CYIL vol. 14 (2023)

CYIL 14 (2023) FIRST CZECH CLIMATE LITIGATION FROM THE PERSPECTIVE OF INTERNATIONAL … other international instruments to directly oblige states to act. This is in contrast with point 1 stated by the Czech Supreme Administrative Court. Sufficiency of national NDC has been challenged also in Turkey, in case A.S. & S.A. & E.N.B v Presidency of Türkiye & The Ministry of Environment, Urbanization and Climate Change . 50 This case is nonetheless still pending. Furthermore, in the case Daniel Billy and others v Australia (Torres Strait Islanders Petition) , 51 the UN Human Rights Committee dealt with a complaint of indigenous islanders, claiming that Australia did not produce sufficient mitigatory and adaptive measures to protect their right to life and other rights as defined by the International Covenant on Civil and Political Rights. 52 In September 2022, the UNHRC did not accept the complaint in regard to mitigation measures but upheld it in regard to adaptation measures. Such outcome aligns with opinion of the Czech Supreme Administrative Court concerning mitigation but differs from its view regarding adaptation (point 3). This might be given by the fact that sea level rise posed imminent threat to livelihoods of Australian complainants, leaving much less space for Australian government to decide when and how to protect their human rights. Finally, in case Finnish Association for Nature Conservation and Greenpeace v Finland , 53 two environmental groups claimed that the Finnish government failed to safeguard carbon sinks. In June 2023, the Finnish court found the lawsuit concerning governmental omission (failure to act) procedurally inadmissible. This contrasts with the outcome of the Czech case in point 4 above. Although the admissibility is a primary issue of domestic administrative law, sooner or later the discussion will emerge whether the decision confirming admissibility (as in Czech or German 54 litigation) might establish a general principle of national laws. It is also noteworthy that the Finnish court took similar stance as the Czech court, when it claimed: The primary responsibility for fulfilling international [climate] obligations rests with democratically elected political decision makers. It is the court’s job to ensure, on the basis of an appeal, that the decisions of political decision-makers are in accordance with the law and do not prevent the realization of human and fundamental rights. The comparison of the Czech case with other recent cases shows significant differences in opinions of courts and other bodies and in their willingness to review the sufficiency of mitigation and adaptation measures. Hopefully, certain clarifications could be provided 50 A.S. & S.A. & E.N.B v. Presidency of Türkiye & The Ministry of Environment, Urbanization and Climate Change, summary of the case available at the website of Sabin Center for Climate Change Law (3 August 2023), available at: http://climatecasechart.com/non-us-case/as-sa-enb-v-presidency-of-turkiye-the-ministry-of environment-urbanization-and-climate-change/. 51 Decision of the UN Human Rights Committee: Views adopted by the Committee under Article 5(4) of the Optional Protocol, concerning communication No. 3624/2019 ( Daniel Billy and others v Australia (Torres Strait Islanders Petition) ), 22 September 2022. Original available at the website of Sabin Center for Climate Change Law (3 August 2023), available at: http://climatecasechart.com/non-us-case/opinion-of-the-national-human rights-commission-on-the-climate-crisis-and-human-rights/. 52 UN GA. International Covenant on Civil and Political Rights (adopted on 16 December 1996, entered into force 23 March1976), 999 UNTS 171. 53 Judgement of the Supreme Court of Finland, 6 June 2023, Finnish Association for Nature Conservation and Greenpeace v Finland . Original document and unofficial English translation available at website of Sabin Center for Climate Change Law (3 August 2023), available at: http://climatecasechart.com/non-us-case/finnish association-for-nature-conservation-and-greenpeace-v-finland/. 54 The Judgement of the Administrative Court in Berlin, 31 October 2019, no. 10 K 412/18, para 73.

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