21 Feb Climate Change and Human Rights: A Comparative Analysis of the German and Belgian Climate Cases
[Charlotte Renglet is a PhD candidate working on climate litigation and indigenous peoples’ rights at the Faculty of Law and Criminology of the Vrije Universiteit Brussel. Prof. Dr. Stefaan Smis is the Head of the Department of Public Law at the Faculty of Law and Criminology of the Vrije Universiteit Brussel and a part-time Reader in International Law at the University of Westminster.]
In the absence of an adequate political response to climate change, a growing number of cases have been filed against states worldwide to request a more ambitious climate policy. While the far-reaching impacts of climate change on fundamental rights are being increasingly recognized and documented, human rights arguments have been used more widely in recent climate litigation. Several significant rulings have been pronounced in 2021, notably in Notre affaire à tous v France, Milieudefensie et al. v Royal Dutch Shell, Sacchi et al. v Argentina et al.. Following the disappointing results of the recent COP26, the importance of this new trend of strategic litigation should be highlighted. This post takes a closer look at the judgment issued by the German Federal Constitutional Court (‘GFCC’) on 29 April 2021 in the Neubauer et al. v Germany case (‘Neubauer case’) in light of the ruling of 17 June 2021 of the Brussels Court of First Instance (‘BCFI’) in the Klimaatzaak et al. v Belgium et al. case (‘Klimaatzaak case’). Such a comparative analysis is warranted as both courts were faced with similar legal issues regarding human rights and climate change which were however assessed in contrasting ways.
Legal Questions at Issue in the Cases
The Neubauer case involved four different constitutional complaints filed mostly by youth from Germany as well as Nepal and Bangladesh. The plaintiffs claimed that Germany’s current climate policy was insufficient and violated the German Basic Law. They notably based their argumentation on the human right to life and physical integrity as well as Article 20a of the Basic Law which imposes on the state to ‘protect the natural foundations of life and animals’ while being mindful of its responsibility towards future generations. The plaintiffs argued that the soft mitigation measures presently in force in Germany might impact their fundamental rights in two ways: on the one hand by exposing them to the risk of dangerous climate change, and on the other hand by subjecting them to significant losses of freedom because of the drastic measures that would have to be adopted in the future to mitigate it. They requested the court to declare that the Basic Law had been breached and to impose upon the state authorities an order to adopt stronger climate change mitigation measures.
The Klimaatzaak case was brought by the environmental association Klimaatzaak and several thousand individuals. In this case, the plaintiffs argued that the Belgian climate response measures were currently insufficient to adequately protect them from the dangerous effects of climate change, in violation of the state’s general duty of care as well as the right to life and the right to private and family life, recognized in Articles 2 and 8 of the European Convention on Human Rights (‘ECHR’). Accordingly, they sought a declaration of violation and an order to adopt stronger greenhouse gas (‘GHG’) emissions reduction targets.
Both courts were thus faced with the same core legal issue: the potential human rights obligations of states regarding climate protection. Due to space constraints and since this question was not at issue in the Klimaatzaak case, this short analysis does not address the extra-territorial application of human rights obligations.
A Common Recognition of States’ Positive Human Rights Obligations to Protect Individuals Living in Their Territory From Climate Change
Regarding the theoretical aspect of the issue, the GFCC ruled that the right to life and physical integrity and the right to property enshrined in the German Basic Law encompass a duty to protect those rights from the negative impacts of climate change. Additionally, the judgment held that Article 20a of the Basic Law is a justiciable provision requiring the state to take climate action. Similarly, the BCFI ruled that the right to life and the right to private and family life protected by the ECHR entail a positive obligation to adopt suitable measures of protection against the dangerous effects of climate change. The adequation of those measures should also be reviewed against the state’s general duty of care.
The GFCC and the BCFI thus both established the existence of an obligation under human rights law imposing upon states a duty to protect individuals in their territory from the impacts of climate change. In that sense, both judgments are truly groundbreaking and constitute meaningful precedents for the development of human rights-based climate litigation.
