ON 22 September 2021 the Committee on the Rights of the Child adopted a series of decisions in Communications Nos 104–108/2019, CRC/C/88/D/107/2019. The communications were brought by young people against Argentina, Brazil, France, Germany and Turkey over their alleged failure to prevent and adequately mitigate the consequences of climate change. The authors of the communications argued that these failures constituted a violation of their rights under Articles 6, 24, and 30 of the Convention on the Rights of the Child (Convention). Article 5 of the Third Optional Protocol to the Convention (Protocol) allows individuals to bring communications against state parties.
In its review of the admissibility of these communications, the Committee decision introduced some notable legal innovations on the requirements of victim status. In line with Advisory Opinion OC-23/17 of the American Court of Human Rights, the Committee adopted a broad interpretation of jurisdiction and causality (at [9.5]). It accepted for the purposes of Article 5(1) of the Protocol, that any individual affected by climate change was “within the jurisdiction” of a state party that emits greenhouse gases (at [9.7]) – in other words, regardless of whether they are within or outside the territory of the emitting state (at [9.14]). It also accepted that general contributions to climate change are sufficient to satisfy causality requirements (at [9.12]). Thus, states are in principle accountable for their contributions to global emissions under the Convention.
However, the Committee ultimately rejected the communications for failure to exhaust domestic remedies under Article 7(e) of the Protocol. It dismissed the argument that an exception applied because domestic remedies would be unreasonably prolonged and unlikely to bring effective relief.
Against the backdrop of the communication filed against Germany this note focuses on two core claims: (1) that state immunity rules would render domestic remedies ineffective and unduly prolonged; and (2) that German law presents various barriers to justiciability which preclude an effective remedy for climate change litigants (at [9.17]). The arguments presented display a limited understanding of international and German law: the submissions appear superficial, leaving the impression that domestic remedies were never seriously contemplated. The communication instead appears to prioritise the prospect of a quick victory before an international body over pursuing admittedly burdensome, but potentially highly effective domestic remedies.
First, it was alleged that “foreign sovereign immunity” would bar them from securing effective domestic relief in German courts against the other respondent states (at [2.6]). Sovereign immunity is a rule known to many legal orders that prevents domestic courts from hearing cases against other states, with limited exceptions. Such rules reflect state immunity, a principle of customary international law that “recludes the courts of the forum state from exercising adjudicative and enforcement jurisdiction in certain classes of cases in which a foreign state is a party” (J. Crawford, Brownlie's Principles of Public International Law, (Oxford 2019), 470).
As a result of state immunity rules, it was suggested that it was more effective to approach the Committee directly with their complaint: it could hear their claims against all states in one proceeding (at [2.6]) and was competent to rule directly on the compliance with the Convention (at [6.5]). The Committee dismissed that argument, holding that it was not necessary to bring a single case against multiple states to secure an effective remedy (at [9.17]).
First, it proposed a comparative analysis, juxtaposing the prospect of domestic litigation with the procedure under the Protocol. However, this misses the purpose of domestic remedies provisions: they are intended to afford states an opportunity to remedy violations before the involvement of international judicial bodies or other states (Interhandel, Preliminary Objections, Judgment, ICJ Reports 1959, 27). In this sense, international judicial bodies, such as the European Court of Human Rights, assume a supervisory function: they provide oversight and enforcement of international treaties after due consideration by domestic courts (Crawford, 637). States could conceivably deviate from the general rule on exhausting domestic remedies through specific provisions in the Protocol. However, as the ICJ notes it is unable to accept that such an “important principle of customary international law” should be “tacitly dispensed with” absent any clear wording (Elettronica Sicula SpA (ELSI), Judgment, ICJ Reports 1989, at [50]). It is therefore irrelevant under Article 7(e) Protocol whether the Committee could provide a more convenient procedure, a timelier decision or a more effective remedy than a domestic court. The measure for exceptions under the Protocol is whether domestic courts can provide sufficiently effective and timely remedies against the state. On this point, the Committee found that the Constitutional Court decision on the Federal Climate Protection Act (FCPA) in 1 BvR 2656/18, 31 March 2021 (Neubauer and others v Germany) was handed down in a timely manner and provided an effective remedy (at [9.19]).
Second, it is implied that a domestic remedy that does not permit legal challenges against multiple states is liable to be unreasonably prolonged and ineffective. The difficulty is that this suggestion does not sit well with customary international law on state immunity: subject to limited exceptions, states are under an obligation to prevent domestic courts from hearing cases against other states (Crawford, 470). This recognises and expresses the equality and independence of states (Jurisdictional Immunities of the State, ICJ Reports 2012, at [57]). Again, states could deviate from this rule through specific wording, but they have not done so in the Protocol. This makes sense given the nature of the Convention obligations: contracting states are individually, and not collectively, obligated to secure the Convention rights within their jurisdiction, and only have limited influence over the actions of other states. It is therefore legally dubious to suggest that the ability to bring cases against multiple state parties is as such an indicator for an effective and timely domestic remedy, absent collective obligations and clear wording.
A second set of arguments that suggested German courts would not “impel the government to take effective precautionary measures to prevent further harm to the authors” (at [5.4]). These arguments of the authors on this point remained display a lack of serious engagement with German law.
It was argued that “governmental actions based on the Climate Protection Act are not justiciable” (at [5.5]). They suggested this was so by virtue of §4 (1) FCPA, which provides that “individual rights and legal standing are not created through or by way of this Act”. However, as a matter of German constitutional law, the FCPA cannot limit the scope for judicial review based on fundamental rights. Individuals are entitled to challenge any administrative act based on the FCPA before administrative courts, and the legislation itself before the Constitutional Court, provided that there is arguable violation of their fundamental rights.
It was this absence of an arguable fundamental rights violation, not a justiciability issue, that had occasioned the first instance Berlin Administrative Court to dismiss the challenge against climate change policy cited by the authors (VG 10 K 412.18, 31 October 2019, Family Farmers and Greenpeace Germany v Germany). The court rejected the argument that political declarations of intent on carbon neutrality alone were capable of giving rise to violations of constitutional rights when they are not implemented.
The German Constitutional Court had earlier demonstrated in Neubauer that applicants can successfully argue constitutional rights violations and thus achieve a robust review of climate change legislation and policy: the legislature was required to clarify the procedure and tighten emission reduction targets for the years after 2030 under the FCPA. The Court also reserved the right continuously to review policy as the scientific advances clarify the remaining carbon emission budget in light of the Paris Agreement commitments (Neubauer, at [256]).
Finally, the authors alleged that domestic remedies are incapable of requiring Germany to pursue international cooperation to combat climate change (at [7.3]). In fact, a string of earlier Constitutional Court decisions on European integration (see for instance BvR 2728/13, 21 June 2016, BVerfGE 142, 123 OMT Ruling) demonstrate that wide-ranging obligations can be imposed on the German state to oversee the political process of EU integration and seek international cooperation with states. Simply put, there is no general rule preventing judicial review of international cooperation efforts. In Neubauer the Constitutional Court held that the state has a specific legal obligation under Article 20a of the Constitution to seek, promote, and contribute to international cooperation on climate change (Neubauer, at [197]).
The worthy cause of combatting climate change is not well-served when litigation is overly focused on a quick victory before an international judicial body with limited enforcement powers: enduring legal and policy change requires more effort, including taking domestic remedies seriously.
