Climate Litigation
Climate Constitutionalisation in Europe—After KlimaSeniorinnen and the ICJ’s Advisory Opinion
European courts are increasingly treating climate mitigation duties as rights-based obligations as opposed to policy choices. Drawing on human rights, international law, and climate science, they are giving climate action a ‘constitutional dimension’.
This trend is visible in national courts, in the ECtHR’s KlimaSeniorinnen ruling, and in the ICJ’s Advisory Opinion. Together, they show how non-binding norms and scientific insights are reshaping binding human rights law.
The result? A growing tension between judiciaries and elected institutions, but also a stronger role for international law in Europe’s climate response.
Professor Christina Eckes‘ new paper in the Climate Journal explores this evolution, its implications for democracy, and why it may be both necessary and legitimate.
Abstract
Several European courts have vested mitigation obligations with a hierarchically higher legal rank than ordinary state action. They construe these obligations from human rights in combination with international commitments and climate science. This phenomenon is here called ‘climate constitutionalisation’. In addition, we see an increasing escalation of climate cases to the European Court of Human Rights (ECtHR) and we now have the advisory opinion of the International Court of Justice (ICJ). Climate constitutionalisation in Europe is an incremental process of replication and reiteration. It can only be understood by studying the developing body of national case law in the context European and international law. Studying general emission reduction cases against states in Europe, this paper traces how non-enforceable legal norms, political commitments, and climate science are used to interpret binding and enforceable human rights norms. It reflects on the present and future consequences of the ECtHR’s decision in KlimaSeniorinnen and ICJ’s Advisory Opinion on climate obligations. The paper argues that Europe’s multilayered legal and judicial landscape strengthens climate constitutionalisation and herewith deepens the fault line between the judiciary and the elected institutions. Europe’s openness towards international law facilitates this process. The paper then offers tentative normative justifications for this process.
