, the author and his wife moved in with his wife’s family in a traditionally-constructed dwelling in a village in Tarawa. The dwelling was situated on ground level and had electricity and water but no sewage services. Beginning in the late 1990s, life progressively became more insecure on Tarawa because of sea level rise. Tarawa became overcrowded due to the influx of residents from outlying islands, because most government services, including those of the main hospital, were provided on Tarawa. As villages became overcrowded, tensions arose. Also beginning in the late 1990s, Tarawa suffered significant amounts of coastal erosion during high tides. The land surface regularly flooded, and land could be submerged up to knee-deep during king tides. Transportation was affected, since the main causeway separating north

103

Mr. Corcoran’s written report was provided with the author’s comments. Entitled “Evidence of climate change impacts in Kiribati,” it includes photographs depicting, inter alia, flooding of homes after high tides, land with limited vegetation, a breached sea wall, and trash washed onto a beach.

103


104

and south Tarawa was often flooded. The situation caused significant hardship for the author and other inhabitants of Tarawa. The wells on which they depended became salinized. Salt water was deposited on the ground, resulting in the destruction of crops. The land was stripped of vegetation in many places, and crops were difficult to grow. The author’s family relied largely on subsistence fishing and agriculture. The sea wall in front of the author’s in-laws’ home was often damaged and required constant repair. The author and his wife left the Republic of Kiribati for New Zealand because they wished to have children, and had received information from news sources that there would be no future for life in their country. The author accepted that his experiences were common to people throughout the Republic of Kiribati. He believed that the country’s Government was powerless to stop the sea level rise. Internal relocation was not possible. The author’s parents lived on Tarawa but faced similar environmental and population pressures. 2.6 The Tribunal also considered the oral testimony of the author’s wife. According to the Tribunal, she testified that she was born in the late 1970s on Arorae Island, in the south of the Republic of Kiribati. In 2000, her family moved to Tarawa. She married the author in 2002. Her parents’ house there was situated on the edge of a sea wall. The house and land were not owned by her parents but belonged to a neighbor. Since her arrival in New Zealand, the neighbor had passed away, and his children had been demanding that her family vacate the house. Her family was supported financially by one of her brothers, who had obtained employment in South Tarawa. If the family were obligated to vacate the house, they would have to travel back to Arorae Island and settle on a small plot of land. She was concerned for the family’s health and wellbeing. The land was eroding due to the effects of sea level rise. The drinking water was contaminated with salt. Crops were dying, as were the coconut trees. She had heard stories of children getting diarrhea and even dying because of the poor quality of the drinking water. Land was becoming very overcrowded, and houses were close together, which led to the spread of disease. 2.7 The Tribunal also considered many supporting documents submitted by the author, including several scholarly articles written by United Nations entities and experts. The Tribunal analyzed whether the author could qualify as a refugee or a protected person under the Refugee Convention, the Convention against Torture, or the Covenant. It found the author entirely credible. It noted that the carrying capacity of the land on the Tarawa atoll had been negatively impacted by the effects of population growth, urbanization, and limited infrastructure development, particularly in relation to sanitation. These impacts had been exacerbated by both sudden-onset environmental events, such as storms, and slow-onset processes, such as sea level rise. The Tribunal noted that the author had been unemployed for several years before arriving in New Zealand, and had relied on subsistence agriculture and fishing, while receiving financial support from his wife’s brother. The Tribunal noted the author’s statement that he did not wish to return to the Republic of Kiribati because of the difficulties he and his family faced there, due to the combined pressures of overpopulation and sea level rise. The house they were living in on South Tarawa was no longer available to them on a longterm basis. Although the couple’s families had land on other islands, they would face similar environmental pressures there, and the land available was of limited size and was occupied by other family members.


2.8 After a lengthy analysis of international human rights standards, the Tribunal considered that “while in many cases the effects of environmental change and natural disasters will not bring affected persons within the scope of the Refugee Convention, no hard and fast rules or presumptions of non-applicability exist. Care must be taken to examine the particular features of the case.” After further examination, the Tribunal concluded that the author did not objectively face a real risk of being persecuted if returned to Kiribati. He had not been subjected to any land dispute in the past and there was no evidence that he faced a real chance of suffering serious physical harm from violence linked to housing/land/property disputes in the future. He would be able to find land to provide accommodation for himself and his family.104 Moreover, there was no evidence to support his contention that he was unable to grow food or obtain potable water. There was no evidence that he had no access to potable water, or that the environmental conditions that he faced or would face on return were so perilous that his life would be jeopardized. For these reasons, he was not a “refugee” as defined by the Refugee Convention. 2.9 Regarding the Covenant, the Tribunal noted that the right to life must be interpreted broadly, in keeping with the Committee’s general comment No. 6 (1982) on article 6. The Tribunal cited academic commentary stating that under article 6, an arbitrary deprivation of life involves an interference that is: (a) not prescribed by law; (b) not proportional to the ends sought; and (c) not necessary in the particular circumstances of the case.105 On this basis, the Tribunal accepted that the right to life involves a positive obligation of the state to fulfil this right by taking programmatic steps to provide for the basic necessities for life. However, the author could not point to any act or omission by the Government of Kiribati that might indicate a risk that he would be arbitrarily deprived of his life within the scope of article 6 of the Covenant. The Tribunal considered that the Government of Kiribati was active on the international stage concerning the threats of climate change, as demonstrated by the 2007 Programme of Action. Moreover, the author could not establish that there was a sufficient degree of risk to his life, or that of his family, at the relevant time. Quoting the Committee’s jurisprudence in Aalbersberg et al. v. the Netherlands (CCPR/C/87/D/1440/2005), the Tribunal stated that under the Optional Protocol, the risk of a violation of the Covenant must be “imminent.” This means that the risk to life must be, at least, likely to occur. No evidence was provided to establish such imminence. The Tribunal accepted that, given the greater predictability of the climate system, the risk to the author and his family from sea level rise and other natural disasters could, in a broad sense, be regarded as more imminent than the risk posed to the life of the complainants in Aalbersberg et al v. the Netherlands. However, the risk to the author and his family still fell well short of the threshold required to establish substantial grounds for believing that they would be in danger of arbitrary deprivation of life within the scope of article 6 of the Covenant.

104

105

The Tribunal noted that the father of the author’s wife was negotiating with the new owner of the land where the author had been living, and that an arrangement had been made to give the father time to relocate his family to their home island in the south. The Tribunal considered that while the author would need to share the available land with other members of his kin group, it would provide him and his family with access to sufficient resources to sustain themselves to an adequate level. The Tribunal cited, inter alia, Manfred Nowak, The U.N. Covenant on Civil and Political Rights: CCPR Commentary (Kiehl, NP Engel, 2005), p. 128-29.

105


This risk remained firmly in the realm of conjecture or surmise. There was no evidence establishing that his situation in the Republic of Kiribati would be so precarious that his or his family’s life would be in danger. The Tribunal noted the testimony of the author’s wife that she feared her young children could drown in a tidal event or storm surge. However, no evidence had been provided to establish that deaths from such events were occurring with such regularity as to raise the prospect of death occurring to the author or his family members to a level rising beyond conjecture and surmise, let alone a risk that could be characterized as an arbitrary deprivation of life. Accordingly, there were not substantial grounds for believing that the author or any of his family members would be in danger of a violation of their rights under article 6 of the Covenant. The Tribunal also found that there was not a substantial risk that the author’s rights under article 7 of the Covenant would be violated by his removal.

106

2.10 The author also provided a copy of the decision of the Supreme Court, which denied the author’s appeal of the decision of the Tribunal on 20 July 2015. The Court considered, inter alia, that while the Republic of Kiribati undoubtedly faced challenges, the author would not, if returned there, face serious harm. Moreover, there was no evidence that the Government of the Republic of Kiribati was failing to take steps to protect its citizens from the effects of environmental degradation to the extent that it could. The Supreme Court was also not persuaded that there was any risk that a substantial miscarriage of justice had occurred. Nevertheless, the Court did not rule out the possibility that environmental degradation resulting from climate change or other natural disasters could “create a pathway into the Refugee Convention or other protected person jurisdiction.”

AC TUVALU (2014) 106 INTRODUCTION [1]

These are appeals against decisions of a refugee and protection officer, declining to grant refugee status and/or protected person status to the appellants, citizens of Tuvalu.

[2]

The appellant in NZIPT [2014] 800517 is the husband of the appellant in NZIPT [2014] 800518. They will be referred to as “the husband” and “the wife” respectively. They are the parents of the appellants in NZIPT [2014] 800519 and 800520 who will be referred to as “the children”. The wife is the responsible adult for the children in terms of section 375(1) and (2) of the Immigration Act 2009 (“the Act”).

[3]

The appellants claim that there are substantial grounds for believing that they will be in danger of being arbitrarily deprived of their lives or in danger of being subjected to cruel treatment if returned to Tuvalu because of the effects of climate change in Tuvalu. The central issue to be determined by the Tribunal is whether the Government of Tuvalu can be said to be failing to take steps within its power to protect the appellants’ lives from the effects of climate change such that their lives can be said to be “in danger” and whether or not the harm they fear amounts to cruel treatment as that term is defined under the Act.

106

IMMIGRATION AND PROTECTION TRIBUNAL [2014] NZIPT 800517-520 NEW ZEALAND AT AUCKLAND, 4 June 2014.


[4]

Given that the appellants’ claims derive to a significant extent from the general conditions in Tuvalu, it is appropriate to first set out some salient features, before turning to detail the experiences and concerns of the appellants.

LAND TENURE IN TUVALU [9]

As much of the appellants’ case revolved from their having a lack of access to land on which to build a house in Tuvalu, it is also necessary to say something about land tenure in Tuvalu.

[10] Rates of customary land tenure are highly variable across the Pacific. As regards Tuvalu specifically, between 95 per cent of the land is held in customary tenure, with only 5 per cent publicly owned. Less than 0.1 per cent is held in freehold title. All customary land has, however, been registered; see Australian Agency for International Development, Making Land Work Volume One: Reconciling customary land and development in the Pacific (Canberra, 2008), Table 2.1, at p4. [11]

As noted in the 2007 NAPA at p16, access to land, particularly in Funafuti for those from outlying islands is an important issue. To understand this importance, it is necessary to see the role of land and the place and significance of customary land tenure within the wider Pacific setting. The role of land in Pacific society generally is described in the report of South Pacific Forum Secretariat’s Land Management and Conflict Minimisation Project Guiding Principles and Implementation Framework for Improving Access to Customary Land and Maintaining Social Harmony in the Pacific (Suva, 2008). As the title of the project suggests, in the Pacific region, land ownership and usage can be highly contested. The report, at pp20-24, details the importance of land in the Pacific and some of the issues arising. The report states: “Land is integral to the people of the Pacific, being a traditional source of sustenance, social and political relationships and identity. Traditional access to and use and management of land is closely tied to the social fabric of communities, and customary tenure defines not only the nature and scale of economic development but also social harmony. Land is a sensitive issue because it has a much broader meaning for indigenous Pacific people than just its value as an economic commodity. For the people of the Pacific, ties to land are central to identity and provide a sense of belonging. The importance to the people of the Pacific of acknowledging customary land tenure as the foundation of land management cannot be overemphasised. Sensitivities over land partly also arise because of tensions and conflicts that come to the surface during elections, when people’s emotions are manipulated for political ends.”

[12] As to customary land tenure the report notes: “Customary land is “owned” by groups with different rights held by individuals, defined by inheritance and social relationships. In traditional societies “ownership” of land relates to the notion of custodianship, where individuals and society jointly have a responsibility and duty of care towards current and future generations. Customary land is also a source of social insurance. For indigenous Pacific people, ties to land bring together ecological, geophysical, social, spiritual and economic dimensions, ... Decisions about

107


108

the transfer of land (through gift or purchase) were usually made communally or, in chiefly societies, by chiefs or “big men”. At the community level, individuals made decisions about land over which they had individual use rights. Conflicts were mediated by senior members of the community with expert knowledge of group genealogy and history and using sanctioned mediation processes.” [13] Land-related conflict is not uncommon. The report notes, at p22, that internal ruralto-urban migration and emigration has created additional problems: “Urbanisation and migration have raised the lack of clarity of the rights of members of landowning groups who are away from their land for extended periods of time, as well as the issue of access to customary land for settlement, while ensuring that landowners do not lose their superior rights. Not only do these challenges cause local-level anxiety and disagreement, they can lead to conflicts that are taken to courts. Such conflict resolution processes can be time consuming and affect economic growth.” CURRENT AND PROJECTED IMPACTS IN TUVALU OF ENVIRONMENTAL DEGRADATION LINKED TO CLIMATE CHANGE [14] The 2007 NAPA, at p13, notes both that, as a low-lying tropical island state, Tuvalu is no stranger to natural disasters and that “it is anticipated that Tuvalu will suffer the greatest from adverse impacts of climate change”. [15] Drawn from stakeholder consultations in all island communities, the 2007 NAPA, at p12, identified the most common vulnerabilities currently faced by Tuvaluans in the context of climate change. These were: (a) Coastal Erosion - Loss of land due to coastal erosion was evident on all islands of Tuvalu. Sea-level rise, flooding, storm surges, tropical cyclones and major hurricanes were identified as the main contributing factors, although building aggregates excavation and coastal development activities had also contributed. Coastal erosion contributed to the destruction of coastal coconut tree plantations. Also, erosion due to heavy rainfall resulted in sedimentation in central and coastal areas, affecting coastal and lagoon fisheries. (b) Flooding and inundation - February 2006 saw the worst ever flooding and inundation on Funafuti, resulting in the evacuation of some families. Other islands also experienced flooding and inundation into new areas. Climate- related hazards such as tropical cyclones and storm surges were expected to exacerbate these problems. (c) Water stress - Population growth had increased public demand for potable water, the main source of which came from rainwater. Vulnerability to water stress was caused by the lack of household water storage facilities and changes to rainfall patterns due to climate change and variability. Water shortages contributed to skin diseases and other health problems. (d) Destruction to primary sources for subsistence - An increase in the occurrence of new crop diseases and pests, including fruit-fly infestation, was attributed by stake-holders to climate change and variability. Tropical cyclones, storm surges and coastal flooding had destroyed coastal coconut plantations. Coastal fisheries were also affected by sea-surface temperature changes and the increasing frequency of extreme events. (e) Damage to individual and community assets - Coastal infrastructures such as harbours, church buildings, cooperative shopping centres, clinics and dispensaries, the tar sealed road in Funafuti and household properties were all exposed to the destructive forces of extreme events such as tropical cyclones, storm surges, droughts, and fires.


[16] As regards potential future vulnerabilities due to the impacts of climate change, the 2007 NAPA notes that these will depend on the frequency and intensity of climate-related hazards. Population growth is already placing pressure on sensitive environments and major sources of food security and livelihoods, and these effects can be exacerbated by the adverse effects of climate change. Drought is anticipated to increase in severity in the future. The low elevation and limited land area of Tuvalu meant that the most direct and severe anticipated effects of climate change will be an increasing risk of coastal erosion, flooding and inundation. Other anticipated direct effects were stated to include an increase in dengue fever risks and water borne diseases, an increase in human stress, and decreasing agricultural yields. [17] Particular emphasis has been placed by counsel on the issue of access to safe water. In this regard, the 2007 NAPA recognises at p26 that: “One of the most critical national challenges with respect to impacts of climate change and sea level rise is the quality and availability of potable water for the people due to unpredictability of changes and variability in climate and weather patterns.” [18] It notes that low monthly rainfall frequently results in water shortages on Funafuti. While this usually occurs during the dry season (June-Sept), if it coincides with El Nino in the adjacent wet season (October-April), the resulting water shortage crisis will be prolonged. Increasing frequency of drought and longer periods of low rainfall causes increases in groundwater salinity, which adversely affects subsistence agriculture and increases skin diseases and eye infections. Groundwater was an alternative source of water in the past, which supplemented public water supply and is also the main source of water for agriculture, plants and crops. More than 60 per cent of pulaka pit plantations had been devastated by saltwater intrusion and, over time, saltwater intrusion is expected to impact other agricultural fruit trees such as coconut, breadfruit and pandanus. [26] The husband told the Tribunal that, over time, he noticed significant changes in X and indeed the other islands due to climate change. While there had always been inundation of the land from the seaward side during the hurricane season, he noticed that over time land would be partially submerged from both the lagoon and the seaward side during monthly king-tides. Trees close to the shoreline began to die and it became more difficult to grow food compared to what he remembered as a small boy and from what he understood previous generations had grown from the oral stories that were told to him. The husband also noticed a problem of coastal erosion on X and the other islands where he lived. [27] The only source of fresh water on the island was rain water, but the collection systems were somewhat haphazard and the water was often contaminated. It required boiling to be rendered safe and, even then, was of a marginal quality. While, as a boy, he had been used to that water, he nevertheless still suffered from sores and skin complaints which he attributed to the lack of decent water. Problems were exacerbated during times of drought. While teaching on another island, there was a severe drought and the government, at the island’s request, shipped a tanker full of desalinated water. While the water tasted quite “rusty”, nevertheless people drank it.

109


110

[28] The husband told the Tribunal that he fears for his own and particularly his wife and children’s safety if returned. Although he is a teacher, he has heard that it is difficult to obtain teaching jobs in Tuvalu and that there are many teachers who are unemployed. He does not think he would be able to find work. While his sisters and their families are here in New Zealand they will not be in a financial position to provide him with ongoing support. Nor does he think he could get help from community or church-based organisations. He is particularly anxious about the effect on his children of having to drink contaminated and substandard water. [32] These experiences have made the wife anxious for her children’s future in Tuvalu. The government does not have the medical facilities and the medicines are generally not available to keep children healthy. There is no immunisation programme such as there is in New Zealand. She is also anxious about their general livelihoods if returned to Tuvalu. They have nowhere to go. The husband has told her that the house where they lived in X is no longer available to them and that the land had been taken away from them. He has no family living in Tuvalu anymore and although family members are working in New Zealand they would not be able to provide them with money to help. Although the wife has some family members in Tuvalu they are not working and are not in a position to help her. She has lost contact with one of her brothers and another brother is here in New Zealand. [33] The wife is also worried about the effects of sea-level rise. The land on Y is frequently inundated by the sea, making it difficult for plants to grow. During king tides the houses are often surrounded by water. She has no recourse to the land which belonged to her father. ASSESSMENT [38] Under section 198 of the Immigration Act 2009, on an appeal under section 194(1)(c) the Tribunal must determine (in this order) whether to recognise the appellants as: (a) refugees under the 1951 Convention Relating to the Status of Refugees (“the Refugee Convention”) (section 129); and (b) protected persons under the 1984 Convention Against Torture (section 130); and (c) protected persons under the 1966 International Covenant on Civil and Political Rights (“the ICCPR”) (section 131). [39] In determining whether the appellants are refugees or protected persons, it is necessary first to identify the facts against which the assessment is to be made. That requires consideration of the credibility of the appellants’ account. CREDIBILITY [40] The Tribunal accepts the appellants as credible witnesses as to their background and experiences in Tuvalu. [41] It is therefore accepted that the husband and wife come from different islands in Tuvalu. The husband is a qualified teacher who for a number of years prior to his departure for New Zealand worked as a teacher on various islands. The couple stayed in rented


accommodation which was of a higher standard than that which they occupied when living on their respective home islands. They suffered the deaths of two children during the late stages of pregnancy. In 2007 they came to New Zealand. The Tribunal accepts that they are concerned about the effects of climate change and general conditions in Tuvalu for both themselves but particularly for their children. The Tribunal accepts the husband has no land available to him in X and that if they were to have to return to Tuvalu it would be to Z. Their claims will be assessed against this background. THE REFUGEE CONVENTION [42] Section 129(1) of the Act provides that: “A person must be recognised as a refugee in accordance with this Act if he or she is a refugee within the meaning of the Refugee Convention.” [43] Article 1A(2) of the Refugee Convention provides that a refugee is a person who: “... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.” [44] In terms of Refugee Appeal No 70074 (17 September 1996), the principal issues are: (a) Objectively, on the facts as found, is there a real chance of the appellant being persecuted if returned to the country of nationality? (b) If the answer is yes, is there a Convention reason for that persecution? [45] In the submissions of 30 May 2013, counsel submitted that the appellants are entitled to be recognised as refugees. However, in both a pre-hearing conference and on the morning of the hearing it was accepted that, in light of the Tribunal’s reasoning in AF (Kiribati), there was no basis upon which any of the appellants could be recognised as refugees. Whatever harm they faced in Tuvalu due to the anticipated adverse effects of climate change, it did not arise by reason of their race, religion, nationality, membership of any particular social group or political opinion. Their refugee claims were abandoned. [46] The position taken by the Tribunal in AF (Kiribati) as regards the Refugee Convention in the context of natural disasters has been endorsed on appeal by both the High Court and, most recently, by the Court of Appeal; see, respectively: Teitiota v Chief Executive of the Ministry of Business, Innovation and Employment [2013] NZHC 3125 and Teitiota v Chief Executive of the Ministry of Business, Innovation and Employment [2014] NZCA 173. THE CONVENTION AGAINST TORTURE [47] Section 130(1) of the Act provides that: “A person must be recognised as a protected person in New Zealand under the Convention Against Torture if there are substantial grounds for believing that he or she would be in danger of being subjected to torture if deported from New Zealand.”

111


112

[48] Section 130(5) of the Act provides that torture has the same meaning as in the Convention Against Torture, Article 1(1) of which states that torture is: “... any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” [49] On the morning of the hearing, Ms Curtis indicated that the appellants were not making any allegation that they were at risk of being tortured as that phrase is defined under the Act. That claim was also abandoned. [50] What remains in issue, however, is the claim to be recognised as protected persons on the basis of section 131 of the Act. It is to that issue the Tribunal turns. The claims under Articles 6 and 7 of the ICCPR [51] Section 131 of the Act provides that: “(1) A person must be recognised as a protected person in New Zealand under the Covenant on Civil and Political Rights if there are substantial grounds for believing that he or she would be in danger of being subjected to arbitrary deprivation of life or cruel treatment if deported from New Zealand.... (6) In this section, cruel treatment means cruel, inhuman, or degrading treatment or punishment.”


[52] By virtue of section 131(5): “(a) treatment inherent in or incidental to lawful sanctions is not to be treated as arbitrary deprivation of life or cruel treatment, unless the sanctions are imposed in disregard of accepted international standards: (b) the impact on the person of the inability of a country to provide health or medical care, or health or medical care of a particular type or quality, is not to be treated as arbitrary deprivation of life or cruel treatment.”

113

SUBMISSIONS OF COUNSEL [53] Counsel submits that each of the appellants – but the appellant children in particular – are in danger of suffering the arbitrary deprivation of life or of being subjected to cruel, inhuman or degrading treatment in Tuvalu. Citing McAdam (op cit, 2011), in the memorandum dated 30 May 2013 at paragraphs 2.1.and 2.2 and 2.18, counsel submits that the proper focus of the inquiry under section 131 should be on the ability and willingness of the Government of Tuvalu to mitigate against the harm, and not the underlying cause of the harm – in this case climate change. Nor is the fact that the harm stems, in part, from slow-onset processes relevant. The relevant issue is on the severity of harm arising and not on the timing. The anticipated harm need not be “imminent or subject to any time test”; see memorandum at paragraph 2.11. [54] Further, citing various decisions of the European Court of Human Rights (“ECtHR”) in relation to the broadly analogous Article 3 of the European Convention on Human Rights, it is submitted that the harm the appellants face reaches “a minimum level of severity” to fall within the prohibition of cruel, inhuman or degrading treatment; Soering v United Kingdom (1989) 11 EHRR 439. Further, inhuman treatment did not have to be deliberate;

Image: Courts are vital in grappling with climate change, but law, policy and practice will be particularly key in securing human rights for everyone affected by global warming. Ben Knight.


114

see Labita v Italy (2008) 46 EHRR 1224 at [120]. Nor is it necessary that the Government of Tuvalu intends to cause degrading treatment to the appellants; Peers v Greece (2001) 33 EHRR 51 at [74]. [55] Particular emphasis is placed by counsel on access to safe drinking water. It is submitted that the prohibition of inhuman treatment does not require that the Government of Tuvalu intends to deprive it citizens of drinking water. Having been provided with a copy of the Tribunal’s decision in AF (Kiribati), at paragraphs 1.3– 1.7 of the memorandum of 1 April 2014, counsel submits that, while recognising the issue, the Government of Tuvalu is not taking concrete steps to address the problem. In particular, it “is not taking active steps to materialise their recognition of the lack of water on Tuvalu and its impact on the health of children and women”. It is, counsel submits, failing to take any steps at the regulatory level and relies on donor countries’ “generosity and ability to provide assistance”. This failure to take steps to secure access to safe drinking water in sufficient quantity could lead to death and amounted to a risk of arbitrary deprivation of life. [56] It is further submitted that particular regard must be had to the specific vulnerabilities of the appellant children. Regard must be had to the best interests of the child principle; EM (Lebanon) v Secretary of State for the Home Department [2008] UKHL 64 at [28]; HS v Secretary of State for the Home Department [2010] CSIH 97 at [15]. [57] In broad terms, the Tribunal accepts that the submission that the nature of the underlying environmental factor is not determinative of the issues to be decided. However, the Tribunal rejects the submission that timing is irrelevant to the inquiry under Section 131. Section 131 mandates a forward looking assessment of risk and protects against qualifying harm which is “in danger” of occurring. This equates to something akin to the “real chance” test under the Refugee Convention; that is to say, the evidence must establish that a future risk amounting to more than mere conjecture or surmise, but need not be established as being ‘more probable than not’ or ‘likely to occur’; see AF (Kiribati) at [98]–[90] and AI (South Africa) [2011] NZIPT 800050 at [80]–[85]. [58] This forward looking assessment of risk means that the slow-onset nature of some of the impacts of climate change such as sea-level-rise will need to be factored into the inquiry as to whether such ‘danger’ exists at the time the determination has to be made. As to whether anticipated harm arising in the context of slow-onset process may reach the threshold of the claimant being ‘in danger’, much will depend on the nature of the process in question, the extent to which the negative impacts of that process are already manifesting, and the anticipated consequences for the individual claimant. This assessment is necessarily context-dependent. [59] The Tribunal does accept that, within this context, the focus of the inquiry under section 131 is on state protection from any qualifying harm – arbitrary deprivation of life or cruel, inhuman or degrading treatment or punishment – and whether the protection that is available reduces the risk of that harm to below the “in danger” threshold. In the context of natural disasters, Walter Kaelin and Nina Schrepfer Protecting People Crossing Borders In The Context Of Climate Change: Normative Gaps and Possible Approaches, UNHCR Legal and Protection Policy Research Series (February 2012), at p64, note:


“In the case of disasters, the assumption should be that these authorities continue to be willing to provide protection and necessary assistance, but in many cases it will be clear that the ability to do so is at least temporarily limited or even non- existent. From a protection perspective, the needs of affected people combined with the inability to obtain necessary protection and assistance from the country of origin must be the primary consideration.” [60] However, just as the fact that the harm arises in the context of a natural disaster or exposure to the negative effects of climate change does not exclude it from the scope of section 131, nevertheless, as will be seen, the context in which it arises is not wholly irrelevant to the inquiry. This context will shape the specific content of the state’s duty to protect and thus inform the answer to the question of whether any risk to life can be said to be an ‘arbitrary deprivation’ or any action or failure to act by the state amounts a ‘treatment’ or ‘punishment’. [61] It is also important to recall that the references to a protection perspective in the literature must, in the context of New Zealand’s domestic arrangements, be tempered by the fact that the inquiry under section 131 involves a relatively narrow band of qualifying harm. The Tribunal rejects the submission that section 131 should be interpreted so as to offer protection from all anticipated harm of sufficient severity that is in danger of occurring. Section 131 is clear. It is self- evidently intended to protect only against arbitrary deprivation of life or against cruel, inhuman or degrading treatment or punishment. While these harms are undoubtedly of a serious and severe kind, this is not to say that all severe harm which may result from removal will necessarily amount to the arbitrary deprivation of life or cruel, inhuman or degrading treatment or punishment. As will be discussed below, the 2009 Act expressly preserves a humanitarian jurisdiction in which harm falling outside the scope of the protected person jurisdiction can be considered. [62] Counsel’s submissions refer to the reliance by the Government of Tuvalu on assistance from overseas partner governments, United Nations agencies and international non-governmental organisations. As will also be discussed below, the Tribunal does not accept the submission that this provides any basis for finding that the appellants are in danger of suffering ‘arbitrary’ deprivation of life as the result of the state failing to take steps to protect their lives from known environmental hazards, nor that such measures constitute cruel treatment under the Act. [63] In order to understand why this is so, it is necessary to say something about the role that human rights play in the context of natural disasters. NATURAL DISASTERS AND THE PROTECTION OF HUMAN RIGHTS Some general observations [64] In a recent article, ‘The Human Rights Dimension of Natural or Human-Made Disasters’ (2012) 55 German Yearbook of International Law 119–147. Professor Walter Kälin, the former United Nations Special Rapporteur for Internally Displaced Persons, charts the growing recognition of the relationship between international human rights law and natural disasters. At pp125-127, he contrasts the lack of explicit mention of disasters in

115


116

multi-lateral human rights treaties such as the ICCPR and the International Covenant on Economic Social and Cultural Rights which entered into force in the mid-1960s, and the more recent 2006 Convention on the Rights of Persons with Disabilities. The latter, at Article 11, obliges States Parties to take “all necessary measures to ensure the protection and safety of persons with disabilities in situations of risk, including... the occurrence of natural disasters”. [65] Kälin, at p121, describes the relationship as “multi-dimensional”, comprising: (a) a factual dimension, in that disasters may seriously affect the enjoyment of rights; (b) a legal dimension, in that human rights may entitle an individual to be protected against certain hazards and their effect on the enjoyment of rights; and (c) an operational dimension, in that human rights may help shape disaster management and suggest a rights-based approach to disaster relief. [66] Elements of all three dimensions identified by Kälin, are relevant to the inquiry mandated by the protected person protection jurisdiction under the Act. As noted in AF (Kiribati) at [62]: “As is reflected in the 2005 Hyogo Declaration and the 2005-1015 Hyogo Framework for Disaster Reduction, in respect of which over 160 states were present for its adoption, it is now generally accepted that states have a primary responsibility to protect persons and property on their territory from the impact of disasters and to undertake disaster risk reduction measures. Consistent with this understanding, the European Court of Human Rights (ECtHR) has examined the duty to protect the right to life in the context of natural disasters. In Oneryaldiz v Turkey, [2004] ECHR 657 at para 89 and Budayeva & Ors v Russia Application No 15339/02 (20 March 2008), the ECtHR found a violation of the right to life of those killed because the authorities in each case had not discharged positive obligations to protect life against risks from known and imminent environmental hazards”. [67] The existence of an obligation on states to protect rights in the context of natural disasters is increasingly recognised in the work of treaty monitoring bodies, particularly the Committee on Economic Social and Cultural Rights and the Committee on the Rights of the Child. Kälin notes, at p127, that the latter, in particular, has mentioned disaster-related issues in over 20 of its concluding observations on States Parties’ reports. He continues: “Human rights provisions in general not only entail negative duties to respect relevant guarantees and refrain from violating them, but also to impose positive obligations to become active and take measures to protect rights holders against infringement of their rights by third parties, or as a result of particularly dangerous situations, or to provide them with the means necessary for the enjoyment of rights. The duties to protect and fulfil are obviously relevant to disaster responders, for instance when evacuating people form danger zones or providing humanitarian assistance.” [68] While the protected person jurisdiction under section 131 is a narrow one, embracing only Articles 6 and 7 of the ICCPR, the growing recognition of the existence of positive duties on states under international human rights law in the context of natural disasters is significant. It provides a protection-oriented contour law around which claims for recognition as a protected person under section 131 of the Act may in principle wrap, both


in the context of claims based on a danger of being subjected to arbitrary deprivation of life, and of suffering cruel, inhuman or degrading treatment. But complicated issues arise for consideration. In particular, whether the risk of such future harm transcends mere conjecture or surmise and, whether the harm feared is of sufficient seriousness or severity to fall within the scope of Article 7 of the ICCPR will need to be carefully considered. [69] Just as in the refugee context past persecution can be a powerful indicator of the risk of future persecution, so too can the existence of a historical failure to discharge positive duties to protect against known environmental hazards be a similar indicator in the protected person jurisdiction. Nevertheless, given the forward looking nature of the inquiry, the nature of the hazard, including its intensity and frequency, as well as any positive changes in disaster risk reduction and operational responses in the country of origin, or improvements in its adaptive capacity, will need to be accounted for. [70] While these issues may give rise to significant evidential and legal challenges, it cannot be maintained that natural disasters (or man-made disasters for that matter) – and whether not caused or exacerbated by climate change – may not, at least in general terms, provide a context in which a claim for recognition as a protected person under the Act may be properly grounded. [71] Having set out these general observations, it is now possible to chart more fully the analysis in each type of protected person claim. NATURAL DISASTERS, CLIMATE CHANGE AND PROTECTION FROM THE ARBITRARY DEPRIVATION OF LIFE [72] Article 4(2) of the ICCPR provides that the right to life under Article 6 ICCPR is non-derogable, even in the event of a “public emergency threatening the life of a nation” – which has been recognised to include a “natural catastrophe”; see Human Rights Committee General Comment No 29 States of Emergency (Article 4) CCPR/C/21/Rev.1/ Add.11 (31 August 2001) at paragraph [5]. In other words, the prohibition on arbitrary deprivation of life which is domesticated under section 131 is not suspended simply because the state concerned is threatened by, or is experiencing, a natural disaster. [73] In AF (Kiribati), the Tribunal examined the scope of the right not to be arbitrarily deprived of life within the context of natural disasters as a component of the protected person jurisdiction under section 131 of the Act. It noted, at [83], that not all risks to life fall within the ambit of section 131, just those risks to life which arise by means of “arbitrary deprivation”. Citing the decisions of the ECtHR in Budayeva and others v Russia Application No 15339/02 (20 March 2008) and Oneryiliz v Turkey [2004] ECHR 657, and international instruments such as the Hyogo Framework for Action 2005–2015, the Tribunal held that that prohibition on arbitrary deprivation of life must take into account the positive obligation on the state to protect the right to life from risks arising from known environmental hazards, an obligation which applied to both man-made and natural disasters. Therefore, failure to do so may, in principle, constitute an omission for the purposes of the prohibition on the arbitrary deprivation of life; see discussion at paragraphs [84]-[87].

