Enhancing the efficacy of climate change litigation: how to resolve the ‘fair share question’ in the context of international human rights law

Abstract

The ambiguity surrounding what constitutes a State's fair share of the global burden of mitigating climate change has undermined the ability of domestic climate change litigation to bring about emissions reductions which are collectively capable of meeting the goal of the Paris Agreement. When confronted with challenges to the adequacy of States' mitigation efforts, domestic courts have also drawn on States' international human rights law obligations. This paper argues that when applying these obligations, the uncertainty surrounding the fair share question must be resolved so as to ensure individual mitigation obligations which are collectively consistent with the Paris Agreement. The analysis focuses on the obligations under the European Convention on Human Rights and outlines how general principles of law applicable in situations involving causal uncertainty could be invoked to address the fair share question.