Climate Change and the Oslo Principles: Judicial Activism or the Problem with Politics?
The Oslo Principles on Global Climate Change Obligations (March 2015) aim at furthering judicial means for addressing climate change. Do they provide the necessary guidelines for overcoming accusations of judicial activism?
On March 1 2015, an Expert Group on Global Climate Obligations, consisting mainly of legal scientists and (former) judges from around the world, adopted the Oslo Principles on Global Climate Change Obligations. The Principles ‘seek to overcome the generally abstract nature of previous efforts to define the scope of legal obligations relevant to climate change’. In other words, they aim at elaborating legal obligations - and the basic means of meeting these - for States and enterprises in order to allow a more judiciary-centred approach to fighting the threats that stem from climate change.
In the preamble to the Principles attention is given to the dangers related to climate change, as well as to the ‘prevailing scientific opinion’ according to which ‘a two-degree Celsius increase in the Earth’s mean global surface temperature over the pre-industrial level will have a profound, adverse and irreversible impact on human and other life and on the Earth’. In order to prevent this increase from occurring, States and enterprises are to respect the central principle enshrined in the document, the Precautionary Principle, which requires that:
1) GHG [greenhouse gas] emissions be reduced to the extent and at a pace necessary to protect against the threats of climate change that can still be avoided; and
2) the level of reductions of GHG emissions required to achieve this, should be based on any credible and realistic worst-case scenario accepted by a substantial number of eminent climate change experts.
In further specifying this Principle, more concrete obligations are outlined and it is clarified that the measures required should be adopted without regard to cost, ‘unless that cost is completely disproportionate to the reduction in emissions that will be brought about by expending it’. Moreover, the Principles state that the obligations of States are ‘common but differentiated’, whereby specific attention is given to least developed countries and the (more limited) requirements these have to comply with.
The Principles form a notable and welcome effort. Worried about the limitations of other (political) means for effectively addressing climate change, the Expert Group arguably takes an important step towards discovering a new - or at least underexplored - path. At the same time, the Principles also raise a number of questions. What, for example, is the status of this document, that is produced and adopted by 13 ‘experts’ from very different (legal) backgrounds that do however cover large parts of the world? More substantively, it may be asked what exactly the ‘legal obligations’ that are stated are based on. It seems that there is no unequivocal answer to this question. According to the Principles:
‘No single source of law alone requires States and enterprises to fulfil these Principles. Rather, a network of intersecting sources provides States and enterprises with obligations to respond urgently and effectively to climate change in a manner that respects, protects, and fulfils the basic dignity and human rights of the world’s people and the safety and integrity of the biosphere. These sources are local, national, regional, and international and derive from diverse substantive canons, including, inter alia, international human rights law, environmental law and tort law.’
This indeed appears to be a somewhat insufficient answer, not in the least because the regional, national, and local legal sources may differ from place to place. More information on the different points can however be found in the commentary that comes with the Principles. In this 94-page (and 307-footnote) document the legal foundations are further elaborated, while the Expert Group also indicates that although there may be no judicial precedents yet, ‘if we were to wait for judicial precedents we will be too late’.
No matter what exactly one thinks of the Principles, at least for the Netherlands they could not have come in a more timely fashion. Last week, a hearing took place in the case of Urgenda, together with 900 citizens, against the Dutch government, in which it is argued that that the State is failing to reduce carbon emissions fast enough. The issue is perceived as one of political prerogatives versus judicial activism: the court is encouraged to be ‘courageous’ to overcome political impasse and short-sightedness. If anything, the Oslo Principles and the commentary provide a further aid for reaching a sound legal conclusion.