117


118

[74] There is one further aspect of the Budayeva decision relating to the scope of state obligations in such cases which needs emphasising. After noting its decision in Oneryiliz, the ECtHR drew a distinction between the circumstances of the two cases. Whereas in Oneryiliz the underlying hazard was man-made (the presence and explosive potential of methane gas in a dump site) and in the nature of a “dangerous activity”, the circumstances in Budayeva involved an underlying hazard of natural origin (mudslides), but where human vulnerability to that hazard had arisen because of the construction of the town where the applicants lived in the hazard-prone area as part of a large-scale industrial project in the 1950s. The Court stated (citations omitted): “135. In this respect an impossible or disproportionate burden must not be imposed on the authorities without consideration being given, in particular, to the operational choices which they must make in terms of priorities and resources...; this results from the wide margin of appreciation States enjoy, as the Court has previously held, in difficult social and technical spheres... This consideration must be afforded even greater weight in the sphere of emergency relief in relation to a meteorological event, which is as such beyond human control, than in the sphere of dangerous activities of a man-made nature. 136. In assessing whether the respondent State had complied with the positive obligation, the Court must consider the particular circumstances of the case, regard being had, among other elements, to the domestic legality of the authorities’ acts or omissions..., the domestic decision-making process, including the appropriate investigations and studies, and the complexity of the issue, especially where conflicting Convention interests are involved... 137. In the sphere of emergency relief, where the State is directly involved in the protection of human lives through the mitigation of natural hazards, these considerations should apply in so far as the circumstances of a particular case point to the imminence of a natural hazard that had been clearly identifiable, and especially where it concerned a recurring calamity affecting a distinct area developed for human habitation or use... The scope of the positive obligations imputable to the State in the particular circumstances would depend on the origin of the threat and the extent to which one or the other risk is susceptible to mitigation.” [75] The Tribunal agrees. Translating these statements into the context of the present appeals, this is not a case of a dangerous activity amenable to domestic regulation causing an environmental hazard due to poor regulation. The disasters that occur in Tuvalu derive from vulnerability to natural hazards such as droughts and hurricanes, and inundation due to sea-level rise and storm surges. The content of Tuvalu’s positive obligations to take steps to protect the life of persons within its jurisdiction from such hazards must necessarily be shaped by this reality. While the Government of Tuvalu certainly has both obligations and capacity to take steps to reduce the risks from known environmental hazards, for example by undertaking ex-ante disaster risk reduction measures or though ex-post operational responses, it is simply not within the power of the Government of Tuvalu to mitigate the underlying environmental drivers of these hazards. To equate such inability with a failure of state protection goes too far. It places an impossible burden on a state.


NATURAL DISASTERS, CLIMATE CHANGE AND THE PROHIBITION ON CRUEL, INHUMAN OR DEGRADING TREATMENT The scope of the prohibition under the Immigration Act 2009 [76] The nature and scope of this aspect of the protected person jurisdiction was examined in detail in BG (Fiji) [2012] NZIPT 800091. The Tribunal considered the scope of the prohibition on cruel, inhuman or degrading treatment or punishment under Article 7 of the ICCPR, which had been domesticated under this limb of section 131 of the Act. It noted that it was never intended by the drafters of the ICCPR that general socio-economic conditions should constitute ‘treatment’ for the purposes of Article 7 of the ICCPR but that, in certain circumstances, state acts or omissions which resulted in socio-economic harm could constitute a treatment. Examples included: (a) the deliberate infliction of socioeconomic harm by state agents or a failure to intervene while non-state agents did the same; (b) the adoption of a particular legislative, regulatory or policy regime in relation of a section of the population to whom the individual belongs (such as asylum seekers); and (c) the failure to discharge positive obligations towards persons wholly dependent on the state for their socio-economic well-being (such as detainees). [77] As for the focus of section 131, at [172]–[185], the Tribunal examined the development of the implied non-refoulement obligation under Article 7 of ICCPR. It noted what it described as the orthodox approach, in which it must be established that there is some qualifying harm – the arbitrary deprivation of life or cruel treatment as defined under the Act – in the receiving state. It further noted the development of what it described as a ‘modified approach’ by the ECtHR in relation to Article 3 of the European Convention on Human Rights, the regional analogue to Article 7 of the ICCPR, which the Court held extended to situations where proscribed harm arose not because of any “treatment” in the receiving state – the orthodox position – but where a sufficient level of suffering was a readily foreseeable consequence of the treatment of the host state in expelling or otherwise removing the person from its territory. [82] It must be remembered that an identical humanitarian jurisdiction existed in respect of removal from New Zealand under section 47(3) of Immigration Act 1987, which had no protected person jurisdiction. The deliberate retention by Parliament of this free-standing humanitarian jurisdiction when domesticating the implied non-refoulement obligations under Article 7 of the ICCPR under section 131 of the Immigration Act 2009, signals a clear parliamentary intention that the ECtHR’s modified approach is not to apply. This intention is further signalled by the express terms of section 131(5)(b) which provides that the inability of the receiving country to provide health or medical care of a particular kind or quality - the issues which drove the development of the modified approach by the ECtHR - is not to be regarded as cruel treatment. ‘Treatment’ in the context of natural disasters [83] But this rejection for the modified approach should not be understood as meaning that cruel treatment for the purposes of section 131 of the Act could never arise in the context of natural disasters. As recognised in AF (Kiribati) at [57], the relationship between natural disasters, environmental degradation, and human vulnerability to those

119


120

disasters is complex and, within this complexity, pathways into the protection regimes in the 2009 Act can, in some circumstances, exist. The Tribunal, at [58], acknowledged that “the reality is that natural disasters do not always occur in democratic states which respect the human rights of the affected population”. Examples include where: (a) due to political weighting, state response to natural disasters fails to meet the recovery needs of marginalised groups; (b) the provision of post-disaster humanitarian relief may become politicised; and (c) the increased vulnerability of persons displaced in the wake of natural disasters increases the risk of them being subjected to cruel treatment (for example, being trafficked) by non-state actors against whom the state is unwilling or unable to provide effective protection. [84] Just as it was not intended that consequences of general socio-economic policy should constitute a treatment under Article 7 of the ICCPR, nor does the mere fact that a state lacks the capacity to adequately respond to a naturally occurring event mean that such inability should, of itself, constitute a ‘treatment’ of the affected population. However, the existence of positive state duties in disaster settings means that, in some circumstances, it may be possible for a failure to discharge such duties to constitute a treatment. Specific examples will be the discriminatory denial of available humanitarian relief and the arbitrary withholding of consent for necessary foreign humanitarian assistance. These two forms of ‘treatment’ form aspects of what Kälin and Schrepfer (op cit) at p65, describe as the “criterion of permissibility” in relation to the ‘returnability’ of persons to countries affected by natural disasters. They argue: “There are certain cases where human rights law, by analogy to the refugee law principle of non-refoulement, prohibits return of certain persons. Such prohibition exists where there are substantial grounds to believe that an individual would face a real risk of torture or cruel, inhuman or degrading treatment or punishment, or arbitrary deprivation of life if sent back to a particular country. Arguably, this prohibition could apply in cases where a rejection at the border or return would expose an individual to an imminent danger for life and limb related to the disaster causing their displacement, or to the absence of adequate provision of protection and assistance by their home country.” [85] It is necessary to say something further about each. Discriminatory distribution of available relief [86] As remarked in AF (Kiribati), the denial of available domestically situated humanitarian assistance such as essential food aid or shelter may create a risk of the arbitrary deprivation of life. Under the interpretive approach adopted by the Tribunal in BG (Fiji) in relation to the concept of ‘treatment’, which includes policy measures directed at a particular segment of the population (see [76(b)] above), it can also be seen that a policy which omits a particular section of a disaster- affected population from the provision of available post-disaster relief may constitute a ‘treatment’ of individuals within that population for the purposes of section 131 of the Act.


Arbitrary denial of foreign humanitarian assistance [87] In certain circumstances, the denial of foreign humanitarian assistance may also constitute a ‘treatment’. This aspect derives from the duty to co-operate as a core norm of international law. Article 1(3) of the United Nations Charter proclaims one of the purposes of the United Nations to be: “To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion;” [88] The duty to co-operate to promote the enjoyment of rights is given further emphasis in Articles 55 and 56 of the Charter. Article 56 obliges states to act “jointly and separately” for the realisation of human rights as well as economic and social progress and development. The duty on states to co-operate to promote and protect human rights is given emphasis in Article 2(1) of the International Covenant on Economic Social and Cultural Rights and in the work of its treaty monitoring body, the Committee on Economic Social and Cultural Rights; see General Comment No 3: the Nature of States Parties Obligations under the Covenant, HRI/GEN/1/Rev 7 (2004) at paragraph [14]; General Comment No 12: The Right to Adequate Food, E/C 12/1999/5 (1999) at paragraph [36]; General Comment No 4: The Right to Adequate Housing at paragraph [19] and General Comment No 14: The Right to the Highest Attainable Standard of Health E/C.12/2000/4 (2000) at paragraph [45]. The committee has explicitly addressed natural disasters, asserting its understanding that states have a joint and individual responsibility “to cooperate in providing disaster relief and humanitarian assistance in the times of emergency, including assistance to refugees and internally displaced persons”; see General Comment No 12 (op cit) at paragraph [38]. [89] The 1989 United Nations Convention on the Rights of the Child, at Article 4, similarly provides that States Parties have an obligation to secure economic, social and cultural rights of children “within the framework of international cooperation”. The Committee on the Rights of the Child has also emphasised the duty on states to seek international assistance; see General Comment No 5: General Measures of Implementation CRC/ GC/2003/5 (2003) at paragraph [60]. [90] The existence of a duty to accept assistance as an aspect of the wider international law norm of co-operation between states is further supported by General Assembly Resolutions 45/100 (1990) A/RES/45/100 and 46/182 (1991) A/RES/46/182. The latter, in particular, deals with the content of this duty. While it affirms the right of the sovereign state to decide whether or not to accept offers of assistance, this is qualified by the statement that those states with populations in need of humanitarian assistance “are called upon” to facilitate the work of humanitarian organisations from outside its borders to deliver essential aid including food, shelter and medical and health care”; see paragraphs [5] and [6]. [91] In 2006, the United Nations International Law Commission identified the topic “Protection of persons in the event of disasters” for inclusion in its long-term programme of work. A number of reports based on relevant aspects of existing public international law such as the duty to co-operate, and on existing international legal instruments and texts relating

121


122

to various aspects of disaster prevention and relief assistance, have been prepared by the Special Rapporteur on the Protection of Persons in the Event of Disasters, Mr Eduardo Valencia- Ospina. Draft articles setting out the relevant principles that have been prepared and adopted by the Commission. A summary of those accepted together with commentary thereon can be found in: International Law Commission Report of the 63rd Session (2011) A/66/10 at Chapter IX, Draft Articles on the Protection of Persons in the Event of Disasters. Draft Articles 5, 9, 10 and 11(2), are particularly relevant. Draft Article 5 deals with the duty to co-operate. Draft Article9 deals with the role of the affected State which, “by virtue of its sovereignty, has the duty to ensure the protection of persons and provision of disaster relief and assistance on its territory” and “has the primary role in the direction, control, coordination and supervision of such relief and assistance”. [92] Draft Article 10 deals with the duty of the affected State to seek assistance and provides: “The affected State has the duty to seek assistance, as appropriate, from among third States, the United Nations, other competent intergovernmental organizations and relevant nongovernmental organizations if the disaster exceeds its national response capacity.” [93] By way of commentary, the Commission’s report notes that concerns were expressed by some states as regards couching the article in language which implies a legal ‘duty’ to seek assistance. In response, the Commission observed, at p264: “The Commission considers that the duty to seek assistance in draft article 10 derives from an affected State’s obligations under international human rights instruments and customary international law. Recourse to international support may be a necessary element in the fulfilment of a State’s international obligations towards individuals where an affected State considers its own resources are inadequate to meet protection needs.” [94] Draft Article 11 deals with the duty of the affected State not to arbitrarily withhold its consent and provides: “1. Consent to external assistance shall not be withheld arbitrarily if the affected State is unable or unwilling to provide the assistance required. 2. When an offer of assistance is extended pursuant to draft article 12 of the present draft articles, the affected State shall, without delay, notify all concerned of its decision regarding such an offer.” [95] As regards the international law foundations for draft Article 11 relating to the prohibition on the arbitrary withholding of consent, the Commission’s report, at p270, states: “The term “arbitrary” directs attention to the basis of an affected State’s decision to withhold consent. The determination of whether the withholding of consent is arbitrary must be determined on a case-by-case basis, although as a general rule several principles can be adduced. First, the Commission considers that withholding consent to external assistance is not arbitrary where a State is capable of providing, and willing to provide, an adequate and effective response to a disaster on the basis of its own resources. Second, withholding consent to assistance from one external source is not


arbitrary if an affected State has accepted appropriate and sufficient assistance from elsewhere. Third, the withholding of consent is not arbitrary if the relevant offer is not extended in accordance with the present draft articles. In particular, draft article 6 establishes that humanitarian assistance must take place in accordance with principles of humanity, neutrality and impartiality, and on the basis of non-discrimination. Conversely, where an offer of assistance is made in accordance with the draft articles and no alternate sources of assistance are available, there would be a strong inference that a decision to withhold consent is arbitrary.” [96] It is, however, important not to overstate matters. These are draft Articles and not part of a binding international law treaty on the protection of persons in situation of natural disasters. Further, while Article 56 of the United Nations Charter has proven particularly influential in the development of norms relating to the protection of human rights, the scope of the duty to co-operate under international law is uncertain; T Stoll “Article 56” in B Simma, D-E Khan, G Nolte and A Paulus (eds) The Charter of the United Nations: A Commentary (3rd ed) (Oxford University Press, Oxford, 2012). While these points are acknowledged, the existence of some form of positive duty to seek foreign assistance where necessary and not to arbitrarily withhold consent for such assistance is, as observed by the International Law Commission, grounded firmly in general principles of international human rights law. Such a duty also coheres with the widespread state consensus around the existence of state obligations of protection generally in disaster settings as reflected in the Hyogo Framework for Action. [97] In light of the above matters, and taking the interpretive approach to ‘treatment’ set out in BG (Fiji), the Tribunal finds where a state is not in a position to provide humanitarian assistance to persons within its jurisdiction affected by natural disasters, the arbitrary withholding of consent for foreign humanitarian assistance to be deployed is a measure which can be properly regarded as ‘treatment’ for the purposes of section 131 of the Act. [98] Two final points need emphasising, however. First, as noted by the International Law Commission, not all refusals of consent will be arbitrary and thus provide a factual foundation for finding a treatment exists. As Kaelin (op cit) at p146 notes, whether or not refusal to allow humanitarian assistance is ‘arbitrary’ requires case-by-case determination. Second, as already noted in the context of section 131 generally, it must be shown that there is a prospective risk of such treatment occurring to such a degree that extends beyond mere speculation or surmise. It must be borne in mind that, as in any other case, the appellant must produce sufficient and compelling information and evidence to establish that a danger of such treatment exists at the time of determination. APPLICATION TO THE FACTS As to the danger of the appellants being subjected to arbitrary deprivation of life [99] It is accepted that the husband has experienced some low-level tension and conflict over land in the past. However, it has not been suggested by him or counsel that this gives rise to a risk that his life is in danger.

123


124

[100] It is accepted that life for the appellants in Tuvalu will, in many ways, be more challenging than here in New Zealand. While the appellants’ lives can be expected to be more challenging from an economic perspective, there is no evidence before the Tribunal to establish that, if returned to Tuvalu, the appellants’ lives would be so precarious as a result of any act or omission by the state that they are in danger of being arbitrarily deprived of their lives. Although much was made of the fact that the husband could not find employment this, at the end of the day, is mere speculation. He is not shut out of the labour market in Tuvalu, nor has he encountered any discrimination in finding employment in the past. He has managed to find employment in the past and, while he may not necessarily be able to find employment as a teacher, he has a range of skills and experience gained in both New Zealand and Tuvalu which he can utilise to seek employment outside this sector as needs be. [101] As regards the socio-economic aspect of the right to life, country information does not establish that the husband would be seeking to find employment in a labour market where failure to do so for a period of time would result in a level of socio-economic deprivation to an extent which results in the appellants’ lives being ‘in danger’ of being arbitrarily deprived. In closing arguments, counsel drew attention to the statement in the Millennium Development Goal Progress Report prepared by Tuvalu which states that it was unlikely to meet Millennium Development Goal 1A which relates to halving, between 1990 and 2015, the proportion of people whose income is less than $1 per day. Insofar as it is suggested that this is evidence of an omission for which the state can be held accountable, the Tribunal notes the reason given by Tuvalu for it being unlikely to meet this target was due to surges in the prices of food and fuel in 2008 and the economic crisis in 2009 “that negated some of the achievements made in previous years”. To the extent that this goal was under threat, it does not appear to be the result of any act or omission on the part of the state. Furthermore, the report notes that Millennium Development Goal 1C, which relates to halving the number of people who suffered from hunger, had been achieved. This further evidences that, while poverty-related challenges remain, there is no basis for finding that the state is failing to take steps to address issues such that the lives of any of the appellants are “in danger” on this basis. [102] Nor is there any evidence before the Tribunal that the state is failing to take steps within its power to protect the lives of its citizens from known environmental hazards – including those associated with the effects of climate change – such that any of the appellants’ lives can be said to be “in danger”. The report submitted by Tuvalu in January 2013 in respect of its Universal Periodic Review before the Human Rights Council, (“the UPR national report”) details the various steps taken by Tuvalu to address the impacts of climate change on its territory and population. It notes that, with assistance from the Global Environment Fund, the Government established a National Adaptation Programme of Action Project (“the NAPA project”) which has targeted three areas of implementation, namely: coastal areas including food security and home-gardening on all islands, agriculture and water. The report states, at paragraph 75: “The three focal areas address the deficiency issues of food security, accessibility to fresh and safe water, to better the agricultural standards on some of the islands and managing fishing grounds to provide the community with adequate food source.”


Image: Will this displaced mother and child ever get their day in court? Western Bangladesh. Kadir van Lohuizen / NOOR.

125


126

[103] The UPR National Report notes, at paragraph 77 that the NAPA project has provided households on Nanumea with 60 water storage tanks for agricultural purposes and that the European Development Fund and Save the Children have assisted Tuvaluan households by providing plastic water tanks for safe water catchment and storage. The NAPA project also assisted in building water systems on Nanumea to address water shortage issues. [104] On the issue of water stress and resilience, counsel drew heavily on the Asian Development Bank report Asian Water Development Outlook 2013. It was argued that the lack of data which precluded Tuvalu being included in a graph which indexed resilience to water-related disaster was symptomatic of a failure of Tuvalu to take steps. However, even assuming that the lack of data explained Tuvalu’s exclusion from this list, the evidence as a whole does not support such a conclusion. Indeed, Appendix 1 to this report includes an entry for Tuvalu which, while giving it an overall index rating of 2 (presumably with 1 the lowest and 5 the highest), the household water security is given a rating of 3 out of 5. [105] That steps are being taken in relation to access to safe water to ensure that the lives of citizens are not “in danger” is reflected in the press release which accompanied the Report of the United Nations Special Rapporteur (“UNSR”) on the Human Right to Safe Drinking Water and Sanitation (19 July 2012) produced on appeal. The UNSR notes that, as of 2010, 98 per cent of the population had access to improved sources of water and some 85 per cent of the population had improved sanitation facilities. Nevertheless, challenges remained. The UNSR noted that water could not be drunk directly from storage tanks but had to be boiled. Gutters and collection mechanisms were not maintained and septic tanks were leaking into the ground water supply. Also, there was a lack of clear legal and institutional frameworks to deal with some of these challenges. Nevertheless, the UNSR understood that it rains enough in Tuvalu to accommodate people’s needs generally, though the water harvesting system was not utilised to its maximum potential. [106] In relation to climate change more broadly, the UPR National Report, at paragraphs [78]– [80], details the various awareness-raising programmes that have been conducted on each island including the training of teachers on Funafuti and outer islands in order to streamline climate change into the educational curriculum. In 2010, the Government’s NAPA project hosted an outer island consultation to identify priorities and plan the implementation of these priorities. Targeted participants included community leaders and members, women and youth. [107] That challenges remain in this area is also acknowledged in the UPR National Report which, at paragraph [81], notes the NAPA project and other climate change adaptation measures face challenges and constraints. These include the accessibility and availability of funds to procure materials for project development, complex United Nations funding processes, the unavailability of materials to progress projects, poor internal management systems and slow staff recruitment processes. [108] While it is accepted that challenges do exist, particularly in relation to food and water security in Tuvalu, in light of the information as a whole, the Tribunal finds that it has not been established that Tuvalu, as a state, has failed or is failing to take steps to protect the lives of its citizens from known environmental hazards such that any of the appellants would be in danger of being arbitrarily deprived of their lives.


As to the danger of being subjected to cruel treatment [109] There is no evidence before the Tribunal to establish that the husband and wide belong to a section of the Tuvaluan population in respect of which the Government of Tuvalu has implemented policy measures or failed to discharge positive obligations in response to past natural disasters amounting to cruel treatment. There is no evidential basis upon which to find such a risk would arise in the future. On the contrary, the country information cited above establishes that the Government of Tuvalu is taking steps but relies heavily on donor governments and agencies to provide assistance to meet the challenges faced by its citizens from natural disasters and the adverse impacts of climate change. However, far from amounting to cruel treatment under the Act, this activity is entirely in keeping with the duty to co-operate under international law and the duty to seek assistance where domestic capacity is lacking as outlined above. [110] A recent example occurred in 2011, when Tuvalu experienced an extreme shortage of water forcing the government to declare a state of emergency. In conjunction with international partners such as Australia and New Zealand and the International Federation of the Red Cross and Red Crescent (“IFRC”), Tuvalu acted quickly. Red Cross volunteers delivered tarpaulin packs, water containers and 10,000 litres of water to the communal water tank on Nukulaelae Island during its first assessment trip. The New Zealand Red Cross assisted with two emergency desalination units which were operating with full capacity within three hours of arrival and were producing 4,000 litres of clean water per day; see Reeni Amin Chua “Red Cross Response to Water Crisis in Drought-stricken Tuvalu” (16 October 2011). [111] In addition to these temporary measures, more long-term solutions were secured with the assistance of international aid from Australia and New Zealand. The report “Tuvalu: Securing Tuvalu’s Water Supply” (6 December 2012) <www.reliefweb.int> notes that the Australian Government provided AUS$1.4 million to support Tuvalu’s long-term water security. Working with New Zealand, the Australian Government delivered one million litres of clean drinking water. The Australian Agency for International Development (“AusAID”) also funded 607 water tanks for residents on Funafuti with a further 150 water tanks for schools on outer islands. AusAID also financed three further solar powered desalination units which were hoped to “significantly improve supply of fresh water across the country and lessen the risk of another disaster”. [112] More broadly, the UPR national report notes that the Government of Tuvalu has been active in the international arena in lobbying support for a second commitment period to the Kyoto protocol and ongoing negotiations for an international convention on loss and damage. [113] It is clear, then, that the Government of Tuvalu is actively engaged in seeking to reduce the impacts of climate change on its territory and population. However, it faces significant financial and other capacity constraints. To this end, it is clear that Tuvalu needs support from the international community and that some level of support has been requested and provided. This conduct is consistent with an emerging recognition of the existence of a duty on states to not arbitrarily refuse permission for foreign humanitarian assistance to be utilised in the wake of natural disasters where domestic capacity to secure the continued enjoyment of rights is lacking.

127


128

[114] On the evidence before the Tribunal, there is no basis for finding that there is a danger of the appellants being subjected to cruel treatment by the state failing to discharge its obligations to protect its population and territory from the adverse impacts of natural disasters and climate change.

CONCLUSION [120] For the foregoing reasons, the Tribunal finds that the appellants: (a) are not refugees within the meaning of the Refugee Convention; (b) are not protected persons within the meaning of the Convention Against Torture; (c) are not protected persons within the meaning of the Covenant on Civil and Political Rights. [121] The appeals are dismissed. B L Burson Member (Footnotes omitted)

AD (TUVALU)(2014)107 INTRODUCTION [1]

These are humanitarian appeals by the appellants, citizens of Tuvalu, under section 194(5) and (6) and 195(6) and (7) of the Immigration Act 2009 (“the Act”) against liability for deportation on the ground of being unlawfully in New Zealand. The decision needs to be read in conjunction with the contemporaneously issued decision of the Tribunal in respect of the refugee and protected person claims lodged by the appellants; see AC (Tuvalu) [2014] NZIPT 800517-520.

[2]

The appellants claim that if deported to Tuvalu they will be separated from the husband’s family, all of whom are living in New Zealand as either citizens or residents, and with whom they have particularly close bonds. The appellants also claim that they will be at risk of suffering the adverse impacts of climate change and socio-economic deprivation. The primary issue for determination is whether these factors, either alone or in combination, amount to exceptional circumstances of a humanitarian nature. For the reasons which follow, the Tribunal is satisfied that this is the case and that it would not be contrary to the public interest to allow the appellants to remain in New Zealand. They, and their two children, are each to be granted residence visas.

107

IMMIGRATION AND PROTECTION TRIBUNAL NEW ZEALAND [2014] NZIPT 501370-371 AT AUCKLAND.


BACKGROUND [3]

The appellant in NZIPT [2014] 501370 is the husband of the appellant in NZIPT [2014] 501371. They will be referred to as “the husband” and “the wife” respectively. They have two children who were born in New Zealand in mid-2008 and late 2011 and are five and three years old respectively. The two children are included in the father’s humanitarian appeal.

[4]

The husband and wife are both aged in their early 30s. They are nationals of Tuvalu. The appellants arrived in New Zealand in late 2007 together with the husband’s mother as the holders of visitor visas. In 2008, the husband was offered employment working as a maintenance manager at a fast-food restaurant and made an application for a work permit. This application was unsuccessful. Despite the existence of another potentially viable pathway to residence under then immigration instructions, acting under the advice of an immigration agent, the husband instead lodged an application under the Pacific Access Category even though he was not eligible to do so as he had become unlawful in New Zealand in February 2009. Therefore, although his application was selected in a ballot which took place in mid-June 2009, it could not be pursued.

[5]

The husband then attempted to regularise his immigration status by way of the issue of a work permit but this was unsuccessful. Instead, in October 2010, he was granted a threemonth visitor permit to allow him to pursue registration as a teacher. This did not happen and, in February 2011 he became unlawful in New Zealand for a second time. A further application by him to be issued with an interim visa to allow him to remain in New Zealand to apply for a residence class visa on the basis he was the last remaining sibling in Tuvalu was rejected by Immigration New Zealand in June 2011. The immigration officer noted that while the husband may well have a pathway towards a New Zealand residence class visa, given that the process might be a lengthy one, it was not appropriate to grant a visa to allow him to remain in New Zealand while that application was assessed.

[6]

The appellants and their two children lodged claims for refugee and protected person status in November 2012. By decision dated 27 March 2013, their claims were dismissed by the Refugee Status Branch and by decision dated 4 June 2014 the Tribunal has dismissed their appeals from that decision.

THE APPELLANTS’ CASE [7]

The husband’s humanitarian appeal is based, in part, on the same grounds as his claim to be recognised as a protected person. Additionally, he claims that he will be separated from his five sisters and their families, all of whom reside in New Zealand, and from his mother who is also a New Zealand resident and to whom he is particularly close.

EVIDENCE OF THE APPELLANTS [8]

The husband and wife lived in Tuvalu until 2007. The husband obtained a teaching qualification and taught at various primary schools on different islands in Tuvalu between 1999 and 2007. The wife competed her schooling and, in approximately 2000, obtained work as a pre-school teacher-aid in her home island. However, this finished after two years when the pre-school closed due to a lack of funding.

129


130

[9]

Life became increasingly more difficult in Tuvalu due to the effects of climate change and overpopulation. The husband’s home island of X became increasingly more vulnerable to inundation by sea-water as a result of sea-level rise. Whereas, he recalled that, as a small child, the land was only inundated by storm surges during the hurricane season, now land on both the lagoon and seaward sides of the island was inundated with sea-water regularly during monthly king-tides. This resulted in coastal erosion. Trees died and it became progressively more difficult to grow crops. Similar problems affected the wife’s home island.

[10] The husband and wife met when he came to teach on her home island. She had returned there after a period of time in Z, where she had stayed with her mother to attend highschool. The wife and her mother had to leave Z when the house they were staying in became overcrowded. [11]

While teaching in islands other than his home island, the husband and wife stayed in accommodation rented from the government. This was generally of a more solid construction and had better facilities than the husband and wife’s family dwellings on their home islands. Following the death of the husband’s father in 2001, the owner of the land on which their family dwelling stood, told the husband that his family could no longer live there.

[12] The couple wished to start a family. However, two babies died at advanced stages of pregnancy. The appellants attribute this to the lack of the full range of medical services that were available in Tuvalu. Concerned about the future and the life any children they had would have in Tuvalu, in 2007 the husband and wife travelled to New Zealand accompanied by the husband’s mother. [13] Over time, all but one of the husband’s six sisters have migrated to New Zealand and have obtained New Zealand residence or citizenship. These sisters have their own families here and the siblings and their families share a close relationship. Culturally, as the only son, the husband is the one who is required to look after his mother. She has health issues and the husband is responsible for taking her to the doctor and hospital as required. The wife is now integrated into the husband’s family. MATERIAL AND SUBMISSIONS RECEIVED [14] On 31 May 2013, the Tribunal received submissions from the appellants’ former representative in support of the humanitarian appeal. It was submitted that the appellants would be deprived of their ability to have “a safe and fulfilling life” if forced back to Tuvalu because of the effects of climate change. Attached to those submissions were: (a) Selected excerpts from Concluding Observations of the Committee on the Elimination of Discrimination Against Women: Tuvalu (7 August 2009); (b) Two selected excerpts from national report submitted by the Government of Tuvalu to Human Rights Council for the Universal Periodic Review (12 September 2008); (c) Press statement by United Nations Special Rapporteur on the human right to safe drinking water and sanitation (19 July 2012); (d) United States Department of Labour Bureau of International Labour 2011 Findings on the Worst Forms of Child Labour – Tuvalu (26 September 2012); (e) Various other excerpts from reports as set out in appeal submissions; and (f) Bundle of photographs showing effects of water inundation on Z, people sleeping on the runway due to overcrowding and other aspects of life in Z.


[15] On 1 October 2013, the Tribunal received from counsel now representing the appellants, documents relating to the eldest child who now attends primary school. The early reports confirm he has “become fully integrated” and made some “great relationships” with his peers in class. [16] On 1 April 2014, the Tribunal received a further bundle of information relating to the situation in Tuvalu and also further certificates, worksheets and other certificates issued by the eldest child’s school, together with a championship certificate issued by his local athletics club of which he is a member. STATUTORY GROUND OF APPEAL [17] The grounds for determining a humanitarian appeal are set out in section 207 of the Act: (1) The Tribunal must allow an appeal against liability for deportation on humanitarian grounds only where it is satisfied that- (a) There are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and (b) It would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand. [18] The Supreme Court stated that three ingredients had to be established in the first limb of section 47(3) of the former Act, the almost identical predecessor to section 207(1): (i) exceptional circumstances; (ii) of a humanitarian nature; (iii) that would make it unjust or unduly harsh for the person to be removed from New Zealand. The circumstances “must be well outside the normal run of circumstances” and while they do not need to be unique or very rare, they do have to be “truly an exception rather than the rule”, Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [34]. ASSESSMENT THE PRESENCE OF THE HUSBAND’S FAMILY IN NEW ZEALAND [19] Letters in support have been filed by the husband’s mother and four of his sisters. In her letter, the husband’s mother states that of her seven children all but one live in New Zealand. The remaining child, a daughter, lives in Fiji. She herself has been living in New Zealand for over six years. The husband’s mother confirms that she has been living with the appellants ever since their arrival from Tuvalu. She relies entirely on the husband as the only son in the family for her needs. Whenever a situation affects her he is the one who has to assist. She has hip and knee pain which impacts upon her mobility. The husband assists her to the car, takes her to the doctor and to church. She regards the wife as her own daughter and is very close to her. She interacts daily with the appellant children and is “deeply saddened” by the thought of the appellants having to leave New Zealand. [20] The letters that have been filed from the husband’s sisters confirm that they all enjoy a close relationship with the appellants. One of the sisters resides in the same city and they are enjoying family life together. The other sisters live in different parts of the country. One of these sisters confirms that the removal of the husband would affect her own children because he is their only maternal uncle and that her children are close to the appellant children. The appellants’ deportation would affect her and her sisters because, as the only

131


132

brother, they rely on him culturally, physically, emotionally and spiritually. She speaks to the appellants daily and visits every summer, when they enjoy doing things together as a family. WIDER INTEGRATION INTO THEIR COMMUNITY [21] In support of an application made to Immigration New Zealand for a visa to allow him to remain in New Zealand, a letter dated 16 February 2012 was filed from the reverend of the Tuvalu Christian church, a copy of which is on the Immigration New Zealand file. The reverend speaks highly of the husband’s personal attributes, and confirms that he is an active member of the congregation and is a “dedicated member” of the church choir and in youth fellowships. [22] It is also clear from the letters that have been filed that the eldest child has to some extent become integrated into the New Zealand school system. Although he is only young it appears he is settling well into school life in New Zealand. THE BEST INTEREST OF THE CHILDREN APPELLANTS [23] As already noted the two children are aged five and three years. As an action affecting them, the Tribunal is required under Article 3 of the 1989 United Nations Convention on the Rights of the Child to have regard to their best interests when considering the question of their removal from New Zealand and to make this a primary consideration in its assessment. [24] Although not New Zealand citizens, both children were born in New Zealand and have never been to Tuvalu. Life in New Zealand as part of an extended family network is the only life they have known. The eldest of the children has commenced schooling in New Zealand, albeit at new-entrant level. [25] Also, their young age makes them inherently more vulnerable to natural disasters and the adverse impact of climate change as noted above. [26] In light of these matters, the best interests of the children clearly are to remain living with their parents in New Zealand as part of an extended family group. CLIMATE CHANGE AND ENVIRONMENTAL DEGRADATION AS A HUMANITARIAN Circumstance [27] Much has been made in the submissions of the vulnerability of the appellants, as citizens of Tuvalu, to the adverse impacts of climate change as a humanitarian factor in this case. That exposure to the impacts of natural disasters can, in general terms, constitute a circumstance of a humanitarian nature is something which is reflected in state practice. Although expressed in different ways and conferring different forms of relief, a number of states have policies in place to provide for temporary protection in this regard. For a comprehensive summary see Jane McAdam Climate Change, Forced Migration, and International law (Oxford University Press, Oxford, 2012) at pp100-115. See also Walter Kälin and Nina Schrepfer Protecting People Crossing Borders in the Context of Climate Change: Normative Gaps and Possible Approaches, UNHCR Legal and Protection Policy Research Series (February 2012), at pp45-46.


