Klimaseniorinnen

Deze club oude dames spraken Zwitserland erop aan dat ze te weinig deed om klimaatverandering tegen te gaan. En dat er overtredingen waren tegen:

• Artikel 2, recht op leven. De staat had dus eigenlijk dood en verderf gezaaid. De rechtbank acht dit bewezen, maar verwijst voor de redenatie naar Artikel 8.
• Artikel 8, recht op bescherming van de privaatsfeer. De staat schaadt het leven, welzijn en leefgewoontes door onvoldoende klimaatmaatregelen.
• Artikel 6, toegang tot de rechter. Hier is toegekend dat inhoudelijk geoordeeld had moeten worden over de klachten, in plaats van af te wimpelen op procedurele of inhoudelijk slecht onderzochte informatie.

De uitspraak legt heel veel losse eindjes vast. Vervolgens kan het in allerlei landen worden toegevoegd.

• Klimaatverandering wordt veroorzaakt door mensen, en overheden hebben de mogelijkheid en plicht dat tegen te gaan.
• Landen hebben een geografisch gebonden verantwoordelijkheid voor klimaatverandering, omdat ze een jurisdictie vertegenwoordigen die zich heeft aangesloten bij de mensenrechten. (Nederland heeft het Verdrag van Lissabon ondertekend, na enig oproer, en dat verdrag sluit de mensenrechten op gelijkwaardige voet in met de rest van het verdrag.)
• Landen moeten het risico op onomkeerbare klimaatverandering tegengaan, wat neerkomt op maximaal 1,5 ⁰C temperatuurstijging.
• Landen moeten een koolstofbudget vastleggen, en hun toekomstige emissies. Iets vergelijkbaars mag ook (maar let op, een paar punten op de horizon geven duidelijk minder zekerheden; een koolstofbudget is cumulatief en dus zelf-regulerend als men achterloopt).
• Landen worden afgerekend op effectieve klimaatmaatregelen, maar moeten daarvoor de nodige regulering in werking stellen.
• Landen hebben ruime vrijheid in de keuzes die gemaakt worden om klimaatverandering tegen te gaan, maar eigenlijk geen keuze of ze het bestrijden.

Alle documenten zijn online te vinden. De uitspraak is gecombineerd met een aantal andere klimaatzaken die op technische gronden werden afgewezen. Zie de video van de uitspraak en lees het persbericht over de Klimaseniorinnen.

Het is de moeite waard om de uitspraak zelf te lezen. Die is enorm, maar de kern zit in de "court findings".

Uittreksel van de Uitspraak

Door Rick, op basis van het lezen van de "judgement" delen uit het volledige verslag.

Losse quotes

§109. The IPCC report sought to quantify mitigation requirements in terms of 1.5 ⁰C pathways that refer to “carbon budgets”. The report explained that cumulative CO₂ emissions would be kept within a budget by reducing global annual CO₂ emissions to net zero. This assessment suggested a remaining budget of about 420 GtCO₂ for a two-thirds chance of limiting warming to 1.5 ⁰C, and of about 580 GtCO₂ for an even chance (medium confidence). At the same time, staying within a remaining carbon budget of 580 GtCO₂ implied that CO₂ emissions would have to reach carbon neutrality in about thirty years, reduced to twenty years for a 420 GtCO₂ remaining carbon budget (high confidence). Moreover, non-CO₂ emissions contributed to peak warming and affected the remaining carbon budget79.

§110. In its subsequent Assessment Reports (“AR”), the IPCC came to similar conclusions confirming and updating its findings in the 2018 Special Report. Thus, in AR6 “Climate Change 2021: The Physical Science Basis” (cited above), the IPCC unequivocally confirmed that anthropogenic climate change has produced various adverse effects for humans and nature and created risks for further such effects in the future, in particular in relation to global warming. According to the report, global surface temperature would continue to increase until at least the middle of the century under all emissions scenarios considered, and global warming of 1.5 ⁰C and 2 ⁰C would be exceeded during the twenty-first century unless deep reductions in CO₂ and other GHG emissions occurred in the coming decades. On the other hand, with further global warming, changes in several climatic impact-drivers would be more widespread at 2 ⁰C compared to 1.5 ⁰C global warming and even more widespread and/or pronounced for higher warming levels [Summary for Policymakers, pp. 14 and 24]. The report also confirmed the IPCC’s earlier findings (high confidence) that there was a near-linear relationship between cumulative anthropogenic CO₂ emissions and the global warming they caused. Thus, limiting human-induced global warming to a specific level required limiting cumulative CO₂ emissions, reaching at least net zero CO₂ emissions, together with strong reductions in other GHG emissions. Furthermore, the report nuanced the relevant estimated remaining carbon budgets from the beginning of 2020. It explained that to have a 67% chance of meeting the 1.5 ⁰C limit, the remaining global carbon budget was 400 GtCO₂ and to have an 83% chance, 300 GtCO₂ [Summary for Policymakers, pp. 27-29].

