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Monday, 13 June 2022

Dr Stefan Theil

Dr Stefan Theil is the John Thornley Fellow in Law at Sidney Sussex College. He completed his first degree in law at the University of Bayreuth (2011) in Germany. After brief stints working for a commercial law firm in Munich and for the Research Services of the German Bundestag in Berlin, Stefan earned an LLM from University College London (2013). Inspired to pursue a career in academia, he completed his doctoral work at the University of Cambridge (2018) and was the inaugural Research Fellow in Civil and Political Rights at Bonavero Institute, University of Oxford (2017-2021). Stefan is a Fellow of the Lauterpacht Centre.




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 alleged failures to prevent and adequately mitigate the consequences of climate change. They argued that this constituted a violation of their rights under Articles 6, 24, and 30 of the Convention on the Rights of the Child (Convention).

In its admissibility decision under Article 5 of the Third Optional Protocol to the Convention (Protocol), the Committee 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, it adopted a broad interpretation of jurisdiction and causality (at [9.5]). For the purposes of Article 5 (1) of the Protocol, any individual affected by climate change was considered ‘within the jurisdiction’ of a state party that emits greenhouse gases (at [9.7]) and 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, regardless of whether affected individuals reside within their territory (at [9.14]).

However, the Committee ultimately dismissed the communications for failure to exhaust domestic remedies under Article 7 (e) of the Protocol. It rejected the suggestion that domestic remedies would be unreasonably prolonged and unlikely to bring effective relief. Against the backdrop of the communication filed against Germany, the blog post focuses on two core claims advanced by the authors: (1) that state immunity rules renders domestic remedies ineffective and unduly prolonged, and (2) that German law presents various barriers to justiciability which preclude an effective remedy (at [9.17]). 

The arguments display a limited, and in parts mistaken understanding of international and German law that leave 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 litigation.

State immunity

The authors 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. Such rules reflect state immunity, a principle of customary international law that ‘precludes 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’ (Crawford, Brownlie's Principles of Public International Law, 2019, 470).

As a result of state immunity rules, the authors and interveners suggested it was more effective to directly approach the Committee with their complaint: it could hear their claims against all states in one proceeding (at [2.6]) and was competent to directly rule on the compliance with the Convention (at [6.5]). The Committee disagreed, holding that it was not necessary to bring a single case against multiple states to secure an effective remedy (at [9.17]). Below the surface, the author’s argument demonstrates a limited understanding of domestic remedy provisions and misses important customary international law on state immunity.

First, the authors suggest a comparative analysis is necessary: one that juxtaposes the prospects of domestic litigation with the procedure available under the Protocol. However, this misses the general purpose of domestic remedies provisions. These 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). As the ICJ notes, one cannot conclude that such an ‘important principle of customary international law’ should be ‘tacitly dispensed with’ absent clear wording (Elettronica Sicula SpA (ELSI), Judgment, ICJ Reports 1989 at [50]). While states could conceivably deviate from this general rule through express agreement, they have not done so in the Protocol. It is therefore irrelevant to 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 remedies are effective and timely on their own terms. On this point, the Committee found that the German Constitutional Court decision on the Federal Climate Change Act (FCCA) in 1 BvR 2656/18 (31 March 2021, Neubauer and others v. Germany) provided such a timely and effective remedy (at [9.19]).

Second, the authors imply that a domestic remedy that does not permit legal challenges against multiple states at once is liable to being unreasonably prolonged and ineffective. However, 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 sovereign equality and independence of states (Jurisdictional Immunities of the State, ICJ Reports 2012 at [57]). Again, states may deviate from this customary rule through specific wording but have not done so in the Protocol. This makes sense given the nature of the Convention: contracting states are individually, and not collectively, obligated to secure the rights within their jurisdiction, and only have limited influence over the actions of other states. It is therefore legally dubious to suggest that an ability to bring cases against multiple state parties as such is an indicator for an effective and timely domestic remedy. 

Domestic justiciability

With respect to domestic justiciability, the authors advanced various 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]). The argument remained superficial, showing a lack of serious engagement with German law. 

The authors 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) FCCA, which provides that ‘individual rights and legal standing are not created through or by way of this Act.’ However, as a matter of basic German constitutional law, an ordinary statute like the FCCA cannot limit the scope for judicial review based on fundamental constitutional rights. Individuals are entitled to challenge any administrative act based on the FCCA before administrative courts, and the legislation itself before the Constitutional Court.

It was the absence of an arguable violation of fundamental rights, not a justiciability concern, that 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). In that case, the Court rejected the argument that political declarations of intent on carbon neutrality deadlines give rise to legitimate expectations and therefore potential fundamental rights violations when they are not honoured.

The German Constitutional Court subsequently 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. 

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 constitutional obligations can be imposed on the German state to oversee the political process of integration and seek international cooperation. Indeed, in Neubauer the Constitutional Court found 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]). Simply put, there is no general rule in German law preventing judicial review of international cooperation efforts.

Overall, the quality of the arguments advanced contrasts unfavourably with many examples of well-researched domestic and international environmental litigation. 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. The path towards enduring and deep policy change requires more legal effort, and especially taking domestic remedies seriously.

A longer version of this contribution first appeared as a case note in the (2022) 81 Cambridge Law Journal 1.