[28] The current and future impacts of climate change on human systems and well-being has been expressly acknowledged in the recent report of the Intergovernmental Panel on Climate Change Working Group Two Climate Change 2014: Impacts, Adaptation, And Vulnerability – Summary for Policymakers (IPCC, Bonn, 2014) at p7. It is also widely accepted that the impacts of climate change can adversely affect the enjoyment of basic human rights. That such impacts may affect enjoyment of human rights was expressly acknowledged in AF (Kiribati) [2013] NZIPT 800413 at [63]. [29] In the refugee and protection decision in relation to these appeals, the Tribunal considered in detail the exposure of the Tuvaluan population to natural hazards generally, and in the context of climate change. It noted that Tuvalu, as a country comprising low-lying topical islands was “no stranger to natural disasters” and is particularly vulnerable to the adverse impacts of climate change. Environmental degradation caused or exacerbated by climate change was already a feature of life in Tuvalu; see [14]-[18]. These impacts included coastal erosion, flooding and inundation, increasing salinity of fresh ground-water supplies, destruction of primary sources of subsistence, and destruction of personal and community property. As for future vulnerabilities, the Tribunal noted, at [16]: “As regards potential future vulnerabilities due to the impacts climate change, the 2007 [Tuvalu National Adaptation Programme of Action] notes that these will depend on the frequency and intensity of climate-related hazards. Population growth was already placing pressure on sensitive environments and major sources of food security and livelihoods, and these effects can be exacerbated by adverse effects of climate change. Drought was anticipated to increase in severity in the future. The low elevation and limited land area of Tuvalu meant that the most direct and severe anticipated effects of climate change will be an increasing risk of coastal erosion, flooding and inundation. Other anticipated direct effects were stated to include an increase in dengue fever risks and water borne diseases, an increase in human stress, and decreasing agricultural yields.” Conclusion on Exceptional Circumstances of a Humanitarian Nature [30] The Tribunal is satisfied that, when the above matters are taken into account on a cumulative basis, there are exceptional circumstances of a humanitarian nature, which would make it unjust or unduly harsh for the appellants to be removed from New Zealand. [31] The appellants are well-loved and integral members of a family which has, effectively, migrated to New Zealand in its entirety. The husband’s mother, the matriarch of the family, particularly relies on the husband as the only son for her mobility and health-care needs. Of the 22 grandchildren in the family, all but three are in New Zealand. Significantly, the Sibling and Adult Child category under which the husband may well have qualified for residence was closed in May 2012, and no longer provides the husband with an alternative pathway to maintain his relationship with his family. The deportation of the appellants to Tuvalu would amount to an unusually significant disruption to a dense network of family relationships spanning three generations in New Zealand. It would also impact upon the quality of life for the husband’s mother, a New Zealand resident, who relies on him for her mobility-related needs. [32] As for the climate change issue relied on so heavily, while the Tribunal accepts that exposure to the impacts of natural disasters can, in general terms, be a humanitarian

133


134

circumstance, nevertheless, the evidence in appeals such as this must establish not simply the existence of a matter of broad humanitarian concern, but that there are exceptional circumstances of a humanitarian nature such that it would be unjust or unduly harsh to deport the particular appellant from New Zealand. [33] It is not, however, necessary on the facts of this appeal to reach any conclusion on this issue in relation to any of the appellants as the Tribunal is satisfied that by reason of the other factors identified in this case, there are exceptional circumstances of a humanitarian in the sense contemplated by Glazebrook J in Ye v Minister of Immigration, and that it would be unjust or unduly harsh for the appellants to be deported from New Zealand. Public Interest [34] There is no adverse public interest in this case. The husband has professional qualifications as a teacher and has been in employment in a semiskilled role for a fast-food chain. The husband is a qualified teacher and has the potential to qualify as a teacher in this country and act as a role model for other resident or citizen children of Tuvaluan origin. [35] The Tribunal does not overlook that the husband and wife became unlawful in New Zealand in 2009 and remained here without status for some short periods of time. However, the Tribunal notes that this arose, in part, due to the erroneous advice of his then immigration agent on whom he relied on and that during this period of unlawful presence in New Zealand, the husband was seeking to regularise his status and was partially successful in doing so. This is not a case of someone unlawful in New Zealand seeking to hide from New Zealand immigration authorities. The breach of the Immigration Act in this case does not outweigh the other positive factors in this case and create a public interest in deporting him. [36] Both the husband and wife have clear New Zealand Police clearance certificates dated 1 May 2014. A clear Tuvalu Police certificate was filed with the work permit application. They have not been back to Tuvalu since 2007 and it is not necessary to obtain a further police clearance certificate from there. DETERMINATION AND ORDERS [37] Pursuant to section 210(1)(a) of the Act, the appellants are granted resident visas. [38] The appeals are allowed. B L Burson Member


PAKISTAN 22. Thus far we have reviewed the key climate change cases from two of the leading countries that have judicially addressed these issues, namely the Netherlands and New Zealand. Now we turn to a country that should have also received extensive global attention for their uniquely positive role in adjudicating climate change issues, and this country is Pakistan. Two increasingly well-known cases are outlined here: Leghari which was decided in 2018, and the currently pending case of Ali which is addressed in Section III at the end of this report.

LEGHARI (2015) 23. In 2015, Ashgar Leghari, a farmer from Pakistan, sued the Pakistani Government and Ministry of Climate Change for its inaction to meet the vulnerabilities associated with climate change, and its failure to carry out the 2012 National Climate Policy and Framework108. Leghari submitted that climate change is a serious threat to water, food and energy security of Pakistan which offended the fundamental right to life protected by Article 9 of the Constitution, along with the right to dignity of person and privacy of home in Article 14, and right to property in Article 23109. More broadly, Leghari also claimed that the failure on the part of the government also violated international environmental principles including the doctrine of public trust, sustainable development, the precautionary principle, and intergenerational equity110. The claimant also provided extensive evidence of the threat of climate change to his livelihood by relying upon IPPC reports111. The newly established Ministry of Climate Change admitted in proceedings that despite responsibilities to report on the government’s progress in implementing adaption measures, a number of ministries could not satisfactorily show that they were afoot112. 24. The court found overwhelmingly in favour of Leghari, noting the devastating effects of climate change in Pakistan that has notably led the country from being a water-rich to a water-scarce nation113. In Leghari v Federation of Pakistan the Court described climate change as: “… a defining challenge of our time and has led to dramatic alterations in our planet’s climate system. For Pakistan, these climatic variations have primarily resulted in heavy floods and droughts, raising serious concerns regarding water and food security. On a legal and constitutional plane this is clarion call for the protection of fundamental rights of the citizens of Pakistan, in particular, the vulnerable and weak segments of the society who are unable to approach this Court” 114

108

Ashgar Leghari v. Federation of Pakistan (W.P. No. 25501/2015), Lahore High Court Green Bench, Order of 4 September 2018.

109

Ibid.

110

Ibid, para 7.

111

Eleanor Stein and Alex Geert Castermans, above n 7, 319.

112

Leghari, above n 21, para 5.

113

Ibid, para 6.

114

Ibid.

135


136

25. The court identified each of the constitutional rights put forth by Leghari – the right to life that included a right to a healthy and clean environment, to human dignity, to property, along with the right to information under 19A of the Constitution115. It noted that the environment and its protection take a “center stage in the scheme of our constitutional rights”116 and such rights were to be read along with various other constitutional principles of democracy, equality, and socio, economic and political justice117. The court also acknowledged well established international environmental principles of sustainable development, the precautionary principle, environmental impact assessment, inter-generational equity and the public trust doctrine; and that together with the Constitution, was sufficient to provide the court with a “judicial toolkit” to address the Government’s inadequate response to climate change118. In addition, the Court noted although Pakistan’s contribution to global greenhouse gas emissions is small, the country has a responsibility to the global community to combat climate change through mitigation in areas such as energy, industry, and agriculture. Ultimately, the court concluded that the “delay and lethargy of the State in implementing the Framework offend[ed] the fundamental rights of the citizens”119. 26. As remedy, the court directed several government ministries to each nominate a climate change focal person to ensure the implementation of the Framework to present a plan for the government moving forward120. It also ordered the creation of a Climate Change Commission composed of representatives of government ministries, NGOs and technical experts, who would be authorised to “expedite the matter and to effectively implement the fundamental rights of the people”121. In a later supplemental decision, the Court also named 21 individuals to the Commission, vesting it with various powers to ensure the implementation of the Framework122. 27. In its decision the Court recognised that the right to life included a right to a healthy and clean environment.123 It is a solid example of litigations grounding claims in a statutory and policy framework that articulates governmental responsibilities with respect to climate change124 By contrast to Urgenda that involved technical discussions of emissions

115

Ibid, para 7.

116

Ibid.

117

Ibid.

118

Ibid.

119

Ibid, para 8.

120

Ibid, para 8(i).

121

Ibid, para 8(iii).

122

123

124

Ashgar Leghari v. Federation of Pakistan (W.P. No. 25501/2015), Lahore High Court Green Bench, Order of 14 September 2015, para 11. One overview of this case found that: “The ruling of the Lahore High Court, however, is no less innovative and is potentially more transformative than the decision in Urgenda. Unlike the Urgenda judgment, the Leghari case represents a successful use of rights arguments as the legal foundation of a climate change suit. Moreover, its focus on government inaction to address adaptation challenges ties in far more closely with the human consequences of climate change than the technical discussion of carbon budgets and emissions targets that dominated the Urgenda hearing. Building adaptive capacity and reducing vulnerability to climate change is also generally regarded as a national and local government responsibility, with failures to take adaptation measures more clearly linked to harm to the nation’s populace.”. Source: https://www. cambridge.org/core/journals/transnational-environmental-law/article/rights-turn-in-climate-change-litigation/0E354 56D7793968F37335429C1163EA1/core-reader#. UN Environment, ‘The Status of Climate Change Litigation – A Global Review’, 2017, 16.


targets, Leghari represents a case that more closely focused on the impact and human consequences of climate change125 Leghari points to its potential as a model for future rights-based litigation, though it has been noted that Pakistan has a traditionally activist judiciary126 JUDGMENT LAHORE HIGH COURT 1.

Syed Mansoor Ali Shah, CJ: - The petitioner, who is an agriculturist, has approached this Court as a citizen for the enforcement of his fundamental rights. He submits that overwhelming majority of scientists, experts, and professional scientific organizations related to earth sciences agree that there is sufficient evidence that climate change is for real. He submits that no one can deny the devastating impact of increase in frequency and intensity of climate extremes. Further, most of the experts agree that the major cause is human activities, which include a complex interaction with the natural environment coupled with social and economic changes that are increasing the greenhouse gases (GHG) in the atmosphere, which are increasing global temperature and in turn causing climate change.

2. The climate system is a highly complex system consisting of the atmosphere, the hydrosphere, the cryosphere, the land surface and the biosphere, and the interactions between them. He submits that for Pakistan, climate change is no longer a distant threat. We are already feeling and experiencing its impacts across the country and the region. The country experienced devastating floods during the last three years. These changes come with far reaching consequences and real economic costs. 3. Learned counsel for the petitioner submits that in order to address the threat of climate change, the National Climate Change Policy, 2012 (“Policy”) and the Framework for Implementation of Climate Change Policy (2014-2030) (“Framework”) has been announced by the Ministry of Climate Change, Government of Pakistan, however, no implementation on the ground has taken place. He fears that in the absence of any strategy by the Government to conserve water or move to heat resilient crops, he will not be able to sustain his livelihood. He submits that inaction on the part of Ministry of Climate Change and other Ministries and Departments in not implementing the Framework, offends his fundamental rights, in particular, Articles 9 and 14 of the Constitution besides the constitutional principles of social and economic justice. He submits that international environmental principles like the doctrine of public trust, sustainable development, precautionary principle and intergenerational equity form part of the abovementioned fundamental rights also stand offended. Reliance is placed on Ms. Imrana Tiwana and others v. Province of Punjab and others (PLD 2015 Lahore 522) and Ms. Shehla Zia and others v. WAPDA (PLD 1994 SC 693). 10. Petitioner submits that the most immediate and serious threat to Pakistan is that of water, food and energy security. It is submitted that priority items under the Framework have not been complied with and no action has been taken by the respective Governments or authorities to develop adaptative capacity and resilience to address climate change.

125

Jacqueline Peel and Hari Osofsky, ‘A Rights Turn in Climate Litigation’, Transnational Environmental Law, 2018 7(3).

126

Ibid.

137


138

11. Climate Change is a defining challenge of our time and has led to dramatic alterations in our planet’s climate system. For Pakistan, these climatic variations have primarily resulted in heavy floods and droughts, raising serious concerns regarding water and food security. On a legal and constitutional plane this is clarion call for the protection of fundamental rights of the citizens of Pakistan, in particular, the vulnerable and weak segments of the society who are unable to approach this Court. 12. Fundamental rights, like the right to life (Article 9) which includes the right to a healthy and clean environment and right to human dignity (Article 14) read with constitutional principles of democracy, equality, social, economic and political justice include within their ambit and commitment, the international environmental principles of sustainable development, precautionary principle, environmental impact assessment, inter and intra- generational equity and public trust doctrine. Environment and its protection has taken a centre stage in the scheme of our constitutional rights. It appears that we have to move on. The existing environmental jurisprudence has to be fashioned to meet the needs of something more urgent and overpowering i.e., Climate Change. ENVIRONMENTAL JUSTICE 20. On a jurisprudential plane, a judge today must be conscious and alive to the beauty and magnificence of nature, the interconnectedness of life systems on this planet and the interdependence of ecosystems. From Environmental Justice, which was largely localized and limited to our own ecosystems and biodiversity, we have moved on to Climate Justice. Our environmental jurisprudence from Shehla Zia case to Imrana Tiwana case (referred to above) has weaved our constitutional values and fundamental rights with the international environmental principles. The environmental issues brought to our courts were local geographical issues, be it air pollution, urban planning, water scarcity, deforestation or noise pollution. Being a local issue, evolution of environmental justice over these years revolved around the national and provincial environmental laws, fundamental rights and principles of international environmental laws. The solutions entailed penalties and shifting or stoppage of polluting industries based on a precautionary approach leading to the recognition of the Environmental Impact Assessment (EIA). CLIMATE JUSTICE 21. Enter Climate Change. With this the construct of Environmental Justice requires reconsideration. Climate Justice links human rights and development to achieve a humancentered approach, safeguarding the rights of the most vulnerable people and sharing the burdens and benefits of climate change and its impacts equitably and fairly. Climate justice is informed by science, responds to science and acknowledges the need for equitable stewardship of the world’s resources. The instant case adds a new dimension to the rich jurisprudence on environmental justice in our country. Climate Change has moved the debate from a linear local environmental issue to a more complex global problem. In this context of climate change, the identity of the polluter is not clearly ascertainable and by and large falls outside the national jurisdiction. Who is to be penalized and who is to be restrained? On the global platform the remedies are adaptation or mitigation. In case of Pakistan, adaptation is largely the way forward. Adaptation is a response to global warming


and climate change, that seeks to reduce the vulnerability of social and biological systems to relatively sudden change and thus offset the effects of global warming. Adaptation is especially important in developing countries since these countries are predicted to bear the brunt of the effects of global warming. Adaptation is the capacity and potential for humans to adapt (called adaptive capacity) and is unevenly distributed across different regions and populations, and developing countries generally have less capacity to adapt. Mitigation consists of actions to limit the magnitude or rate of long-term climate change. Climate change mitigation generally involves reductions in human (anthropogenic) emissions of greenhouse gases (GHGs). Mitigation may also be achieved by increasing the capacity of carbon sinks, e.g., through reforestation. Mitigation policies can substantially reduce the risks associated with human-induced global warming. 22. Adaptation, as a strategy engages many stakeholders, which hitherto were not part of the environmental dialogue. Climate Justice, therefore, moves beyond the construct of environmental justice. It has to embrace multiple new dimensions like Health Security, Food Security, Energy Security, Water Security, Human Displacement, Human Trafficking and Disasters Management within its fold. Climate Justice covers agriculture, health, food, building approvals, industrial licenses, technology, infrastructural work, human resource, human and climate trafficking, disaster preparedness, health, etc. While mitigation can still be addressed with environmental justice, adaptation can only be addressed through Climate Justice, where the courts help build adaptative capacity and climate resilience by engaging with multiple stakeholders. WATER JUSTICE 23. In the context of Pakistan, the impending water crisis are accelerated by the impact of climate change on the hydrological cycle. The availability of water resources to satisfy the demands of society and those of the environment is a crisis of governance and justice. Water is life. Water is a human right and all people should have access to clean and affordable water. Water has interconnectedness with people and resources and is a commons that should be held in public trust. This brings us to Water Justice, a sub-concept of Climate Justice. Water justice refers to the access of individuals to clean water. More specifically, the access of individuals to clean water for survival (drinking, fishing, etc.) and recreational purposes as a human right. Water justice demands that all communities be able to access and manage water for beneficial uses, including drinking, waste removal, cultural and spiritual practices, reliance on the wildlife it sustains, and enjoyment for recreational purposes. Right to life and Right to human dignity under articles 9 and 14 of the Constitution protect and realise human rights in general, and the human right to water and sanitation in particular. In adjudicating water and water- related cases, we have to be mindful of the essential and inseparable connection of water with the environment, land and other ecosystems. Climate Justice and Water Justice go hand in hand and are rooted in articles 9 and 14 of our Constitution and stand firmly on our preambluar constitutional values of social and economic justice.

139


140

DISSOLUTION OF THE CLIMATE CHANGE COMMISSION 24. The submissions made by the Chairman of CCC regarding passing future responsibility of implementing the Framework to the Government is accepted. The Climate Change Commission after rendering a remarkable public and pro bono service, is hereby dissolved. The constitution and working of the Commission has resulted in developing a valuable resource on climate change which can be useful for the Government in the years to come. The respective Governments have to still implement the Framework, formulate the National Water Policy and ensure that the new Act is actualized and given effect to in letter and spirit. These objectives are critical for sustainable development and for the safeguard and protection of the fundamental rights of the people of Pakistan. STANDING COMMITTEE ON CLIMATE CHANGE 25. In order to facilitate the working of the Federal Government, Ministry of Climate Change, Provincial Government, Planning & Development Department, as well as, CCI, the Court hereby constitutes a Standing Committee on Climate Change, which will act as a link between the Court and the Executive and will render assistance to the above mentioned Governments and Agencies in order to ensure that the Policy and the Framework continue to be implemented. The Federal and Provincial Governments and the CCI shall engage, entertain and consider the suggestions and proposals made by the Standing Committee. 26. The Members of the Standing Committee shall be as follows:1.

Dr. Parvez Hassan, Advocate, Climate Expert

2.

Advocate General, Punjab

Member

3.

Secretary Climate Change, Ministry of Climate Change, Islamabad

Member

4.

Chairman, Planning & Development Department, Government of the Punjab

Member

5.

Mr. Ali Tauqeer Sh., CEO & National Program Director, LEAD, Pakistan

Member

6.

Ms. Saima Amin Khawaja, Advocate/ Environmentalist 78-B, Mozang Road, Lahore

Member

M.Tahir*

Chairperson


141

Image: Gunayala, Panama. Kadir van Lohuizen.

27. In the light of above, these proceedings stand concluded. I, do not wish to dispose of the petition, but instead, consign it to the record, so that the Standing Committee can approach this Court for appropriate order for the enforcement of the fundamental rights of the people in the context of climate change, if and when required. If any such application is filed, the case shall be revived and fixed before any Green Bench as per the Case Management Plan. (Syed Mansoor Ali Shah) Chief Justice (footnotes omitted)


142

COLOMBIA 28. In Future Generations v. Ministry of the Environment and Others (“Demanda Generaciones Futuras v. Minambiente”) 25 young persons brought a suit against the Colombian government, various local municipalities and several companies to enforce their rights to a healthy environment, to life, to health, to food and to water. They alleged that climate change and the government’s failure to enforce laws against deforestation collectively violated their lawful fundamental rights. They filed a special constitutional claim called a tutela used in their efforts to enforce their rights. The initial case did not succeed at the lower court level, and as a result an appeal was filed in February 2018. In April 2018, the Colombian Supreme Court significantly reversed the earlier decision of the lower court by recognising that the “fundamental rights of life, health, the minimum subsistence, freedom, and human dignity are substantially linked and determined by the environment and the ecosystem.” The decision further recognized the Colombian Amazon as a legal person and “subject of rights” and that the Colombian Amazon accordingly was entitled to protection, conservation, maintenance, and restoration. The Court ordered the government to formulate and implement action plans to address deforestation in the Amazon. Key excerpts of the decision follow:

FUTURE GENERATIONS (2018)127 1. BACKGROUND 1.

The plaintiffs plead for the protection of “supralegal” rights, highlighting those of “enjoying a healthy environment,” life, and health, allegedly violated by the accused.

2. They argue as a basis for their claim, in summary, the following: 2.1

127

As a first measure, they are identified as “(...) a group of 25 children, adolescents, and young adults...between 7 and 25 years of age, living in cities that are part of the list of cities most at risk due to climate change... [With] a hope to live for 78 years on average (75 years for men and 80 for women) which is why they expect to develop their adult life between 2041-2017 and in their old age from 2071 onwards. In those periods of time, according to the climate change scenarios presented by IDEAM, the average temperature in Colombia is expected to increase by 1.6 ° C and 2.14 °C, respectively (...)”

Luis Armando Tolosa Villabona, Reporting Judge STC4360-2018, Number: 11001-22-03-000-2018-00319-01 (Approved in session on April 4th, 2018), Bogotá, D.C., fifth of April of twenty eighteen (2018). Deciding the appeal filed against the sentence on February 12th, 2018, issued by the Civil Chamber Specialized in Land Restitution of the Superior Court of the Judicial District of Bogotá on the tutela established by Andrea Lozano Barragan, Victoria Alexandra Arenas Sanchez, Jose Daniel and Felix Jeffry Rodriguez Pena, among others, against the Presidency of the Republic, the Ministries of Environment and Sustainable Development and Agriculture and Rural Development, the Special Administrative Unit of Natural National Parks, and the Governorships of the Amazon, Caqueta, Guainia, Guaviare, Putumayo and Vaupes, for the “increased deforestation in the Amazon.” Key excerpts from the Supreme Court’s decision, selected and translated by Dejusticia.


2.2 They explain that in the Paris Agreement and in Law 1753 of 2015, the government acquired national and international commitments to achieve “...reduction of deforestation and the emission of greenhouse gases in a context of climate change...” among which, the obligation to “reduce the net rate of deforestation to zero in the Colombian Amazon by 2020” stands out. 2.3 Despite the foregoing, they report that in the “early Warning Deforestation Bulletin (AT-D) of the first semester of 2017,” jointly prepared by the Ministry of Environment and Sustainable Development and IDEAM, it was concluded that “...the Amazon is the region with the highest AT-D of the country, with 66.2% of the total...” Additionally, the “ Comprehensive Strategy for Controlling Deforestation and Management of Forests in Colombia, ” reported that the country lost 178,697 hectares in 2016, that is, that deforestation increased by 44% from the figure reported in 2015...” and, of that number, 70,074 hectares were in the Amazon. They expose the causes of the phenomenon as “ land grabbing (60-65%), illicit crops (20-22%), illegal extraction of mineral deposits (7-8%), infrastructure, agro-industrial crops, and the illegal extraction of wood( ...)” 2.4 They affirm that “deforestation in the Amazon has consequences not only in that region, but also in the ecosystems of the rest ” of the national territory, among which they list: (...) 1) The negative alteration of the water cycle; 2) the alteration of the soils to capture and absorb water when it rains (and the consequent floods that this generates); 3) changes in the water supplies that reach the paramos and that in turn provide water for the cities where the plaintiffs live; and 4) global warming due to carbon dioxide emissions that in non-deforestation conditions are stored in forests (...)” 2.5 According to what is argued, the above is relevant because those convened have not adopted the appropriate measures to deal with this eventuality and, in addition, this has dire consequences for the places of their residence, alternating their living conditions, and cutting off the possibility of “enjoying a healthy environment.” 2. CONSIDERATIONS By virtue of what has been said, it can be preached, that the fundamental rights of life, health, the minimum subsistence, freedom, and human dignity are substantially linked and determined by the environment and the ecosystem. Without a healthy environment, subjects of law and sentient beings in general will not be able to survive, much less protect those rights, for our children or for future generations. Neither can the existence of the family, society or the state itself be guaranteed. The increasing deterioration of the environment is a serious attack on current and future life and on other fundamental rights; it gradually depletes life and all its related rights. The inability to exercise the fundamental rights to water, to breathe pure air, and to enjoy a healthy environment is making Colombians sick. It also increases the lack of fresh water and decreases the ability to enjoy a dignified life. Therefore, in this case, the exceptional proceeding of the tutela is sufficiently demonstrated to resolve in depth the problems raised, because the jurisprudential assumptions for this purpose are met, given the connectedness of the environment with fundamental rights. (p. 13)

143


144

4. Due to multiple simultaneous causes, derived, connected, or isolated, that negatively impact the ecosystem, environmental issues occupy a prominent place on the international agenda, not only of scientists and researchers, but also of politicians, the common people and, naturally, judges and lawyers. Day to day the news, articles and reports of different tiers presenting the gravity of the planetary conditions are abundant. There is a growing threat to the possibility of existence of human beings. These imminent dangers are evident in phenomena such as the excessive increase of temperatures, the thawing of the poles, the massive extinction of animal and plant species, the increasingly frequent occurrence of meteorological events and disasters outside margins previously considered normal. There are unusual and unforeseen rainy seasons, permanent droughts, hurricanes or destructive tornadoes, strong and unpredictable tidal waves, draining rivers, increasing disappearance of species, etc. (p. 15) Humanity is the main actor responsible for this scenario, as its global hegemonic position led to the adoption of an anthropocentric and selfish model, whose characteristic features are harmful to environmental stability, namely: i) the excessive demographic growth; ii) the adoption of a rapid development system guided by consumerism and the current politicaleconomic systems; and iii) the excessive exploitation of natural resources. (p. 16) We are all obligated to stop exclusively thinking about our self-interest. We must consider the way in which our daily actions and behaviors affect society and nature. In the words of Peces-Barba, we must shift from “private ethics,” focused on private goods, to “public ethics,” understood as the implementation of moral values that aim to achieve a particular notion of social justice. (p. 18) 5.2 The protection of fundamental rights not only involves the individual, but implicates the “other.” The neighbor is otherness; its essence, the other people that inhabit the planet, also include other animal and plant species. But in addition, this includes the unborn, who also deserve to enjoy the same environmental conditions that we have. 5.3 The environmental rights of future generations are based on the (i) ethical duty of the solidarity of the species and (ii) on the intrinsic value of nature. The first is explained by the fact that natural resources are shared by all inhabitants of Planet Earth, and by their descendants or future generations who do not yet have a physical hold of them, but who are tributaries, recipients, and owners of them, even if they, in a contradictory way, are increasingly insufficient and limited. Thus, without an equitable and prudent approach to consumption, the future of humankind may be compromised due to the scarcity of essential life resources. In this way, solidarity and environmentalism are “related until they become the same. The second transcends the anthropocentric perspective, and focuses on “ecocentricanthropic” criteria, which places the human being on par with the environmental ecosystem, whose purpose is to avoid arrogant, dismissive, and irresponsible treatment of the environmental resources, and its entire context, to satisfy materialistic ends, without any protectionist or conservationist respect. (p. 20)


What has been stated then, develops a binding legal relationship regarding the environmental rights of future generations, such as an “omission,” whose impact translates into a limitation to the freedom of action of present generations, while simultaneously implicitly demanding new burdens of environmental commitments, to the extent that they take on the care and stewardship of natural resources and the future world. (p. 21) 6. In view of the foregoing, numerous regulations have emerged in the international field, hard and soft law, which constitute a global ecological public order and serves as guiding criteria for national legislation, as to resolve citizen complaints on the destruction of our habitat, in favor of the protection of the subjective rights of people, of present and future generations. The most relevant legal instruments are the following: (6.1 discusses the International Covenant on Economic, Social and Cultural Rights, 6.2 discusses the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques as well as the additional protocol to the Geneva Convention and 6.3 discusses the Stockholm Declaration.) 6.4 The Conference of the United Nations on the Environment and Development held in Rio de Janeiro in 1992: concerted with the objective of “...elaborating strategies and measures to stop and reverse the effects of environmental degradation in the context of the efforts directed to promote a sustainable and environmentally balanced environment, carried out both at the international and national levels...” 6.5 The Framework Convention on Climate Change in Paris 2015: after several unsuccessful attempts to adopt a binding document for the states that consigned the current needs in environmental matters, in Paris this purpose was achieved, as the countries agreed upon: “... maintain and promote regional and international cooperation in order to mobilize more vigorous and ambitious action to address the climate, by all parties and by non-parties, including civil society, the private sector, financial institutions, cities and other sub-national authorities, local communities and indigenous peoples...” Never before has a tool of this type established binding measures to mitigate climate change, requiring countries to make concrete commitments to reduce pollution and the increase of global temperatures. 7. The Constitutional Court has played an important role with its pronouncements, and has designed a jurisprudential line welcoming the concepts and advances arising on the subject in the international and academic scene. In this sense, it has analyzed the Constitution’s postulates from a “green” perspective, cataloging the Political Charter as an “Ecological Constitution” and elevating the environment to the category of fundamental rights. (p. 22) 10. The conservation of the Amazon is a national and global obligation, as it is the main environmental axis of the planet, and as such has been called the “lung of the world ...”

145


146

...The international community has generated various commitments to achieve its conservation; the Amazonian Cooperation Treaty (TCA) should be highlighted, as its main objective is the “... promotion of the harmonious development of the Amazon, and the incorporation of its territories to the respective national economies, which is fundamental for maintaining the balance between economic growth and environmental preservation...” Likewise, in the aforementioned Framework Convention on Climate Change in Paris of 2015, where Colombia, among other responsibilities, agreed to reducing “deforestation in the Colombian Amazon”; and with this purpose promoted the “Sustainable Colombia Initiative” and the “Vision Amazon” Fund, for which the following pillars were agreed upon (....)(p. 30). The factors reviewed directly generate deforestation in the Amazon, causing short, medium, and long term imminent and serious damage to the children, adolescents and adults who filed this lawsuit, and in general, all inhabitants of the national territory, including both present and future generations, as it leads to rampant emissions of carbon dioxide (CO2) into the atmosphere, producing the greenhouse gas effect, which in turn transforms and fragments ecosystems, altering water sources and the water supply for population centers and land degradation. To this we must add the threat that deforestation brings to the species of flora and fauna native to that region, as highlighted by various reports from expert organizations, where it is specified that about 57% of tree species are in danger, including animals such as the jaguar or the Andean bear, for example. This previous reality, in contrast with the legal environmental principles of i) precaution; intergenerational equity; and (iii) solidarity, leads the Court to conclude the following: 11.1 Relative to the first of the aforementioned principles, there is no doubt that there is a risk of damage, given that according to the IDEAM, the increase in GHG emissions resulting from deforestation in the Amazon forest would generate an increase in Colombia’s temperature between “0.7 and 1.1 degrees Celsius between 2011 and 2040,” while for the period “between 2041 and 2070”, the estimates indicate an increase between “1.4 and 1.7” degrees Celsius, to reach 2.7 degrees Celsius “in the period between 2071 and 2100 .” Likewise, the mass reduction of the Amazon forest would break the ecosystem connection with the Andes, causing the probable extinction or threat of the subsistence of species inhabiting that corridor, generating “damage in its ecological integrity .” Additionally, according to the IDEAM, GHG emissions due to deforestation would result in two main types of consequences related to rainfall. First, an increase in several regions of the country, a situation that would trigger an increase in water levels and thus, in runoff, spreading polluting agents coming from water. Second, a deficit in other departments, causing a reduction in the water supply, as well as prolonged droughts. The irreversibility of the damage and the scientific certainty, both additional components of the precautionary principle, are also evident since the GHG emitted from deforestation, constitutes 36% of the forestry sector, rapidly becoming an uncontrollable component of CO2 emissions; information supported, in detail, by the studies conducted by the IDEAM, the Ministry of Foreign Affairs, the Ministry of Environment and Sustainable Development, the UNDP, and many others.


11.2 In terms of intergenerational equity, the transgression is obvious, as the forecast of temperature increase is 1.6 degrees in 2041 and 2.14 in 2071; future generations, including children who brought this action, will be directly affected, unless we presently reduce the deforestation rate to zero. 11.3 The principle of solidarity, for the specific case, is determined by the duty and co-responsibility of the Colombian state to stop the causes of the GHG emissions from the abrupt forest reduction in the Amazon; thus, it is imperative to adopt immediate mitigation measures, and to protect the right to environmental welfare, both of the plaintiffs, and to the other people who inhabit and share the Amazonian territory, not only nationals, but foreigners, together with all inhabitants of the globe, including ecosystems and living beings. 11.4 The previous reality, in addition to transgressing the regulations pertaining to the Environmental Charter of the country, and the international instruments that make up the global ecological public order, constitutes a serious ignorance of the obligations acquired by the State in the Framework Convention on Climate Change of Paris 2015, where Colombia, among other commitments, undertook an agreement to reduce the “deforestation in the Colombian Amazon,” with the objective of reducing deforestation to zero in that region by 2020, as achieving it, according to the Ministry of Environment and Sustainable Development, would ensure that “...44 megatons of greenhouse gases would not enter the atmosphere and 100,000 hectares of agriculture in areas of high deforestation would be more friendly to the environment...” It is up to the authorities to respond effectively to the specific questions of the problem, among which, it is important to highlight the urgent need to adopt mitigation and corrective measures for i) the excessive expansion of illicit crops and illegal mining that unreasonably destroy the Amazonian forest; ii) fill the void left by the FARC and paramilitaries to make an active state presence in favor of the conservation of Amazonian territories that in the context of armed conflict were conquered by insurgent groups, merciless predators, irrational colonizers, and generally, people and organizations outside the law; iii) prevent and mitigate the growing fires, deforestation, and unreasonable expansion of the agricultural frontier; iv) the lack of prevention of the consequences inherent to constructing roads, granting titles to property and mining concessions; v) the expansion of large-scale agro-industrial and livestock farming; vi) the preservation of this ecosystem due to its importance in regulating the global climate; vii) the lack of scientific calculations of the release of tons of carbon through burning and the loss of biomass, which constitutes the vegetation cover; and viii) to confront climate change due to the destruction of the Amazon rainforest in the national territory. 12. Therefore, the excessive intensification of this problem is evident, showing the ineffectiveness of governmental measures adopted to confront this, and, from that perspective, granting the protection for the breach of fundamental guarantees to water, air, a dignified life, health, among others in connection with the environment. 13. It is clear that despite several international commitments, legislation, and jurisprudence on the subject, the Colombian State has not efficiently tackled the problem of deforestation in the Amazon. (p. 34, et al)

147


148

In this way, the aforementioned environmental authorities are not fulfilling their duty to evaluate, control, and monitor natural resources, nor to impose and implement sanctions in the case that there is a violation of environmental protection norms in their jurisdiction, despite being able to request help from other national and local agencies in order to protect natural resources in the case they lack sufficient resources 13.2 ...The deforestation in natural national parks is proof of the negligence in fulfilling the legal functions assigned to the Natural National Parks of Colombia...(p. 42) 14. Therefore, in order to protect this ecosystem vital for our global future, just as the Constitutional Court declared the Atrato river, the Colombian Amazon is recognized as a “subject of rights,” entitled to protection, conservation, maintenance and restoration led by the State and the territorial agencies. Consequently, we grant the relief, and order the Presidency of the Republic, the Ministry of Environment and Sustainable Development, and the Ministry of Agriculture and Rural Development, in coordination with the actors of the National Environmental System and the participation of the plaintiffs, the affected communities, and the interested population in general, to formulate a short, medium, and long term action plan within the next four (4) months from today’s notice, to counteract the rate of deforestation in the Amazon, tackling climate change impacts. This plan will aim to mitigate the early deforestation warnings issued by the IDEAM. Likewise, the Presidency of the Republic, the Ministry of Environment and Sustainable Development, and the Ministry of Agriculture and Rural Development, will be ordered to formulate within the next five months following today’s notice, with the active participation of the plaintiffs, the affected communities, scientific organizations or environmental research groups, and the interested population in general, the construction of an “intergenerational pact for the life of the Colombian Amazon - PIVAC” to adopt measures aimed at reducing deforestation to zero and greenhouse gas emissions, and has national, regional, and local implementation strategies of a preventative, mandatory, corrective, and pedagogical nature, directed towards climate change adaptation. Also, all the municipalities of the Colombian Amazon, within the next five months following today’s notice, are compelled to update and implement the Land Management Plans, and when relevant, include an action plan to reduce deforestation to zero in its territory, which should encompass preventative, mandatory, corrective, and pedagogical measurable strategies, oriented towards climate change adaptation. The Corporation for the Sustainable Development of the South of the Amazon Corpoamazonia, the Corporation for the Sustainable Development of the North and the East of the Amazon -CDA, and the Corporation for the Sustainable Development of the Special Management Area La Macarena - Cormacarena will be ordered, within the next five months following today’s notice and regarding its jurisdiction, an action plan that counteracts through police, judicial, or administrative measures, the deforestation problems reported by the IDEAM.


