Readers may well have heard the news that, yesterday (April 9th 2024), the European Court of Human Rights (ECtHR) issued its rulings in the conjoined ‘climate change’ cases of Verein KlimaSeniorinnen Schweiz and Others v Switzerland, Carême v France, and Duarte Agostinho and Others v. Portugal and 32 Others. You will also have heard that in the first of these, the Court – on rather narrow grounds – ruled that there is such a thing as the right to be protected from the “serious adverse effects” of climate change. No doubt you will be able to read commentary here, there and everywhere on the merits of the judgments. I would advise some caution with regard to that sort of thing – as far as I can tell the judgments in Carême and Duarte Agostinho, ruling the applications inadmissable, are not available at the time of writing, and the judgment in Verein KlimaSeniorinnen Schweiz is 260 pages long – too long for anyone to really have properly read and digested it all less than 12 hours after its being handed down.
Nonetheless, these cases were the subject of my previous post, in which I made some (largely accurate, it turns out) predictions, and they relate also to the one before that, so I would like to say a bit more about them – in regard to what they really mean with respect to philosophical and jurisprudential matters. I’ll do that in future posts once I’ve had time to sit down and read the judgment in Verein KlimaSeniorinnen Schweiz. Before, that, though, I thought it might be a good idea to provide readers with a bit of context – because I suspect many of you will be wondering about the most obvious question of all, which is how on Earth we got to the position that the ECtHR could be deciding whether or not there is a right to protection from the effects of climate change. There is no such right in the European Convention on Human Rights (ECHR), nor anything that resembles it, and the people who drafted it couldn’t even have imagined that there ever would be. So how is it that the court has decided that, in effect, there is?
The answer will take us a long way towards understanding why, regrettably, the self-respecting democracies of Europe are going to have to either seriously reform the entire Council of Europe framework (the umbrella organisation for the ECHR) or disassemble the whole thing. That, though, is obviously a subject to be discussed in more depth another time. Let’s for the moment go back to basics, and elucidate the three things that anyone seeking to understand what is going on in human rights law really needs to know.
The first is that there has always been a tension between people who think of human rights as imposing ‘negative’ or ‘positive’ obligations on the state. Stereotypically in the eyes of most laypeople in Western democracies, human rights impose ‘negative’ obligations – they make it a duty for the state not to do certain things (such as torture people, imprison them without trial, interfere with their freedom of expression, and so on). But even in the early days there were those who argued that rights actually impose obligations on the state to actively do things – such as providing housing (the right to housing), schooling (the right to education), welfare (the right to social security) and so on.
Naturally, positive rights were chiefly championed by the USSR and its allies during the Cold War, while in the West the idea generally prevailed that rights were constraints on state action. But during the closing decades of the 20th century the idea began to gain credence in human rights circles across the piece that actually all rights have both positive and negative dimensions. Hence, for example, although the right to education has a positive dimension (the state has to provide public schooling), it also has a negative one (the state must not prevent children being educated). And although the right to freedom of expression is thought of as being a negative right (the state must not interfere with speech), it also has a positive aspect (the state must ensure that everybody has equal opportunities to express themselves, and fora in which to do so). And so on. Roughly from the middle of the 1980s, then, it became orthodoxy in human rights circles that all rights require positive action by the state in order to be properly realised, and that rights are indeed best thought of as the legal means through which to force the state to improve well-being.
(The timing here is not an accident, by the way; as Samuel Moyn, a prominent historian of human rights, has argued, Western Leftists – disappointed with the failure of the 1968 movement to gain lasting traction, and disillusioned in particular with the obstinately non-revolutionary working classes – began giving up on democratic politics from the mid-70s, and took up human rights instead. The result was a sudden explosion of interest in rights from that period onwards.)
The idea that the state should have a duty to protect people from the effects of climate change did not, then, come entirely from nowhere – it has always been the case that there are people who really like the notion that the state has duties to provide for the population and improve its collective well-being, and who think that the point of human rights law is to impose such duties. In many ways this fresh development is, then, an iteration of a familiar theme – just another stage in a long process, with deep roots.
