Six Portuguese youth base their complaint before the European Court of Human Rights on the climate induced damages suffered from devastating forest fires in Portugal.
Industrial States to be held individually responsible for global warming ? – Part I
States’ obligations and differences in 1.5 °C and 2 °C global warming
During the World Leaders Summit on Climate on 22 and 23 April 2021 US- President Biden announced the ambitious 2030 emissions target as the new contribution of the USA under the Paris Agreement and urged the other 40 world leaders to contribute also to stronger climate ambition. In recent years the consciousness for changing climate and its significant impacts has been growing in politics and societies. It became clear that the world’s most vulnerable populations will face the worst impacts of climate change though some of those countries had contributed the least to the greenhouse gas emissions.
European States are held responsible for the impacts of changing climate: De Hoge Raad der Nederlanden, (Supreme Court of the Netherlands) ordered in its judgement from 20 December 2019 the State of the Netherlands to mitigate greenhouse gas emissions by the end of 2020 by at least 25% compared to 1990. Alike, das Bundesverfassungsgericht, (The German Federal Constitutional Court), released on 29 April 2021 its decision from 24 March 2021 ordering that the German legislator does not meet its constitutional obligations to adopt the suitable legislation for CO2 emissions mitigation until 2030 in order to reach the target of climate neutrality in 2050 without being coerced to interfere inappropriately in fundamental freedoms from 2030 onwards. The complainants are insofar violated in their fundamental rights.
And beyond, on 7 September 2020 six Portuguese youth filed a complaint to the European Court of Human Rights against Portugal and 32 other European States asserting that those 33 States violate human rights set forth in the Convention by neglecting their obligations enshrined in the United Nations Framework Convention and the Paris Agreement on Climate Change.
Complex juridical questions arise by those complaints: inter alia whether the complainant’s damage caused by global warming might be attributable to the omission of one industrial State to enact suitable measures to reduce greenhouse gas emissions and which due diligence standard has to be met by the State to fulfill its treaty obligations. However, before answering these questions by a legal assessment notably of international environmental law, the following seeks to well- establish first the context of those cases.
According to the 2020 report on Fossil CO2 emissions of all world countries provided by the European Commission global CO2 emissions from fossil fuels combustion and processes further increased by + 0.9% in 2019, about half of the previous annual growth rate (+1.9% in 2018). In 2019 the world’s largest CO2 emitters – China with 29.7% global share in 2018, the United States with 13.9%, the EU27 +UK with 9.2%, India with 6.9%, Russia with 4.6% and Japan with 3.2% – emitted about 67 % of total global fossil CO2. Emissions from these five countries and the EU27+UK show different changes in 2019 compared to 2018:
The largest relative increase is found for China with +3.4% (2017-2018: +1.5%), followed by India with +1.6% (2017-2018: +7.2%). On the contrary, the EU27+UK with -3.8% (2017-2018: -1.9%), the United States with -2.6% (2017-2018: +2.9%), Japan with -2.1% (2017-2018: -1.7%), and Russia with -0.8% (2017-2018: +3.6%) reduced their fossil CO2 emissions.
China, the biggest CO2 – remittent, repeated its pre-existing ambitions to reach the peak of its CO2 emissions until 2030 and climate neutrality until 2050 emphasizing the diverging responsibilities of industrial- and development states for global warming on the World Leader Summit on Climate (see also Art. 4 §1 and Art. 7 §7d) of the Paris Agreement). While the former US President Obama pursued the target of CO2 emissions reduction by -26% until 2030, President Biden just announced the relatively ambitious target to reduce CO2 emissions until 2030 by 50% to 52% and -like China- to reach climate neutrality until 2050.
The Paris Agreement, adopted by 196 Parties on 12 December 2015, pursues the goal to limit global warming to well below 2 °C, preferably to 1.5 °C, compared to pre-industrial levels (see Art. 2 § 1 lit.a) of the Agreement). Countries aim to reach peaking of greenhouse gas emissions as soon as possible and to achieve a climate-neutral world by mid-century (see Art. 4 § 1 of the Agreement).
The International Panel on Climate Change (IPCC), a group of scientists from 130 countries created by the UN Environmental Program in 1998, stated in its special report that the global average temperature reached 0.87 °C in the decade 2006-2015 relative to the pre-industrial level. Given that global temperature is currently rising by 0.2 °C per decade, human-induced warming would reach 1.5 °C above pre-industrial levels around 2040. The IPCC found that an overshoot of 1.5 °C and the reliance on future large-scale deployment of carbon dioxide removal (which would require a profound transformation in the agricultural use of lands) can only be avoided if global CO2 emissions start to decline well before 2030. However, the estimated outcome of current nationally stated mitigation ambitions as submitted under the Paris Agreement would not limit global warming to 1.5 °C, even if supplemented by very challenging increases in the scale and ambition of emissions reductions after 2030.
The differences in impacts of temperature rise of 1.5 °C as opposed to 2 °C are significant: limiting global mean temperature increase to 1.5 °C could substantially reduce the risk of reduced water availability in some regions. Regions that are projected to benefit the most robustly from restricted warming include the Mediterranean and southern Africa. At 2 °C of global warming, the risk of food shortage is projected to be much larger and to emerge in the African Sahel, the Mediterranean, central Europe, the Amazonia, and western and southern Africa.
Moreover, under 1.2 °C of global warming, fire frequency has been estimated to increase by over 37.8% of global land areas, compared to 61.9% of global land areas under 3.5 °C of global warming. At 2 °C of warming more than 90% of global coastlines are projected to experience sea level rise greater than 0.2 m, suggesting differences in the risk of coastal flooding.
Already apparent at 1.5 °C of warming, regionally differentiated multi-sector risks are more prevalent where vulnerable people live, predominantly in South Africa (Pakistan, India, China) but expected to spread to sub-Saharan Africa, Middle East, and East Asia as temperatures rises, with the world’s poorest people disproportionately impacted at 2 °C of warming. The hydrological impacts of climate change in Europe are projected to increase in spatial extent and intensity across increasing global warming levels of 1.5 °C to 2.0 °C based on the assessment of risks to food shortage, water resources, drought, heat exposure and coastal submergence.
As regards to the far-reaching impacts of global warming Part II to this article will discuss climate change as a conflict threat multiplier and will carve out the urgent need for providence of adaptation strategies and risk management to support most vulnerable people exposed the most to the impacts going beyond pathways of greenhouse gas emission mitigation.
Part III will finally address the judicial question of a partial state responsibility and in the affirmative case the consequences of such a state responsibility.
Corinna Wilkening, lawyer (L.L.M. International Humanitarian Law and Human Rights) and lector for the scientific magazines “Europäische Grundrechte Zeitschrift” and the Human Rights Law Journal