§436. there are sufficiently reliable indications that anthropogenic climate change exists, that it poses a serious current and future threat to the enjoyment of human rights guaranteed under the Convention, that States are aware of it and capable of taking measures to effectively address it, that the relevant risks are projected to be lower if the rise in temperature is limited to 1.5 ⁰C above pre-industrial levels and if action is taken urgently, and that current global mitigation efforts are not sufficient to meet the latter target.

§405. interveners considered that the precautionary principle and the principle of prevention precluded the States from forgoing available and proven measures to immediately and steeply reduce GHG emissions in reliance on speculative technologies such as engineered carbon dioxide removal that increased the likelihood of overshooting 1.5 ⁰C. To the extent that the State’s climate mitigation plans relied on the purchase of carbon offset credits from conduct outside its territory or CDR technologies, they failed to satisfy the State’s duties to respect and ensure the rights to life and private and family life.

De rest komt (tenzij anders vermeld) uit Court's Assessment.

Violation of 8, Protection of Private Life

Inleidende punten.

§410. climate change is one of the most pressing issues of our times. While the primary cause of climate change arises from the accumulation of GHG in the Earth’s atmosphere, the resulting consequences for the environment, and its adverse effects on the living conditions of various human communities and individuals, are complex and multiple. The Court is also aware that the damaging effects of climate change raise an issue of intergenerational burden-sharing (see paragraph 420 below) and impact most heavily on various vulnerable groups in society, who need special care and protection from the authorities

§411. to a large extent measures designed to combat climate change and its adverse effects require legislative action both in terms of the policy framework and in various sectoral fields. In a democracy, which is a fundamental feature of the European public order expressed in the Preamble to the Convention together with the principles of subsidiarity and shared responsibility (...), such action thus necessarily depends on democratic decision-making.

§412. democracy cannot be reduced to the will of the majority of the electorate and elected representatives, in disregard of the requirements of the rule of law. The remit of domestic courts and the Court is therefore complementary to those democratic processes. The task of the judiciary is to ensure the necessary oversight of compliance with legal requirements.

§413. widely acknowledged inadequacy of past State action to combat climate change globally entails an aggravation of the risks of its adverse consequences, and the ensuing threats arising therefrom, for the enjoyment of human rights – threats already recognised by governments worldwide. The current situation therefore involves compelling present-day conditions, confirmed by scientific knowledge, which the Court cannot ignore in its role as a judicial body tasked with the enforcement of human rights. Given the necessarily primary responsibility of the legislative and executive branches and the inherently collective nature of both the consequences and the challenges arising from the adverse effects of climate change, however, the question of who can seek recourse to judicial protection under the Convention in this context is not just a question of who can seek to address this common problem through the courts, first domestically and subsequently by engaging the Court, but raises wider issues of the separation of powers.

§414. While the Court’s environmental case-law to date (see, in particular, paragraph 538 below) can offer guidance up to a point, there are important differences between the legal questions raised by climate change and those addressed until now.

§415. The Court’s existing case-law in environmental matters concerns situations involving specific sources from which environmental harm emanates.

§416. In the context of climate change, the key characteristics and circumstances are significantly different. First, there is no single or specific source of harm. GHG emissions arise from a multitude of sources. The harm derives from aggregate levels of such emissions184. Secondly, CO₂ – the primary GHG – is not toxic per se at ordinary concentrations [See IPCC, “Carbon Dioxide Capture and Storage” (2005), Annex I, pp. 385-95]. The emissions produce harmful consequences as a result of a complex chain of effects. These emissions have no regard for national borders.

§417. Thirdly, that chain of effects is both complex and more unpredictable in terms of time and place than in the case of other emissions of specific toxic pollutants. Aggregate levels of CO₂ give rise to global warming and climate change, which in turn cause incidents or periods of extreme weather; these in turn cause various harmful phenomena such as excessive heatwaves, droughts, excessive rainfall, strong winds and storms, which in turn give rise to disasters such as wildfires, floods, landslides and avalanches. The immediate danger to humans arises from those kinds of consequences in the given climate conditions.

§418. Fourthly, the sources of GHG emissions are not limited to specific activities that could be labelled as dangerous. [...] without effective mitigation (...), adaptation measures cannot in themselves suffice to combat climate change (see paragraph 115 above).

§419. Fifthly, combating climate change, and halting it, does not depend on the adoption of specific localised or single-sector measures. Climate change is a polycentric issue. Decarbonisation of the economies and ways of life can only be achieved through a comprehensive and profound transformation in various sectors. Such “green transitions” necessarily require a very complex and wide-ranging set of coordinated actions, policies and investments involving both the public and the private sectors. Individuals themselves will be called upon to assume a share of responsibilities and burdens as well.

