International Climate Litigation: Current Decisions

On 30 October 2024, the International and Comparative Law Research Center held a roundtable discussion “International Climate Litigation: Current Decisions”.

Leading experts in international law, practicing lawyers, representatives of state bodies, students, and postgraduates took part in the discussion. The speakers were:

• Mikhail Galperin, Professor at the Higher School of Economics and the S.S. Alekseev Private Law Research Centre under the President of the Russian Federation
• Roman Kolodkin, Judge of the International Tribunal for the Law of the Sea
• Daria Boklan, Professor, International Law Department, Higher School of Economics
• Aleksey Kudinov, International Law Expert, Climate and Environment, the International and Comparative Law Research Center.

The discussion was moderated by Sofia Sarenkova, Head of Public International Law at the ICLRC.

The participants discussed trends in defining the climate obligations of states in the context of decisions of international courts and tribunals. The reports of the speakers were devoted to the judgement of the European Court of Human Rights (ECHR) of 9 April 2024, in the case of Verein KlimaSeniorinnen Schweiz v. Switzerland, as well as to the Advisory Opinion of the International Tribunal for the Law of the Sea of 21 May 2024, at the request of the COSIS organization.

The moderator, Sofia Sarenkova, opened the event and noted that the discussed court decisions have different objectives and legal effects, but both are important for understanding current climate obligations and their place in the context of obligations in other branches of international law, such as human rights and law of the sea.

In his report, Mikhail Galperin presented an analysis of three ECHR judgments in climate cases (Carême v. France; Duarte Agostinho and Others v. Portugal and 32 Others; Verein KlimaSeniorinnen Schweiz and Others v. Switzerland), noting that the decision in the case against Switzerland produced a procedural revolution: the Court substantiated the legal standing of an organization acting to protect the collective interests of citizens. This decision, in his opinion, strengthens the role of NGOs as representatives of those affected by the negative impact of climate change. In response to the question about the possibility of granting legal standing to “future generations”, the speaker admitted that legally this issue has not yet been developed.

Roman Kolodkin, in his report, analyzed the Advisory Opinion of the International Tribunal for the Law of the Sea dated 21 May 2024, regarding the reflection of states' will in it. The speaker noted that the reflection of state consensus on certain issues in decisions of international courts enhances their perception by states and other actors and gives them additional authority as subsidiary means for the determination of rules of international law. He drew attention to the universal opinion of states on available climate change data identified by the Tribunal: most states referred to reports of the Intergovernmental Panel on Climate Change (IPCC), recognizing them as an authoritative source of scientific data, while none of the parties to the case disputed the presented scientific data. In addition, the broad agreement around the scientific data was confirmed by the procedure for adopting IPCC reports with the participation of 195 countries. Thanks to this, the International Tribunal for the Law of the Sea concluded that scientific data are applicable as one of the factors taken into account when determining measures necessary to fulfill obligations under the UN Convention on the Law of the Sea in the context of climate change. When answering the question about the correlation between obligations under the UN Convention on the Law of the Sea and the Paris Agreement, the speaker noted that the Tribunal considered the principle of lex specialis derogat legi generali inapplicable in this case for the purpose of interpreting the Convention, which does not deprive climate agreements of their special role in regulating anthropogenic greenhouse gas emissions.

In her speech, Daria Boklan presented the key findings of the ECHR on the legal status of a victim of a violation of climate obligations and the negative consequences for those affected. She noted that in the case of Verein KlimaSeniorinnen Schweiz v. Switzerland, the Court relied on a non-standard approach to causation. Instead of the classic analysis of the link between the violation of the European Convention on Human Rights and specific harm to the applicants, the ECHR focused on the alleged failure of the state to fulfill positive obligations and the risk of harm. According to Professor Boklan, this approach is not new and was, in particular, applied by the WTO Dispute Settlement Body in the case of European Communities — Measures Affecting Asbestos and Products Containing Asbestos. The speaker also drew attention to the fact that the ECHR rejected the defendant's “drop in the ocean” argument regarding Switzerland's share of global anthropogenic greenhouse gas emissions and decided that the “but-for” test does not apply in this case.

Alexey Kudinov, concluding the event with a report on the adaptation of international legal norms in the face of climate change, noted that one of the tools for such adaptation is judicial interpretation based on the concept of a “living instrument”. The speaker drew attention to the fact that the discussed judicial acts are significant from the point of view of expanding the subject matter of international justice and discussing systemic relationships between climate agreements and other international treaties.