Robert Los – Earth Refuge Legal

March 24, 2021February 14, 2022

Bundesverfassungsgericht, Order 1 BvR 2656/18, 1 BvR 96/20, 1 BvR 78/20, 1 BvR 288/20, 1 BvR 96/20, 1 BvR 78/20

Date of judgement: 24 March 2021

Court: Federal Constitutional Court of Germany

Citation(s): BVerfG, Order of the First Senate of 24 March 2021 – 1 BvR 2656/18 -, paras. 1-270

Short summary

In its decision, the Federal Constitutional Court classified the German Climate Protection Act in its current form as violative of fundamental rights because it disproportionately shifts the burden of greenhouse gas reduction to future generations, thereby recognising for the first time the existence and violation of the intertemporal dimension of their civil rights.

Summary by: Robert Los

Link to original judgement

Click here to open the case in PDF format

Weight of decision

The order bears immense weight in Germany as the judgement indirectly grants a right to future generations with regard to protection or relief from CO2 emissions and other climate changes.

Key facts

The Federal Climate Change Act (Klimaschutzgesetz – KSG) was drafted in response to the need for greater climate action efforts. Its purpose is to afford protection against the effects of global climate change (§ 1 S.1), and as stated under § 1 S.3, the basis of the KSG is the obligation under the Paris Agreement as well as the commitment made by the Federal Republic of Germany to pursue the long-term goal of greenhouse gas neutrality by 2050.

Greenhouse gas emissions must be gradually reduced by the target year 2030 by at least 55%, relative to 1990 levels (§ 3(1)). In conjunction with Annex 2, § 4(1) sets out the annual permissible emission levels for various sectors in line with the reduction quota for the target year 2030. Provisions applicable beyond 2030 are not contained in the KSG. Rather, § 4(6) provides that in the year 2025, the Federal Government must – by way of ordinances – set annually decreasing emission levels for periods following 2030.

In support of their constitutional claims, the complainants − some of whom live in Bangladesh and Nepal − relied primarily on constitutional duties of protection arising from Art. 2(2) of the German Constitution Grundgesetz (GG), and Art. 14(1) GG, as well as the a fundamental right to a future in accordance with human dignity, and the fundamental right to an ecological minimum standard of living (ökologisches Existenzminimum), which they derived from Art. 2(1) GG in conjunction with Art. 20a GG and from Art. 2(1) GG in conjunction with Art. 1(1) GG.

With regard to future burdens arising from the obligations to reduce emissions in the periods following 2030 – described by the complainants as an “emergency stop” – they relied on fundamental freedoms more generally.

Continued on the next page…

Pages: 1 2 3 4

April 20, 2020February 14, 2022

Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 14

Date of judgement: 20 April 2010

Court: International Court of Justice

Citation(s): Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 14

Short summary

The court introduced the concept of binding environmental impact assessments (EIAs) into international environmental laws and further elaborated upon the provisions of the International Law Commission’s draft, as well as the Trail Smelter decision.

Summary by: Robert Los

Link to original judgement

Click here to open the case in PDF format

Weight of decision

This decision handed down by the International Court of Justice (ICJ) bears immense weight.

Key facts

In October 2003, the Uruguayan government granted permission to a Spanish Company, ENCE, to build a pulp mill in Fray Bentos on the River Uruguay. Botnia, a Finnish company, then also received environmental authorization to build a mill in February 2005. The River Uruguay forms a border between Argentina and Uruguay and its use is regulated by the Statute of the Uruguay River, a bilateral treaty entered into by the two countries in 1975 (the “Statute“).

Argentina brought a complaint before the ICJ on 4 May 2006, alleging that the Uruguayan government had violated the Statute. Argentina initially sought a provisional measures order from the ICJ to suspend construction of the pulp mills, but this was dismissed.

Argentina’s principal claims were that:

Uruguay had not complied with the notification and consultation procedure set out in the Statute by authorizing the construction of two pulp mills without the prior consent of Argentina; and
The mills would have an environmental impact upon the river and surrounding areas, and in particular that they would breach Uruguay’s obligation under the Statute to preserve the aquatic environment of the river by failing to protect biodiversity and fisheries.