§420. While the legal obligations arising for States under the Convention extend to those individuals currently alive who, at a given time, fall within the jurisdiction of a given Contracting Party, it is clear that future generations are likely to bear an increasingly severe burden of the consequences of present failures and omissions to combat climate change (see paragraph 119 above) and that, at the same time, they have no possibility of participating in the relevant current decision-making processes. By their commitment to the UNFCCC, the States Parties have undertaken the obligation to protect the climate system for the benefit of present and future generations of humankind (see paragraph 133 above; Article 3 of the UNFCCC). This obligation must be viewed in the light of the already existing harmful impacts of climate change, as well as the urgency of the situation and the risk of irreversible harm posed by climate change. In the present context, having regard to the prospect of aggravating consequences arising for future generations, the intergenerational perspective underscores the risk inherent in the relevant political decision-making processes, namely that short-term interests and concerns may come to prevail over, and at the expense of, pressing needs for sustainable policy-making, rendering that risk particularly serious and adding justification for the possibility of judicial review.

§421. measures required for achieving adequate mitigation and adaptation may vary to some extent from one State to another depending on several factors such as the structure of the economy, geographical and demographic conditions and other societal circumstances. Even if in the longer term, climate change poses existential risks for humankind, this does not detract from the fact that in the short term the necessity of combating climate change involves various conflicts, the weighing-up of which falls, as stated previously, within the democratic decision-making processes, complemented by judicial oversight by the domestic courts and this Court.

§422. The Court considers it appropriate to adopt an approach which both acknowledges and takes into account the particularities of climate change and is tailored to addressing its specific characteristics. In the present case, therefore, while drawing some inspiration from the principles set out in the Court’s existing case-law, the Court will seek to develop a more appropriate and tailored approach as regards the various Convention issues which may arise in the context of climate change.

Algemene overwegingen aangaande klimaatlitigatie.

§429. The Court also relies on studies and reports by relevant international bodies as regards the environmental impacts on individuals (see Tătar, cited above, § 95). As regards climate change, the Court points to the particular importance of the reports prepared by the IPCC, as the intergovernmental body of independent experts set up to review and assess the science related to climate change, which are based on comprehensive and rigorous methodology, including in relation to the choice of literature, the process of review and approval of its reports as well as the mechanisms for the investigation and, if necessary, correction of possible errors in the published reports. These reports provide scientific guidance on climate change regionally and globally, its impact and future risks, and options for adaptation and mitigation [See, for further details, www.ipcc.ch/about; last accessed 14.02.2024].

§430. As a general rule, where domestic proceedings have taken place, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts and it is for the latter to establish the facts on the basis of the evidence before them. However, it reiterates in this connection that, while sensitive to the subsidiary nature of its role and cautious about taking on the role of a first-instance tribunal of fact, the Court is nevertheless not bound by the findings of domestic courts and may depart from them where this is rendered unavoidable by the circumstances of a particular case. It is the Court’s function to review the reasoning adduced by domestic judicial authorities from the point of view of the Convention and to determine whether the national authorities have struck a fair balance between the competing interests at stake (...).

§431. In recent times there has been an evolution of scientific knowledge, social and political attitudes and legal standards concerning the necessity of protecting the environment, including in the context of climate change. There has also been a recognition that environmental degradation has created, and is capable of creating, serious and potentially irreversible adverse effects on the enjoyment of human rights. This is reflected in the scientific findings, international instruments and domestic legislation and standards, and is being recognised in domestic and international case-law (see paragraphs 173, 176, 225 and 236-267 above).

§432. The findings of the IPCC reports noted in paragraphs 107 to 120 above have not been challenged or called into doubt by the respondent or intervening States. It should also be noted that the clear indications as regards the adverse effects of climate change, both existing and those associated with an overshoot of 1.5 ⁰C global temperature rise, noted by the IPCC, have been shared by many environmental experts and scientists intervening as third parties in the present proceedings before the Court (see, for instance, paragraphs 392-393, 397, 399, 404-405 and 406 above).

§433. IPCC findings correspond to the position taken, in principle, by the States in the context of their international commitments to tackle climate change. They also underpin the general policy aims in the respondent State in terms of the urgency of addressing climate change and its adverse effects on the lives, health and well-being of individuals (see paragraphs 84-102 above) [For a global database of climate laws see www.climate-laws.org; last accessed 14.02.2024).]

