In its much-anticipated advisory opinion on the Obligation of States in Respect of Climate Change, the International Court of Justice (ICJ) clarified the interdependence between fundamental rights and environmental protection, recognising the right to a clean, healthy and sustainable environment. The Opinion carries persuasive weight and enhances prospects for climate litigation at a time when political action on global warming is faltering. In the EU, the European Parliament has advanced the right to a safe climate as a fundamental right, thus outlining a more advanced legal framework as compared to international law.

Our analysis focuses on the contribution of EU law and policy to the development of the notion of ‘climate rights’, encompassing the idea of relying on fundamental rights for climate change mitigation and adaptation, and further explores their impact on reforms in the EU trade and investment policy, which seeks to reconcile the EU’s internal and external approaches to climate rights. It is argued that the progressive EU law approach to climate rights does not necessarily translate into the EU external policy, and in particular its trade and investment agreements, which could act as an obstacle to the effective implementation of climate rights under EU law.

International evolution of climate rights

The notion of ‘climate rights’ can be used to define the idea of relying on fundamental rights to address climate change mitigation and adaptation.

The discourse on the relationship between fundamental rights and climate change commenced with the Inuit Petition to the Inter-American Commission on Human Rights in 2005, underscoring the profound link between greenhouse gas (GHG) emissions and the effects of global Arctic warming on civil, political, economic, social and cultural rights, such as the rights to life, home, food and culture⎯so-called ‘first’ and ’second-generation’ individual human rights. The Petition fostered progressive international law development and went so far as to state that global warming affects the international human right to a safe environment as a ‘third-generation’ collective claim. While the Petition was dismissed, its arguments have been advanced by analytical studies and regulatory initiatives, particularly fostered by the UN Human Rights Council, which eventually led the UN General Assembly to recognise the existence of a human right to safe, clean, healthy and sustainable environment of Resolution 76/L.75 on 26 July 2022.

Accordingly, the human right to a sustainable environment is now acknowledged as an important instrument for climate policies in the international legal sphere, as further reiterated in the ICJ’s recent landmark advisory opinion. The ICJ emphasised the right to a clean environment as a precondition for the enjoyment of other human rights and affirmed that States must consider their obligations under international human rights law when implementing international climate change obligations, whereby a failure to do so may constitute an internationally wrongful act.

Climate rights developments in the European Union

In the EU, climate rights have developed within the framework of primary and secondary law, notably, the European Union Emissions Trading Scheme (ETS) and the European Green Deal. In particular, Article 37 of the EU Charter of Fundamental Rights (EUCFR) commits the EU institutions to integrating a high level of environmental protection and the improvement of environmental quality into all policies, in line with the principle of sustainable development. However, environmental protection is considered a principle rather than a strictly binding right and duty.

Within this advanced environmental framework, the Union has also developed the concept of a more specific ‘human right to a sustainable climate’, through Parliamentary Resolution 2020/2134(INI). The resolution proposes a binding interpretation of EUCFR Article 37 and further posits the need for a ‘fully enforceable’ fundamental right to a ‘stable climate’, within the context of the traditional rights to life, food security, safe drinking water and sanitation, health and housing. For now, these remain ‘soft’ legal developments, are in line with the case law developed by the Dutch courts in Urgenda but have not (yet) been followed by the Court of Justice of the European Union (CJEU) in cases such as Carvalho. Such developments build on the case law of the European Court of Human Rights (ECtHR), as established particularly in Kilmaseniorinnen, based on the European Convention on Human Rights, including all EU Member States are Parties, and to which the EU might prospectively accede.

As a third-generation fundamental claim, the ‘right to a sustainable climate’ could have significant legal ramifications for universal protection, with relevant implications for EU investment and trade agreements, which might nonetheless act as an obstacle to its implementation.

