whether in a national court,
or before international human rights protection bodies such as the
United Nations Committee on the Rights of the Child
or the European Court of Human Rights.
The Urgenda case demonstrated a particularly synergistic interpretation of a combination of
customary norms (the Dutch duty of care or no harm rule), treaty rules under international human
rights law, together with the objectives and principles of the UNFCCC.
This combination can be
found in most similar cases, such as in Belgium, with Klimaatzaak, currently pending before the
Brussels Court of Appeal, where the Court of First Instance found that there had been violations of
Articles 2 and 8 of the European Convention on Human Rights, read in the light of the duty of care
of the good family father (or the reasonable man in Common Law), a standard itself informed by
the Paris Agreement.
It was also the case in France, with the "Case of the century". Here, in the
light of international law (the UNFCCC and Paris Agreement), European Union law (the Climate
and Energy Package) and domestic constitutional provisions (Article 3, Environmental Charter),
the administrative judge decided that the State had accepted a “general obligation to combat climate
change” and, more precisely, to reduce their greenhouse gas emissions.
In climate trials, international law is rarely applied directly, as a source of positive law,
either because the legal system is dualist, or because the obligations in question are not viewed as
self-executing and therefore cannot be directly invoked by individuals. However, the Paris
Agreement, alone or in combination with other international obligations, has been successfully
used in many cases to interpret domestic rules. The French climate case Commune de Grande
Synthe v. France is a good illustration. The judge found that “Although the stipulations of the
UNFCCC and the Paris Agreement (...) require the intervention of additional acts to produce effects
with regard to individuals and are, therefore, devoid of direct effect, they must nevertheless be
taken into consideration in the interpretation of the provisions of national law, in particular those
(...), which, referring to the objectives that they set, are precisely intended to implement them.”
In this instance, the court carries out a systemic interpretation (domestic law “in the light of,”
including all of the relevant legal elements, but also factual or even moral elements), a teleological
interpretation (the aim is to limit temperatures as decided in the Paris Agreement) and/or an
extensive interpretation. It has more discretion in its assessment of whether it is appropriate to use
international law, as well as in the choice of sources relied on, which may include unratified treaties
or soft law instruments. Indeed, as an interpretative source, the international norm becomes
subsidiary, as it is not the implementation of the Paris Agreement that the claimants are asking for,
but that national policies implement the country’s international commitments or conform to a
consensual standard of conduct.
The monist or dualist nature of the legal system thus becomes
irrelevant.
II. THE CONVERGENCE OF SOFT ENFORCEMENT MECHANISMS IN THE DOMESTIC
AND INTERNATIONAL ORDERS
See Urgenda, Supreme Court of the Netherlands, ECLI:NL:HR:2019:2007, Hoge Raad, 20-12-2019, para. 5.6.2.
Petition before the Committee on the Rights of the Child on 23 September 2019, Chiara Sacchi et al. v. Argentina, Brazil,
France, Germany, Turkey. Decision adopted by the Committee on the Rights of the Child under the Optional Protocol to the
Convention on the Rights of the Child on a communications procedure in respect of Communication No. 106/2019, 21 September
2021.
With pending cases involving Portuguese youth, Swiss elders or an Austrian with temperature-dependent multiple sclerosis.
O.W Pedersen, The European Convention of Human Rights and Climate Change - Finally! https://www.ejiltalk.org/the-european-
convention-of-human-rights-and-climate-change-finally/ September 22, 2020 (last accessed 23 May 2022).
Urgenda, Supreme Court of the Netherlands, abovementioned, para. 5.7.5.
See their main conclusions, http://climatecasechart.com/climate-change-litigation/wp-content/uploads/sites/16/non-us-
case-documents/2019/20190628_2660_na.pdf (last accessed 23 May 2022).
Paris Administrative Court, France, 3 Feb. 2021, No. 1904967, 1904968, 1904972, 1904976.
http://climatecasechart.com/wp-content/uploads/sites/16/non-us-case-documents/2021/20210203_NA_decision-1.pdf (last
accessed 23 May 2022).
Council of State, France, 19 Nov. 2020, No. 427301. http://climatecasechart.com/wp-content/uploads/sites/16/non-us-case-
documents/2020/20201119_Not-Yet-Available_decision-2.pdf (last accessed 23 May 2022).
K. Bouwer, “The Unsexy Future of Climate Change Litigation”, Journal of Environmental Law, 2018/30(3) 492.