§434. the Convention is a living instrument which must be interpreted in the light of present-day conditions, and in accordance with developments in international law, so as to reflect the increasingly high standard being required in the area of the protection of human rights, thus necessitating greater firmness in assessing breaches of the fundamental values of democratic societies. (...) Indeed, an appropriate and tailored approach as regards the various Convention issues which may arise in the context of climate change, required for the reasons set out in paragraph 422 above, needs to take into account the existing and constantly developing scientific evidence on the necessity of combating climate change and the urgency of addressing its adverse effects, including the grave risk of their inevitability and their irreversibility, as well as the scientific, political and judicial recognition of a link between the adverse effects of climate change and the enjoyment of (various aspects of) human rights.

§435. Article 8 is capable of being engaged because of adverse effects not only on individuals’ health but on their well-being and quality of life (see paragraph 514 below) and not only because of actual adverse effects but also sufficiently severe risks of such effects on individuals (see paragraph 470 below) (...) whether the pollution is directly caused by the State or whether State responsibility arises from the failure to regulate private industry properly (...). It has also held that the duty to regulate not only relates to actual harm arising from specific activities but extends to the inherent risks involved (...). In other words, issues of causation must always be regarded in the light of the factual nature of the alleged violation and the nature and scope of the legal obligations at issue.

§436. the Court will proceed with its assessment of the issues arising in the present case by taking it as a matter of fact that there are sufficiently reliable indications that anthropogenic climate change exists, that it poses a serious current and future threat to the enjoyment of human rights guaranteed under the Convention, that States are aware of it and capable of taking measures to effectively address it, that the relevant risks are projected to be lower if the rise in temperature is limited to 1.5 ⁰C above pre-industrial levels and if action is taken urgently, and that current global mitigation efforts are not sufficient to meet the latter target.

§438. measures to ensure effective protection as far as positive obligations are concerned may vary considerably from case to case, depending on the gravity of the impact on an applicant’s Convention rights and the extent of any burden the obligation would impose on the State. Nonetheless, certain factors relevant for the assessment of the content of those positive obligations on States in the context of environmental harm have been identified by the Court (see paragraphs 538-539 below). In any event, for a State’s positive obligations to be engaged there has to be evidence of a risk meeting a certain threshold. There must be a relationship of causation between the risk and the alleged failure to fulfil positive obligations.

§439. The adverse effects on and risks for specific individuals or groups of individuals living in a given place arise from aggregate GHG emissions globally, and the emissions originating from a given jurisdiction make up only part of the causes of the harm. Accordingly, the causal link between the acts or omissions on the part of State authorities in one country, and the harm, or risk of harm, arising there, is necessarily more tenuous and indirect compared to that in the context of local sources of harmful pollution. [...] Accordingly, in this context, issues of individual victim status or the specific content of State obligations cannot be determined on the basis of a strict conditio sine qua non requirement.

§440. It is therefore necessary to further adapt the approach to these matters, taking into account the special features of the problem of climate change in respect of which the State’s positive obligations will be triggered, depending on a threshold of severity of the risk of adverse consequences on human lives, health and well-being. This will be developed in detail in the Court’s assessment of victim status and the applicability of the relevant Convention provisions (see paragraphs 478-488 and 507-520 below) and in the determination of the content of the States’ positive obligations in this context (see paragraphs 544-554 below).

§441. The respondent Government raised an issue concerning the proportion of the respondent State’s contributions to global GHG emissions and the capacity of individual States to take action and to bear responsibility for a global phenomenon that requires action by the community of States (see paragraph 346 above). Such arguments have been examined and rejected by the domestic courts in some national climate-change cases (see paragraphs 253 and 257 above).

§442. For its part, the Court notes that while climate change is undoubtedly a global phenomenon which should be addressed at the global level by the community of States, the global climate regime established under the UNFCCC rests on the principle of common but differentiated responsibilities and respective capabilities of States (Article 3 § 1). This principle has been reaffirmed in the Paris Agreement (Article 2 § 2) and endorsed in the Glasgow Climate Pact (cited above, paragraph 18) as well as in the Sharm el-Sheikh Implementation Plan (cited above, paragraph 12). It follows, therefore, that each State has its own share of responsibilities to take measures to tackle climate change and that the taking of those measures is determined by the State’s own capabilities rather than by any specific action (or omission) of any other State (...). The Court considers that a respondent State should not evade its responsibility by pointing to the responsibility of other States, whether Contracting Parties to the Convention or not.

§443. the alleged infringement of rights under the Convention through harm arising from GHG emissions globally and the acts and omissions on the part of multiple States in combating the adverse effects of climate change may engage the responsibility of each Contracting Party, subject to it having jurisdiction within the meaning of Article 1 of the Convention (...). Indeed, given that the Article 1 jurisdiction is principally territorial, each State has its own responsibilities within its own territorial jurisdiction in respect of climate change.