In addition, within their duties, the defendants will have to, in the forty-eight hours following the completion of this ruling, increase actions tending to mitigate deforestation while carrying out the modifications contained in the aforementioned mandate. Within the responsibilities assigned, they must urgently present the complaints before the corresponding administrative and judicial entities. (p. 45) 3. DECISION In merit of the above, the Supreme Court of Justice, in a Civil Appeals Court, administering justice in the name of the Republic and by authority of the Constitution and the Law, RESOLVES: FIRST, REVOKE the sentence filed on the date and place mentioned before, and instead, grant the protection requested. Consequently, it ORDERS that the Presidency of the Republic, the Ministry of Environment and Sustainable Development, and the Ministry of Agriculture and Rural Development, in coordination with the actors of the National Environmental System and the participation of the plaintiffs, the affected communities and interested population in general, to formulate a short, medium, and long term action plan within the next four (4) months from today’s notice, to counteract the deforestation rate in the Amazon, tackling climate change impacts. This plan will aim to mitigate the early deforestation warnings issued by the IDEAM. Similarly, it ORDERS the Presidency of the Republic, the Ministry of Environment and Sustainable Development, and the Ministry of Agriculture and Rural Development, to formulate in the five (5) following months from today’s notice, with the active participation of the plaintiffs, affected communities, scientific organizations or environmental research groups, and interested population in general, the construction of an “ intergenerational pact for the life of the Colombian Amazon - PIVAC ,” to adopt measures aimed at reducing deforestation to zero and greenhouse gas emissions, and has national, regional and local implementation strategies of a preventative, mandatory, corrective, and pedagogical nature, directed towards climate change adaptation. In the same manner, it ORDERS all municipalities in the Colombian Amazon, within the next five months (5) following today’s notice, to update and implement Land Management Plans, and when relevant, include an action plan to reduce deforestation to zero in its territory, which should encompass preventative, mandatory, corrective, and pedagogical measurable strategies, oriented towards climate change adaptation. Last, it ORDERS the Corporation for the Sustainable Development of the South Amazon Corpoamazonia, the Corporation for the Sustainable Development of the North and East Amazon - CDA. and the Corporation for the Sustainable Development for the Special Management Area in the Amazon - Cormacarena, within the next five (5) months following today’s notice and regarding its jurisdiction, to create an action plan that counteracts through police, judicial or administrative measures, the deforestation problems reported by the IDEAM.

149


150

In addition, within their duties, the defendants will have to, in the forty-eight hours following the completion of this ruling, increase actions tending to mitigate deforestation while carrying out the modifications contained in the aforementioned mandate. Within the responsibilities assigned, they must urgently present the complaints before the corresponding administrative and judicial entities. SECOND, Communicate in writing what was decided to those interested and send a file to the Constitutional Court for its eventual review. (footnotes omitted)

NORWAY GREENPEACE NORDIC ASSOCIATION AND NATURE AND YOUTH (2018) 29. Greenpeace Nordic and Nature and Youth are two environmental NGOs that sought a declaratory judgment from the Oslo District Court that Norway’s Ministry of Petroleum and Energy had violated the Norwegian Constitution in its decision to issue a black of oil and gas licenses for deep-sea extraction from sites in the Barents Sea128. Among other points, the claimants argued that such developments would be inconsistent with climate change mitigation required to avert global warming129 and would breach Article 112 of the Constitution which establishes a “right to an environment that is conductive to health and to a natural environment whose productivity and diversity are maintained”130. By contrast the Government argued that the legal issue was not whether the State had contravened an unclear provision in Article 12, but whether the Government has taken measures in this area to the extent that is required by Article 12131. The State argued that Article 112 does not establish a duty for authorities to take measures with respect to global emissions abroad; rather compliance with Article 12 is measured through domestic legislation attending to environmental considerations132. 30. In January 2018, the Oslo District Court ruled in favour of the Norwegian Government. It recognised that though Article 112 of the Constitution is a rights provision, the government did not violate any relevant rights as it had fulfilled the necessary duties before issuing the licenses133. The Court discussed what the right pursuant under Article 112 entailed, noting that it cannot be invoked for every encroachment that has a negative impact on the environment134. It discussed that the matter did not give rise for the reasons to specify a precise threshold, but that a breach will not have occurred if the duty to take measures

128

Greenpeace Association and Nature and Youth v Ministry of Petroleum and Energy, 16-166674TVI-OTIR/06, Oslo District Court.

129

Ibid, 3.1.

130

Constitution of the Kingdom of Norway, Article 112.

131

Greenpeace, above n 39, 4.1.

132

Ibid.

133

Ibid.

134

Ibid, 5.2.2.


included in Article 112, that are considered appropriate and necessary, have been fulfilled135. The court also declared that emissions of CO2 abroad from oil and gas exported from Norway were “irrelevant’ when assessing a breach of Article 112136. In April 2018, the claimants filed an appeal to the Norwegian Supreme Court asserting that the District Court had erred in its restrictive interpretation of Article 112 in a manner that limited the duty of the State to guarantee the right to a healthy environment137. Further, it has been asserted that the District Court did not give due consideration Norway’s obligations arising under the UNCCC and Paris Agreement138. The appeal subsequently failed in 2020, and we include this case as an example of the challenges facing those litigating on climate change matters. Key excerpts follow: 1. THE CASE IN BRIEF The first question in the case is whether the Royal Decree of 10 June 2016 (hereinafter also called the Decision) is invalid because it is contrary to Article 112 of the Constitution. Secondly, the case raises questions as to whether the Decision is invalid because it relies on an inadequate assessment, there are errors in the factual basis for the Decision or it is inadequately justified. 2. PRESENTATION OF THE CASE 2.1 Joint agreed presentation of parts of the facts in the case The parties have prepared a joint agreed presentation of parts of the facts in the case. The presentation is dated 30 October 2017 and is based on the Court’s decision of May 2017. 1.1 Introduction On 10 June 2016, the Norwegian Government reached a decision by Royal Decree on awarding production licences in the 23rd licensing round pursuant to Section 3-3 of the Petroleum Act. This case involves the validity of this decision. Ten production licences were awarded for a total of 40 blocks or sub-blocks. The production licences are called “Production Licences”, abbreviated as “PLs”...The production licences indicate precisely where petroleum production may occur. Seven of the production licences (14 blocks) are located in Barents Sea South and three of the production licences (26 blocks) are located in Barents Sea South-east. All the blocks are located north of Norway between 71° 30’ and 74° 30’ North latitude, and from 20° 40’ East longitude to the delimitation line facing the Russian Federation. 1.2 Opening of maritime areas for petroleum activities Prior to a decision on awarding production licences, an “opening” of maritime areas for petroleum activities occurs, see Section 3-1 of the Petroleum Act. The provision imposes a requirement

135

Ibid.

136

Ibid, para 112.

137

138

Greenpeace, briefing note, <http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/ non-us-case-documents/2018/20180205_16-166674TVI-OTIR06_press-release.pdf> Ibid.

151


152

to weigh the various interests that apply in the area in question. For use in this weighing, “an assessment shall be made of the impact of the petroleum activities on trade, industry and the environment and of possible risks of pollution, as well as the economic and social effects that may be a result of the petroleum activities”. The opening process means in practice that the Ministry of Petroleum and Energy conducts an impact assessment for the area on the Norwegian continental shelf that is planned to be opened, see Norwegian Regulations of 27 June 1997 No. 653 relating to petroleum activities (the Petroleum Regulations), Chapter 2. Effects on the environment and nature are among the impacts that are to be assessed. 1.3 Production licence and actual production of petroleum As mentioned, the case involves the validity of decisions to award production licences in Barents Sea South and Barents Sea South-east. A production licence grants the licensee exclusive rights to conduct surveys and search for and produce petroleum within the geographic area covered by the licence. The licensee becomes the owner of the petroleum that is produced. The licence also governs the rights and obligations of the holders of a production licence in dealings with the national government. The production licence supplements the provisions in the legislation and imposes detailed conditions for the activities. If commercially exploitable finds are made under a production licence, the process is started towards actual production of the find in question. This process is governed by Chapter 4 of the Petroleum Act and Chapter 4 of the Petroleum Regulations. Among other things, a licensee must have a plan approved for development and operation, based on an impact assessment, before development and operation can be commenced, see Section 4-2 of the Petroleum Act. Norwegian petroleum activities must occur in line with what is laid down in the Management Plan for the maritime area where the activities will take place. The purpose of the Management Plan is to provide a framework for creation of wealth through sustainable use of resources and ecosystem services, while maintaining the ecosystems’ structure, mode of operation, productivity and natural diversity. The applicable plan for the Barents Sea is contained in Report to the Storting 10 (2010–2011). 2. International Climate Cooperation Norway has participated in the international climate cooperation since this was first put on the agenda. The overarching international legal framework is the UN Framework Convention on Climate Change (UNFCCC), which was adopted in Rio de Janeiro in 1992. Norway ratified this agreement on 11 June 1993, see Proposition to the Storting No. 36 (1992– 93). The Kyoto Protocol is an agreement under the Convention on Climate Change, adopted in 1997 and ratified by Norway in 2002 during the Storting’s consideration of Proposal to the Storting No. 49 (2001–2002). The agreement entails quantified emission commitments for Norway and other industrialised countries. The Kyoto Protocol’s system allows the emission commitments to be met through flexible implementation mechanisms and cooperation between countries as a supplement to national measures. The Kyoto Protocol entered into force in 2005. The first commitment period was from 2008 to 2012 and was settled in 2015. The Kyoto Protocol’s second commitment period, adopted at the


meeting of the parties to the Convention on Climate Change in Doha in 2012, applies for the period 2013 to 2020. The Doha amendments have not yet entered into force, see Articles 20 and 21 in the Kyoto Protocol, but Norway is following the agreement nevertheless in line with the Vienna Convention. Norway has committed itself to reducing emissions by thirty per cent compared with emissions levels in 1990 in the period leading up to 2020. The target was part of the climate settlement in the Storting in 2012, see Recommendation to the Storting No. 390 (2011–2012), which in turn builds on the climate settlement from 2008. The Paris Agreement was negotiated in Paris in December 2015 and is the most recently adopted protocol to the UN Framework Convention on Climate Change. It is intended that the Paris Agreement’s regulations take over when the Kyoto Protocol’s second commitment period expires in 2020. A goal of the Agreement and its mechanisms is to hold the increase in the global average temperature to well below 2°C compared with the pre-industrial level and to strive to limit the temperature increase to 1.5°C above the pre-industrial level, see Article 2. The states which have signed and ratified the Paris Agreement are obligated to determine and communicate “nationally determined contributions”, see Article 4, no. 2, first sentence. The national contributions shall be reported or updated every five years, see Article 4, no. 9. Each update shall build on the preceding, successive contribution, see Article 4, No. 2, and involve more ambitious targets, see Article 4, no. 3. Furthermore, states are obligated to obtain necessary information concerning the national contributions, see Article 4, no. 8, account for the national contributions, see Article 4, no. 13, and report under a special mechanism for transparency, see Article 13. Norway ratified the Paris Agreement on 20 June 2016 based on Proposal to the Storting No. 115 (2015–2016) and Recommendation to the Storting No. 407 (2015–2016). The Paris Agreement entered into force on 4 November 2016. Norway has communicated to the UN a conditional commitment to reduce emissions by at least 40 per cent in 2030 compared with 1990, see Report to the Storting 13 (2014–2015) New emission commitment for Norway for 2030 – towards joint fulfilment with the EU and Recommendation 211 (2014–2015). The UN’s Intergovernmental Panel on Climate Change (IPCC) was appointed by the World Meteorological Organization (WMO) and the United Nations Environment Programme (UNEP) in 1988. The purpose is to provide the nations of the world the best possible scientific basis for understanding climate changes and potential effects on humans, the environment and society. In 1989, the General Assembly of the United Nations decided to assign the IPCC the task of preparing a report which described climate status. This was later followed up by the first conference of the parties under the Convention on Climate Change (the Conference of the Parties, COP). Today it is regular practice for the Conference of the Parties to receive the IPCC’s reports. The IPCC submitted its Fifth Assessment Report in 2013–2014. The Assessment Report consists of three sub-reports from three working groups (“The Physical Science Basis”, “Impacts, Adaptation, and Vulnerability” and “Mitigation of Climate Change”) and a summary of the findings in these (the “Synthesis Report”). Under Section 1.2 in the presentation of the case, it is stated: “The impact assessment was presented to the Storting in Report to the Storting Report No. 36 (2012–2013) and the supplementary report to this, Report to the Storting 41 (2012–2013), and the Storting concurred during the consideration of Recommendation to the Storting No. 433 (2010– 2011)”. This is not correct. What is correct is that the Storting concurred with Recommendation to the Storting no. 495 (2012-2013).

153


154

3. PLAINTIFFS’ AND INTERVENER’S PRAYER FOR RELIEF AND GROUNDS The Plaintiffs and the Intervener (also called the Environmental Organisations) have essentially argued: 3.1 The Decision is contrary to Article 112 of the Constitution It is primarily argued that the Decision is wholly or partially invalid because it is contrary to Article 112 of the Constitution. Article 112 of the Constitution establishes that “every person has the right to an environment that is conducive to health” and that natural resources shall be managed based on long-term considerations which “will safeguard this right for future generations as well”. The Decision is not consistent with this right. It is primarily argued that the Decision is contrary to an absolute limit in Article 112. The wording of Article 112, the prior history and the preparatory works indicate that individuals have rights under the provision. It is clear that the Storting has intended this. The limit for what is permitted must be based on the best possible scientific basis of knowledge. Emissions abroad which occur based on oil and gas exports from Norway are relevant when assessing whether the limit in Article 112 has been exceeded. Norwegian law is based on a solidarity principle. When interpreting Article 112, Norway’s international obligations are relevant, including those under the European Convention on Human Rights. The Government’s alternative interpretation of the first paragraph of Article 112 and the Environmental Organisations’ primary interpretation are nearly identical. The parties agree under these circumstances that the provision entails in part a prohibition against certain official measures that may lead to negative effects for the environment and nature above a certain threshold. The parties also agree that the first paragraph must be interpreted in the context of the third paragraph, which means that the first paragraph is not contravened if appropriate measures are taken. The Environmental Organisations are of the opinion – in contrast to the Government – that a high threshold does not apply for overruling a decision. Furthermore, it is not enough that the measures taken pursuant to Article 112, third paragraph, are appropriate. They must be sufficient. The fact that the Government has pointed to a number of measures is not sufficient to determine that there is no breach of the first paragraph of Article 112. There are two principal reasons why the Decision is not consistent with Article 112. The first (the climate argument) is because the world is experiencing serious anthropogenic global warming that requires drastic and immediate measures. The Decision means the opposite. It will lead to enormous emissions. Secondly, the Decision involves areas close to and partially in the movable ice edge and the polar front, i.e. in an area with a very special ecological system (the vulnerability argument). Oil spills will result in a catastrophe for this ecological system. Soot emissions (”Black Carbon“, abbreviated as BC) will have major negative impacts. Production has never previously been permitted so close to the ice edge and so far from land. The Norwegian Environment Agency and the Norwegian Polar Institute advised against 20 of 40 blocks. The climate argument and the vulnerability argument jointly and severally entail a breach of Article 112.


The Decision must also be assessed in a broader context. These are the first licences granted after there is reliable knowledge that the world’s proven fossil fuel resources exceed what can be burned in order to reach the goals in the Paris Agreement. The way is being opened for petroleum activities further east and north than ever before. The objective is to maintain petroleum production at the current level despite the fact that emissions must be reduced at a dramatic tempo. The Decision will stimulate extensive investments and technology development that will contribute to increased fossil fuel production (the path argument). It will be difficult to reverse the trend with respect to climate deterioration. We are now at a crossroads (the crossroads argument). There is not even room for emissions from discovered oil and gas reserves in the carbon budget. Everyone must take responsibility, and Norway occupies a special position. The Government must point out which countries will let their resources lie unused so that the Government can produce more. The demand for oil and gas will be reduced in such a way that it is far from certain that the production from the blocks the Decision covers will be profitable. If Article 112, first paragraph, see the third paragraph, must be understood with the limitation that a proportionality assessment must be carried out, it is argued that the Decision is disproportionate and for that reason is contrary to Article 112. This is because it has limited economic benefit. In order for a decision to be contrary to Article 112, there must be a relationship between the decision and climatic and/or environmental harm. However, it is the potential for harm that must be assessed. The Government cannot wait until the problems materialise before initiating measures. Those who have been awarded licences for exploration and production will make major investments. In reality, it will not be possible to reverse the licences through permission to develop and operate under Section 4-2 of the Petroleum Act. From a legal perspective, there is only a limited opportunity to reverse the Decision. The courts have the authority and obligation to review whether the licences are contrary to Article 112, see Article 89 of the Constitution. The case shows that constitutionally- established environmental protection is important and illustrates that Article 112 must be interpreted in such a way that the courts set limits for environmental encroachments. 3.2 The Decision is contrary to Section 3-3 of the Petroleum Act, see Section 3-1, see Article 112 of the Constitution Alternatively, it is argued that the Decision is wholly or partially invalid because it is contrary to Section 3-3 of the Petroleum Act, see Section 3- 1, as these provisions must be understood in light of Article 112 of the Constitution. 3.3 Breaches of case-handling rules etc. result in invalidity Alternatively, it is asserted that the assessment prior to the Decision being reached was deficient and that the Decision is based on factual error. It is also asserted that the Decision does not meet the requirements that apply for justification. Requirements for an assessment appear in both Chapter 3 of the Petroleum Act and Section 17 of the Public Administration Act. Article 112 of the Constitution supplements and reinforces the requirements out of concern for the environment and what is to be balanced against the environment.

155


156

The climatic effect of the Decision has been inadequately assessed. The Decision opens a new field and continues exploration activity in Barents Sea South for the purpose of maintaining Norwegian petroleum production at the same level as today beyond 2020. The climatic consequences of this must be thoroughly assessed. An assessment has not been carried out of whether it will actually be possible to meet Norway’s need for emissions cuts while maintaining the production level on the Norwegian continental shelf beyond 2030. An assessment has not been carried out related to stimulating investments and technology development. Nor has it been assessed what significance this has for increased fossil fuel production. Nor has an assessment been carried out related to whether the emissions trading system will be effective. The assessments that have been carried out are not thorough enough. The Decision moves petroleum activities further north than ever before and partially into the variable ice edge at the polar front. The assessment leaves major questions with respect to challenges related to the variable ice edge and polar front. This is expressed with particular clarity in advice against proceeding from the Norwegian Polar Institute and the Norwegian Environment Agency. It will not be possible to bring this up with the companies afterwards. An assessment must be carried out for each licence. There are several errors attached to the assessment of the economic consequences of opening Barents Sea South-east. It is an error that revenues and expenditures were not discounted. The employment effects have been estimated imprecisely and costs of CO emissions have not been calculated. The errors that were committed in the opening of Barents Sea South-east have affected the Decision. The obligation to provide sufficient grounds for the Decision stems from both general administrative principles and Article 112 of the Constitution. Deficiencies in the justification reflect the deficiencies in the assessment. If the Decision is to be valid despite the procedural errors, there must be grounds to assume that the error cannot have been a deciding factor for the substance of the Decision. In this instance, the errors have individually and as a whole evidently – in any case, probably – affect the substance of the Decision. This is particularly the case for the awards that have been granted in Barents Sea South-east. 3.4 Prayer for relief The Plaintiffs and the Intervener have submitted the following prayer for relief: The Royal Decree of 10 June 2016 on awarding production licences on the Norwegian continental shelf “the 23rd licensing round” is wholly or partially invalid. Foreningen Greenpeace Norden, Natur og Ungdom and Besteforeldrenes klimaaksjon are awarded legal costs.


4. DEFENDANT’S PRAYER FOR RELIEF AND GROUNDS The Government has essentially argued the following: 4.1 The Decision is not contrary to Article 112 of the Constitution The Decision is valid. It is not contrary to Article 112 of the Constitution. It is primarily argued that there is no substantive limit in the provision as the Plaintiffs have asserted. In any case, the Decision does not breach any such possible limit. The first paragraph of Article 112 cannot be understood to be a rights provision in itself. The provision protects common (collective) interests. Even though the provision does not constitute an independent basis for substantive environmental rights, the provision does have legal significance, including in statutory interpretation. The wording of Article 112 and the context argue against the provision being understood as an individual rights provision. The preparatory works and the prior history for Article 112 do as well. So do the purpose of the provision and policy considerations of fairness, justice and feasibility. There is no legal basis for saying that (former) Article 110 b was fundamentally changed by adopting Article 112. The provision has intentionally been worded differently than other rights provisions in the Constitution, and must be interpreted autonomously, on the basis of its own special nature and its own sources of law. Norway’s international obligations, including to the European Convention on Human Rights, are irrelevant in the interpretation. Under Article 112, third paragraph of the Constitution, state authorities have a duty to “take measures” in order to implement the “principles” stated in the first and second paragraphs. The concept that this duty to take measures is the essential legal substance of Article 112 stems from the wording, context, purpose, preparatory works and policy considerations – as well as the prior history of the paragraph during the adoption in 1992 and the amendment in 2014, in which the third paragraph was revised to make the duty to take measures clearer and more operative. The legal issue to be considered in the case is not whether the Decision contravenes an (unclear) substantive bar in the first paragraph of Article 112, but whether the authorities (the Storting and the Government) have taken measures in this area to the extent Article 112 requires. This raises in turn questions regarding how far the duty to take measures extends, what is required to say that it has been met and how far the courts can and should go in reviewing this. The most important measures the authorities take to comply with Article 112 is through generally applicable rules provided by the Storting and the Government, at the statutory and regulatory levels. This occurs in part through individual acts in the environmental and climate area (the Pollution Control Act, the Nature Diversity Act, the Climate Change Act, etc.) and in part through rules in other legislation attending to environmental considerations. The measures attend to both the duty related to possible national emissions and the risk of environmental harm. Article 112 establishes no duty for Norwegian authorities to take measures with respect to emissions abroad, nor emissions stemming from the export of oil and gas from Norway. Norway also participates in a number of measures as a part of the international work on climate change.

157


158

Image: Displaced Bangladeshi woman repairing breached dyke by hand. Kadir van Lohuizen / NOOR.


The Storting’s choice of measures is not subject to judicial review. Furthermore, it is unclear how far the duty to take measures is otherwise intended to be subject to such review. The Government’s primary view is that it is not. Which specific measures are taken will vary over time and depends on many factors of a technical and political nature. Often there is technical or political disagreement about which measures are best suited to meet an environmental challenge. Other times it may depend on financial aspects. And not rarely, consideration for the environment and the climate must be balanced against other legitimate considerations and societal interests. In the view of the Government, based on the sources of law this must be regarded most naturally as a circumstance which Article 112 is not intended to juridify, and where the discretionary assessments should not be subject to judicial review. Alternatively, it is argued that if the courts should consider themselves to have jurisdiction to carry out a review, then there must be a high threshold which respects the authorities’ legitimate need for room in which to act, as well as the many technical and political assessments and the balancing constantly carried out by the responsible technical authorities, by the Government and not least by the popularly elected majority of the Storting. Legal minimum requirements for a causal relationship between the risk of environmental harm and the Decision must be met by being able to set aside the Decision under Article 112. There is also a requirement of foreseeability. There was broad agreement at the Storting on the opening of Barents Sea South in 1989, on the subsequent development of this area, on the opening of Barents Sea South-east in 2013 and on the activities that have subsequently been conducted there. Even though the Decision was formally taken by the Government (the King in Council), the awarding of licences has also been up for a vote in the Storting three times, in 2014, 2015 and 2016. In the last year a number of proposals have also been voted on regarding more general changes in the relationship between petroleum policy and environmental and climate policy, and there is currently pending a proposal to halt the ongoing 24th licensing round. All of the factual circumstances which the Plaintiffs have so far brought forward in the case have been or are currently before the Storting, as a part of the current democratic debate. This is a strong argument against the courts reviewing the Decision. Questions regarding socio-economic benefits are not relevant in the interpretation of Article 112. In addition, efforts have been made to formulate petroleum policy so that development only occurs to the extent it is profitable. It was not possible when the Decision was taken, nor is it now, to say whether the blocks will be profitable. This depends on what is found. In that event, new thorough calculations will be made in accordance with Section 4-2 of the Petroleum Act. 4.2 The Decision is not contrary to Section 3-3 of the Petroleum Act, see Section 3-1, see Article 112 of the Constitution The Decision is not contrary to Section 3-3 of the Petroleum Act, see Section 3-1, even when these provisions are understood in light of Article 112 of the Constitution. 4.3 There are no procedural errors etc. resulting in the Decision being invalid Article 112 of the Constitution is operationalised in the petroleum legislation through requirements for an impact assessment in sections 3 1 and 4 2 of the Petroleum Act and by supplementary rules in regulations and long-standing administrative practice.

159


160

The requirements resulting from Article 112 for the proceedings must be considered to be met through these rules. New, separate (unwritten) procedural requirements cannot be inferred from Article 112 beyond those the lawmakers have laid down in the petroleum legislation. The Public Administration Act applies in principle, but it does not lead to more rigorous obligations compared to the requirements of the Petroleum Act. No procedural errors have been committed, much less errors that are relevant for the validity of the Decision. The Decision does not rest on an erroneous factual basis, and it meets the requirements for justification. The Plaintiffs are mixing together the proceedings during the opening of Barents Sea South-east in 2013 and the proceedings prior to the Decision. Any procedural error during the opening of Barents Sea South-east in 2013 is only relevant in the assessment of the Decision if the error has meant that the decision on opening is invalid. Impact assessments prior to the opening of Barents Sea South in 1989 and Barents Sea Southeast in 2013 satisfied all requirements for assessment and justification. The Decision met all requirements under the Petroleum Act for procedure at this stage. Questions related to matters such as the ice edge, Black Carbon, vulnerable waters, emergency response, finance and emissions have been covered by all appropriate assessments and procedures n connection with the opening proceedings. In the event of any development and operation, a new assessment will be carried out. In addition, questions related to emissions of greenhouse gases are assessed and evaluated as a step in climate policy. There are no serious defects in the assessments of possible future revenues from Barents Sea South-east. The information in the report – where the revenues were estimated – is sufficient for the purpose. It is a matter of estimates; it is unknown what will be found. The assessments state that only an overall assessment with uncertain calculations is involved. The report contains a calculation error, but this was corrected. The net figures are nevertheless correctly presented. There was no need for discounting. The reason the figures were not discounted is that they were intended to provide the right basis for the other calculations, such as the assessments of national and regional value-added and employment effects that were made by Statistics Norway and Poyri, respectively. New assessments will be carried out with respect to the environment, climate change issues and finance pursuant to Section 4-2 of the Petroleum Act development and operation of one or more of the blocks are proposed in the 23rd round. 4.4 Prayer for relief The Defendant has submitted the following prayer for relief: The Government of Norway through the Ministry of Petroleum and Energy is found not liable. The Government of Norway through the Ministry of Petroleum and Energy is awarded legal costs in the case.


5. COMMENTS BY THE COURT 5.1 Introduction The parties disagree whether Article 112 of the Constitution means that the Decision is invalid. The disagreement involves how the provision is to be understood, but also how the provision might be applied. The Environmental Organisations have primarily maintained that the first paragraph of Article 112 is a rights provision, so that it imposes a prohibition on certain official decisions that involve a risk of negative effects for the environment. However, they agree that if sufficient measures have been taken, see the third paragraph of Article 112, then a decision is nevertheless not prohibited. The Environmental Organisations have argued in the alternative that if a proportionality assessment is to be carried out under Article 112, where on the one hand weight shall be attached to environmental impacts and on the other hand to socio-economic effects, then the Decision must be regarded as disproportionate. The Government has primarily argued that the first paragraph of Article 112 is not a rights provision in itself, but that the legal issue is whether the duty to take measures under the third paragraph of Article 112 has been met. The Government’s primary understanding is that the courts cannot review this question. The Government has argued in the alternative – if the first paragraph of Article 112 is to be understood as a rights provision – that a high threshold applies for the courts to be able to review the Decision. Nevertheless, this cannot occur if appropriate measures have been taken, see Article 112, third paragraph. The Government is of the opinion that there is no legal basis to conduct a proportionality assessment such as the Environmental Organisations have argued for. The Court takes a position under Section 5.2 on the Environmental Organisations’ argument that the Decision is invalid because it is contrary to Article 112 of the Constitution. The Environmental Organisations and the Government also disagree whether procedural errors etc. have been committed that can lead to the Decision being invalid. The Court takes a position on this under Section 5.3. The Court’s conclusion appears at Section 5.4. Finally, in Section 5.5, the Court takes a position on the legal cost claims. 5.2 Is the Decision wholly or partially contrary to Article 112 of the Constitution? 5.2.1 Is Article 112 a rights provision? As mentioned, the parties disagree whether the first paragraph of Article 112 should be understood as a rights provision in itself, which means that the Decision – if it violates the right – is invalid. Article 112 of the Constitution was adopted in 2014. Its predecessor was (former) Article 110 b from 1992. The starting point in the interpretation is the wording in Article 112 as it is understood in ordinary usage. Article 112 of the Constitution reads as follows: Every person has the right to an environment that is conducive to health and to a natural environment whose productivity and diversity are maintained. Natural resources shall be managed on the basis of comprehensive long-term considerations which will safeguard this right for future generations as well.

161


162

In order to safeguard their right in accordance with the foregoing paragraph, citizens are entitled to information on the state of the natural environment and on the effects of any encroachment on nature that is planned or carried out. The authorities of the state shall take measures for the implementation of these principles. The word “rett” is used in the first sentence of the first paragraph. This indicates that the provision is a rights provision. Such an understanding of the wording would appear, for example, to be consistent with what is pointed out by Smith in “Konstitusjonelt demokrati” (“Constitutional democracy”) at page 320. He states that the provision cannot be understood other than according to the wording, which must imply that the wording in isolation must be understood so that “rett” means right. The wording in the second sentence of the first paragraph of Article 112, which deals with “denne rett” (“this right”) also argues for seeing the first sentence in the first paragraph as a rights provision. The third paragraph in Article 112 calls the rights under the first paragraph “principles”, which – based on a linguistic understanding – argues that the expression “rett” in the first paragraph should not be understood as a right, but as a common fundamental value. When the first and third paragraphs are read in context, it is thus unclear whether “rett” in the first paragraph means right. However, the wording in the third paragraph does not rule out “rett” meaning right and only indicates that there is another alternative interpretation. The preparatory works for Article 112 are relevant when the provision is to be interpreted. As mentioned, Article 112 was adopted in 2014 as a step in a constitutional revision in which a number of provisions were added to Chapter E, “Human Rights”. However, the substance of Article 112 was not new in 2014. As mentioned, the provision has a predecessor in (former) Article 110 b from 1992. Article 112 of the Constitution was proposed in Document 16 (2011–2012) “Report to the Presidium of the Storting by the Human Rights Commission concerning Human Rights in the Constitution” (hereinafter called the Human Rights Commission report). The Court considers it appropriate to quote some parts of the report. At page 243 in the report, it is stated regarding (former) Article 110 b: The Storting also assumed that private citizens or organisations in a given case can proceed with their environmental rights under Article 110b before the courts. This was presumed in the original constitutional proposal and seems to have been assumed by the Standing Committee on Foreign and Constitutional Affairs and by the Storting. However, it is not clear under what circumstances such direct requirements can be asserted, which may have weakened the importance of the provision. From page 244: It cannot be ruled out that the wording of the third paragraph of Article 110b of the Constitution may be a contributing reason for the provision’s limited importance in practice.


Article 110b of the Constitution is worded to a much greater degree than Articles 110 and 110a as a rights provision. Paragraphs 110 and 110a open with “It is the responsibility of the authorities of the State to create conditions enabling” various rights, while Article 110b specifies that there is a “right to an environment that is conducive to health”. This linguistic difference and the clear statements in the preparatory works indicate that the provision must be regarded as a rights provision. From page 245: For the Commission, the question is whether the right to an environment that is conducive to health should be strengthened in the Constitution, and if so, how this can be done. From pages 245 and 246: However, the Commission has considered whether the third paragraph in the provision should have a more appropriate wording, primarily to clarify the duty for the authorities to comply with the principles in the first paragraph regarding taking appropriate and necessary measures to protect the environment. It is presumed that this is the main justification for the provision, as it is currently worded. However, the provision could have been more precise with a view to it being a duty for the authorities of the state to pursue the right to an environment conducive to health. The Commission wishes to recommend that the third paragraph be replaced with a wording that the authorities of the state have a duty to take measures to implement the first and second paragraphs of Article 110b of the Constitution. This will clarify that the authorities have an active duty to take care of the environment through various forms of measures. There will still be plenty of room for political discretion with respect to which measures are put in place and at which times. It is difficult to see this other than that the Human Rights Commission regarded (former) Article 110 b as a rights provision and that the Commission wanted to strengthen this right, by clarifying the provision in the third paragraph. The proposal of the Human Rights commission for Article 112 has been considered in the Storting’s Standing Committee on Scrutiny and Constitutional Affairs. The following is quoted from Recommendation to the Storting No. 187 (2013-2014), pages 25 and 26: A majority of the Committee, all except the Members from the Norwegian Progress Party, believe that the relationship between the environment and human rights should be linked more closely. The Human Rights Commission has proposed, referring to the fact that development of rights related to the environment is evolving internationally, a new Article 112 in the Constitution regarding the right to an environment conducive to health as an extension of Article 110 b of the Constitution. The majority agrees with the proposal. The provision in Article 110 b was added to the Constitution in 1992. It can be regarded as a result of recommendations from the United Nations through the World Commission on Environment and Development and shall be read as a legally binding provision. The majority cites Recommendation to the Storting no. 163 (1991–1992) where it is stated: “legally a constitutional establishment will mean that a constitutional provision will take precedence over ordinary legislation if they conflict with each other”. The provision should be read as an attempt to protect the quality of life and health for future generations and the individual.

