CYIL vol. 12 (2021)

jan lhotský CYIL 12 (2021) Covenant (right to life) and concluded that there was no violation of the Covenant by the State Party in this case. However, it also stated that ‘ without robust national and international efforts, the effects of climate change in receiving states may expose individuals to a violation of their rights under articles 6 or 7 of the Covenant, thereby triggering the non-refoulement obligations of sending states. Furthermore, given that the risk of an entire country becoming submerged under water is such an extreme risk, the conditions of life in such a country may become incompatible with the right to life with dignity before the risk is realized .’ 22 As the situation in Kiribati did not yet amount to such a threat, the Committee ruled that there was no violation. Nevertheless, its reasoning is seen as ground-breaking as it states that climate change can lead to recognition of climate refugees. When we discussed regional systems, we mentioned that the right to a healthy environment is not explicitly included in the American Convention on Human Rights. Only Article 26 of the Convention sets a general obligation for States to adopt measures to progressively achieve the full realisation of economic, social and cultural rights. Although not explicitly present in the American Convention, the right to a healthy environment is included in the San Salvador protocol on economic, social and cultural rights. Nevertheless, this article is not enforceable through individual complaints, which is why the Inter-American Court of Human Rights could not rely on it in its jurisprudence. In 2018, however, the Inter-American Court issued an advisory opinion 23/17 23 in which it expanded the interpretation of Article 26 of the American Convention to include the right to a healthy environment. The Court’s first contentious case reflecting this development was decided in 2020, in which it held that the right to a healthy environment was violated. 24 On the national level, as well as the Urgenda decision we should also emphasize a recent 2021 ruling of the Federal Constitutional Court of Germany on a submission aimed against the Federal Climate Change Act. The German act set out the plan to reduce, by 2030, emissions of greenhouse gases by 55% compared to 1990 levels. The Constitutional Court ruled that the reduction goals defined in the act were incompatible with fundamental rights, as they lack sufficient specifications for further reductions in emissions from 2031 onwards. 25 As Germany needs to meet the goals set in the Paris Agreement and reach carbon neutrality in 2050, the level of reductions after 2031 would have to be much greater than during the previous decade. Such policies would naturally affect the level of enjoyment of fundamental rights. Moreover, the Constitutional Court emphasized intergenerational justice, arguing that it would not be fair if one generation was able to reduce emissions to a lesser extent, leaving a greater amount for the following generation. It based its decision, among other things, on the protection of life and physical integrity enshrined in the German constitution. It should be added that as a response to the ruling, the government published plans to 22 Para. 9.11 of the decision CCPR/C/127/D/2728/2016 of 24 October 2019. 23 Advisory Opinion OC-23/17 of 15 November 2017 accessed 1 August 2021. 24 Indigenous Communities Members of the Lhaka Honhat Association v. Argentina . For more information, seeTIGRE, Maria Antonia. Inter-American Court of Human Rights Recognizes the Right to a Healthy Environment. American Society of International Law 2 June 2020, accessed 1 August 2021. 25 1 BvR 2656/18, order of 24 March 2021. See the explanation of the Federal Constitutional Court of Germany accessed 1 August 2021.

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