§444. Lastly, as regards the “drop in the ocean” argument implicit in the Government’s submissions – namely, the capacity of individual States to affect global climate change – it should be noted that in the context of a State’s positive obligations under the Convention, the Court has consistently held that it need not be determined with certainty that matters would have turned out differently if the authorities had acted otherwise. The relevant test does not require it to be shown that “but for” the failing or omission of the authorities the harm would not have occurred. Rather, what is important, and sufficient to engage the responsibility of the State, is that reasonable measures which the domestic authorities failed to take could have had a real prospect of altering the outcome or mitigating the harm (...). In the context of climate change, this principle should also be understood in the light of Article 3 § 3 of the UNFCCC according to which States should take measures to anticipate, prevent or minimise the causes of climate change and mitigate its adverse effects.

-> Zelf: Het mijden van kantelpunten valt hier volgens mij hard onder.

§446. in contrast with actio popularis type of complaints – which are not permitted in the Convention system (see paragraph 460 below) – the crucial element which must be present in determining whether, in the circumstances of a given case, an environmental harm has adversely affected one of the rights safeguarded by the Convention is the existence of a harmful effect on a person and not simply the general deterioration of the environment

§449. The Court is mindful of the fact that in a context such as the present one it may be difficult to clearly distinguish issues of law from questions of policy and political choices and, therefore, of the fundamentally subsidiary role of the Convention, particularly given the complexity of the issues involved with regard to environmental policy-making (...). It has stressed that national authorities have direct democratic legitimation and are in principle better placed than an international court to evaluate the relevant needs and conditions. In matters of general policy, or political choices, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy-maker is given special weight (...).

§450. However, this does not exclude the possibility that where complaints raised before the Court relate to State policy with respect to an issue affecting the Convention rights of an individual or group of individuals, this subject matter is no longer merely an issue of politics or policy but also a matter of law having a bearing on the interpretation and application of the Convention. In such instances, the Court retains competence, albeit with substantial deference to the domestic policy-maker and the measures resulting from the democratic process concerned and/or the judicial review by the domestic courts. Accordingly, the margin of appreciation for the domestic authorities is not unlimited and goes hand in hand with a European supervision by the Court, which must be satisfied that the effects produced by the impugned national measures were compatible with the Convention.

§451. It follows from the above considerations that the Court’s competence in the context of climate-change litigation cannot, as a matter of principle, be excluded. Indeed, given the necessity of addressing the urgent threat posed by climate change, and bearing in mind the general acceptance that climate change is a common concern of humankind (see paragraphs 420 and 436 above), there is force in the argument put forward by the UN Special Rapporteurs that the question is no longer whether, but how, human rights courts should address the impacts of environmental harms on the enjoyment of human rights (see paragraph 379 above).

§453. In the view of the respondent Government, supported by most of the intervening Governments, the principles of the harmonious and evolutive interpretation of the Convention should not be used to interpret the Convention as a mechanism of international judicial enforcement in the field of climate change and to transform the rights enshrined in the Convention into rights to combat climate change (see paragraphs 366, 368, 371-373 and 375 above).

§454. the Court has acknowledged that while other instruments can offer wider protection than the Convention, it is not bound by interpretations given to similar instruments by other bodies, having regard to possible differences in the content of the provisions of other international instruments and/or possible differences in the role of the Court and the other bodies

§455. The Court has consistently held that the Convention should be interpreted, as far as possible, in harmony with other rules of international law (...). Moreover, a failure by the Court to maintain a dynamic and evolutive approach would risk rendering it a bar to reform or improvement

§456. The Court cannot ignore the pressing scientific evidence and the growing international consensus regarding the critical effects of climate change on the enjoyment of human rights (see paragraph 436 above). This consideration relates, in particular, to the consensus flowing from the international-law mechanisms to which the member States voluntarily acceded and the related requirements and commitments which they undertook to respect (...), such as those under the Paris Agreement. The Court must bear these considerations in mind when conducting its assessment under the Convention (see paragraphs 445-451 above).

§457. At the same time, the Court must also bear in mind its subsidiary role and the necessity of affording the Contracting States a margin of appreciation in the implementation of policies and measures to combat climate change, as well as the need to observe appropriate respect for the prevailing constitutional principles, such as those relating to the separation of powers.

§458--537. SKIP. Toegankelijkheid tot de ECHR.

475. Associaties kunnen bijzondere omstandigheden aanbrengen waardoor
ze individuen vertegenwoordigen, zelfs als hun leden niet meteen een
slachtofferstatus hebben.

477. Associaties hebben in het verleden locus standi toegekend gekregen
om een zaak namens anderen te bevechten, ook wanneer leden in staat
waren zelf een zaak te starten.

502. Associaties moeten (a) lawfully established zijn, (b) gericht zijn
op een klimaatdoel, (c) kunnen bewijzen dat ze handelt ter representatie
van haar leden.

