CYIL vol. 14 (2023)

CYIL 14 (2023) FIRST CZECH CLIMATE LITIGATION FROM THE PERSPECTIVE OF INTERNATIONAL … 1) The Paris Agreement is a treaty of “a hybrid character”, only some of its clauses are directly binding and self-executing, while other rules contain just general goals requiring further implementation to be enforceable by the domestic, national courts. While the obligation in Article 4(2), first sentence, to prepare, maintain, and communicate the NDC belongs to the former, self-executive category, the general aim to limit global warming and set mitigation and adaptation measures obviously falls within the second category. 2) The joint, collective NDC communicated by a regional economic integration organisation (or particularly by the EU) under Article 4(16)-(18) of the Paris Agreement does not per se equal to an individual NDC of each member of this organisation. To the contrary, the regional organisation may still later specify the individual contributions of its members in various sectors, which will lead to the achievement of the collective NDC of that organisation (EU NDC). This specification should be achieved by political and administrative processes, not by premature intervention of courts. The obligations of conduct, 43 such as the obligation to fulfil the EU NDC under Article 4(18) of the Paris Agreement, 44 might thus not always be self-executing. 3) Article 7 of the Paris Agreement reserves the decision which adaptation measures shall be adopted (also how and when) for legislative and executive authorities. Therefore, the courts should not intervene in these questions. 4) Alleged insufficient activity of the Ministries in climate change mitigation and adaptation does represent a potential reason for litigation. The sole fact that the plaintiffs’ rights are affected by the consequences of climate change that concern the entire population does not mean that the plaintiffs would be affected only indirectly and thus deprived of their right to judicial defence. This conclusion is linked to procedural aspects and Czech domestic administrative law, but it also offers an analogy for international climate litigation. It may contribute to the development of a general principle 45 that lawsuits for failure to act should not be dismissed only because the failure itself does not violate human rights. The failure aggravates the processes resulting in human rights violations and thus a lawsuit is permissible. Such principle could emerge, but is not yet widely accepted yet, as will be explained later. 5) Current international human rights obligations of the Czech Republic, although considerably “greening”, do not establish sufficient legal basis for a court to order the 43 WOLFRUM, R., Obligation of Result versus Obligation of Conduct: Some Thoughts About the Implementation of International Obligation. In ARSANJANI, M. H., COGAN, J. SLOANE, R., WIESSNER, S., Looking to the Future. Essays on International Law in Honor of W. Michael Riesman , Brill Nijhoff, 2011, p. 364. 44 MAYER, B., International Law Obligations Arising in relation to Nationally Determined Contributions, In 7 (2) Transnational Environmental Law 2018, footnote 78 and 150. MAYER, B. Obligations of Conduct in the International Law on Climate Change: A Defence, In 27 (2) RECIEL 2018, pp. 130-140. MALAIHOLLO, M., Due Diligence in International Environmental Law and International Human Rights Law: A Comparative Legal Study of the Nationally Determined Contributions under the Paris Agreement and Positive Obligations under the European Convention on Human Rights. 68 Netherlands International Law Review 2021. 45 The general principles of law recognized by civilized nations may be an applicable source of public international law (see art. 38, para 1, letter c) of the ICJ Statute: UN. Statute of the International Court of Justice (adopted 26 June 1945).

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