163


164

The majority believes that there is a need to clarify the duty for the authorities to comply with the principles in the first paragraph regarding taking appropriate and necessary measures to safeguard the environment. The proposal that is made below must be read as an active duty for the authorities to take measures to look after the environment. Which measures will be up to each Storting to adopt. The Committee’s Members from the Norwegian Conservative Party point out that the provision regarding a right to an environment conducive to health already exists in the Constitution and that the expansion is so marginal that these members can assent to the proposal for a new Article 112. The constitutional provision in question is intended to be a rights provision, and after the amendment in the third paragraph this will appear more clearly, in the view of these Members. The majority thus agreed to the proposal of the Human Rights Commission, and it was confirmed in the special comment from the Norwegian Conservative Party that Article 110 b is intended to be a “rights provision”. It is also stated that the third paragraph of Article 112 will clarify the nature of the right. The representative of the Norwegian Conservative Party, Tetzschner, stated during the Storting debate that the “real” legal norms were being blended with the “quasi”, for example, in the proposal for the Article 110 series, where one has “Articles 110 and 110 a, which do not grant rights, in contrast to Article 110 b, which can be invoked as a specific rights provision for the individual”. The Government’s opinion is that the first paragraph of Article 112 bears the mark of being declarative in nature, i.e. the provision expresses a political manifesto. As support for its view, the Government has cited individual provisions in the Constitution, i.e. Article 93, fourth paragraph, Article 95, second paragraph, Article 98, second paragraph, Article 100, sixth paragraph, Article 102, second paragraph, Article 104, third paragraph, Article 108, Article 109, second paragraph and Article 110. It is difficult to see that the referenced provisions can be cited in support of Article 112 not being a rights provision. Some of the provisions the Government has cited indicate instead – as the Court sees it – that Article 112 is such a provision. Note in this connection that the Human Rights Commission stated that (former) Article 110 b, in part because of a different wording than (former and currently applicable) Article 110 and (former) Article 110 a (now Article 108), indicated that Article 110 b was a rights provision. See also Tetzschner’s statement in the Storting debate, referred to above. The Government has cited the fact that the Climate Change Act of June 2017 does not grant private rights and that a broad majority at the Storting on a general basis wanted to “advise against juridifying Norwegian climate policy”. The statement has – as the Court sees it – limited weight in the understanding of Article 112. It is not related to Article 112, and in any event it does not apply to the entire area Article 112 covers, only the climate area. The Government has also cited the prior history of Article 112 as support for its view. In this connection, the Government has maintained that (former) Article 110 b could not be understood to be a rights provision. There are grounds, however – as the Court sees it – to characterise (former) § 110 b as a rights provision, but with extremely limited content. The Court cites Backer in connection with this: “The courts and the environment” in Lov og Rett 1993 and “Innføring i naturressurs- og miljørett 2012” (“Introduction to natural resource and environmental law 2012”), where it is stated that the courts in given situations could interpret (former) Article 110 b as a bar.


Fauchald in Tidsskrift for Rettsvitenskap (hereinafter TfR) 1-2/2007: “Forfatning og miljøvern – en analyse av Grunnloven § 110 B (“Constitution and environmental protection – an analysis of Article 110 B of the Constitution”) thinks that (former) § 110 b could be an independent rights basis. See also what has been quoted above from the Human Rights Commission’s report. The Government has maintained that the need for technical and political room to act argues against Article 112 being regarded as a rights provision. The Government has also argued that political processes are generally far better than legal ones for clarifying environmental and climate questions and that there is a need to embed policy choices democratically. In the opinion of the Court, the considerations the Government points to here argue for, not against, Article 112 being regarded as a rights provision. However, these considerations are relevant when a position is to be taken on whether the duty to take measures has been complied with and thus in the assessment of whether the right has been infringed. The Court will return to this. In the article “En standardtilnærming til Grunnloven § 112” (“A standard approach to Article 112 of the Constitution”) in TfR 1/2017, Thengs concludes the following – after a review of wording and preparatory works – at page 44: The conclusion must accordingly be that the first paragraph of Article 112, see the third paragraph, is a rights provision that grants each individual a right to an environment conducive to health and a natural environment whose productivity and diversity are maintained. The Court concurs in this conclusion. Article 112 is a new provision and the preparatory works must be accorded substantial weight. These clearly indicate that Article 112 is a rights provision. Such an understanding lies within the wording of the provision, and no determinative sources of law indicate the contrary. 5.2.2 What does the right in Article 112 entail? The Court has concluded under Section 5.2.1 that Article 112 is a rights provision. Before deciding whether the right has been infringed in this case, it is deemed appropriate to explain the Court’s view on what the right generally entails. An effort will be made to limit the explanation to what is relevant for the case. The sources of law provide little guidance, but something can be inferred from the wording, the preparatory works and the prior history. In addition, the substance of the right – as the Court sees it – must depend on the policy considerations that come into play. The parties agree that both (traditional) environmental harm and climate deterioration are covered by the provision. There are no grounds for the Court to have a different view on this. The word “environment” is used sometimes in the following in such a way that it encompasses both environment (in a narrow sense) and climate. Traditional environmental harm in the case involves possible harm to what are called particularly vulnerable areas, whereas climate deterioration is related to emissions of greenhouse gases, where CO is the most important. At the outset, the Court will point out that it considers it obvious that Article 112 of the Constitution cannot be invoked for every encroachment that has a negative impact for the environment, which can be expressed as the right only arises with encroachments of a certain scope, or in other words: it must exceed a certain threshold. The Court understands that the parties agree on this. However, what they disagree on is how much is required before the

165


166

threshold is exceeded. The Government has argued that the threshold must be high, while the Environmental Organisations have stated that the encroachment must be above a certain threshold. This case does not give rise to a reason for the Court to specify a more precise limit. The right under Article 112 must be seen in context with the third paragraph. Such an understanding is in accordance with the argument of the Environmental Organisations and also in accordance with what the Government has argued in the alternative. Such an interpretation can be rooted in the proposal of the Human Rights Commission. It can be inferred from the proposal – as the Court sees it – that a right exists under Article 112 if the duty under the third paragraph has not been fulfilled. This means, consequently, that a decision such as the one here is not prohibited if the duty to take measures under the third paragraph of Article 112 is fulfilled. There is no disagreement between the parties whether the Decision triggers a duty to take measures. In order for a measure to fulfil the duty under the third paragraph of Article 112, it must be appropriate and necessary. See the report from the Human Rights Commission. As mentioned, the Commission considered whether the third paragraph in (former) Article 110 b should be given a more appropriate wording, primarily to clarify the duty for the authorities to take “appropriate and necessary measures”. In addition, the Court points out that the majority emphasised during the consideration by the Storting that it was necessary to clarify the duty for the authorities to comply with the principles regarding taking “appropriate and necessary measures”. As indicated above, Article 112 cannot be invoked for every encroachment. It is only encroachments over a certain threshold that make the provision relevant. The relationship between the first and third paragraphs of Article 112 thus indicates that the measures under the third paragraph must bring the encroachment “down to” the permitted threshold. This can be expressed as the measure must be sufficient. A measures that is sufficient will satisfy the requirement that it must be “appropriate and necessary”. The term “measures” is broad linguistically and covers legislation, regulations and appropriations. There is no reason to understand the term more narrowly. The parties disagree whether CO emissions that occur after combustion of Norwegian oil and gas abroad are covered by Article 112. As mentioned, fulfilment of the duty to take measures under the third paragraph of Article 112 will mean that a decision which is otherwise prohibited becomes lawful. How Norwegian authorities would be able to fulfil their duty to take measures for exported oil and gas has not been clarified for the Court. Important means for reducing national emissions of CO include a CO tax and a scheme with emissions allowances. According to what the Court understands, such measures will not be available to Norwegian authorities for emissions from activities abroad. The relationship between the first and third paragraphs of Article 112 therefore argues against – as the Court sees it – considering emissions abroad as covered by Article 112. The second paragraph of Article 112 of the Constitution imposes requirements for the proceedings in a matter before a measure that may harm the environment is initiated. An assessment must be carried out to ensure that citizens are provided knowledge about planned “encroachment(s) on nature, so that they can look after “the right” they have under the first paragraph of Article 112. As the court will come back to in Section 5.3.2, the duty to carry out an assessment under the second paragraph of Article 112 of the Constitution is considered to


be met by the requirements stated in Sections 3-1 and 4-2 of the Petroleum Act. In the opinion of the Court, the duty to carry out an assessment under these provisions does not cover the possible effect of CO emissions from exported oil and gas, see more specifically Section 5.3.5. The relationship between the first and second paragraphs of Article 112 therefore also argues against – as the Court sees it – considering emissions abroad from Norwegian oil and gas as covered by Article 112. Under international law, each country is responsible for greenhouse gas emissions on its territory. The Court thus understands this to mean that the international obligations of Norway and other countries under both the Kyoto Protocol and the Paris Agreement relate to national emissions targets. Neither Norway nor countries in the same situation have any duty to take measures to compensate for the effect from oil and gas exported to other countries. However, obligations under international law do not limit protection rules in domestic law, for example, under Article 112 of the Constitution. Nevertheless, it appears unclear what consequences it would have for international cooperation if Norway should be responsible for emissions from exported oil and gas in addition to the emitting country. The Environmental Organisations have argued that Norwegian law rests on a solidarity principle and that emissions from exported oil and gas from Norway are also covered by Article 112. In connection with that, they have cited : Innføring i naturressurs- og miljørett (“Introduction to natural resources and environmental law”), pages 64 and 65, where it is pointed out: This is a central element in the Brundtland Commission’s way of thinking that the planet must be seen as a whole and that the natural resources on the planet must not be consumed by contemporary generations without thought for those who will come after us. This is now encapsulated in Norwegian law in Article § 110 b of the Constitution. It is also found in legislation, as in section 1, third paragraph, first sentence of the Land Act and Sections 1 and 57 of the Nature Diversity Act. Nevertheless, at several places in Norwegian legislation it is evident that the authorities must pay the same attention to the environmental impacts of a measure whether they arise in Norway or abroad (or affect areas that fall outside national jurisdiction). This has been laid down as a fundamental guideline for the application of the Pollution Control Act (Section 2, no. 6). A principle of non-discrimination with respect to foreign citizens and environmental impacts abroad has also been adopted in the Nordic Environmental Protection Convention of 1974, which has been implemented in Norwegian law by the Act of 9 April 1976 No. 21. It is also evident in Section 14-4 of the Planning and Building Act regarding impact assessments in connection with transboundary effects (see also Section 4- 2, third paragraph, of the Planning and Building Act). Section 16, second paragraph of the Environmental Information Act of 9 May 2003, No. 31, also expresses solidarity across national boundaries by granting a right to environmental information on effects on the environment outside Norway when they are caused by products handled by Norwegian enterprises and produced or distributed outside Norway’s boundaries. Based on this, it can be said that there is a legal principle in Norwegian law of solidarity across boundaries and generations when the disposition of natural resources is involved. As for the citation to (former) Article 110 b in the first paragraph of the quotation, it involves the relationship between generations, not the relationship between countries.

167


168

As the Court sees it, the legal provisions cited in the second paragraph in the quotation from Backer have in common that they regulate negative impacts to the environment abroad from activity in Norway. Viewed this way, the provisions are in accordance with a principle that it is the country where the environmentally harmful activity occurs that is responsible for limiting the harm. Substantial transboundary environmental effects of petroleum development are also regulated in Section 22c of the Petroleum Regulations. The Court cannot see how the provisions hold Norway responsible for environmental harm after exports of Norwegian raw materials. The provisions cited by Backer thus cannot be cited in support of Norway having a duty to take measures under Article 112 for emissions after combustion of Norwegian oil and gas abroad. Nor can the Court see that other sources of law have been cited which do so. Accordingly, the Court concurs with the Government’s view on this point. Emissions of CO abroad from oil and gas exported from Norway are irrelevant when assessing whether the Decision entails a violation of Article 112. In order for the Decision to entail a violation of Article 112, there must be a relationship between it and undesirable environmental impacts. This raises in turn a question of whether there must be a degree of certainty – in such case, how large – in order for undesirable impacts to occur. The Court finds that the parties agree that the “precautionary principle” indicates that there is no requirement that it be shown that the effects most likely will occur. Both parties have stated that risk is a more comprehensive criterion. This must be determined on the basis of impact and probability. Thus, there may be an acceptable risk even though the undesirable impact is great, when the probability that it will occur is sufficiently small. The Human Rights Commission stated at page 246 that – after an intensification in the third paragraph - there “would still be plenty of room for political discretion with respect to which measures are put in place at which time”. This indicates that the courts should be restrained in reviewing whether a given measure is sufficient. If the Storting has taken measures, in the Court’s opinion there are particular grounds to attach importance to this. This is because of the prior history of Article 112, i.e. (former) Article 110 b. Backer has stated the following in Lov og Rett 1993 and “Innføring i naturressurs- og miljørett 2012” (“Introduction to natural resource and environmental law 2012”) regarding the meaning of this provision: It is not intended for the courts to review the Storting’s legislative decisions on which solution should be chosen to attend to environmental considerations. It can be said that the constitutional provision leaves it to the Storting to chose the way forwards for protecting the environment. As mentioned, Backer has also stated that (former) Article 110 b under certain circumstances could be interpreted as a bar. After the right was strengthened through the adoption of Article 112, there are grounds in any event to assert that it [is] not without substance in areas that are regulated by statute, see Thengs “En standardtilnærming til Grunnloven § 112” (“A standard approach to Article 112 of the Constitution”) in TfR 1/2017 at page 44: Based on this, it can be asserted that it is no longer correct to understand the environmental provision in such a way that it loses its independent legal significance in areas regulated by statute, in other words, where the Storting has “taken a position”. The presumption that the


constitutional provision has been implemented where rules have been provided cannot be tenable any longer in light of the wording and the statements in the preparatory works quoted above. Such an interpretation has also been pointed out by Fauchald in the article: “Hva er konsekvensene av Grunnlovens miljøparagraf?” (“What are the consequences of the Constitution’s environmental paragraph?”), where he states that it is no longer tenable to assert that the Constitution’s environmental provision loses its importance in areas that are regulated by statute. Application of Article 112 as well to areas regulated by statute does not mean that measures adopted by the Storting may be disregarded. As the Court sees it, there are grounds – based on both the prior history and the statement from the Human Rights Commission – to attach importance to the Storting having taken measures when deciding whether the duty to take measures has been fulfilled. The Storting’s opinion can also be important if the Storting has taken a position on the constitutionality. This is not at issue in this case because the Storting has not considered the question. However, the Storting has taken a position on a predicate for the Decision, i.e. the decision on opening Barents Sea South-east. Then the Storting has more directly taken a position on the Decision, which the Court will return to in section 5.2.4. As the Court sees it, the concern that legal decisions in the area have a democratic basis warrants attaching great importance to the Storting’s position. 5.2.4 Has the duty to take measures under the third paragraph of Article 112 been met? Under Section 5.2.2, the Court has held that the right in Article 112 of the Constitution is not violated if the duty to take measures under the third paragraph of the provision is met. The Court has concluded under Section 5.2.2 that Article 112 does not cover CO emissions abroad from exported oil and gas. It is therefore not required that the Court assess whether sufficient measures have been taken to remedy the risk related to such emissions. Under Section 5.2.3, the Court has concluded that the risk for environmental harm related to the Decision can be characterised as limited. Whether the duty to take measures under the third paragraph of Article 112 has been met will be assessed according to this. It is stated under Section 5.2.2 that the courts should be restrained in reviewing whether a given measure is sufficient. It is stated at the same place that importance must be placed on the Storting having taken measures. Several of the measures at issue and which the Government has cited are legislation, i.e. measures laid down by the Storting. It is also stated in Section 5.2.2 that it is the Court’s opinion that importance must be placed on the Storting having taken a position on a predicate for the Decision, i.e. the decision on opening Barents Sea South-east, and that the Storting has more directly taken a position on the Decision. Questions related to the 23rd licensing round have thus been up for a vote in the Storting three times, i.e. in 2014, 2015 and 2016. As regards measures for remedying the risk for (traditional) environmental harm, the Government has pointed out that there are a number of safety measures that will attend to

169


170

environmental concerns on the Norwegian continental shelf in general and for the blocks the Decision covers in particular. According to what the Court understands, measures for remedying the risk for national CO emissions will also be important for the risk related to black carbon. The Government has also pointed out that there are both geographic and temporal limitations for exploration drilling, in that exploration drilling shall not occur closer than 50 kilometres from the actual observed ice edge from 15 December to 15 June. It has also been pointed out that further assessment will be carried out under Section 4-2 of the Petroleum Act in connection with any development and operation of one or more of the blocks and that in connection with that, additional environmental requirements can be imposed on the operators at that time. Reference has been made to the discussion in Proposition No. 43 (1995-96) to the Odelsting at page 34 of the relationship between the process related to opening of a new area and in connection with any development: The Ministry of the Environment has stated in its consultation statement that the Act should be clarified, so that the balancing that will take place before opening new areas will also cover the operating phase. Under the legal definition of petroleum activities in Section 1-6 c), both production and use of petroleum are covered, in other words, the operating phase is included in the term “petroleum activities”. By replacing the term “activities” with “petroleum activities” in the text of the Act, it becomes clearer that the assessment that must be done before opening new areas includes all stages in the activities. However, the Ministry will point out that it is primarily the effects from the activities in the exploration phase that must be assessed pursuant to Section 3-1. At the time for consideration of opening, it is impossible to have a clear opinion of whether discoveries will be made or these will be the object of development. Because of this, it can be difficult in practice to have particularly extensive assessments regarding the development and operating phase. In addition, there are special provisions in the Act regarding impact assessments before development can be commenced, see Section 4-2, second paragraph which is also given corresponding application for Section 4-3. The Environmental Organisations have pointed out that emissions from petroleum production are Norway’s largest impetus for emissions and that Norway so far has not been close to achieving its emissions targets. They have stated that Norway is not doing enough. Whether enough is being done in climate policy generally lies outside what the Court must review. As indicated above, the measures meet the requirements that can be inferred from Article 112 of the Constitution. In relation to this requirement, enough is therefore being done. The Environmental Organisations have emphasised that the Decision must be assessed in a broader context. They have pointed out that these are the first licenses granted after there is reliable knowledge that the world’s proven fossil fuel resources exceed what can be burned in order to reach the goals in the Paris Agreement. They have also emphasised that the Decision opens the way for petroleum activities further east and north than ever and have alleged that the purpose is to maintain petroleum production at the current level despite the fact that emissions must be reduced at a dramatic pace. They have also argued that the Decision contributes to extensive investments and technology development that contribute to increased fossil fuel production (the path argument) and that we are confronting a crossroads (the crossroads argument). They have pointed out that there is not even room for emissions from discovered oil and gas reserves in


the carbon budget. They have stated that everyone must take responsibility and that Norway occupies a special position and that The Government must point out which countries will let their resources lie unused so that the Government can produce more. They have also emphasised that the demand for oil and gas will be reduced in such a way that it is far from certain that production from the blocks the Decision covers will be profitable. As the Court sees it, none of these arguments are relevant in the assessment of whether the Decision violated Article 112 of the Constitution. In part it is talk of possible impacts from the Decision that are too remote in relation to the risk that is relevant to assess, and in part the issues involve overall assessments that are better assessed through political processes that the courts are not suited to reviewing. Accordingly, it is the Court’s opinion that the Decision as such or parts of it are not contrary to Article 112 of the Constitution. This is because the duty to take measures has been fulfilled. 5.2.7 Summary and conclusion on the question of whether the Decision is contrary to Article 112 of the Constitution Article 112 of the Constitution is a rights provision, which can mean that decisions like the one at issue here are invalid. However, the decision in this case does not violate Article 112. The risk of both (traditional) environmental harm and climate deterioration as a result of the Decision is limited, and remedial measures are sufficient. Some issues that the Environmental Organisations have raised fall outside what is supposed to be reviewed by the Court. The case involves the validity of the decision on awarding licences in the 23rd Licensing Round, not the decision on opening Barents Sea South-east, Barents Sea South or Norwegian environmental and climate policy in general. Whether Norway is doing enough in the environmental and climate area and whether it was prudent to open fields so far north and east are questions that involve overall assessments which are better evaluated through political processes that the courts are not suited to reviewing. 5.4 Conclusion The Environmental Organisations’ argument that the Decision violates Article 112 of the Constitution has not prevailed. Nor have the arguments regarding procedural error etc. Judgment will therefore be granted in favour of the Government of Norway through the Ministry of Petroleum and Energy. The judgment has not been issued within the deadline of two weeks in Section 19-4, fifth paragraph, second sentence of the Dispute Act. The reason must therefore be stated in the judgment, Section 19-4 fifth paragraph, fourth sentence. The reason that the two- week deadline has been exceeded is primarily that preparation of the judgment has been labour-intensive, but also because of other ongoing work assignments

171


172

DECISION The Government of Norway through the Ministry of Petroleum and Energy is found not liable. Foreningen Greenpeace Norden, Natur og Ungdom and Besteforeldrenes klimaaksjon are jointly ordered to pay within 2 – two – weeks legal costs of 580,000 – five hundred eighty thousand – Norwegian kroner to the Government of Norway through the Ministry of Petroleum and Energy. COURT OF APPEAL JUDGMENT (2020) The case involves the question of whether the decision taken by the Royal Decree of 10 June 2016 on awarding production licences for petroleum on the Norwegian continental shelf in Barents Sea South and in Barents Sea South-East, the “23rd Licensing Round” is invalid. The decision was taken pursuant to the Norwegian Act of 29 November 1996 No. 72 relating to Petroleum Activities, Section 3-3. More specifically, the issues in the case are whether the decision is contrary to Article 112 of the Norwegian Constitution, whether the decision is contrary to Article 2 or Article 8 of the European Human Rights Convention, as well as Article 93 or Article 102 of the Norwegian Constitution, and whether the decision is invalid because of procedural errors. The case raises in particular questions regarding the interpretation of Article 112 of the Norwegian Constitution related to whether, and the extent to which, the provision grants rights, and how the provision may be applied to emissions of greenhouse gases. 3. Is the decision on awarding production licences contrary to Article 112 of the Norwegian Constitution? 3.1 Global warming as an environmental problem There is broad agreement that global warming is one of the greatest challenges humanity is facing. The warming of the planet is caused by emissions of greenhouse gases, primarily carbon dioxide (CO2), to the atmosphere. CO2 is released into a natural cycle and absorbed by plants and the ocean. In the case of anthropogenic emissions, such as from combustion of fossil energy sources, more CO2 is released than the natural cycle can absorb and remains in the atmosphere. The knowledge about the climate changes is based to a large degree on reports from the UN’s climate panel – the IPCC. To this point in time, the emissions have resulted in an average temperature increase of around one degree Celsius compared with the pre-industrial era. If the emissions continue in line with the climate policy that is currently being conducted in the world, the warming will continue to 3–4 degrees towards the end of the century, see the Norwegian Climate Risk Commission’s report NOU 2018: 17 “Klimarisiko og norsk økonomi” (“Climate risk and the Norwegian economy”), page 39. The emissions occurring today will remain in the atmosphere for a long period, and the matter therefore involves changes that can have an effect several hundred years into the future. The risk picture for global warming includes heat waves, drought, extreme precipitation, extreme wind, sea level rise and ocean acidification. This will in turn have consequences for food production and biodiversity. Extreme climatic conditions, such as heat waves, might also result in loss of human lives. The risk of such consequences will depend to a large degree on the extent of the warming.


The climate changes and the effects of these are distributed unevenly around the world. The risk picture for Norway’s part was assessed by the Norwegian Climate Risk Commission. The consequences for Norway have been assessed on the basis of a high- emission scenario that results in a global temperature increase of 4.3C towards the end of the century compared with the pre-industrial era. The estimated consequences for Norway are uncertain. It is estimated that the temperature increase in Norway will be somewhat greater than globally – as much as 5.5C compared with the pre-industrial era, i.e. approximately 4.5C warmer than today. It is estimated that the temperature increase for the Arctic, including Svalbard and parts of Finnmark, will be even greater. Seen in isolation, a warmer Norway will mean a longer growing season, but also more drought, a higher tree line and increased risk of forest fires. Norway will become wetter with more frequent heavy precipitation, and the heavy precipitation will become even heavier. The flood pattern will change, the snow pattern will change and the glaciers will contract. The ocean off Norway will become warmer and more acidic. There are large gaps in knowledge regarding the actual effect of a warmer and more acidic ocean, but this can result in major consequences for marine species and ecosystems and displace marine species northwards. The sea level around Norway will rise from 15 to 55 cm, i.e. less than other places in the world. The sea level rise will result in increased consequences from storm surges. For Norway’s part, there will thus be a particular risk of flooding and slides, as well as various types of property damage caused by extreme precipitation. In ecological terms, life in the sea will be affected the hardest.

Image: There have been some climate displacement cases considered by courts, but many more will need to be heard if all climate displaced persons are to achieve true climate justice. Western Bangladesh. Kadir van Lohuizen/ NOOR.

173


174

Under Article 2 of the Paris Agreement, the parties agree to “holding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels”. The same article states that the Agreement is based on “the principle of common but differentiated responsibilities and respective capabilities, in the light of different national circumstances”. The Agreement is based on each state reporting nationally determined contributions (NDC), see Article 3. The contributions are to be reported every five years, and they are to represent a progression and express the state’s highest possible ambition, see Article 4, No. 3. Norway’s current NDC is a 40 per cent reduction before 2030 compared with 1990. This is a common solution with the EU. However, the combined emissions targets that have been reported are clearly too low to achieve the goal in the Agreement of limiting the warming to 1.5°C, see NOU 2018: 17, page 46. Actual global emissions still show an increasing trend. The IPCC has prepared a so-called carbon budget. Various models for this yield somewhat different answers. It is estimated that from 1870 to 2018, approximately 2,200 gigatonnes of CO2 (GtCO2) have been emitted. In order to reach the 1.5 degree goal with 50 per cent probability, only another 580–770 GtCO2 can be emitted, see NOU 2018: 17, page 47. With annual emissions of approximately 42 GtCO2, this means that there is only room for approximately 15 years of today’s emissions before the world must switch to zero net emissions, i.e. not emitting more than the natural environment can absorb. With a gradual reduction, it will be approximately 30 years before the switch is required. Total discoveries of coal, oil and gas represent approximately 3,500 GtCO2, of which coal clearly represents the largest share, followed by oil. Of today’s global emissions of approximately 42 GtCO2, coal is responsible for the largest share, then oil and then gas. An alternative to a reduction in use of fossil energy sources is carbon capture and carbon storage, as well as removal of CO2 from the atmosphere. However, there are currently no largescale technical solutions available for this, apart from using nature’s own methods, such as forestation. Norwegian emissions in recent years have remained relatively stable between 50 and 60 megatonnes of CO2 equivalents (MtCO2e) per year. Per inhabitant, this represents something under 10 tonnes per year, i.e. clearly more than the average in the world of approximately 5 tonnes per year, and also somewhat more than the average in the EU. The largest source of emissions in Norway is production of oil and gas. According to Statistics Norway, production of oil and gas in 2015 was responsible for approximately 15 MtCO2e – in comparision, land-based industry was responsible for 12 and road traffic for 10 MtCO2e. The emissions from combustion of oil and gas produced in Norway are far greater and are between 400 and 500 MtCO2. The emissions from combustion of Norwegian oil and gas thus represent approximately 1 per cent of global emissions. Emissions of CO2 are closely tied to the global economy, and in the same way that global demand for Norwegian petroleum is important, Norwegian demand for goods whose production and transport result in emissions is important in the big picture. The climate settlements from 2008 and 2012, see Recommendation to the Storting No. 145 (2007– 2008) and Recommendation to the Storting No. 390 (2011–2012), meant that Norway set an internal target of cutting national emissions by 30 per cent by 2020 in relation to the 1990 level, compared with the expected emissions path, and that approximately 2/3 should be cut internally. It does not appear that the targets will be achieved.


It must be emphasised that the scope of the climate changes and the consequences of these are uncertain and may be more extensive than the scenarios currently considered most likely. There is particular uncertainty related to the risk of greater self-reinforcing effects at so-called tipping points, which are presumed to apply to ice melt in Greenland and the Antarctic. 3.2 The consequences of the decision for emissions of greenhouse gases from the production in Norway A production licence grants exclusive rights to conduct surveys and to search for and produce petroleum within the geographic area covered by the licence, and the licensee becomes the owner of the petroleum that is produced, see Section 3-3, third paragraph of the Norwegian Petroleum Act. The production licences awarded in the 23rd Licensing Round involved 10 licences related to 40 blocks, of which 7 licences and 14 blocks were in Barents Sea South and 3 licences and 26 blocks in Barents Sea South-East. The emissions of climate gases can be divided roughly into two: emissions related to the production and emissions related to the combustion at the end user, where the latter for all essential purposes takes place abroad after export. The Court of Appeal will look first at emissions related to the production. At present, commercially exploitable discoveries have not been made in the blocks in question, and it is highly uncertain whether oil or gas will be found in such quantities that production will be profitable. The production licences thus involve only potential later emissions. Any production will not take place for 10–15 years. The exploration activity involves some emissions of greenhouse gases, but so marginally that it has no significance for the assessment under Article 112 of the Norwegian Constitution. It is also the case that even if commercially exploitable discoveries were to be made, a production licence does not grant an unlimited right to production. Any commercially exploitable discoveries cannot be produced unless the licensee has an approved plan for development and operation (PDO) pursuant to Section 4-2 of the Norwegian Petroleum Act. An impact assessment will normally be carried out which will also cover air emissions, see Section 22 a of the Norwegian Petroleum Regulations. The Ministry can deny approval or set conditions for approval. The parties disagree on whether denial, or approval of conditions which in practice mean a denial, is a real alternative. At this stage, a licensee will normally have incurred costs in connection with exploration, on the basis of an assumption of being able to cover these if commercially exploitable discoveries are made. The Court of Appeal points out that the Act requires approval, without setting criteria for the decision. A licensee is granted an exclusive right to production through the production licence, but this is predominantly negative in nature, in that no others may be granted such a right, and it does not grant an unconditional right to produce, see Hammer et al., Petroleumsloven (“The Norwegian Petroleum Act”) (2009), pages 41–42. A licensee is therefore not entitled to approval of a PDO. At the same time, a denial cannot really be seen to entail a reversal of the production licence, see Hammer et al., page 98. On the other hand, Section 4-2 of the Norwegian Petroleum Act must be read in connection with Article 112 of the Norwegian Constitution. The authorities must therefore be able to decide not to approve a plan for development and operation if environmental considerations at the time of the decision cannot adequately be taken care of through the plan. Nevertheless, a licensee must comply with the general frameworks for

175


176

petroleum activities at the time of production. Emissions allowance trading price, the level of CO2 tax and any other requirements imposed based on climate considerations may have developed so that the threshold for producing oil and gas discoveries is too high. Before commercially exploitable discoveries are made, only rough estimates can be made of possible emissions from the production itself. In the impact assessment that forms the basis for the opening of Barents Sea South-East, two estimates have been made of discoveries in this area, respectively 45 million standard cubic metres (Sm3) of oil and 120 billion Sm3 of gas in a high scenario, and 15 million Sm3 of oil and 30 billion Sm3 of gas in a low scenario. It is noted that this applies to all of Barents Sea South-East, i.e. a larger area than the blocks awarded in this area in the 23rd Licensing Round, while the blocks in Barents Sea South fall outside. Economics professors Mads Greaker and Knut Einar Rosendahl have calculated the CO2 emissions from such production at respectively 22 million tonnes and 4.5 million tonnes, which will be distributed over the production period. In the impact assessment, the CO2 emissions are calculated at 568,000 tonnes in a high scenario and 286,000 tonnes in a low scenario, in the year with the highest emissions, see the Impact Assessment, page 60. Compared with total annual emissions from the Norwegian Continental Shelf of approximately 15 million tonnes (2015), or total Norwegian emissions of 50–60 million tonnes, this represents a minor contribution. Compared with the global emissions, the emissions are of even less importance. This must then be measured against the actions taken. A key measure is Norway’s accession to the EU’s emissions allowance trading system, see the Norwegian Greenhouse Gas Emission Trading Act, which in brief is based on buying and selling allowances for CO2 emissions within a total allowance quantity that is reduced annually. The emissions allowance trading system is intended to contribute to emissions reductions occurring where it is most beneficial from a socio-economic perspective. Assuming a well-functioning emissions allowance trading system, this means that increased emissions from the Norwegian Continental Shelf will not affect the total emissions within sectors required to surrender allowances in the EU. The Court of Appeal also points out that the Paris Agreement accepts regional emissions allowance trading systems and other flexible mechanisms, see Article 4, No. 16, and Article 6. Such mechanisms mean that a country can go a long way towards “buying itself out of” national cuts. It can be asserted that the schemes are to a certain extent at odds with the Paris Agreement’s burden-sharing principles and the requirement for a highest possible level of ambition. As the Court of Appeal sees it, at this point we are talking about choices of measures that lie outside a review under Article 112. The Court of Appeal assumes that the emissions allowance trading system is significant for the net effect of the emissions and therefore represents a relevant measure under the third paragraph of Article 112. There are also measures for reducing the national emissions from the Norwegian Continental Shelf. A CO2 tax has been introduced, see the Norwegian CO2 Tax Act on Petroleum Activities, which has worked as an incentive to reduce the emissions, see in particular Recommendation to the Storting 382 (2014–2015), p. 12. Various restrictions have been issued on emissions, such a prohibition on burning off excess gas, and work is being carried out to electrify the continental shelf.