§538.

a. The States have a positive obligation to put in place the relevant legislative and administrative framework designed to provide effective protection of human health and life. In particular, States have an obligation to put in place regulations geared to the specific features of the activity in question, particularly with regard to the level of risk potentially involved. They must govern the licensing, setting-up, operation, security and supervision of the activity and must make it compulsory for all those concerned to take practical measures to ensure the effective protection of the citizens whose lives might be endangered by the inherent risks

b. The States also have an obligation to apply that framework effectively in practice; indeed, regulations to protect guaranteed rights serve little purpose if they are not duly enforced and the Convention is intended to protect effective rights, not illusory ones. The relevant measures must be applied in a timely and effective manner

c. In assessing whether the respondent State complied with its positive obligations, the Court must consider whether, in the manner of devising and/or implementing the relevant measures, the State remained within its margin of appreciation. In cases involving environmental issues, the State must be allowed a wide margin of appreciation (...), in particular with regard to the substantive aspect (...).

d. The choice of means is in principle a matter that falls within the State’s margin of appreciation; even if the State has failed to apply one particular measure provided for by domestic law, it may still fulfil its positive duty by other means. 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

e. While it is not in the Court’s remit to determine what exactly should have been done, it can assess whether the authorities approached the matter with due diligence and gave consideration to all competing interests

f. The State has a positive obligation to provide access to essential information enabling individuals to assess risks to their health and lives

g. In assessing whether the respondent State complied with its positive obligations, the Court must consider the particular circumstances of the case. The scope of the positive obligations imputable to the State in the particular circumstances will depend on the origin of the threat and the extent to which one or the other risk is susceptible to mitigation

§539. In environmental cases examined under Article 8 of the Convention, the Court has frequently reviewed the domestic decision-making process, taking into account that the procedural safeguards available to the individual will be especially material in determining whether the respondent State has remained within its margin of appreciation (...). In this context, the Court has had particular regard to the following principles and considerations:

a. The complexity of the issues involved with regard to environmental policy-making renders the Court’s role primarily a subsidiary one. The Court must therefore first examine whether the decision-making process was adequate

b. The Court is required to consider all the procedural aspects, including the type of policy or decision involved, the extent to which the views of individuals were taken into account throughout the decision-making procedure, and the procedural safeguards available

c. In particular, a governmental decision-making process concerning complex issues such as those in respect of environmental and economic policy must necessarily involve appropriate investigations and studies in order to allow the authorities to strike a fair balance between the various conflicting interests at stake. However, this does not mean that decisions can only be taken if comprehensive and measurable data are available in relation to each and every aspect of the matter to be decided (...). What is important is that the effects of activities that might harm the environment and thus infringe the rights of individuals under the Convention may be predicted and evaluated in advance

d. The public must have access to the conclusions of the relevant studies, allowing them to assess the risk to which they are exposed

e. The individuals concerned must have an opportunity to protect their interests in the environmental decision-making process, which implies that they must be able to participate effectively in relevant proceedings and to have their relevant arguments examined, although the actual design of the process is a matter falling within the State’s margin of appreciation

§540. the Court will proceed by identifying the content of the State’s positive obligations under Articles 2 and 8 of the Convention in the context of climate change (see paragraphs 292 and 537 above) However, given the special nature of the phenomenon as compared with the isolated sources of environmental harm previously addressed in the Court’s case-law, the general parameters of the positive obligations must be adapted to the specific context of climate change.

Positieve verplichtingen van staten.

§541. In accordance with the principle of subsidiarity, the national authorities have the primary responsibility to secure the rights and freedoms defined in the Convention, and in doing so they enjoy a margin of appreciation, subject to the Court’s supervisory jurisdiction (...)

§542. the Court finds it justified to consider that climate protection should carry considerable weight in the weighing-up of any competing considerations

§543. Taking as a starting-point the principle that States must enjoy a certain margin of appreciation in this area, the above considerations entail a distinction between the scope of the margin as regards, on the one hand, the State’s commitment to the necessity of combating climate change and its adverse effects, and the setting of the requisite aims and objectives in this respect, and, on the other hand, the choice of means designed to achieve those objectives. As regards the former aspect, the nature and gravity of the threat and the general consensus as to the stakes involved in ensuring the overarching goal of effective climate protection through overall GHG reduction targets in accordance with the Contracting Parties’ accepted commitments to achieve carbon neutrality, call for a reduced margin of appreciation for the States. As regards the latter aspect, namely their choice of means, including operational choices and policies adopted in order to meet internationally anchored targets and commitments in the light of priorities and resources, the States should be accorded a wide margin of appreciation.

-> RvR: De staat krijgt amper speelruimte ten aanzien van de noodzaak klimaarverandering
te bestrijden en het stellen van afdoende doelen maar meer speelruimte in de wijze
waarop dit verwezenlijkt wordt.