Human Rights Implications of an Insufficient Climate Policy: Contrasting Reasonings
Although the GFCC and the BCFI started from the same theoretical finding that states are required under human rights law to protect their residents from climate change, they reached different conclusions in their application of the finding.
Both courts noted that the climate measures presently in force in their respective states were unlikely to allow them to reach their climate mitigation objectives. Based on this finding, the BCFI ruled that the defective and inadequate climate framework adopted by the Belgian state constituted a faulty behaviour in light of the state’s general duty of care and a violation of its positive human rights obligations. In comparison, the decision of the GFCC appears more complex and circuitous. The GFCC ruled that, despite the current insufficiencies of its climate response, it was not certain that the German state would not eventually be able to protect the plaintiffs from violations of their fundamental rights caused by climate change, notably based on its remaining leeway to fulfil its obligations. Therefore, no violation of the state’s duty to protect could be found on this ground. Basing itself on the constitutional principle of proportionality and in light of Article 20a of the Basic Law, the GFCC nevertheless emphasized the necessity to set sufficient GHG emissions reductions now with the view not to disproportionally offload the climate mitigation burden to younger and future generations. For the GFCC, the future drastic measures required for climate protection would disproportionally impact the young plaintiffs’ fundamental freedoms, in violation of the Basic Law.
Court Orders and On-the-ground Impact of the Cases
Despite having established a human rights violation, the BCFI refused to issue any injunction ordering Belgium to strengthen its climate policy. The BCFI found that, in the absence of any specific legal obligation in this regard, imposing specific GHG emissions reduction targets would be contrary to the principle of separation of powers. As a result, the direct impact of the judgment on the climate response measures in Belgium will most likely remain minimal. This view seems to be confirmed by the absence of any steps to improve the national climate framework in the wake of the BCFI’s ruling and the major difficulties to develop a common Belgian position for the COP26. This recently prompted the plaintiffs to file an appeal against the decision.
In contrast, the GFCC ordered the enactment of new provisions on the GHG emissions reductions for the post-2030 period and its judgment had a remarkable impact on the ground. Not only did the German state rapidly comply with the GFCC’s injunction, it also took this opportunity to further enhance its climate protection policy and significantly raised its GHG emissions reduction targets.
The climate duties of states under human rights law are still developing. In this context, climate litigation plays a crucial role in recognizing those obligations and further clarifying their content. The judgments issued by the GFCC and the BCFI both provide meaningful yet imperfect contributions to this development.
By establishing a violation of the Belgian state’s positive obligations under the ECHR, the BCFI unequivocally confirmed that an insufficient climate response can amount to a violation of human rights. In that sense, the judgment of the BCFI undoubtedly constitutes an important precedent. However, while the court opened the door to the recognition of human rights-based climate obligations, it failed to manifest the logical consequences of this finding. As has been further analysed elsewhere, the BCFI indeed limited its concrete assessment of the state’s climate response to its already existing obligations. Accordingly, the BCFI refused to impose stronger GHG emissions reductions based on human rights, which is disappointing.
In contrast, with its injunction to adapt the national climate policy and its strong on-the-ground impact, the Neubauer case is undeniably groundbreaking. However, the legal reasoning of the GFCC on climate change and human rights has some important shortcomings. While the establishment of an obligation to respect inter-generational equity in the context of climate protection is undeniably a significant and wishful development, it is disappointing that the GFCC constrained its application to the allocation of the GHG emissions budget. In addition, it is unfortunate that its finding of a constitutional violation was ultimately based on the negative impacts of the necessary GHG emissions reduction measures rather than climate change itself. Indeed, the most important threat to human rights induced by an inappropriate response to climate change lies in the risk of dangerous climate change, as was recognized by the BCFI, rather than the measures necessary to prevent it.