Climate rights and international investment and trade agreements

While the EU and its Member States have a positive duty to regulate in a manner that fosters climate sustainability, international economic law embeds the logic of a negative duty, which requires States to refrain from regulatory action that could have distortive effects on international trade or could constitute an undue interference with foreign investment. International investment agreements provide foreign investors with a procedural tool−the Investor-State Dispute Settlement (ISDS) mechanism−to challenge State climate change measures before an international tribunal, which can ultimately deter States from the adoption of climate change mitigation policies⎯a phenomenon known as ‘regulatory chill’. The EU has thus sought to expand the scope of State regulatory autonomy in its trade and investment agreements with third countries with a view to reconciling its negative duties under international law with its positive duties under primary EU law. This approach has also been adopted as a response to domestic opposition to trade and investment agreements in the Member States, which are seen as tools for undermining EU standards.

The primary vehicle of the EU’s approach is the explicit inclusion of the right to regulate in EU trade and investment agreements, notably in the preamble and a standalone right to regulate clause. However, the scope and legal effects of this clause are uncertain. On the one hand, the scope is defined by non-regression clauses, whose main purpose is to prevent a “race to the bottom” for environmental standards. In this sense, States are free to regulate as long as they do not derogate from domestic laws in a manner that incentivises trade and investment between parties. On the other hand, the clause also seeks to protect the right of third States not to introduce higher standards, while safeguarding the EU’s higher standards, including measures for the implementation of the collective right to a safe environment.

In addition, the EU has strengthened its trade and sustainable development (TSD) chapters, seeking to utilise trade agreements to ‘effectively implement’ obligations under international treaties, including the Paris Agreement. Albeit only best-effort obligations, their performance is not dependent on their impact on trade, and thus they could arguably be more effective tools for the implementation of State climate change obligations. However, except for the EU-New Zealand FTA, there is no possibility for trade sanctions in cases of non-compliance. In some cases, climate change obligations have been elevated to an ‘essential element’ of trade agreements, which can, as a minimum, ensure third countries’ participation in the Paris Agreement, but arguably not more progressive action on climate change.

Finally, the EU has been engaged in the reform of international investment law, with a view to modernising international investment agreements. However, the right to regulate clauses alone are not sufficient to safeguard State regulatory sovereignty to take measures and protect the collective right to a safe environment, as they exclude the liability of a State towards foreign investors only in very limited circumstances. The EU has thus focused on procedural mechanisms and replacing the current arbitration model for dispute settlement, which it sees as a barrier to State regulatory action. In the long-term, the EU seeks to establish a Multilateral Investment Court (MIC), which should rebalance the State’s right to regulate in international investment law in line with the more public interest-friendly approach of the CJEU, as expressed in its Opinion 1/17. However, this assumption remains to be tested in practice.

In the meantime, the EU has also moved towards new models of investment agreements, such as the Sustainable Investment Facilitation Agreements (SIFA) with African countries, which focus on improving investment governance and facilitating sustainable investments, rather than investment protection and ISDS. By withdrawing from the Energy Charter Treaty (ECT), the EU has also demonstrated that it will not hesitate to abandon multilateral cooperation if its core sustainability objectives are not attained.

Conclusion

There is meaningful global progression of climate action via ‘climate rights’, with a move from first- and second-generation human rights to the third-generation right to a safe environment, and further the possibility of a fundamental right to a stable climate. In this respect, the EU legal framework is more advanced than the international one, notably through the action of the European Parliament building on the extensive interpretation of the rights to life and to private and family life developed by the ECtHR.

On the other hand, the EU’s trade and investment agreements do not establish climate rights but rather seek to protect the EU regulatory space for the implementation of climate rights developed in primary EU law, including through a broader reform of international investment law. The EU has also sought to leverage its trade agreements towards the implementation of international climate obligations and to implement sustainability objectives in its investment policy beyond ISDS concerns.

The latest ICJ’s Advisory Opinion adds grist to the EU’s mill in developing climate rights. While its legal, political and diplomatic implications are yet to unfold, this Opinion is a welcome impetus for States to take climate change obligations seriously, at a time when climate action is losing its priority to more immediate geopolitical concerns.