§545. the State’s obligation under Article 8 [...] is to adopt, and to effectively apply in practice, regulations and measures capable of mitigating the existing and potentially irreversible, future effects of climate change. This obligation flows from the causal relationship between climate change and the enjoyment of Convention rights, as noted in paragraphs 435 and 519 above, and the fact that the object and purpose of the Convention, as an instrument for the protection of human rights, requires that its provisions must be interpreted and applied such as to guarantee rights that are practical and effective, not theoretical and illusory

§546. the Contracting States need to put in place the necessary regulations and measures aimed at preventing an increase in GHG concentrations in the Earth’s atmosphere and a rise in global average temperature beyond levels capable of producing serious and irreversible adverse effects on human rights, notably the right to private and family life and home under Article 8 of the Convention.

§547. each individual State is called upon to define its own adequate pathway for reaching carbon neutrality, depending on the sources and levels of emissions and all other relevant factors within its jurisdiction

§548. Article 8 of the Convention requires that each Contracting State undertake measures for the substantial and progressive reduction of their respective GHG emission levels, with a view to reaching net neutrality within, in principle, the next three decades.

§549. immediate action needs to be taken and adequate intermediate reduction goals must be set for the period leading to net neutrality. Such measures should, in the first place, be incorporated into a binding regulatory framework at the national level, followed by adequate implementation. The relevant targets and timelines must form an integral part of the domestic regulatory framework, as a basis for general and sectoral mitigation measures. Accordingly, and reiterating the position taken above, namely that the margin of appreciation to be afforded to States is reduced as regards the setting of the requisite aims and objectives, whereas in respect of the choice of means to pursue those aims and objectives it remains wide, the Court finds it appropriate to outline the States’ positive obligations (see paragraph 440 above) in this domain as follows.

§550. When assessing whether a State has remained within its margin of appreciation (see paragraph 543 above), the Court will examine whether the competent domestic authorities, be it at the legislative, executive or judicial level, have had due regard to the need to:

a. adopt general measures specifying a target timeline for achieving carbon neutrality and the overall remaining carbon budget for the same time frame, or another equivalent method of quantification of future GHG emissions, in line with the overarching goal for national and/or global climate-change mitigation commitments;

b. set out intermediate GHG emissions reduction targets and pathways (by sector or other relevant methodologies) that are deemed capable, in principle, of meeting the overall national GHG reduction goals within the relevant time frames undertaken in national policies;

c. provide evidence showing whether they have duly complied, or are in the process of complying, with the relevant GHG reduction targets (see sub- paragraphs (a)-(b) above);

d. keep the relevant GHG reduction targets updated with due diligence, and based on the best available evidence; and

e. act in good time and in an appropriate and consistent manner when devising and implementing the relevant legislation and measures.

§551. The Court’s assessment of whether the above requirements have been met will, in principle, be of an overall nature, meaning that a shortcoming in one particular respect alone will not necessarily entail that the State would be considered to have overstepped its relevant margin of appreciation (see paragraph 543 above).

§552. Furthermore, effective protection of the rights of individuals from serious adverse effects on their life, health, well-being and quality of life requires that the above-noted mitigation measures be supplemented by adaptation measures aimed at alleviating the most severe or imminent consequences of climate change, taking into account any relevant particular needs for protection. Such adaptation measures must be put in place and effectively applied in accordance with the best available evidence (see paragraphs 115 and 119 above) and consistent with the general structure of the State’s positive obligations in this context (see paragraph 538 (a) above).

§553. Lastly, it has already been noted in the Court’s case-law that the procedural safeguards available to those concerned will be especially material in determining whether the respondent State has remained within its margin of appreciation (see paragraph 539 above). This is also true in matters of general policy, which include the approach to the choice of means to combat climate change through mitigation and adaptation.

§554. the following types of procedural safeguards are to be taken into account as regards the State’s decision-making process in the context of climate change:

a. The information held by public authorities of importance for setting out and implementing the relevant regulations and measures to tackle climate change must be made available to the public

b. Procedures must be available through which the views of the public, and in particular the interests of those affected or at risk of being affected by the relevant regulations and measures or the absence thereof, can be taken into account in the decision-making process. Toepassing voor Zwitserland.

§558. Vermelding van the currently required 1.5 ⁰C limit. Status onduidelijk.

...and mostly local wear and tear...

Violation of 6.1, Access to Court

(Summary only, NL, TODO)

§593. De zaak van victim status onder Article 34 wordt bepaald door de ECHR, niet door de natie, en wordt behandeld in samenhang met de vraag of dat deel toepasselijk is.

§594. Wetten overrulen gaat niet.

§595. De eis moet een reden van dispuut zijn, en moet tenminste beargumenteerd kunnen worden onder landelijke wetgeving.