Emissions that can be related to the decision in the 23rd Licensing Round must also be viewed in connection with other emissions, see Section 2.4 above regarding the interpretation of Article 112. The Environmental Organisations have claimed that Norway on an overall basis already emits too much CO2 – Norway is not in a position to meet its own emission targets, and the emission targets have been set too low in any event. Therefore, in their view, neither can permission be granted to search for new discoveries. These views will apply similarly to later licensing rounds and therefore mean in reality a controlled phasing out of Norwegian petroleum activities. The Court of Appeal finds that fulfilment of the targets in the Paris Agreement requires drastic cuts in emissions. Total reported national contributions are too low to fulfil the Paris Agreement’s targets, and therefore a progression must occur in the contributions. The burden-sharing principles in the Agreement are suited to strengthening Norway’s responsibility. This is directly in opposition to searching for new discoveries. However, it is not the case that other Norwegian emissions are fixed. An ongoing technical and political assessment is being carried out of where cuts will be made and how these can be achieved. A gradual reduction of emissions in line with the 1.5 degree target will also provide room for some emissions that may be prioritised, including in a low-emissions society. In addition, it is possible as mentioned to use flexible mechanisms, such as emissions allowance trading schemes. Which national emissions are appropriate to prioritise is beyond the power of the courts to review under Article 112. As mentioned under the review of Article 112 in Section 2.4 above, the view that there is room for the emissions presumes that measures will be taken to reduce total national emissions that can provide such room. A number of measures have been taken for various sectors to reduce national emissions, see for example, the summary in the Norwegian national budget, Report to the Storting 1 (2018–2019), pages 86 et seq. It is presumed there that the measures will have reduced the emissions by 20-23 million tonnes for 2020. Despite these measures, national emissions have been at approximately the same level in recent years, and the measures therefore have essentially prevented an increase in the emissions. However, Norway will be able to use flexible mechanisms. In addition to emissions from petroleum activities, emissions from land-based industry, major energy installations and aviation within the EEA – in all, about half of Norwegian emissions – are subject to the EU’s emissions allowance trading system. Under the plan, the annual reduction in the quantity of allowances will lead to an emissions reduction of 43 per cent by 2030 in the sector required to surrender allowances compared with 2005, see Report to the Storting 41 (2016–2017), page 27. With respect to the sector not required to surrender allowances, the states that are part of the EU scheme share efforts among themselves with flexible mechanisms, such as the opportunity to convert emissions allowances from the emissions allowance trading system and trading in emissions units. As mentioned, the Court of Appeal assumes that flexible mechanisms represent a measure under the third paragraph of Article 112, as these are significant for net emissions. There is also an overall strategy for reduction of national emissions, which is specifically regulated through the Norwegian Climate Change Act, see particulars under Section 5.3 below. The Environmental Organisations have cited comparative law, and the Urgenda case in the Netherlands in particular. However, the case involved a declaratory judgment action for the total extent of emissions reduction, in which the appellate court upheld the judgement of the court of

177


178

first instance that ordered a 25 per cent reduction from the state by the end of 2020, compared with 1990. The appellate court states that it is up to the state how the emissions are reduced, see paragraph 74, and therefore no position is taken on the prioritising of emissions. The judgement was appealed to the Supreme Court of the Netherlands, and a judgment was rendered after this case was taken up for decision. As the Court of Appeal understands it, the result at the Supreme Court of the Netherlands was the same as in the previous instances. The Environmental Organisations have also pointed out that stopping the awarding of production licences will have a substantial signal effect, and especially because it will be important for the transition to an emissions-free economy. For the Court of Appeal, this is too vague to be relevant for the review. The Court of Appeal points out that the consequences for national emissions of a continuation of the petroleum activities is the subject of ongoing political debate and voting in the Storting, see citations included in Sections 3.3 and 5.3 below. The prioritisations in climate policy involve socio-economic and political balancing in the core area for what the courts should be constrained in reviewing. As the Court of Appeal sees it, possible future emissions related to the production licences awarded in the 23rd Licensing Round do not bear such importance for the national emissions, when the measures taken are also considered, that the threshold under Article 112 has been exceeded. 3.3 The consequences of the decision for emissions of greenhouse gases from combustion abroad As mentioned, it is uncertain whether the production licences will at all be followed up with production of petroleum and thereby lead to emissions, and in that event how much. If commercially exploitable discoveries are made, the largest emissions will occur through combustion after export. It is estimated that up to 5 per cent of the emissions occur in connection with the production and at least 95 per cent in connection with the combustion. The high and low scenarios for Barents Sea South-East as a whole, see above, have thus been calculated by Greaker and Rosendahl to be respectively 370 and 100 million tonnes CO2 over the period the combustion of these resources will occur. This represents a minor part of the total emissions that can be tied to the combustion of Norwegian oil and gas, which annually are 400–500 million tonnes of CO2. This represents in turn a small share, approximately 1 per cent, of total annual global emissions. When the emissions from the combustion are also included, the significance will therefore be marginal in comparison with total global emissions. Measures to combat global emissions are – from a legal perspective – more difficult. However, in the opinion of the Court of Appeal it is natural to view Norway’s role as a driving force internationally for binding agreements on emissions reductions as a measure under the third paragraph of Article 112. The same applies to measures based on reducing clearing of the rainforest, see Norway’s International Climate and Forest Initiative, as well as support for adaptation for developing countries. Compared with such measures, shutting down or reducing Norwegian petroleum activities may prove less cost-effective.


The emissions from the combustion must also be assessed in a wider context, against the total emissions. The targets in the Paris Agreement mean that the total global emissions must be reduced dramatically and in the course of a brief time. The Environmental Organisations have stressed in connection with this that more fossil resources have already been discovered than can be burned within the remaining carbon budget if the targets in the Paris Agreement are to be achieved, and therefore awarding licences for exploration for additional fossil resources cannot be defended. In the view of the Court of Appeal, this perspective is too narrow. The largest share of today’s CO2 emissions comes from coal, then oil and then gas. The largest reserves are also coal, then oil and then gas. Emissions from fossil energy sources will have to occur during a transition period, and then preferably from the most CO2-efficient sources. A low- emissions society will also have to make room for certain emissions. In the same way as for the internal emissions, there will also have to be room for the emissions from the combustion. This view assumes that the total global emissions will be reduced in line with the Paris Agreement. Unlike the internal emissions, Norway has no control over the prioritisation of emissions internationally. Norway’s accession to the Paris Agreement, which is based on each country reducing its own emissions, can nevertheless be seen as a strategy directed at global reduction of emissions. However, the measure is only effective to the extent the Paris Agreement functions according to its purpose. The alternative will be a gradual phasing-out of Norwegian exports of oil and gas. However, this does not necessarily mean that the world’s energy requirements as a whole will be covered in a more climate-friendly manner. If gas is replaced by coal, cuts in gas exports will have a negative CO2 effect. If gas is replaced by alternative energy sources, the effect will be positive. If the gas competes with gas from other suppliers, the effect might be nil. With respect to oil, cuts in Norwegian production might quickly be replaced by oil supplied from other countries. If Norwegian oil or gas is used within the sector required to surrender emissions allowances, total emissions will not necessarily be affected. The actual significance of Norwegian exports of oil and gas for global emissions is therefore complicated and controversial, and there are few investigations into the question. In the article “Parisavtalen og oljeeksporten” (“The Paris Agreement and Oil Exports”) by Taran Fæhn et al. in Samfunnsøkonomen no. 3 2018, it is estimated that the net effect of cutting exports of Norwegian gas will be nil and that the net effect of cutting Norwegian oil will be around a third of the gross emissions. The conclusions are controversial, in both directions. Geological surveys have shown Barents Sea South-East to be the place where gas is most likely to be found, see Section 5.2 below. At the same time, there is a greater likelihood that cuts in production will actually be significant the further into the future these arise, as it must be assumed that alternative energy sources will constitute a steadily larger competitor. If, despite these uncertainties, the estimated emissions related to Barents Sea South-East are adjusted according to the conclusions in the referenced article, the high and low scenarios result in 40 and 13 million tonnes of CO2, respectively. The Court of Appeal also points out that even if the significance of the global emissions is dramatic, it will be the environmental effects in Norway that are the key issue for the assessment under Article 112 of the Norwegian Constitution, see Section 2.4 above. The effects in Norway may be serious enough, but they appear to be more limited and of a different nature than the global effects. A number of measures have been put in place to limit the effects in Norway.

179


180

The Storting on several occasions has taken a position on proposals for entire or partial phasing out of Norwegian petroleum activities based on the significance for global greenhouse gas emissions. All the proposals have been rejected with a broad majority. Proposals have been advanced to stop awards in the 23rd Licensing Round on the basis of such a justification, see Recommendation to the Storting No. 206 (2013–14), see Document 8:39, and Recommendation to the Storting No. 274 (2015–2016), see Document 8:49 – the first-mentioned proposal was also defeated a short time after Article 112 of the Norwegian Constitution was adopted. Several proposals have also been presented independently of the 23rd Licensing Round, see for example, Recommendation to the Storting No. 258 (2016– 2017), Recommendation to the Storting No. 130 (2017–2018), Recommendation to the Storting No. 253 (2017–2018), Recommendation to the Storting No. 368 (2017–2018) and Recommendation to the Storting No. 321 (2018–19). The rejection of the proposals relies in part on the importance of the petroleum activities for the Norwegian economy and the fact that in a low-emissions society there will also be room for oil and gas, see for example, Recommendation to the Storting No. 258 (2016–2017), page 3. The Court of Appeals wishes to emphasise that it is particularly when emissions are also included from the combustion that the climate-related consequences come to the fore. However, the threshold for finding a violation of Article 112 of the Norwegian Constitution is high, and the matter involves socio-economic and political balancing on which positions are continuously being taken in the Storting and which is in the core area for what the courts should be constrained in reviewing. It is also an element in the assessment of such emissions under Article 112 that the Paris Agreement is based on each country taking measures against its own national emissions. On the basis of an overall assessment of the elements that have been reviewed, the Court of Appeal cannot see that the threshold under Article 112 has been exceeded. 3.4 The consequences of the decision for local environmental harm The Barents Sea is a particularly rich maritime area. Natural conditions have resulted in an area that is rich in plankton and an important reproduction area for large populations of fish, which in turn provide a basis for animal life upwards in the food chain. A unique ecosystem occurs at the ice edge, with extensive production of plankton in the spring. The polar front, i.e. the area where cold water from the Arctic Ocean meets warm water from the Atlantic Ocean, also results in a unique ecosystem. Both the ice edge and the polar front are particularly vulnerable to oil spills and have therefore been identified as particularly valuable and vulnerable areas from an environmental perspective. The ice edge is in motion throughout the year, and the extent varies from year to year. The climate changes mean that the ice edge and the polar front are generally retreating. In addition to oil spills, the area is particularly vulnerable to emissions of “black carbon”, which increases the ice melt. It is particularly in the event of mishaps or accidents that result in burning of oil that major emissions of black carbon will occur. Burning off excess gas also results in emissions. The designation of areas as particularly valuable and vulnerable areas is determined in management plans. Report to the Storting No. 8 (2005-2006) Om helhetlig forvaltning av det marine miljø i Barentshavet og havområdene utenfor Lofoten (“Integrated Management of the Marine Environment of the Barents Sea and the Sea Areas off the Lofoten Islands (Management plan”), states on page 123 that petroleum activities will not be started at the ice edge and the


polar front. In the update to the management plan in Report to the Storting No. 10 (2010–2011), the same is said on page 132, but limited so that such activities will not be started during the Storting period in question. In the next update in Report to the Storting No. 20 (2014–2015), a redefinition of the ice edge was proposed to take account of the fact that the ice edge has retreated because of climate changes. The report was returned to the Government, and the Government was asked to start work on a regular comprehensive revision of the management plan, see Recommendation to the Storting No. 383 (2014-2015). A new management plan is expected in 2020. The production licences in the 23rd Licensing Round include some blocks inside the polar front and the ice edge as these are defined in Report to the Storting No. 10 (2010–2011). The licences also include blocks that are closer to the polar front and the ice edge than previous licences. During the consultation round, both the Norwegian Environment Agency and the Norwegian Polar Institute advised against announcing blocks inside or close to particularly valuable and vulnerable areas. Of the blocks that were awarded, fourteen blocks were advised against by both bodies and another six by the Norwegian Environment Agency. The advice from the Norwegian Environment Agency to refrain related in particular to the need for a thorough technical process to define a boundary for the ice edge that also covers more extreme years. Emergency response problems were also cited. The Norwegian Polar Institute cited in particular the need for more knowledge, the risk with oil activities in this area and the question of whether the emergency response is adequate. Local environmental harm has not occurred to this point. However, the risk relates particularly to the production of oil and gas that will take place if commercially exploitable discoveries are made. A number of measures have been taken to protect against local environmental harm. There is a strict safety regime on the Norwegian Continental Shelf, with comprehensive regulations for protecting against local discharges. In addition, several individual licences are required, such as a licence for the individual exploration, where special conditions can be imposed. If commercially exploitable discoveries are made, a new impact assessment will be made in connection with an application for approval of a PDO, where once again conditions can be imposed, see Section 4-2 of the Norwegian Petroleum Act. An example of a specific measure is a prohibition on burning off excess gas with a possibility for a waiver. A supplement to Report to the Storting 36 (2012–2013), Report to the Storting No. 41 (2012–2013), states that drilling period limitations will be imposed, including a prohibition on drilling in areas closer than 50 kilometres from the actual and/or observed ice edge during the period from 15 December to 15 June. Calculations have been made in the Impact Assessment of the risk for blow-outs that result in environmental harm, which are summarised on page 8 of the European Convention on Human Rights, see page 97. It is indicated that during the development and operating phase, the probability of a blow-out resulting in moderate environmental harm to sea birds is one occurrence per 4,000 years, and for moderate environmental harm to the ice edge it is one occurrence per 20,000 years. The probability of serious environmental harm is even lower. With respect to the exploration phase, it is concluded that if three exploratory wells are drilled per year, one occurrence of serious and moderate environmental harm to sea birds can be expected every 15,000 and 6,000 years, respectively, and one occurrence of serious and moderate environmental harm to the ice edge every 11,000 and 7,500 years, respectively. Accordingly, the Court of Appeal concludes that even if the consequences of oil spills can be dramatic, the risk is low.

181


182

The Court of Appeal also points out that a broad majority of the Storting has concurred in the 23rd Licensing Round, with knowledge of the mentioned environmental risks, see Recommendation to the Storting No. 495 (2012–2013) on the opening of Barents Sea SouthEast, based on the Impact Assessment. We will also point out that a number of initiatives to stop the 23rd Licensing Round for the blocks most exposed to the risk of local environmental harm have been rejected with a broad majority, see Recommendation to the Storting No. 383 (2014– 15), Recommendation to the Storting No. 274 (2015–2016) and Recommendation to the Storting No. 326 (2017–2018). As the Court of Appeal sees it, the risk of local environmental harm is so low that the decision is not contrary to Article 112 of the Norwegian Constitution. 3.5 Overall assessment of the decision’s significance for the environment. Socioeconomics The parties agree that an overall assessment is to be made of the environmental impacts. The Environmental Organisations have pointed out that the purpose that justifies the decision – a net socio-economic benefit – is based on incorrect premises and cannot be assumed. The Court of Appeal is satisfied here with referring to the review below related to the proceedings. There is no basis to review the assessment that development and operation are highly likely to result in a net socio-economic benefit. Nor can the Court of Appeal see under an overall assessment that the decision exceeds the threshold under Article 112 of the Norwegian Constitution. The total greenhouse gas emissions, i.e. from both the production and the combustion, must be assessed against the serious climate changes. However, the matter involves uncertain and unique future emissions, and the measures under the third paragraph of Article 112 that could provide room for the emissions can best be assessed at the time the emissions are imminent, i.e. in connection with any approval of a plan for development and operation. There is also an element, which is not in itself determinative, that all consequences for the environment that have been reviewed above, as well as the objections to the socio-economic assessments, have been considered by the Storting several times but the decision nevertheless has been upheld with a broad majority. 4. Is the decision contrary to ECHR Articles 2 or 8 or Articles 93 or 102 of the Norwegian Constitution? 4.1

The issue of dismissal

The Government has questioned whether the Environmental Organisations can act as plaintiffs in claiming that the decision is invalid because of ECHR Articles 2 and 8, as they cannot be a “victim”. If they are unable to do so, it must lead to this part of the lawsuit being dismissed. Under ECHR Article 34, any person, organisation or group of individuals claiming to be subject to violations (a “victim”) of a violation of the rights set forth in the Convention may bring the matter before the European Court of Human Rights. Under Section 1-3 of the Norwegian Dispute Act, there is a requirement for a party’s connection to the claim in order to bring a legal action. Section 1-4 of the Norwegian Dispute Act expressly provides that organisations may bring legal actions but requires that the conditions in Section 1-3 are met.


The Court of Appeal finds no reason to go further into whether there is a basis for dismissing this part of the lawsuit, as it finds it clear in any event that the Government must also be held not liable as regards this basis, see Section 9-6, third paragraph of the Norwegian Dispute Act, see Section 29-12, third paragraph. 4.2 The issue of invalidity ECHR Article 2 protects the right to life. The provision also provides for positive duties for the authorities, including for hazardous industrial activities, see for example, the judgement of the European Court of Human Rights in Oneryildiz v. Turkey, 30 November 2004, which involved a waste dump. It is required that the risk of loss of life is “real and immediate”, see the mentioned judgement at paragraphs 100–101, and Kjølbro, Den europæiske Menneskerettighedskonvention – for praktikere (“The European Human Rights Convention – for Practitioners”) (fourth edition, 2017), page 212, which uses the expression “aktuell og nærliggende risiko” (“real and immediate risk”). The Court of Appeal cannot see that the decision on awarding production licences involves the right to life in a manner that is protected by ECHR Article 2. The consequences of climate changes globally are beyond the State of Norway’s obligations under the ECHR, see ECHR Article 1 regarding the requirement that a state shall secure the rights of “everyone within [its] jurisdiction”. With respect to the consequences of climate changes in Norway, it cannot be ruled out that these will result in loss of human life, for example through floods or slides in areas that are particularly exposed to this. However, the relationship between the production licences in the 23rd Licensing Round and loss of human life does not clearly fulfil the requirement for a “real and immediate” risk. The Court of Appeal refers to the review in Section 3.1-3.3 above, where it is indicated that it is uncertain whether emissions will occur based on the decision, and that these will in any event be marginal when compared with total global emissions. If emissions based on the decision are also viewed in connection with other greenhouse gas emissions, the decision does not result in a “real and immediate” risk of loss of life for inhabitants of Norway in general. ECHR Article 8 protects the individual’s private life, family life and home. Case law from the European Court of Human Rights shows that the provision implies positive duties for the state which in certain cases may result in a duty to protect the environment. The provision has primarily been applied to local environmental contamination, and the European Court of Human Rights has not decided any climate cases. In the judgment Atanasov v. Bulgaria of 2 December 2010, the European Court of Human Rights states the following, see paragraph 66: In today’s society the protection of the environment is an increasingly important consideration [...] However, Article 8 is not engaged every time environmental deterioration occurs: no right to nature preservation is included as such among the rights and freedoms guaranteed by the Convention or its Protocols [...] Indeed, that has been noted twice by the Council of Europe’s Parliamentary Assembly, which urged the Committee of Ministers to consider the possibility of supplementing the Convention in that respect (see paragraphs 56 and 57 above). The State’s obligations under Article 8 come into play in that context only if there is a direct and immediate link between the impugned situation and the applicant’s home or private or family life [...] Therefore, the first point for decision is whether the environmental pollution of which the applicant complains can be regarded as affecting adversely, to a sufficient extent, the enjoyment of the amenities of his home and the quality of his private and family life.

183


184

The latter means that the effects must exceed a certain threshold, see the statements in the European Court of Human Rights’ decisions in the cases Hatton et al. v. United Kingdom (expanded panel), 8 July 2003, paragraph 96, Kyrtatos v. Greece, 22 May 2003, paragraph 54, and Fadeyeva v. Russia, 9 June 2005, paragraph 69. The requirements mean that a great deal is required before future contamination is affected, see the dismissal decision in Asselbourg et al. v. Luxembourg, 29 June 1999. As the Environmental Organisations have brought the case, serious consequences are required for private life, family life and home for the inhabitants of Norway at a general level, in contrast to if the lawsuit had been individualised, such as to inhabitants in specific areas who are particularly exposed. As the Court of Appeal sees it, there is clearly no “direct and immediate link” between the emissions that might result from the decision and serious consequences for the rights under Article 8 for the inhabitants of Norway at a general level. The Court of Appeal also refers here to the review in Sections 3.1-3.3 above. Neither can such a direct and immediate connection be shown regarding emissions that might result from the decision when seen in connection with other greenhouse gas emissions. The decision, therefore, is not affected as such by Article 8 of the European Convention on Human Rights. The Environmental Organisations have cited in particular the Urgenda case from the Netherlands, which is based on ECHR Articles 2 and 8. There is no doubt that the decision breaks new ground for the application of the ECHR. However, in the opinion of the Court of Appeal, the decision has little transfer value as it involved issues regarding general emissions targets and not, as in this case, specific future emissions from individual fields that might eventually be put into production in the future. There is no conflict between the result the Court of Appeal has arrived at in this case and the result in the Urgenda case. The Environmental Organisations have also pointed out that the European Court of Human Rights, when determining the substance of the rights, can rely on international agreements that constitute “common ground” between the Member States, see Demir and Baykara v. Turkey, 12 November 2008, paragraphs 85–86, and the fact that the Paris Agreement and the reports from the UN’s Intergovernmental Panel on Climate Change can be brought in, in connection with this. However, the doctrine can hardly be used in the same manner in the environment area when the ECHR has no separate environmental provision. Irrespective of this, it has not been shown that the production licences will be contrary to the Paris Agreement, see Section 3.2 above. The Court of Appeal will note that if the decision nevertheless were to be considered a “real and immediate” risk of loss of life, or be in a “direct and immediate” relationship with serious encroachments on the right to a private life, family life or home, a closer review would have to be made of whether the Government has met its positive obligation to protect the rights. This will entail an assessment of the measures from the Government in a manner similar to Sections 3.2 and 3.3 above. The Government will have a discretionary margin in that regard. There is nothing to indicate that the result of such an assessment will be different under ECHR Articles 2 and 8 than under Article 112 of the Norwegian Constitution. Accordingly, the decision is not contrary to either ECHR Article 2 or Article 8. The Environmental Organisations have also claimed that the decision is contrary to the corresponding provisions in Articles 93 and 102 of the Norwegian Constitution. The Court of Appeal cannot see that these extend any further than the ECHR in this area. This is particularly the case since the Norwegian Constitution, unlike the ECHR, has its own environmental provision. It is also noted that the UN’s Human Rights Committee adopted on 3 September 2019 a


185

Image: Courts can help secure legal remedies for everyone threatened by climate change, including these vulnerable families in Gunayala, Panama. Kadir van Lohuizen / NOOR.

General Comment on Article 6 of the International Covenant on Civil and Political Rights on the right to life. In paragraph 62, it is pointed out that climate changes represent one of the most serious threats to “the ability of present and future generations to enjoy the right to life”. It is also pointed out that a state’s international obligations in the environmental area should influence the substance of Article 6 of the International Covenant on Civil and Political Rights, and that a state should ensure sustainable use of natural resources. The comment is formulated on this point as encouragement instead of obligations, and the text is too general in any event to have any significance in this case. Neither can the Court of Appeal see that the pleadings in support that have been submitted pursuant to Section 15-8, and which essentially deal with international obligations, in part under the ECHR and in part under general international law principles, contain anything suited to providing a different conclusion. The judgment is unanimous. DECISION 1.

The appeal is to be dismissed.

2. Legal costs are not awarded, neither for the District Court nor the Court of Appeal.


186

GERMANY LLIUYA 31. In 2015, Saúl Luciano Lliuya, a Peruvian farmer filed a claim for a declaratory judgment and damages in a Germany against RWE, Germany’s largest electricity producer139. Lliuya alleges that the company’s greenhouse gas emissions threaten his family, property, and his home city of Huaraz. He asserts that TWE knowingly contributed to climate change in relation to its substantial volume of emissions, and thus bears a measure of responsibility for the melting of mountain glaciers and the subsequent volumetric increase of a lake in Huaraz140. Lliuya characterised the emissions as a nuisance, and based his claim on the German Civil Code which provides for nuisance abatement and injunctive relief141. Lliuya sought a costs order to reimburse him a portion of 0.47% of total costs that he and Huaraz authorities had incurred to establish flood protections. 0.047% is the estimate of RWE’s annual contribution to global greenhouse gas emissions142. 32. At first instance, the court dismissed the claim. It noted that there was no “linear causal chain” between particular greenhouse gas emissions, climate change impacts and the costs incurred by Lliuya143. Further, the court held that it could not provide Lliuya with effective redress, as irrespective of whether RWE cease emitting greenhouse gases, his circumstances would not change144. On appeal, the court recognised the claims as well-pled and admissible, and the matter has since move forward to the evidentiary phrase whereby experts will be appointed to determine whether the claimant’s home is threatened by the increase in volume of the lake, and whether RWE’’s emissions contributed to the threat.145 Excerpts from the order follow: REASONS The claim pursued by the plaintiff in subparagraph 1) (the main claim [Hauptantrag]) meets the criteria for specificity stated in section 253(2) of the Code of Civil Procedure [Zivilprozessordnung (ZPO)]. Contrary to the opinion of the defendant, the claim is not too imprecise in light of the facts of the matter and the status of the dispute to date because the ‘suitable measures’ that would apply are not specified therein. It is true that, in its 2004 decision (NJW 2004, 1035 et seqq.), the Federal Court of Justice [Bundesgerichtshof (BGH)] ruled that a judgment can specify a concrete measure for the elimination of a disturbance if further measures, though possible, cannot reasonably be given serious consideration. This determination was an exception in favour of an owner filing suit to eliminate a disturbance, however; it should not necessarily be

139

Lliuya v RWE AG, Case No. 2 O 285/15 Essen Regional Court.

140

UN Environment, above n 1, 21.

141

Ibid.

142

Lliuya, above n 67, 3.

143

Ibid 7.

144

Ibid.

145

Sabin Centre for Climate Change Law, Lliuya v RWE AG, <http://climatecasechart.com/non-us-case/lliuya-v-rwe-ag/>.


understood to mean that the claim in the present case must designate the appropriate measure from the outset to fulfil the requirements for precision. Moreover, the defendant does not state which suitable measure is the only reasonable solution. The main claim does not seek to establish a future legal relationship. The existing legal relationship relevant to the plaintiff’s claim is the possible relationship between himself and the defendant, arising in connection with section 1004 of the German Civil Code [Burgerliches Gesetzbuch (BGB)]. Based on the existing legal relationship, in the future, the plaintiff can file a claim for reimbursement of costs against the defendant under the conditions (and with the limitation) cited in the claim. The plaintiff seeks to determine this legal relationship, based on the provisions of section 1004 of the BGB; the legal consequence of this relationship—namely the reimbursement of costs incurred if the plaintiff eliminates the disturbance himself or has it eliminated by a third party (and incurs costs as a result)—can be concluded from sections 683, 684, and 670 of the BGB or section 812 of the BGB. These costs, however, are ultimately based on the existence of a legal relationship between the parties as defined under section 1004 of the BGB. The Federal Supreme Court (BGH, judgment of 5 June 1990 with the reference: VI ZR 359/89, published, inter alia, in NJW-RR 1990, 1172 et seqq.) confirmed the admissibility of the declaratory judgment, although the relevant work had not yet been performed and the additional costs not yet been incurred. Whether any (additional) costs would be incurred was still undecided and depended on whether any future work was required on the plaintiff’s main water pipe. On this point, the BGH has stated as follows: 1.

The BerGer. rightly found the positive declaratory action admissible. The objections submitted in the response to the review are without foundation. The plaintiff seeks to assess the defendant’s obligation to compensate him for the additional costs of the manual excavation, which became necessary as a result of the fact that the defendant had laid its power supply line along the same route as his water pipe. The purpose of the plaintiff’s action is to determine the legal relationship to the defendant based on the stated facts of the case, and thus to ascertain the existence of any (existing) legal relationship as specified under section 256(1) of the ZPO. That the claim submitted by the plaintiff arises from the necessity of work on the main water line, in no way affects the admissibility of the legal action (cf. BGHZ 87, 321 (324) = NJW 1984, 560 = LM LandbeschG No 31; further BGH, NJW 1984, 2950 = LM section 256 ZPO No 130; BGH, NJW 1986, 2507 = LM section 256 ZPO No 142). The legitimate interest required to take legal action is not absent in the present case. The motion for a declaratory judgment would also be admissible if, in the end, the plaintiff were indeed able to demand only €0.33 from the defendant. Whether, and in what amount, the plaintiff will incur future costs for protective measures is not yet certain, contrary to the defendant’s view, and does not need to be adjudicated at present, in light of the fact that this motion for a declaratory judgment was conditioned on the actual imposition of such costs on the plaintiff. The opinion of the Peruvian law firm, submitted by the defendant, does not alter this fact. One cannot rule out the possibility that provisions in force in Peru, including those applicable on a case-by-case basis, may change, with the result that the plaintiff may incur costs in the future. It is also possible that the municipality on whose property the lagoon is located will permit the plaintiff, or an association of several affected property owners, to take certain measures on their property at their own expense. Incidentally, it is also conceivable

187


188

that, on his property, the plaintiff himself may take measures appropriate to protect that property from flood damage. These could include other, more promising measures than those previously implemented, on which subparagraph 6) of his claim was based. The defendant fails to make a compelling argument that the invocation of section 1004 of the BGB might have been opposed on the grounds that it would have impossible or unreasonable implications: i.e., that a pro rata construction of a dam or a permanent, pro rata reduction of the lake volume would be impossible, and that, as a result, it would not be in the defendant’s interest to implement measures associated with the reimbursement claim for agency without authorisation (negotiorum gestio). First of all, this objection will need to be considered only if there is proof of the causal relationship that, the plaintiff alleges, can demonstrate the active contribution of power plant operations to the acute flood risk. Moreover, as the defendant’s argument ultimately seeks to establish, the fact that multiple parties have caused the interference (‘disturbers’) does not necessarily mean that eliminating that interference would be impossible. On the contrary, the established interpretation is that, in the case of multiple ‘disturbers’, each participant must eliminate its own contribution, and joint and several liability is only considered if the contributions cannot be separated and there is equal importance (cf. MijKoBGB/Baldus, 7th ed. 2017, section 1004 BGB marg. no. 232 with further reference). In addition, it is not necessarily the case, and has not yet been determined, that the protective measures will ultimately be implemented by the public authority. The Senate did not interpret the term ‘third party’, as it was used in the plaintiff’s claim, as referring exclusively to the state. The Senate has already pointed out, in its decision of 30 November 2017, that, in accordance with prevailing opinion, the illegality of the offense is largely associated with the lack of any obligation for the owner to tolerate an action or situation in accordance with section 1004(2) of the BGB (see also MUKoBGB/Baldus, 7th ed. 2017, section 1004 BGB, marg. no. 192 et seq.). In other words, the condition that conflicts with the ownership of the object (section 903 of the BGB) must be unlawful, not the action leading to it. This is the prevailing opinion and settled case law of the Federal Court of Justice (see BGH judgment of 4 December 1970, with the reference: V ZR 79/68, marg. no. 8 quoted according to Juris; BGH judgment of 24 January 2003 with the reference: V ZR 175/02, marg. no. 25, published, inter alia, in NJW-RR 2003, 953; Palandt - Herrier, BGB, 76th ed. 2017, section 1004, marg. no. 12 and 34). Insofar as the general interest precludes the cessation of business operations, in this case of a power plant company, the Federal Court of Justice has also already ruled that a claim for financial compensation may be submitted in this case (BGH, judgment of 7 April 2000 - V ZR 39/99, marg. no. 20, published, inter alia, in BGHZ 144, 200 et seqq., which referred to the operations of a drug assistance centre). The passage quoted by the defendant, from the explanatory memorandum on the implementation of the Environmental Impact Assessment Directive [Umweltvertraglichkeitsprufung (UVPG)], does not alter this position, because comments in explanatory memoranda do not constitute an authentic interpretation of the law. In this context, it is correct to state that, in the oral proceedings on the issue of liability, the motivations of historical legislatures did not have a ‘decisive’ influence on the Senate’s position. The Senate has pointed out, among other things, that even in the motivations for the BGB, the issue of cumulative and long-distance damage, and accountability for it, was recognised as a significant problem and thoroughly discussed.


Whether the defendant’s argument is true—i.e., that there is no causal relationship between CO2 emissions and the increase in the water level in the lake—can be determined only on the basis of the evidence already taken. It is the Senate’s opinion that the case is not ready for judgment without taking evidence as ordered, and therefore the defendant has not been subject to a violation of its constitutionally protected right to be heard in court or its right to effective legal protection. The Senate has modified the deadline given in the Indicative Court Order and Order for the Hearing of Evidence of 30 November 2017: it has set a new deadline of 2 March 2018 for the plaintiff to submit the advance payment, in the amount specified in the Court Order, to the central court cashier’s office. This corresponds to the deadline, extended in the Court Order of 21 December 2017, for the parties to reach an agreement and designate suitable experts. If it is already apparent beforehand that the parties cannot agree on suitable experts, the Senate requests a notice to this effect.

FAMILY FARMERS AND GREENPEACE GERMANY 33. In Family Farmers and Greenpeace Germany v Germany, the Administrative Court of Berlin dismissed a case seeking to compel the German government to comply with the government’s cabinet decisions to reduce greenhouse gas emissions by 40% by the year 2020. The court ruled that climate policy generally is subject to judicial review and must not so be inadequate as to not fully protect fundamental rights such as the right to life and the right to property, but declared that the 40% target set by the government was not legally enforceable. Those bringing the suit put forth a view that the failure by the government to adhere to its own targets of 40% reductions in within the Climate Protection Plan would directly violate their legally recognised rights under the German Constitution. However, in late 2019 the Court decided to the contrary holding that the plaintiffs had not convincingly shown that their rights had been violated by the failure of the government to comply with its targets, but it did assert that the same government must undertake measures to provide for the protection of fundamental rights potentially threatened by climate change, most notably the rights to life and property. A summary of the key elements of the decision follow: A German court has held that the German government’s climate policy is judicially reviewable and must not be so inadequate as to fail to protect fundamental rights such as the rights to life and property. However, the court dismissed an action by German families to challenge the government’s failure to adhere to a cabinet decision to reduce greenhouse gas emissions by 40% by 2020, concluding that the target was not legally enforceable. In December 2014, the German cabinet set a goal of reducing national greenhouse gas emissions by 40% compared to 1990 levels by the end of 2020 (the Climate Protection Plan). According to the government’s 2018 official climate protection report, however, the government will likely only achieve a reduction of 32% from 1990 levels by the end of 2020. In October 2018, three German families and Greenpeace Germany filed suit in the Administrative Court of Berlin seeking to compel the German government to adhere to the 40% reduction goal. The German families are comprised of organic farmers who claim they are already experiencing the impacts of climate change. Plaintiffs argued that the

189


government was bound by the Climate Protection Plan, and alleged that the government’s failure to adhere to the 40% target encroaches on their human rights in violation of the German Constitution -- the Grundgesetz -- under Article 2(2) (right to life and health), Article 12(1) (occupational freedom), and Article 14(1) (right to property). They further alleged that failure to meet the original 2020 goal violates Germany’s minimum obligations under the EU Effort Sharing Decision (406/2009/EC).

190

According to Greenpeace, plaintiffs asked for court orders holding that the government is obliged to: 1) implement the national Climate Protection Program 2020 by updating or supplementing appropriate measures to meet the 2020 target; 2) compensate for the excess of approximately 650 million tons of CO2 equivalent between 2007 and today due to insufficient implementation of the 2020 target; and 3) supplement the national Climate Protection Program 2020 to meet the reduction targets set out in European environmental law. Greenpeace reports that this is the first climate lawsuit to refer to the publication of the UN’s Intergovernmental Panel on Climate Change’s (IPCC) Special Report on 1.5°C. On October 31, 2019 the Administrative Court of Berlin dismissed the case, concluding that the 2020 target, as a cabinet decision, was not legally binding. The court further held that plaintiffs had not conclusively demonstrated that the government had violated its constitutional obligations by setting inadequate climate protection targets. However, the court did hold that the government’s climate policy is subject to judicial review and must be consistent with the government’s duties to protect fundamental rights under the German Constitution. The court also determined that the government must undertake measures to provide adequate and effective protection of the fundamental rights potentially affected by climate change, including the rights to life and property. Nonetheless, the court concluded that the government is entitled to wide discretion in deciding how to fulfill these obligations, so long as precautionary measures to protect fundamental rights not are wholly unsuitable or wholly inadequate. In the court’s view, the government’s current protection policy, which will lower emissions by 32% rather than 40% by the end of 2020, is within its discretion. Moreover, the court noted that the EU is only aiming for a 40% reduction in greenhouse emissions by 2030 and has pledged a reduction of only 20% below 1990 levels by 2020. In this context, the court concluded that the German government’s reduction target of 32% by the end of 2020 does not appear to be completely inadequate.

AUSTRIA VIENNA-SCHWECHAT AIRPORT EXPANSION (2017) 34. In 2017, a number of NGOs and individuals sought to persuade a panel of the Austrian Federal Administrative Court to overturn the Government’s approval of a construction of a third runway at Vienna’s main airport146. The claimants argued that the authorisation would cause harm to public interest as it would be contrary to Austria’s national and international obligations to mitigate the causes of climate change as well as Austria’s Climate Protection Act 2011 which set emissions reduction targets for the transport sector147.