Argentina consequently sought compensation, an end to construction, and a guarantee of compliance with the Statute in the future.

Uruguay argued that its only obligations had been to inform Argentina, which it had done, albeit after its decision had been made. Furthermore, the technology used would avoid polluting the river, as state-of-the-art waste cleansing equipment – which had been adopted by both the United States and the European Union as the best available technology – was going to be used. This position was supported by an independent World Bank study.

Summary of holding

The ICJ held that Uruguay breached its procedural obligations by not informing the Administrative Commission of the River Uruguay (“CARU”) of its plans to construct the mills before it issued its environmental authorisations.

Although Uruguay did notify Argentina, this communication did not take place through CARU and only occurred after the Uruguayan government had issued its authorisations. The ICJ held that, as a result, Uruguay had “disregarded the whole of the cooperation mechanisms provided for in Article 7 to 12 of the…Statute“ (para. 149). In terms of remedy, the ICJ considered that its declaration of breach constituted appropriate satisfaction.

However, the ICJ did not uphold any of the environmental claims made by Argentina. In what is potentially the most important passage of its holding, it stated that the need for an environmental impact assessment (where there is a risk that the proposed activity may have a significantly adverse impact in a trans-boundary context) has gained so much acceptance amongst States that it may now be considered “a requirement under general international law“. (para. 204)

Continued on the next page…

Pages: 1 2

April 16, 1938February 14, 2022

THE TRAIL SMELTER ARBITRATION CASE (UNITED STATES VS CANADA)

Date of judgement: 16 April 1938 and 11 March 1941

Citation(s): UN REPORTS OF INTERNATIONAL ARBITRAL AWARDS, Trail Smelter case (USA v. Canada), 16. April 1938 and 11. March 1941, Volume III pp. 1905-1982

Short summary

This arbitration case between the United States (U.S.) and Canada is the foundational decision for the development of the prohibition of significant transboundary environmental damage in international environmental law.

Summary by: Robert Los

Link to original judgement

Click here to open the case in PDF format

Weight of decision

The decision(s) of the Arbitrational Tribunal continue to bear immense weight in the realm of international law.

Key facts

A zinc and lead smelter operating since 1896 in the Canadian town of Trail in British Columbia, located 16 km from the U.S. border, became the subject of dispute in this case.

Between 1925 and 1927, two smokestacks were added to the plant. This caused an increase in pollutant emissions, specifically a doubling of sulfur dioxide. This reached U.S. soil in the form of “acid rain” and caused crop failures and damage in the Columbia River Valley (Washington State). Between 1927 and 1935, the U.S. government protested to the Canadian government regarding this damage to the Columbia River Valley.

In 1928, both governments commissioned the International Joint Commission by the United States and Canada to conduct arbitration proceedings. The Commission submitted its final report in 1931, which proposed that the Canadian government pay damages of $350,000 USD for the damage caused, and that emissions from the Trail plant be limited.

Canada paid the damages. However, no improvements were seen with regard to pollutant emissions, and the conflict began again. For this reason, in 1935 the Convention for Settlement of Difficulties Arising from Operation of Smelter at Trail, B.C., was signed, and the parties agreed to have the following questions settled by arbitration:

1. Whether the Trail plant caused any damage to the State of Washington since 1932, and if so what indemnity should be paid?

2. If the answer to the first question is in the affirmative, whether said damage should be stopped in the future, and if so, to what extent?

3. If the damage should be stopped, what measures should the Trail Smelter adopt? (Possibly subject to conditions or stipulations).

4. What indemnity or compensation, if any, should Canada pay following the answers to questions 2 and 3?

Summary of holding

In its first decision in 1938 regarding the first question, the Arbitration Tribunal determined that Canada had to pay damages to the U.S. government for the years 1932 to 1937. However, this compensation payment only applied to the damage caused to the soil of the Columbia River Valley. The pollution of the air was not considered to be damage, but rather only a transport medium for the exhaust gases. The U.S. also tried to prove damage to forestry, agriculture, and livestock, but the tribunal rejected this for lack of convincing evidence.

Continued on the next page…

Pages: 1 2