§596. Direct getroffenen, geen actio popularis.

§597. Civielrechtelijk betekent bij de ECHR dat een persoon een recht kan doen gelden.

§598. Landelijke rechtspraak interpreteert rechten, de ECHR kijkt alleen of dat gebeurt in lijn met de mensenrechten.

§599. De ECHR gaat na of een klacht frivool of rotzooischoppend (vexatious) is.

§600. De ECHR erkende reeds civiele klimaatrechten bij bedreiging van leven, fysieke integriteit en bezittingen.

§601. Civielrecht is voor associaties reeds erkend bij verdediging van levensstijl en bezittingen van leden, ook waar dit een bestuursrechtelijk karakter had.

§602. Hoewel artikel 6 strikt bezien niet door associaties kan worden toegepast voor klimaatrecht, oordeelt de ECHR dat de hedendaagse realiteit is dat dit recht door associaties wordt verdedigd voor nationale rechters. Hierin volgt de ECHR ook de logica van Aarhus.

§603. Een bestaand dispuut moet werkelijk en serieus zijn, maar moet wel materieel worden beoordeeld en niet zozeer formeel.

§604. Disputen rond het klimaat worden door de ECHR als werkelijk en serieus.

§606. De ECHR heeft al eens beleidsvragen afgewezen (rond het principe van atoomenergie) en over een hypothetische uitwerking.

§607. Waar klimaatschade zeker en direct inwerkt op de rechten van een klager acht de ECHR het recht op toegang tot de rechter toepasbaar.

§608. Voornoemde framework voor toegang tot de rechter houdt stand voor klimaatzaken.

§609. Toegang tot de rechter is niet het instrument om wetten te maken, breken of overrulen. (Uitgezonderd in landen waar het hoogste gerechtshof dit zou mogen.)

§610. Er kan een legaal relevante situatie ontstaan door handelen of nalaten van staten, die individuel (mogelijk) schaden. Daar moet dan ook onder nationaal recht over geklaagd kunnen worden om toegang tot de rechter opeisbaar te maken.

§613. Klimaatverandering kan wellicht breder worden bevochten dan direct individueel belang.

§614. Klimaatverandering is anders in de beoordeling van dreigend gevaar, vanwege de onomkeerbare gevolgen en bijkomende ernst van de schade. Als toekomstige uitwerking niet speculatief zijn maar werkelijk en zeer waarschijnlijk (of bijna zeker) bij uitblijvende actie, dan mag daaruit niet worden geconcludeerd dat een zaak niet bijdraagt aan opheffen of vermindering van het probleem. Dat zou immers de toegang tot de rechter inperken voor de meest serieuze risico's rond klimaatschade. Dit is met name het geval voor klimaatzaken die door associaties worden aangegaan. Associaties zijn hierin representatief voor hen die benadeeld worden.

§615. Ten dele valt de aanklacht van de Klimaseniorinnen buiten de werking van toegang tot de rechter. Een deel valt echter binnen de bevoegdheden en verplichtingen van de overheid.

§616. Beleid valt niet onder het mensenrecht op toegang tot de rechter, maar wel de effectieve uitwerking van maatregelen onder bestaande wetgeving, mits aan de andere condities ook is voldaan.

§617. De ECHR is het oneens met Zwitserland dat Klimaseniorinnen zuiver als actio popularis terzijde geschoven kon worden.

§619. De ECHR acht de zaak werkelijk en het dispuut serieus.

§621. Klimaseniorinning wordt afdoende geraakt door de zaak, heeft voldoende banden met de leden op dat punt en ze was in een positie hierover te klagen en te eisen dat de overheid corrigerend optreedt.

§622. Associaties bundelen klimaatrechten die niet specifiek individueel uitwerken.

§623. Klimaseniorinnen had het mensenrecht op toegang tot de rechter.

§624. De verbinding van de individuele klaagsters is dunner, zodat het recht niet direct op hun belangen betrokken wordt en rechtsgang geen mensenrecht is.

§631. Separation of powers between legislative and and judiciary is legitimate and shall not be overruled by ECHR.

§634. Actie ondernemen tegen onvoldoende klimaatactie is niet zondermeer actio popularis te noemen, zie ook 436.

§635. De overheidsclaim dat er nog tijd was overtuigt de ECHR niet, want niet op voldoende onderzoek van het wetenschappelijke debat gestoeld. Verder is er haast met klimaatmitigatie. Er is dus een

§637. Klimaseniorinnen en haar leden hebben hun klachten meermalen geuit bij overheidsinstanties met kennis van zaken, telkens zonder inhoudelijk te worden behandeld. Reacties zijn gebaseerd op te weinig kennis van zaken.

§638. Uit bovenstaande blijkt dat het mensenrecht op toegang tot de rechter is geschaad.