146

UN Environment, above n 1, 18.

147

Ibid.


35. In early 2017, the Court found in favour of the claimants on the grounds of climate protection and land use148. It examined changes in future air traffic, emission impacts of such changes, and adverse impacts of climate change on Austria and more broadly, Europe’s efforts to reduce emissions generally from air traffic149. The court noted that the construction would increase Austria’s annual CO2 emissions by between 1.79% and 2.02% by 2025, and concluded that the increase would be contrary to Austria’s 2020 transport sector emissions reduction target of 2.25%150. However, the Austrian Constitutional court later overturned the earlier decision, commenting that the lower court had erred when improperly giving weight to climate change and land use considerations in balancing the public’s interest in a third runway151. Of notice, the Constitutional Court identified the misapplication of the Kyoto Protocol and the Paris Agreement, which the court explained where a source of international obligations, but are not generally applicable in the domestic legal context152. Key excerpts of the decision follow: Regarding the complaints of Vienna International Airport and the federal state of Lower Austria against the order of the Federal Administrative Court of the 2 February 2017, where the approval of the establishment and operation of a 3rd runway at the Vienna International Airport and the associated relocation of the main road B 10 was refused, the Constitutional Court, in accordance with art. 144 of the constitutional law, holds that: Due to the contested order, the complaining parties have been subjected to violation of the constitutionally guaranteed right to equality before the law. The order is repealed. The federal state of Lower Austria is obligated to compensate the Vienna International Airport through their legal representative for the legal costs amounting to EUR 2,856.00 within 14 days subject to execution otherwise. A. LEGAL POSITION GROUNDS FOR THE DECISION In accordance with section 71(1) in the Aviation Act (Luftfahrtgesetz, LFG), a civilian airport authorisation is to be given, if the project is suitable from a technical standpoint and safe operation is to be expected (item a), the authorisation applicant is reliable and qualified for operating the business (item b), the financial means of the authorisation applicant ensure

148

Sabin Centre for Climate Change Law Columbia Law School Climate Blog, Executive Summary, 1, <http://blogs2.law. columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2017/20170202_ W109-2000179-1291E_decision-3.pdf>.

149

Ibid.

150

Ibid.

151

152

Sabin Centre for Climate Change Law Columbia Law School Climate Blog, “No 3rd Runway at Vienna Airport Because Adverse Climate Impacts Outweigh Short-Term Economic Benefits: Austrian Court” <http://blogs.law.columbia.edu/ climatechange/2017/02/10/no-3rd-runway-at-vienna-airport-because-adverse-climate-impacts-outweigh-shortterm-economic-benefits-austrian-court/> ; decision in German: <https://www.vfgh.gv.at/downloads/VfGH_E_8752017_Verkuendungstext_Flughafen.pdf>. Ibid.

191


192

compliance with the obligations for the airport owner stated in this federal act (item c) and other public interests are not a hindrance (item d). Furthermore, a civilian airport authorisation for a public airport shall only be given in accordance with section 71(2) if there is a need for this. Airports shall only be authorised if their establishment is in the public interest. An airport is in that connection particularly not in the public interest if it is located less than 100 km in a bee-line from an already authorised and operational airport that would be suitable for carrying out the transport tasks in question (item a) and if the owner of the already existing airport would be able and willing to carry out the tasks envisaged for the planned airport within six months (item b). Regarding the term (other) “public interests” in section 71 in the Aviation Act, the Supreme Administrative Court has already interpreted this in the year 1970. In this order passed through a reinforced national council (VwSlg. (collection of orders and important decisions of the supreme administrative court) 7913 A/1970), the following is stated, among other things: “The word ‘other’ means that this does not include the interests stated in items a) to c) of section 71(1) of the Aviation Act. Thus, there are other public interests to take into account which are to be observed in accordance with the Aviation Act. Such public interests can for example be protection of the general public (sections 92, 96 and 124 in the Aviation Act), maintenance of public tranquillity, order and safety (sections 5, 124, 126, 145), avoidance of endangerment of lives, health and property (section 133), assurance of the safety of persons and property (section 122), the safety of persons and objects on the ground (section 128), keeping away nuisance-causing influences for persons and objects (section 5) and avoidance of avoidable noise (section 14).” This interpretation of the term “other public interests” has been assumed in connection with the Constitutional Court (cf. VfSlg. (collection of orders and important decisions of the Constitutional Court) 12.465/1990) as well as the Supreme Administrative Court (cf. the Supreme Administrative Court 30.9.2010, 2010/03/0110). The wording of section 71(1)(d) of the Aviation Act – that there can be no other interests that are a hindrance to the authorisation of the airport initially causes the impression that every public interest that is a hindrance to the project, regardless of its prioritisation, will necessarily lead to refusal of the civilian airport authorisation. However, in order to avoid unfair results, this stipulation is to be interpreted in a way that ensures that the other public interests according to section 71(1)(d) leg.cit. and the public interests according to section 71(1)(a, b and c) as well as 71(2) leg.cit. should be weighed against each other, which means that a balancing of interests should be carried out. The approach according to section 71 of the Aviation Act requires establishment of the type and extent of the effects on any legally protected rights regarding the public interests to be guaranteed in accordance with the Aviation Act caused by the project to be approved, and under which circumstances, to which degree and with which probability concrete effects are to be expected. In that connection, the national territory of Austria (cf. art. 3 in the constitutional law) is the ultimate reference framework regarding the establishment of emissions as well as their effect. With the current constitutional law on environmental protection (since 2013: section 3 of the constitutional law on sustainability), the constitutional legislation authority has expressed that there is a qualified (“constitutionally established”): VfSlg. 13.102/1992) public interest in the preservation of the matters described there.


The Constitutional Court has already taken the constitutional law on environmental protection into account on several occasions when checking laws for their constitutionality and orders for their legality. However, it cannot be deduced from the constitutional law on environmental protection or (since 2013) section 3 of the constitutional law on sustainability that environmental protection interest take absolute precedence over other determining factors that are incumbent on the administration (cf. VfSlg. 16.242/2001). Since the coming into force of the constitutional law on environmental protection in the year 1984 (since 2013, section 3 in the constitutional law on sustainability), the eligible “other public interests” that must be observed according to the Aviation Act and taken into account in connection with the balancing of interests in accordance with section 71 leg.cit. must be interpreted in the light of this state objective. Therefore, it is constitutionally required to take into account the extensive environmental protection in connection with the interpretation of the relevant interests that must be observed according to the Aviation Act as well as in connection with the following balancing of these interests, if the interests established as crucial are of relevance to environmental protection. However, the mentioned state objective does not mean that the interests to be taken into account are extended beyond the range of interests to be observed according to the Aviation Act; it also does not mean that this state objective results in expansion of the reference framework of emissions or effects that must be investigated according to the Aviation Act. B. THE CONTESTED DECISION 1. INCORRECT CONSIDERATION OF “CRUISE EMISSIONS” In its decision, the Federal Administrative Court does not just take the CO2 emissions into account that come from the landing and take-off emissions of aeroplanes at Vienna International Airport, but also includes the total emissions during the flight in connection with international air traffic (so-called cruise emissions) in the total project of Vienna International Airport. 2. TAKING NOT APPLICABLE INTERNATIONAL AND EU LAW REGULATION REGARDING CLIMATE PROTECTION INTO ACCOUNT For the assessment of the established emissions and also subsequently in connection with balancing of the interests, the Federal Administrative Court has also taken reference values into consideration from not immediately applicable sources of law or non-constitutional regulations that are relevant to other sectors (than the aviation sector) or which explicitly exclude CO2 emissions from aeroplanes: (a) The Kyoto Protocol, the Paris Agreement on climate change Firstly, the Federal Administrative Court refers to the Kyoto Protocol regarding united Nations Framework Convention on Climate Change as well as Construction, Federal Law Gazette for theRepublicofAustria III89/2005, aswellastheParisAgreement on climate change, Federal Law Gazette for the Republic of Austria III 197/2016. However, both agreements have (in Austria) the reservation that they are to be complied with through the introduction of laws; thus, they only create an international obligation

193


194

for Austria and are not immediately applicable nationally. Add to this that the Kyoto Protocol – which in addition to this only establishes legal obligation until the year 2012 – does not include international aviation. (b) Effort-Sharing-Decision, climate protection law Furthermore, the contested decision relies on the climate protection law that implements the decision 406/2009/EC of the EU Parliament and Council on the effort of Member States to reduce their greenhouse gas emissions (the so-called Effort Sharing Decision). However, this EU law decision is not applicable on aviation. Therefore, aviation is also exempt from the scope of the climate protection law. (c) Trade with emission allowances Finally, the Federal Administrative Court also refers to the EU system of greenhouse gas emission allowances. With the Directive 2008/101/EC, aviation was also included in this system; however, the responsibility to meet the obligations resulting from this directive only applies to aircraft operators, who – as stated in the directive – “have the most direct control over the type of aircraft in operation and the way in which they are flown”. Thus, airports do not fall within the scope of the law regarding emission allowances. (d) Intermediate result Hence, the Federal Administrative Court has in its assessment of the established CO2 emissions placed significant impact on the overall co-responsibility of Austria for the global climate protection. However, no negative conclusions for the approval of the project can be deduced from the presumed lacking achievement of the climate goals – without an explicit legal order. 3. CONSIDERATION OF “PUBLIC INTERESTS” WHICH ARE NOT ROOTED IN THE AVIATION ACT The Federal Administrative Court states in the contested decision that it is not defined further in the Aviation Act what “other public interests” in section 71 of the Aviation Act means. Furthermore, there is no objective in the Aviation Act that can be taken into account in connection with interpretation. At any rate, public interests means interests that put the matters of the common good over individual interests. Regarding the interpretation of section 71 (1)(d) of the Aviation Act, it is therefore a matter for the administration to determine the public interests that are crucial for this administrative ruling. Correspondingly, the Federal Administrative Court assumes that public interests can basically be all interests focused on the common good, regardless of the type. Because of this position, the Federal Administrative Court assumes that in connection with the granting of a civilian airport authorisation according to the Aviation Act, interests regarding climate protection or land recycling must be taken into account in the balancing of interests. However, these interests are not rooted in the actual Aviation Act. Regardless of this, it can in no way be deduced which rule of law the interest in sparse land use presumed by the Federal Administrative Court is based on.


4. CONSIDERATION OF NOT COMPETENCE-RELEVANT STATE OBJECTIVES AND NOT NORMATIVE DOCUMENTS IN CONNECTION WITH THE BALANCING OF INTERESTS After establishment of the crucial public interests, a legally authorised balancing of interests requires investigation of the criteria for the balancing of interests. These must be predetermined on the grounds of the legal system; they are evident from currently applicable relevant laws or from immediately associated state objectives. In any case, the investigation of the criteria for the balancing should be carried out through an interpretation of positive law. In its decision, the Federal Administrative Court presumes that the criteria for balancing of public interests are not determined further in the Aviation Act. If no criteria can be found in a relevant law, the balancing of interests must be carried out through orientation towards utterance of values by democratically legitimised bodies or based on the stepwise structure of the legal system. These points of reference would be evident from enactments of the federal government, decisions of the national council, regulations of EU law as well as provincial and constitutional regulations. In that connection, the Federal Administrative Court, in addition to the constitutional law on sustainability, also refers to Art. 37 GRC, Art. 4 Z 2 of the provincial constitution for Lower Austria of 1979, a decision of the council of ministers for the Austrian federal government from the 23 October 2012 (“The Austrian strategy for adaptation to the climate change” – part 2, action plan, action recommendations for the implementations), the “Road map for aviation 2020” created by BMVIT, which was adopted by the federal government in the year 2011, as well as a decision of the national council from the 12 November 2015 regarding Austria’s contribution to an ambitious result of the climate conference in Paris in December 2015. According to Art. 4 Z 2 of the provincial constitution for Lower Austria of 1979, the environmental protection and the climate protection are of particular significance. However, according to the division of competences of the federal state, this kind of stipulation of constitutional objectives can only have an effect within the independent scope of the country. Thus, Art. 4 Z 2 of the provincial constitution for Lower Austria of 1979 cannot be used for interpretation of the Aviation Act. This is even more the case for non-normative documents, which the Federal Administrative Court has also attributed significance as relevant for the decision-making. C. RESULT Thus, the Federal Administrative Court has grossly mistaken the legal position in several ways in connection with the contested decision, where the approval of the establishment and operation of a so-called 3rd runway at the Vienna International Airport was refused. This accumulated misinterpretation of the legal position burdens the contested decision with arbitrariness; it subjects the parties to violation of their right to equality before the law. Therefore, the contested decision is repealed.

195


196

SWITZERLAND UNION OF SWISS SENIOR WOMEN FOR CLIMATE PROTECTION (2017) 36. In Union of Swiss Senior Women for Climate Protection v. Swiss Federal Council and Others, at issue is adequacy of the Swiss government’s climate change mitigation targets and implementation measures.153 The litigants argued that global warming creates a ‘new vulnerable population group’, specifically elderly women. Due to which, the State is under an obligation to mitigate against the effects of global warming thereby mitigating against the elderly women’s risk to life. The manner in which global warming was threatening their lives was through the negative consequences of heat waves. Heat waves in Switzerland alone have been responsible for 267 deaths in only one 2015 summer. Statistics show that the heat waves are a direct result of global warming and that these deaths are disproportionately represented by older women. The positive obligation on the State is to reduce emissions, as the number of hot day’s increases with rising emissions. The litigants have then argued that Switzerland has breached this duty, by its actions and omissions, as they have not prevented ‘a disastrous increase of global temperatures’.154

UNITED KINGDOM R (FRIENDS OF THE EARTH) (2020) 38. In R (Friends of the Earth) v. Secretary of State for Transport and others) (2020) before the Court of Appeal (Civil Division) in the United Kingdom155, a case seeking to permanently ban the construction of a third runway at Heathrow airport due to climate change concerns failed. While the Court did not definitively state the such a runway was allowed or not allowed, in this particular case the objective sought was not achieved. The following is a summary of the judgment issued by the court: This morning we are handing down the judgments of this court in a number of related proceedings that have come before us from the Divisional Court, which concern the proposed expansion of capacity at Heathrow Airport by the addition of a third runway under the policy set out in the “Airports National Policy Statement: new runway capacity and infrastructure at airports in the south east of England” (“the ANPS”). That document, designated by the then Secretary of State for Transport in June 2018, is a national policy statement prepared under section 5(1) of the Planning Act 2008. It was subject to a number of legal challenges brought by claims for judicial review in accordance with the procedure that Parliament has provided for such challenges to be brought, in section 13(1) of the Planning Act.

153

154

155

Union of Swiss Senior Women for Climate Protection vs. Swiss Federal Council Climate Change Litigation <http:// klimaseniorinnen.ch/wp-content/uploads/2017/05/request_KlimaSeniorinnen.pdf>.12,27]]}}}],“schema”:“https://github. com/citation-style-language/schema/raw/master/csl-citation.json”} Ibid. Neutral Citation Number: [2020] EWCA Civ 213, Case No: C1/2019/1154, In the Court of Appeal (Civil Division), On appeal from the Queen’s Bench Division, Divisional Court, Lord Justice Hickinbottom, Mr Justice Holgate and Mr Justice Marcus Smith, (2019) EWHC 1069 (Admin), 27 February 2020, Before: Lord Justice Lindblom, Lord Justice Singh and Lord Justice Haddon-Cave.


The first judgment addresses a challenge brought by Heathrow Hub Ltd. and Runway Innovations Ltd., who proposed extending the northern runway at Heathrow. The second deals with several challenges, brought by a number of local authorities, the Mayor of London, Greenpeace Ltd., Friends of the Earth Ltd. and Plan B Earth, concerning the planning aspects of the ANPS and its process. In the first judgment we have concluded that the arguments put forward by the appellants on legitimate expectation, the materiality of the absence of any assurance from Heathrow Airport Ltd. to implement Heathrow Hub’s scheme for an extended northern runway, and various grounds concerning the law of competition must all fail. As to legitimate expectation, the Divisional Court rejected Heathrow Hub’s argument that the Secretary of State’s request that Heathrow Hub obtain an assurance from Heathrow Airport Ltd to implement their extended northern runway scheme amounted to a breach of a “legitimate expectation” that the Secretary of State would not take into account any risks arising from the fact that Heathrow Hub depended upon Heathrow Airport Ltd to deliver its extended northern runway scheme in making the decision to prefer the north-west runway scheme (paragraphs 78 to 80 of the judgment in the appeal by HUB). Heathrow Hub challenged this conclusion on appeal (paragraphs 81 to 86). We have upheld the Divisional Court’s conclusion that there was no express or implied promise or any regular pattern of behaviour amounting to a representation that this would never be a consideration in the preference decision process, still less a clear and unambiguous representation devoid of any relevant qualification such as to justify a finding in law of legitimate expectation (paragraphs 87 to 92). As to materiality, the Divisional Court held that if the Secretary of State had not requested an assurance or if Heathrow Airport Ltd had given an assurance this would have made no difference to the preference or designation decisions, because the objective merits of the extended northern runway scheme remained the same (paragraphs 97 to 100). Heathrow Hub challenged this finding on appeal (paragraphs 101 to 104). We have held that the Divisional Court was entitled to find on the evidence that the absence of an assurance was immaterial to the preference and designation decisions (paragraph 141). We have also held that it was “highly likely” that the designation decision would been the same whether or not an assurance had been requested or forthcoming, and accordingly, under section 31(2A) of the Senior Courts Act 1981, the Divisional Court would have been bound to dismiss Heathrow Hub’s claim for judicial review in any event (paragraph 177). In the second judgment, we have emphasized the long-established limits of the court’s role when exercising its jurisdiction in claims for judicial review (paragraphs 135 to 137 of the judgment on planning issues). As an appellate court, we operate within the same limits. We have made it clear that we are not concerned in these proceedings with the political debate and controversy to which the prospect of a third runway being constructed at Heathrow has given rise. That is none of the court’s business. We have emphasized that the basic question before us in these claims is an entirely legal question. We are required – and only required – to determine whether the Divisional Court was wrong to conclude that the ANPS was produced lawfully.

197


198

Our task therefore – and our decision – does not touch the substance of the policy embodied in the ANPS. In particular, our decision is not concerned with the merits of expanding Heathrow by adding a third runway, or of any alternative project, or of doing nothing at all to increase the United Kingdom’s aviation capacity. Those matters are the Government’s responsibility and the Government’s alone (paragraphs 2 and 281 to 285). To a substantial extent, for the reasons we have set out, we agree with the analysis and conclusions of the Divisional Court. Like the Divisional Court, we have concluded that the challenges to the ANPS must fail on the issues relating to the operation of the Habitats Directive, and also on all but one of the issues concerning the operation of the Strategic Environmental Assessment Directive (paragraph 283). However, we have concluded that the challenges should succeed in one important respect. This relates to the legislative provisions concerning the Government’s policy and commitments on climate change, in particular the provision in section 5(8) of the Planning Act, which requires that the reasons for the policy set out in the ANPS “must ... include an explanation of how the policy set out in the statement takes account of Government policy relating to the mitigation of, and adaptation to, climate change”. We have concluded, in particular, that the designation of the ANPS was unlawful by reason of a failure to take into account the Government’s commitment to the provisions of the Paris Agreement on climate change, concluded in December 2015 and ratified by the United Kingdom in November 2016 (paragraphs 222 to 238 and 242 to 261). We have concluded that the ANPS was not produced as the law requires, and indeed as Parliament has expressly provided. The statutory regime for the formulation of a national policy statement, which Parliament put in place in the Planning Act, was not fully complied with. The Paris Agreement ought to have been taken into account by the Secretary of State in the preparation of the ANPS and an explanation given as to how it was taken into account, but it was not (paragraph 283). That, in our view, is legally fatal to the ANPS in its present form. As we have explained, the normal result in a successful claim for judicial review must follow, that the court will not permit unlawful action by a public body to stand. Appropriate relief must therefore be granted, as normally it will be where unlawfulness in the conduct of the executive is established (paragraph 284). The Secretary of State did not contend that, if this was our conclusion, the outcome would or might have been no different – though such an argument was pursued by Heathrow Airport Ltd. In our view, it is necessary to grant a suitable remedy at this stage to ensure, at least, that the ANPS does not remain effective in its present unlawful form pending the outcome of its statutory review – under section 6 of the Planning Act – in the light of the Paris Agreement (paragraph 278). Section 6(5) of the Planning Act states that “[after] completing a review of all or part of a national policy statement the Secretary of State must do one of the following ... (a) amend the statement; (b) withdraw the statement’s designation as a national policy statement; (c) leave the statement as it is” (paragraph 39). The parties have had an opportunity in the light of our draft judgments to make submissions to us on the appropriate remedy to reflect the conclusions we have reached. In the light of those submissions, we have concluded that the appropriate remedy is a declaration, the


effect of which will be to declare the designation decision unlawful and to prevent the ANPS from having any legal effect unless and until the Secretary of State has undertaken a review of it in accordance with the relevant statutory provisions, including the provisions of section 6, 7 and 9 of the Planning Act 2008. Any such review would have to be conducted in accordance with the judgment of this court. The initiation, scope and timescale of any review must and will be a matter for the Secretary of State to decide (paragraphs 279 to 280). Our decision should be properly understood. We have not decided, and could not decide, that there will be no third runway at Heathrow. We have not found that a national policy statement supporting this project is necessarily incompatible with the United Kingdom’s commitment to reducing carbon emissions and mitigating climate change under the Paris Agreement, or with any other policy the Government may adopt or international obligation it may undertake. The consequence of our decision is that the Government will now have the opportunity to reconsider the ANPS in accordance with the clear statutory requirements that Parliament has imposed (paragraph 285). We should add finally that, having seen our judgment in draft, the Government has not opposed the grant of a remedy. Nor has the Government sought permission to appeal from our decision to the Supreme Court.

PHILIPPINES GREENPEACE SOUTHEAST ASIA AND OTHERS (2019) 39. In the case of Greenpeace Southeast Asia and Others filed before the Philippines Human Rights Commission, the Commission found that a company known as Carbon Majors could be liable for climate impacts.156 In the petition, Greenpeace et al asked for an investigation of “the human rights implications of climate change and ocean acidification and the resulting rights violations in the Philippines” and ”whether the investor-owned Carbon Majors have breached their responsibilities to respect the rights of the Filipino people.” In December 2019, the Commission found that major fossil fuel companies could, indeed, be held liable for climate change impacts, and that current civil law in the country could be used as a basis for subsequent actions to hold companies criminally liable, and that these companies are obliged to respect the human rights addressed in the United Nations Guiding Principles on Business and Human Rights. In lieu of a formal decision capable of reproduction in this report, we include a press release issued by the Commission on 28 March 2018 prior to its ultimate findings: National Inquiry on the Impact of Climate Change on the Human Rights of the Filipino People PHL at the forefront of seeking climate justice with CHR’s landmark inquiry on the effects of climate change to human rights

156

In re Greenpeace Southeast Asia and Others, Case No. CHR-NI-2016-0001 (Human Rights Commission of the Philippines).

199


200

QUEZON CITY—The Commission on Human Rights (CHR) held the first public hearing probing the alleged responsibility of major fossil-fuel companies or so-called “carbon majors” to climate change and how this impacts the human rights of Filipinos. A first in the world, this is considered a landmark inquiry casting the issue of Climate Change within the human rights framework. In his opening remarks, CHR Chaiperson Jose Luis Martin “Chito” Gascon said that it is no wonder that the Philippines is at the forefront of seeking to address the climate issue given that Filipinos is among those who have suffered most from it. “Among those who are suffering the most from the effects of climate change is the Philippines. Nowhere has it been more dramatically demonstrated than in November of 2013, when our country was visited by Typhoon Haiyan or Yolanda,” Chairperson Gascon said. IMPACT OF CLIMATE CHANGE ON VULNERABLE SECTORS Petitioners comprising of victims of calamities and human rights groups testified during the hearing to share stories and give accounts of how climate change has impacted their lives and livelihood. Rica Diamzon Cahilig, a 20-year-old student belonging to the Ayta Ambala indigenous group in Bataan, shared with grief how the impact of climate change has depleted the forest, which they consider as their home and primary source of basic needs like food, water, and medicine. Considering that Philippines is an agricultural country, among those who most bear the brunt of climate change are the farmers. Felix Pascua Jr., a farmer, lamented how climate change worsened their plight and pushed them further into poverty.

Image: Vulnerable community members threatened by looming climate change, Western Bangladesh. Kadir van Lohuizen / NOOR.


SCIENCE TO INFORM POLICY DISCUSSIONS ON CLIMATE CHANGE Among those who stood as resource persons are concerned scientists and experts on climate change and weather trends. Professor Gerry Bagtasa, an atmospheric scientist and professor of environmental science and meteorology at the University of the Philippines, presented the climate change phenomenon and how it affects the environment and people. “The temperature is overly increasing. If it becomes warm, there will be more rain. The sea level is also a problem. The melting of the ice on land causes a problem. Philippines has the highest number of sea level rise from the rest of the world”, he explained. Ms. Rosalina de Guzman, Assistant Chief of the Weather Services of the Philippine Atmospheric, Geophysical, and Astronomical Services Administration (PAGASA), presented the climate trends and projections in the Philippines. She stressed that Philippines is highly vulnerable to the effects of climate change and ranks 3rd in the world index. “There is an increased frequency and intensity of extreme rainfall. The Philippines also has the most number of tropical cyclones. During El Nino, the cyclones intensify”, she explained. Through Skype webcast, Director Peter C. Frumhoff of the Union of Concerned Scientists based in the United States, presented his findings on his recent study on carbon dioxide. He also gave his opinion in dealing with the climate change issue from a scientist’s perspective towards informing policy discussion. “We should plan for a world free from carbon pollution and renounce climate disinformation. Companies and businesses must pay their fair share of climate damage”, he opined to conclude his presentation. PHL AT FOREFRONT OF CLIMATE JUSTICE THROUGH THE NATIONAL INQUIRY The CHR’s inquiry on climate change started in the first part of 2016. This is in accordance with its mandate to investigate and monitor all matters concerning the rights of its citizens especially those who belong to the marginalized and vulnerable sectors. Commissioner Roberto Eugenio T. Cadiz, chair of the said national inquiry, described the method of inquiry as global, inclusive, and dialogical rather than adversarial. “Key stakeholders, including those from other territorial jurisdictions, have been encouraged to participate in this process. The method of inquiry shall be more dialogic, rather than adversarial, without, however, sacrificing due process of law”, Commissioner Cadiz explained. Among the resource persons of the petitioner is Attorney Lisa Anne Hamilton, Director of Climate and Energy Program. She highlighted that human rights laws provide that States have an obligation when it comes to climate issues and it is duty-bound to protect citizens from third parties such as companies. “Human rights norms clarify that States should respond to climate change. Human rights law imposes wide-ranging obligations upon States to protect individual from infringements by third parties, including corporations”, she stressed. In conclusion to the first public hearing, Executive Director of Greenpeace Southeast Asia Yeb Sano manifested his faith in the Commission for trying to find the resolution in the huge challenge of climate change. “I trust in and have huge faith in the Commission despite the current state of our institutions in this country. We have faith in the ability of the Commission to prove that there are courts of justice rather than just courts of law. I also trust in the ability of humanity to find a solution in the climate crisis”, Sano heartedly expressed. Through the inquiry, the CHR seeks to determine liability issue against companies that are not domiciled in the Philippines on the basis of trans-boundary effects of their business operations, to understand the business activities of so-called “Carbon Majors” with respect to their alleged impact on climate change, and to gather baseline scientific data and other information on climate change.

201


202

UNITED STATES JULIANA 40. As with Urgenda, the Juliana v United States case involves a matter filed by a non-profit on behalf of 21 plaintiffs who have asserted their constitutional rights, in particular their right to life, liberty and property protected by the Fifth Amendment in addition to the equal protection clause in the Fourteenth Amendment157. The plaintiffs sought injunctive and declaratory relief, and alleged that by supporting energy policies that promote a fossil fuel economy, the US Government has violated their constitutional rights and endangered the climate for present and future generations158. Further, the plaintiffs in Juliana has also asserted the application of the public trust doctrine – the idea that certain natural resources are preserved for public use and that the government owns and must maintain and protect such resources in the public interest159. The plaintiffs as beneficiaries of the federal public trust allege that the government as ‘trustee’ has failed to fulfil its duty of care to maintain and protect the atmosphere from substantial impairment160. The US government and fossil fuel industry representatives have repeatedly sought to dismiss the matter, all of which at this stage, have been denied161. In denying a motion to dismiss the matter, Judge Aiken of the District Court found that there was “no doubt”162 that there is a “right to a climate system capable of sustaining human life”163, and that such a right is “fundamental to a free and ordered society”164. The matter was then considered by the U.S. Court of Appeals for the 9th Circuit which decided, by a 2-1 margin, that even though the plaintiffs “made a compelling case that action is needed” to cut emissions, the young people involved in the case ultimately did not have the legal standing to bring the case, and it was subsequently dismissed.165 Key excerpts of the decision follow: SUMMARY CLIMATE CHANGE / STANDING The panel reversed the district court’s interlocutory orders in an action brought by an environmental organization and individual plaintiffs against the federal government, alleging climate-change related injuries to the plaintiffs caused by the federal government continuing to

157

158

Constitution of the United States, amend V and XIV. Juliana v United States, Case 6:15-cv-0517-TC, 2016 WL 6661146 (D. Or. Nov. 10, 2016); also referred to as intergenerational equity.

159

UN Environment, above n 1, 23-24.

160

Ibid.

161

Columbia University, Columbia Law School, Sabin Centre for Climate Change Law, in collaboration with Arnold & Porter Kaye Scholer LLP, ‘Juliana v United States’, <http://climatecasechart.com/case/juliana-v-united-states>

162

Juliana v United States, above n 51, 82.

163

Ibid.

164

Ibid.

165

US Court of Appeals for the Ninth Circuit, No. 18-36082, D.C. No. 6:15-cv-01517-AA


“permit, authorize, and subsidize” fossil fuel; and remanded to the district court with instructions to dismiss for lack of Article III standing. Some plaintiffs claimed psychological harms, others impairment to recreational interests, others exacerbated medical conditions, and others damage to property. Plaintiffs alleged violations of their constitutional rights, and sought declaratory relief and an injunction ordering the government to implement a plan to “phase out fossil fuel emissions and draw down excess atmospheric [carbon dioxide].” The panel held that: the record left little basis for denying that climate change was occurring at an increasingly rapid pace; copious expert evidence established that the unprecedented rise in atmospheric carbon dioxide levels stemmed from fossil fuel combustion and will wreak havoc on the Earth’s climate if unchecked; the record conclusively established that the federal government has long understood the risks of fossil fuel use and increasing carbon dioxide emissions; and the record established that the government’s contribution to climate change was not simply a result of inaction. The panel rejected the government’s argument that plaintiff s’ claims must proceed, if at all, under the Administrative Procedure Act (“APA”). The panel held that because the APA only allows challenges to discrete agency decisions, the plaintiffs could not effectively pursue their constitutional claims – whatever their merits – under that statute. The panel considered the three requirements for whether plaintiffs had Article III standing to pursue their constitutional claims. First, the panel held that the district court correctly found that plaintiffs claimed concrete and particularized injuries. Second, the panel held that the district court properly found the Article III causation requirement satisfied for purposes of summary judgment because there was at least a genuine factual dispute as to whether a host of federal policies were a “substantial factor” in causing the plaintiffs’ injuries. Third, the panel held that plaintiffs’ claimed injuries were not redressable by an Article III court. Specifically, the panel held that it was beyond the power of an Article III court to order, design, supervise, or implement the plaintiffs’ requested remedial plan where any effective plan would necessarily require a host of complex policy decisions entrusted to the wisdom and discretion of the executive and legislative branches. The panel reluctantly concluded that the plaintiffs’ case must be made to the political branches or to the electorate at large. District Judge Staton dissented, and would affirm the district court. Judge Staton wrote that plaintiffs brought suit to enforce the most basic structural principal embedded in our system of liberty: that the Constitution does not condone the Nation’s wilful destruction. She would hold that plaintiffs have standing to challenge the government’s conduct, have articulated claims under the Constitution, and have presented sufficient evidence to press those claims at trial. OPINION HURWITZ, Circuit Judge: In the mid-1960s, a popular song warned that we were “on the eve of destruction.” The plaintiffs in this case have presented compelling evidence that climate change has brought that eve nearer. A substantial evidentiary record documents that the federal government has long promoted fossil fuel use despite knowing that it can cause catastrophic climate change, and that failure to change existing policy may hasten an environmental apocalypse.

203


204

The plaintiffs claim that the government has violated their constitutional rights, including a claimed right under the Due Process Clause of the Fifth Amendment to a “climate system capable of sustaining human life.” The central issue before us is whether, even assuming such a broad constitutional right exists, an Article III court can provide the plaintiffs the redress they seek—an order requiring the government to develop a plan to “phase out fossil fuel emissions and draw down excess atmospheric CO2.” Reluctantly, we conclude that such relief is beyond our constitutional power. Rather, the plaintiffs’ impressive case for redress must be presented to the political branches of government. I. The plaintiffs are twenty-one young citizens, an environmental organization, and a “representative of future generations.” Their original complaint named as defendants the President, the United States, and federal agencies (collectively, “the government”). The operative complaint accuses the government of continuing to “permit, authorize, and subsidize” fossil fuel use despite long being aware of its risks, thereby causing various climate-change related injuries to the plaintiffs. Some plaint if f s claim psychological harm, others impairment to recreational interests, others exacerbated medical conditions, and others damage to property. The complaint asserts violations of: (1) the plaintiffs’ substantive rights under the Due Process Clause of the Fifth Amendment; (2) the plaintiffs’ rights under the Fifth Amendment to equal protection of the law; (3) the plaintiffs’ rights under the Ninth Amendment; and (4) the public trust doctrine. The plaintiffs seek declaratory relief and an injunct ion ordering the government to implement a plan to “phase out fossil fuel emissions and draw down excess atmospheric [carbon dioxide].” The district court denied the government’s motion to dismiss, concluding that the plaintiffs had standing to sue, raised justiciable questions, and stated a claim for infringement of a Fifth Amendment due process right to a “climate system capable of sustaining human life.” The court defined that right as one to be free from catastrophic climate change that “will cause human deaths, shorten human lifespans, result in widespread damage to property, threaten human food sources, and dramatically alter the planet’s ecosystem.” The court also concluded that the plaintiffs had stated a viable “danger-creation due process claim” arising from the government’s failure to regulate third-party emissions. Finally, the court held that the plaintiffs had stated a public trust claim grounded in the Fifth and the Ninth Amendments. The government unsuccessfully sought a writ of mandamus. In re United States, 884 F.3d 830, 837–38 (9th Cir. 2018). Shortly thereafter, the Supreme Court denied the government’s motion for a stay of proceedings. United States v. U.S. Dist. Court for Dist. of Or., 139 S. Ct. 1 (2018). Although finding the stay request “premature,” the Court noted that the “breadth of respondents’ claims is striking . . . and the justiciability of those claims presents substantial grounds for difference of opinion.” Id. The government then moved for summary judgment and judgment on the pleadings. The district court granted summary judgment on the Ninth Amendment claim, dismissed the President as a defendant, and dismissed the equal protection claim in part. But the court otherwise denied the government’s motions, again holding that the plaintiffs had standing to sue and finding that they had presented sufficient evidence to survive summary judgment. The court also rejected the government’s argument that the plaintiffs’ exclusive remedy was under the Administrative Procedure Act (“APA”), 5 U.S.C. § 702 et seq.


The district court initially declined the government’s request to certify those orders for interlocutory appeal. But, while considering a second mandamus petition from the government , we invited the district court t o revisit certification, noting the Supreme Court’s justiciability concerns. United States v. U.S. Dist. Court for the Dist. of Or., No. 18-73014, Dkt. 3; see In re United States, 139 S. Ct. 452, 453 (2018) (reiterating justiciability concerns in denying a subsequent stay application from the government). The district court then reluctantly certified the orders denying the motions for interlocutory appeal under 28U.S.C. §1292(b) and stayed the proceedings, while “stand[ing] by its prior rulings . . . as well as its belief that this case would be better served by further factual development at trial.” Juliana v. United States, No. 6:15-cv01517-AA, 2018 WL 6303774, at *3 (D. Or. Nov. 21, 2018). We granted the government’s petition for permission to appeal. II. The plaintiffs have compiled an extensive record, which at this stage in the litigation we take in the light most favorable to their claims. See Plumhoff v. Rickard, 572 U.S. 765, 768 (2014). The record leaves little basis for denying that climate change is occurring at an increasingly rapid pace. It documents that since the dawn of the Industrial Age, atmospheric carbon dioxide has skyrocketed to levels not seen for almost three million years. For hundreds of thousands of years, average carbon concentration fluctuated between 180 and 280 parts per million. Today, it is over 410 parts per million and climbing. Although carbon levels rose gradually after the last Ice Age, the most recent surge has occurred more than 100 times faster; half of that increase has come in the last forty years. Copious expert evidence establishes that this unprecedented rise stems from fossil fuel combustion and will wreak havoc on the Earth’s climate if unchecked. Temperatures have already risen 0.9 degrees Celsius above pre-industrial levels and may rise more than 6 degrees Celsius by the end of the century. The hottest years on record all fall within this decade, and each year since 1997 has been hotter than the previous average. This extreme heat is melting polar ice caps and may cause sea levels to rise 15 to 30 feet by 2100. The problem is approaching “the point of no return.” Absent some action, the destabilizing climate will bury cities, spawn lifethreatening natural disasters, and jeopardize critical food and water supplies. The record also conclusively establishes that the federal government has long understood the risks of fossil fuel use and increasing carbon dioxide emissions. As early as 1965, the Johnson Administration cautioned that fossil fuel emissions threatened significant changes to climate, global temperatures, sea levels, and other stratospheric properties. In 1983, an Environmental Protection Agency (“EPA”) report projected an increase of 2 degrees Celsius by 2040, warning that a “wait and see” carbon emissions policy was extremely risky. And, in the 1990s, the EPA implored the government to act before it was too late. Nonetheless, by 2014, U.S. fossil fuel emissions had climbed to 5.4 billion metric tons, up substantially from 1965. This growth shows no signs of abating. From 2008 to 2017, domestic petroleum and natural gas production increased by nearly 60%, and the country is now expanding oil and gas extraction four times faster than any other nation.

205


206

The record also establishes that the government’s contribution to climate change is not simply a result of inaction. The government affirmatively promotes fossil fuel use in a host of ways, including beneficial tax provisions, permits for imports and exports, subsidies for domestic and overseas projects, and leases for fuel extraction on federal land. A. The government by and large has not disputed the factual premises of the plaintiffs’ claims. But it first argues that those claims must proceed, if at all, under the APA. We reject that argument. The plaintiffs do not claim that any individual agency action exceeds statutory authorization or, taken alone, is arbitrary and capricious. See 5 U.S.C. § 706(2)(A), (C). Rather, they contend that the totality of various government actions contributes to the deprivation of constitutionally protected rights. Because the APA only allows challenges to discrete agency decisions, see Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 890–91 (1990), the plaintiffs cannot effectively pursue their constitutional claims—whatever their merits—under that statute. The defendants argue that the APA’s “comprehensive remedial scheme” for challenging the constitutionality of agency actions implicitly bars the plaintiffs’ freestanding constitutional claims. But, even if some constitutional challenges to agency action must proceed through the APA, forcing all constitutional claims to follow its strictures would bar plaintiffs from challenging violations of constitutional rights in the absence of a discrete agency action that caused the violation. See Sierra Club v. Trump, 929 F.3d 670, 694, 696 (9th Cir. 2019) (stating that plaintiffs could “bring their challenge through an equitable action to enjoin unconstitutional official conduct, or under the judicial review provisions of the [APA]”); Navajo Nation v. Dep’t of the Interior, 876 F.3d 1144, 1172 (9th Cir. 2017) (holding “that the second sentence of §702 waives sovereign immunity broadly for all causes of action that meet its terms, while § 704’s ‘final agency action’ limitation applies only to APA claims”). Because denying “any judicial forum for a colorable constitutional claim” presents a “serious constitutional question,” Congress’s intent through a statute to do so must be clear. See Webster v. Doe, 486 U.S. 592, 603 (1988) (quoting Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 681 n.12 (1986)); see also Allen v. Milas, 896 F.3d 1094, 1108 (9th Cir. 2018) (“After Webster, we have assumed that the courts will be open to review of constitutional claims, even if they are closed to other claims.”). Nothing in the APA evinces such an intent. Whatever the merits of the plaintiffs’ claims, they may proceed independently of the review procedures mandated by the APA. See Sierra Club, 929 F.3d at 698–99 (“Any constitutional challenge that Plaintiffs may advance under the APA would exist regardless of whether they could also assert an APA claim . . . . [C]laims challenging agency actions—particularly constitutional claims—may exist wholly apart from the APA.”); Navajo Nation, 876 F.3d at 1170 (explaining that certain constitutional challenges to agency action are “not grounded in the APA”). B. The government also argues that the plaintiffs lack Article III standing to pursue their constitutional claims. To have standing under Article III, a plaintiff must have (1) a concrete and particularized injury that (2) is caused by the challenged conduct and (3) is likely redressable by a favorable judicial decision. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000); Jewel v. NSA, 673 F.3d 902, 908 (9th Cir. 2011). A plaintiff need only establish a genuine dispute as to these requirements to survive summary judgment. See Cent. Delta Water Agency v. United States, 306 F.3d 938, 947 (9th Cir. 2002).


1. The district court correctly found the injury requirement met. At least some plaintiffs claim concrete and particularized injuries. Jaime B., for example, claims that she was forced to leave her home because of water scarcity, separating her from relatives on the Navajo Reservation. See Trump v. Hawaii, 138 S. Ct. 2392, 2416 (2018) (finding separation from relatives to be a concrete injury). Levi D. had to evacuate his coastal home multiple times because of flooding. See Maya v. Centex Corp., 658 F.3d 1060, 1070– 71 (9th Cir. 2011) (finding diminution in home property value to be a concrete injury). These injuries are not simply “‘conjectural’ or ‘hypothetical;’” at least some of the plaintiffs have presented evidence that climate change is affecting them now in concrete ways and will continue to do so unless checked. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)); cf. Ctr. for Biological Diversity v. U.S. Dep’t of Interior, 563 F.3d 466, 478 (D.C. Cir. 2009) (finding no standing because plaintiffs could “only aver that any significant adverse effects of climate change ‘may’ occur at some point in the future”). The government argues that the plaintiffs’ alleged injuries are not particularized because climate change affects everyone. But, “it does not matter how many persons have been injured” if the plaintiffs’ injuries are “concrete and personal.” Massachusetts v. EPA, 549 U.S. 497, 517 (2007) (quoting Lujan, 504 U.S. at 581 (Kennedy, J., concurring)); see also Novak v. United States, 795 F.3d 1012, 1018 (9th Cir. 2015) (“[T]he fact that a harm is widely shared does not necessarily render it a generalized grievance.”) (alteration in original) (quoting Jewel, 673 F.3d at 909). And, the Article III injury requirement is met if only one plaintiff has suffered concrete harm. See Hawaii, 138 S. Ct. at 2416; Town of Chester, N.Y. v. Laroe Estates, Inc., 137 S. Ct. 1645, 1651 (2017) (“At least one plaintiff must have standing to seek each form of relief requested in the complaint. . . . For all relief sought, there must be a litigant with standing.”). 2. The district court also correctly found the Article III causation requirement satisfied for purposes of summary judgment. Causation can be established “even if there are multiple links in the chain,” Mendia v. Garcia, 768 F.3d 1009, 1012 (9th Cir. 2014), as long as the chain is not “hypothetical or tenuous,” Maya, 658 F.3d at 1070 (quoting Nat’l Audubon Soc’y, Inc. v. Davis, 307 F.3d 835, 849 (9th Cir. 2002), amended on denial of reh’g, 312 F.3d 416 (9th Cir. 2002)). The causal chain here is sufficiently established. The plaintiff s’ alleged injuries are caused by carbon emissions from fossil fuel production, extraction, and transportation. A significant portion of those emissions occur in this country; the United States accounted for over 25% of worldwide emissions from 1850 to 2012, and currently accounts for about 15%. See Massachusetts, 549 U.S. at 524–25 (finding that emissions amounting to about 6% of the worldwide total showed cause of alleged injury “by any standard”). And, the plaintiffs’ evidence shows that federal subsidies and leases have increased those emissions. About 25% of fossil fuels extracted in the United States come from federal waters and lands, an activity that requires authorization from the federal government. See 30 U.S.C. §§ 181–196 (establishing legal framework governing the disposition of fossil fuels on federal land), § 201 (authorizing the Secretary of the Interior to lease land for coal mining).

207


208

Relying on Washington Environmental Council v. Bellon, 732 F.3d 1131, 1141–46 (9th Cir. 2013), the government argues that the causal chain is too attenuated because it depends in part on the independent actions of third parties. Bellon held that the causal chain between local agencies’ failure to regulate five oil refineries and the plaintiffs’ climate-change related injuries was “too tenuous to support standing” because the refineries had a “scientifically indiscernible” impact on climate change. Id. at 1143–44. But the plaintiffs here do not contend that their injuries were caused by a few isolated agency decisions. Rather, they blame a host of federal policies, from subsidies to drilling permits, spanning “over 50 years,” and direct actions by the government. There is at least a genuine factual dispute as to whether those policies were a “substantial factor” in causing the plaintiffs’ injuries . Mendia, 768 F.3d at 1013 (quoting Tozzi v. U.S. Dep’t of Health & Human Servs., 271 F.3d 301, 308 (D.C. Cir. 2001)). 3. The more difficult question is whether the plaintiffs’ claimed injuries are redressable by an Article III court. In analyzing that question, we start by stressing what the plaintiffs do and do not assert. They do not claim that the government has violated a statute or a regulation. They do not assert the denial of a procedural right. Nor do they seek damages under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. Rather, their sole claim is that the government has deprived them of a substantive constitutional right to a “climate system capable of sustaining human life,” and they seek remedial declaratory and injunctive relief. Reasonable jurists can disagree about whether the asserted constitutional right exists. Compare Clean Air Council v. United States, 362 F. Supp. 3d 237, 250–53 (E.D. Pa. 2019) (finding no constitutional right), with Juliana, 217 F. Supp. 3d at 1248–50; see also In re United States, 139 S. Ct. at 453 (reiterating “that the ‘striking’ breadth of plaintiffs’ below claims ‘presents substantial grounds for difference of opinion’”). In analyzing redressability, however, we assume its existence. See M.S. v. Brown, 902 F.3d 1076, 1083 (9th Cir. 2018). But that merely begins our analysis, because “not all meritorious legal claims are redressable in federal court.” Id. To establish Article III redressability, the plaintiffs must show that the relief they seek is both (1) substantially likely to redress their injuries; and (2) within the district court’s power to award. Id. Redress need not be guaranteed, but it must be more than “merely speculative.” Id. (quoting Lujan, 504 U.S. at 561). The plaintiffs first seek a declaration that the government is violating the Constitution. But that relief alone is not substantially likely to mitigate the plaintiffs’ asserted concrete injuries. A declaration, although undoubtedly likely to benefit the plaintiffs psychologically, is unlikely by itself to remediate their alleged injuries absent further court action. See Clean Air Council, 362 F. Supp. 3d at 246, 249; Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 107 (1998) (“By the mere bringing of his suit, every plaintiff demonstrates his belief that a favorable judgment will make him happier. But although a suitor may derive great comfort and joy from the fact that the United States Treasury is not cheated, that a wrongdoer gets his just deserts, or that the Nation’s laws are faithfully enforced, that psychic satisfaction is not an acceptable Article III remedy because it does not redress a cognizable Article III injury.”); see also Friends of the Earth, 528 U.S. at 185 (“[A] plaintiff must demonstrate standing separately for each form of relief sought.”). The crux of the plaintiffs’ requested remedy is an injunction requiring the government not only to cease permitting, authorizing, and subsidizing fossil fuel use, but also to prepare a plan subject to judicial approval to draw down harmful emissions. The plaintiffs thus seek not only to enjoin


the Executive from exercising discretionary authority expressly granted by Congress, see, e.g., 30 U.S.C. § 201 (authorizing the Secretary of the Interior to lease land for coal mining), but also to enjoin Congress from exercising power expressly granted by the Constitution over public lands, see U.S. Const. art. IV, § 3, cl. 2 (“The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”). As an initial matter, we note that although the plaintiffs cont end ed at oral argument t hat t hey challenge only affirmative activities by the government, an order simply enjoining those activities will not, according to their own experts’ opinions, suffice to stop catastrophic climate change or even ameliorate their injuries. The plaintiffs’ experts opine that the federal government’s leases and subsidies have contributed to global carbon emissions. But they do not show that even the total elimination of the challenged programs would halt the growth of carbon dioxide levels in the atmosphere, let alone decrease that growth. Nor does any expert contend that elimination of the challenged pro-carbon fuels programs would by itself prevent further injury to the plaintiffs. Rather, the record shows that many of the emissions causing climate change happened decades ago or come from foreign and non-governmental sources. Indeed, the plaintiffs’ experts make plain that reducing the global consequences of climate change demands much more than cessation of the government’s promotion of fossil fuels. Rather, these experts opine that such a result calls for no less than a fundamental transformation of this country’s energy system, if not that of the industrialized world. One expert opines that atmospheric carbon reductions must come “largely via reforestation,” and include rapid and immediate decreases in emissions from many sources. “[L]eisurely reductions of one of two percent per year,” he explains, “will not suffice.” Another expert has opined that although the required emissions reductions are “technically feasible,” they can be achieved only through a comprehensive plan for “nearly complete decarbonization” that includes both an “unprecedently rapid build out” of renewable energy and a “sustained commitment to infrastructure transformation over decades.” And, that commitment, another expert emphasizes, must include everything from energy efficient lighting to improved public transportation to hydrogen- powered aircraft. The plaintiffs concede that their requested relief will not alone solve global climate change, but they assert that their “injuries would be to some extent ameliorated.” Relying on Massachusetts v. EPA, the district court apparently found the redressability requirement satisfied because the requested relief would likely slow or reduce emissions. See 549 U.S. at 525–26. That case, however, involved a procedural right that the State of Massachusetts was allowed to assert “without meeting all the normal standards for redressability;” in that context, the Court found redressability because “there [was] some possibility that the requested relief [would] prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant.” Id. at 517–18, 525–26 (quoting Lujan, 504 U.S. at 572 n.7). The plaintiffs here do not assert a procedural right, but rather a substantive due process claim. We are therefore skeptical that the first redressability prong is satisfied. But even assuming that it is, the plaintiffs do not surmount the remaining hurdle—establishing that the specific relief they seek is within the power of an Article III court. There is much to recommend the adoption of a comprehensive scheme to decrease fossil fuel emissions and combat climate change, both

209


210

as a policy matter in general and a matter of national survival in particular. But it is beyond the power of an Article III court to order, design, supervise, or implement the plaintiffs’ requested remedial plan. As the opinions of their experts make plain, any effective plan would necessarily require a host of complex policy decisions entrusted, for better or worse, to the wisdom and discretion of the executive and legislative branches. See Brown, 902 F.3d at 1086 (finding the plaintiff’s requested declaration requiring the government to issue driver cards “incompatible with democratic principles embedded in the structure of the Constitution”). These decisions range, for example, from determining how much to invest in public transit to how quickly to transition to renewable energy, and plainly require consideration of “competing social, political, and economic forces,” which must be made by the People’s “elected representatives, rather than by federal judges interpreting the basic charter of Government for the entire country.” Collins v. City of Harker Heights, 503 U.S. 115, 128–29 (1992); see Lujan, 504 U.S. at 559–60 (“[S]eparation of powers depends largely upon common understanding of w hat activities are appropriate to legislatures, to executives, and to courts.”). The plaintiffs argue that the district court need not itself make policy decisions, because if their general request for a remedial plan is granted, the political branches can decide what policies will best “phase out fossil fuel emissions and draw down excess atmospheric CO2.” To be sure, in some circumstances, courts may order broad injunctive relief while leaving the “details of implementation” to the government’s discretion. Brown v. Plata, 563 U.S. 493, 537–38 (2011). But, even under such a scenario, the plaintiffs’ request for a remedial plan would subsequently require the judiciary to pass judgment on the sufficiency of the government’s response to the order, which necessarily would entail a broad range of policy making. And inevitably, this kind of plan will demand action not only by the Executive, but also by Congress. Absent court intervention, the political branches might conclude—how ever inappropriately in the plaintiffs’ view—that economic or defense considerations called for continuation of the very programs challenged in this suit, or a less robust approach to addressing climate change than the plaintiffs believe is necessary. “But we cannot substitute our own assessment for the Executive’s [or Legislature’s] predictive judgments on such matters, all of which ‘are delicate, complex, and involve large elements of prophecy.’” Hawaii, 138 S. Ct. at 2421 (quoting Chi. & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948)). And, given the complexity and long-lasting nature of global climate change, the court would be required to supervise the government’s compliance with any suggested plan for many decades. See Nat. Res. Def. Council, Inc. v. EPA, 966 F.2d 1292, 1300 (9th Cir. 1992) (“Injunctive relief could involve extraordinary supervision by this court. . . . [and] may be inappropriate where it requires constant supervision.”). As the Supreme Court recently explained , “a constitutional directive or legal standards” must guide the courts’ exercise of equitable power. Rucho v. Common Cause, 139 S. Ct. 2484, 2508 (2019). Rucho found partisan gerrymandering claims presented political questions beyond the reach of Article III courts. Id. at 2506–07. The Court did not deny extreme partisan gerrymandering can violate the Constitution. See id. at 2506; id. at 2514–15 (Kagan, J., dissenting). But, it concluded that there was no “limited and precise” standard discernible in the Constitution for redressing the asserted violation. Id. at 2500. The Court rejected the plaintiffs’ proposed standard because unlike the one-person, one-vote rule in vote dilution cases, it was not “relatively easy to administer as a matter of math.” Id. at 2501. Rucho reaffirmed that redressability questions implicate the separation of powers, noting


that federal courts “have no commission to allocate political power and influence” without standards to guide in the exercise of such authority. See id. at 2506–07, 2508. Absent those standards, federal judicial power could be “unlimited in scope and duration,” and would inject “the unelected and politically unaccountable branch of the Federal Government [into] assuming such an extraordinary and unprecedented role.” Id. at 2507; see also Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 125 (2014) (noting the “separation-of -powers principles underlying” standing doctrine); Brown, 902 F.3d at 1087 (stating that “in the context of Article III standing, . . . federal courts must respect their ‘proper—and properly limited—role . . . in a democratic society’” (quoting Gill v. Whitford, 138 S. Ct. 1916, 1929 (2018)). Because “it is axiomatic that ‘the Constitution contemplates that democracy is the appropriate process for change,’” Brown, 902 F.3d at 1087 (quoting Obergefell v. Hodges, 135 S. Ct. 2584, 2605 (2015)), some questions—even those existential in nature—are the province of the political branches. The Court found in Rucho that a proposed standard involving a mathematical comparison to a baseline election map is too difficult for the judiciary to manage. See 139 S. Ct. at 2500–02. It is impossible to reach a different conclusion here. The plaintiffs’ experts opine that atmospheric carbon levels of 350 parts per million are necessary to stabilize the global climate. But, even accepting those opinions as valid, they do not suggest how an order from this Court can achieve that level, other than by ordering the government to develop a plan. Although the plaintiffs’ invitation to get the ball rolling by simply ordering the promulgation of a plan is beguiling, it ignores that an Article III court will thereafter be required to determine whether the plan is sufficient to remediate the claimed constitutional violation of the plaintiffs’ right to a “climate system capable of sustaining human life.” We doubt that any such plan can be supervised or enforced by an Article III court. And, in the end, any plan is only as good as the court’s power to enforce it. C. Our dissenting colleague quite correctly notes the gravity of the plaintiffs’ evidence; we differ only as to whether an Article III court can provide their requested redress. In suggesting that we can, the dissent reframes the plaintiffs’ claimed constitutional right variously as an entitlement to “the country’s perpetuity,” Diss. at 35–37, 39, or as one to freedom from “the amount of fossil-fuel emissions that will irreparably devastate our Nation,” id. at 57. But if such broad constitutional rights exist, we doubt that the plaintiffs would have Article III standing to enforce them. Their alleged individual injuries do not flow from a violation of these claimed rights. Indeed, any injury from the dissolution of the Republic would be felt by all citizens equally, and thus would not constitute the kind of discrete and particularized injury necessary for Article III standing. See Friends of the Earth, 528 U.S. at 180–81. A suit for a violation of these reframed rights, like one for a violation of the Guarantee Clause, would also plainly be nonjusticiable. See, e.g., Rucho, 139 S. Ct. at 2506 (“This Court has several times concluded, however, that the Guarantee Clause does not provide the basis for a justiciable claim.”) (citing Pac. States Tel. & Tel. Co. v. Oregon, 223 U.S. 118, 149 (1912)); Luther v. Borden, 48 U.S. 1, 36–37, 39 (1849). More importantly, the dissent offers no metrics for judicial determination of the level of climate change that would cause “the willful dissolution of the Republic,” Diss. at 40, nor for measuring a constitutionally acceptable “perceptible reduction in the advance of climate change,” id. at 47. Contrary to the dissent, we cannot find Article III redressability requirements satisfied simply

211


212

because a court order might “postpone[] the day when remedial measures become insufficiently effective.” Id. at 46; see Brown, 902 F.3d at 1083 (“If, however, a favorable judicial decision would not require the defendant to redress the plaintiff’s claimed injury, the plaintiff cannot demonstrate redressability[.]”). Indeed, as the dissent recognizes, a guarantee against government conduct that might threaten the Union—whether from political gerrymandering, nuclear proliferation, Executive misconduct, or climate change—has traditionally been viewed by Article III courts as “not separately enforceable.” Id. at 39. Nor has the Supreme Court recognized “the perpetuity principle” as a basis for interjecting the judicial branch into the policy-making purview of the political branches. See id. at 42. Contrary to the dissent, we do not “throw up [our] hands” by concluding that the plaintiffs’ claims are nonjusticiable. Id. at 33. Rather, we recognize that “Article III protects liberty not only through its role in implementing the separation of powers, but also by specifying the defining characteristics of Article III judges.” Stern v. Marshall, 564 U.S. 462, 483 (2011). Not every problem posing a threat— even a clear and present danger—to the American Experiment can be solved by federal judges. As Judge Cardozo once aptly warned, a judicial commission does not confer the power of “a knighterrant, roaming at will in pursuit of his own ideal of beauty or of goodness;” rather, we are bound “to exercise a discretion informed by tradition, methodized by analogy, disciplined by system.’” Benjamin N. Cardozo, The Nature of the Judicial Process 141 (1921). The dissent correctly notes that the political branches of government have to date been largely deaf to the pleas of the plaintiffs and other similarly situated individuals. But, although inaction by the Executive and Congress may affect the form of judicial relief ordered when there is Article III standing, it cannot bring otherwise nonjusticiable claims within the province of federal courts. See Rucho, 139 S. Ct. at 2507–08; Gill, 138 S. Ct. at 1929 (“‘Failure of political will does not justify unconstitutional remedies.’ . . . Our power as judges . . . rests not on the default of politically accountable officers, but is instead grounded in and limited by the necessity of resolving, according to legal principles, a plaintiff’s particular claim of legal right.” (quoting Clinton v. City of New York, 524 U.S. 417, 449 (1998) (Kennedy, J., concurring))); Brown, 902 F.3d at 1087 (“The absence of a law, however, has never been held to constitute a ‘substantive result’ subject to judicial review[.]”). The plaintiffs have made a compelling case that action is needed; it will be increasingly difficult in light of that record for the political branches to deny that climate change is occurring, that the government has had a role in causing it, and that our elected officials have a moral responsibility to seek solutions. We do not dispute that the broad judicial relief the plaintiffs seek could well goad the political branches into action. Diss. at 45–46, 49–50, 57–61. We reluctantly conclude, however, that the plaintiffs’ case must be made to the political branches or to the electorate at large, the latter of which can change the composition of the political branches through the ballot box. That the other branches may have abdicated their responsibility to remediate the problem does not confer on Article III courts, no matter how well-intentioned, the ability to step into their shoes. III. For the reasons above, we reverse the certified orders of the district court and remand this case to the district court with instructions to dismiss for lack of Article III standing. (footnotes omitted)


III. EMERGING TRENDS AND WHERE TO GO FROM HERE 41. As this report reveals, we are now at the early stages of a global wave of climate change litigation that will surely grow as the long-predicted effects of global warming continue to worsen in coming years. Important cases have emerged from some of the frontline states grappling with rising sea levels (Netherlands, Kiribati, Tuvalu, US, etc) with less than ideal results for those filing them, but which generated much useful jurisprudence for future cases down the road. The courts in countries as diverse as the Netherlands, Pakistan and the Colombia have produced decisions that fundamentally altered the judicial patchworks in these countries, with decisions such as Urgenda in the Netherlands, Teitiota in New Zealand/ Kirbiati, and Future Generations in Colombia having profound impacts across the planet. A vast series of important new and as of yet undecided cases are underway in a wide range of countries, and these too will have a marked impact on the growing body of climate change case law, as will as of yet unfiled cases that will surely find their way before judges and courtrooms as people increasingly seek remedies for the ills - both to humans and the natural environment - caused by and sourced to climate change. 42. One of the missing links remains determining through domestic courts the precise legal responsibilities of national governments to their citizens and residents who are forced due to climate circumstances beyond their control to move from their places of habitual residence. For instance, while there have been cases considered by New Zealand courts involving citizens from Tuvalu in terms of seeking asylum in New Zealand, we have been unable to find any domestic cases from Tuvalu dealing with domestic matters relating to climate change. Moreover, there is a dearth of cases that deal explicitly with the rights of internally displaced persons affected by climate change impacts, as well as cases addressing the clear legal obligations, already in place throughout international human rights law and many national laws, to respect, protect and fulfil the housing, land and property rights accorded to persons affected by climate change. 43. While it is impossible to say with certainty where the next leading climate change cases will emerge and which particular topics they will cover, it can be stated with reasonable certainty that many of the new cases now pending that specifically address the human rights consequences of climate change, in particular, losses and damage to homes, lands and properties as sea level rise increases and ever more people are forced from the place they call home will inevitably assist in expanding pro-rights climate jurisprudence. This is true of many, many cases, but perhaps none more so that the Ali case in Pakistan in which the litigants have argued that the right to property is a fundamental right that is provided to all citizens of Pakistan. 166 This property right is read together with other fundamental

166

Ali v. Federation of Pakistan Climate Change Litigation <http://blogs2.law.columbia.edu/climate-change-litigation/ wp-content/uploads/sites/16/non-us-case-documents/2016/20160401_Constitutional-Petition-No.-___-I-of-2016_ petition-1.pdf>.

213


rights such as the right to life, right human dignity, information, and equal protection of the law.167 The litigants put forward three arguments in relation to these property rights. The first argument was that direct and indirect consequences from the ‘exploitation of the Thar Coal Reserve and the resulting adverse impacts faced by the inhabitants of the Thar Desert, including forced displacement, loss of communal land, increased erosion (exacerbated by extreme floods and droughts due to Climate Change), reduced soil productivity, and contaminated water’168 are in violation of Thari people’s right to property. The second argument linked to the eviction of people due to the construction of infrastructure required for the Thar Coal Reserve. This involved the forcing of 4,800 people to resettle and the refusal of being provided the option of leasing their land.169 In addition, the Thari people have been refused the option of leasing their land; instead, thousands are being forced to permanently evacuate their birthplace and ancestors land in violation of their right to property.170 The last argument was whether Pakistan’s general failure in developing quantifiable emission targets and failing to achieve its goals under the UNFCCC also constituted a violation of the right to property. This is due to the ‘millions of Pakistanis who have and will be adversely impacted by Climate Change, and future generations who will undoubtedly suffer from an extremely destabilized and dangerous Climate system’.171 7 yearold Rabab Ali, the lead petitioner in the case and after whom it was named, was similarly trying to argue that the right to life, as protected by the Pakistani Constitution is affected by rising greenhouse gas emissions. However, the class of people being affected were large in ambit, which primarily included children.172 The litigants argued that the child’s right to life includes the right to an unpolluted atmosphere that is void dangerous levels of greenhouse gasses. This protection was in violation due to the: “further destabilized Climate system will violate the people of Pakistan’s right to life through an increase in hunger and malnutrition and related disorders impacting child growth and development, cardio-respiratory morbidity and mortality related to ground-level ozone, and through an increase in severity and frequency of weather-related disasters, which already have devastating effects on the people of Pakistan”.173 The litigants primarily argued that the right to life was being breached by greenhouse gas emissions that were created from the exploitation, mining and burning, and secondary activities of the Thar Coalfield. In addition, the Pakistani Government was simultaneously failing to improve air quality and encouraged air pollution by increasing ‘vehicle emissions, industrial pollution, the burning of solid/municipal/hospital waste and energy production … contribution to the destabilization of the global Climate system’ were also breaches of the right to life.174 The litigants, therefore, called for the all activities to be stopped and for regulatory measures to be implemented.

214

167

Ali v. Federation of Pakistan, above n 35, 1.

168

Ibid, 9.

169

Ibid, 22.

170

Ibid, 34.

171

Ali v. Federation of Pakistan, above n 35, 10.

172

Ali v. Federation of Pakistan, above n 35, 15.

173

Ali v. Federation of Pakistan, above n 35, 7.

174

Ibid, 8.


215 44. It is precisely cases such as Ali that provide the grounds for at least a glimmer of hope that litigation on climate matters can and will assist in finally tackling climate change in a way that both reduces its impacts and increasingly protects the rights of everyone who is negatively affected, wherever they may be. If the courts of Pakistan with their long tradition of public interest litigation can summon the courage to decide in favour of seven-year old Rabab Ali, she and all of us will be one step closer to the better world we all know is possible.

Image: Climate litigation can bring both hope for a better future and climate justice for everyone, everywhere. Ben Knight.


216

IV. SOURCES Baker-Jones, Mark and Baker-Jones, Melanie, ‘Teitiota v The Chief Executive of Ministry of Business, Innovation and Employment - A Person Displaced’ in QUT Law Review ISSN: (Print) 2205-0507 (Online) 2201-7275 Volume 15, Issue 2, pp 102-121 DOI: 10.5204/qutlr.v15i2.640 . Biermann, Frank and Ingrid Boas, Ingrid, Protecting Climate Refugees, The Case for a Global Protocol, 2008. Available at: www.environmentmagazine.org/Archives/Back%20Issues/ November-December%202008/Biermann-Boas-full.html. Corlett, David, Stormy Weather: The Challenge of Climate Change and Displacement, UNSW Press, 2008. Displacement Solutions, The Urgent Need to Prepare for Climate Displacement in Myanmar: Establishing a Myanmar National Climate Land Bank, May 2018. -------, The Rights of Climate Displaced Persons: A Quick Guide, April 2015 -------, Climate Displacement in Ontong Java, Solomon Islands, 2015. Available from: www. displacementsolutions.org. -------, The Peninsula Principles in Action: Climate Change and Displacement in the Autonomous Region of Gunayala, Panama, Displacement Solutions, 2014. -------, Climate Displacement in Kiribati, 2012. Available from: www.displacementsolutions.org. van der Geest, Kees and Warner, Koko, Loss and Damage from Climate Change: Emerging Perspectives in International Journal of Global Warming 8(2), pp133-140, September 2012. Grantham Research Institute on Climate Change and the Environment (2019) Climate Change Laws of the World database. www.climate-laws.org Grantham Research Institute on Climate Change and the Environment and the Centre for Climate Change Economics and Policy, Policy brief - National laws and policies on climate change adaptation: a global review, LSE and University of Leeds, December 2019. Howard, Emma, ‘Hague climate change judgement could inspire a global civil movement’, in The Guardian, 25 June 2015. International Bar Association, Achieving Justice and Human Rights in an Era of Climate Disruption - Climate Change Justice and Human Rights Task Force Report, 2014. International Law Association, Sydney Declaration of Principles on the Protection of Persons Displaced in the Context of Sea Level Rise, 2018. Adopted by The Committee on International Law and Sea Level Rise adopted Resolution 6/2018 at the 78th Conference of the International Law Association, held in Sydney, Australia, 19–24 August 2018. Leckie, Scott and Huggins, Chris (eds), Repairing Domestic Climate Displacement: The Peninsula Principles, Routledge, 2015.


217

-------(ed), Land Solutions for Climate Displacement, Routledge Publishers, 2014. -------, Finding Land Solutions to Climate Displacement: A Challenge Like Few Others, Displacement Solutions, 2013. Nachmany M, Setzer J (2018) Global trends in climate change legislation and litigation: 2018 snapshot. London: Grantham Research Institute on Climate Change and Centre for Climate Change Economics and Policy Setzer J, Byrnes R (2019) Global trends in climate change litigation: 2019 snapshot. London: Grantham Research Institute on Climate Change and the Environment and Centre for Climate Change Economics and Policy UNHCR, Planned Relocations, Disasters and Climate Change: Consolidating Good Practices and Preparing for the Future: Background Document, 2014. Available at: https://disasterdisplacement. org/portfolio-item/background-paper-to-the-san-remo-consultation Wallace-Wells, David The Uninhabitable Earth: A Story of the Future, Allen Lane, 2019.

RELEVANT INTERNATIONAL LAWS, AGREEMENTS AND STANDARDS The Paris Agreement (2015) http://unfccc.int/files/essential_background/convention/application/ pdf/english_paris_agreement.pdf Peninsula Principles on Climate Change Displacement (2013). UNFCCC, Cancun Adaptation Framework (2010) available from: http://unfccc.int/resource/ docs/2010/cop16/eng/07a01.pdf#page=4. UNFCCC, Copenhagen Accord (2009) Para 1 & 3, available from: http://unfccc.int/resource/ docs/2009/cop15/eng/l07.pdf. Kyoto Protocol to the United Nations Framework Convention on Climate Change (1997) http://unfccc.int/kyoto_protocol/items/2830.php. UN Framework Convention on Climate Change (1992) - http://unfccc.int/essential_background/ convention/items/6036.php. The Warsaw Mechanism - Decision 2/CP.19 - Warsaw international mechanism for loss and damage associated with climate change impacts.


WWW.DISPLACEMENTSOLUTIONS.ORG

Funded by