The second thing to clarify is the jurisprudential means through which the scope of human rights duties expands. As I earlier noted, there is no right to protection from the “serious adverse effects” of climate change in the ECHR. But the ECtHR has long held to a doctrine of interpretation which it refers to as the ‘living instrument’ approach (otherwise called ‘evolutive’, ‘dynamic’, or ‘teleological’ interpretation). The idea here is that, while the Convention might say X, Y or Z, and while the original drafters may have had particular intentions in mind, the court should not really feel itself beholden to the treaty text, or the drafters’ intentions, so long as it is achieving what is in the spirit of the convention in view of the context of the times. (With the judges sitting in the Court on any given day getting to decide, of course, what that spirit is and how it should inform interpretation.) Hence, to use the Verein KlimaSeniorinnen Schweiz example, Article 8 of the convention only says the following:
Everyone has the right to respect for his private and family life, his home and his correspondence
But the court can hold that this encompasses the right to protection from the serious adverse effects of climate change because, well, the convention is supposed to be about protecting human rights, and that surely must mean that anything which threatens human rights comes within its auspices. And since in the modern day we ‘know’ that climate change threatens people’s human rights, we must update the interpretation of the convention to encompass that threat. From the press release issued by the court with respect to Verein KlimaSeniorinnen Schweiz:
[I]nadequate State action to combat climate change exacerbated the risks of harmful consequences and subsequent threats for the enjoyment of human rights – threats already recognised by governments worldwide. The current situation therefore involved compelling present-day conditions, confirmed by scientific knowledge, which the Court could not ignore in its role as a judicial body tasked with the enforcement of human rights.
The eminent English judge, Lord Hoffman, once called this ‘living instrument’ approach “a banner under which the Strasbourg Court has assumed the power to legislate”. And he was right to do so: it allows unelected, unaccountable judges sitting in the ECtHR to decide that the text of the Convention means more or less whatever they see fit for it to mean, and thereby in essence make law from whole cloth. Rights and wrongs of climate change responses aside, it ought to be intolerable for a mature democracy like Switzerland to remain subject to the vagaries of such an institutional framework, but there you have it.
And the third thing to make clear is that, while lawyers are fond of pooh-poohing ‘slippery slope’ arguments (often labelling them, indeed, products of “the slippery slope fallacy“), such arguments have a mysterious way of coming true in the end. The idea that human rights could have a ‘positive’ aspect first found its way into ECtHR jurisprudence in very unthreatening, reasonable cases. In Marckx v Belgium (1979), the ECtHR found that the right to family life (under Article 8 of the ECHR) imposed a positive obligation on the state to recognise in law the status of children of unmarried mothers as being essentially equal with respect to inheritance as children of married mothers. In Airey v Ireland (1979), it found that the right to access to a court (Article 6) and the right to family life imposed a positive obligation on the state to provide legal aid in family law proceedings. In X and Y v The Netherlands (1985), it found that the right to be free from cruel, inhuman or degrading treatment (Article 3) implied that a positive obligation existed for the state to investigate and prosecute accusations of rape. (I mentioned these cases in a different context, regarding the duty of the state to protect the sexual freedom of prostitutes and their clients, here.)
These instances all feel pretty benign. To argue that the state should have no obligation to ensure that children of unmarried mothers can inherit property on equal terms to those of married mothers in law, or that the state should have no duty to provide legal aid in family law proceedings, or that the state should have no positive obligation to investigate and prosecute all accusations of rape, makes one sound like history’s greatest monster. And I should make clear that the argument here is not that the state shouldn’t enshrine equality between children of unmarried versus married mothers, or shouldn’t make legal aid available, or shouldn’t investigate and prosecute accusations of rape.
It is rather about whether the state should be liable in law if it fails to do those things. And the problem there is that once you concede that it should be so liable, you have no principled basis for drawing a line as to where such positive obligations should end. If the state has an obligation to provide legal aid in family law proceedings on the basis that to fail to do so would not protect people adequately who are engaged in family law disputes – well, on what principled basis should it not have an obligation to protect people from the ‘serious adverse effects’ of climate change, so long as causation can be proved?
This, then, is the position in which we find ourselves – a culmination of decades of gradual expansion and overreach in what human rights law requires, driven by a judiciary and a wider institutional culture that sees no real room for democratic deliberation over issues that are thought to ‘matter’. Whatever one thinks of the issue of climate change and what states should be doing to combat it (and I wish to make clear, for the avoidance of doubt, that I have no objection to, and am supportive of, efforts to respond to that issue so long as they are carried out through political rather than depoliticised processes) this creeping legalisation of every feature of life under the rubric of human rights must be viewed with the suspicion it deserves. If you want to live in a democracy, that means you should wish for it to be the people’s representatives, and not Strasbourg judges, who get to make policy and get to legislate – with respect to everything, not just climate change.
I hope this little précis was informative. In future posts, I will go into some more detail as regards the philosophical origins of these developments, and where things are headed.
Dr. David McGrogan is an Associate Professor of Law at Northumbria Law School. You can subscribe to his Substack – News From Uncibal – here.
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There is a strange increase in the reactions of people – the more their cherished beliefs or desires are shown to be at variance with facts – the more fanatical they become.
Applies to:
Trump
Brexit
Global Warming – or at least the idea that carbon dioxide is the sole driver of climate change despite ever more evidence that it has little, if any, effect on the planet’s climate.
–
The world is Topsy Turvy and I wish to be buried upside down, so that I will be the right way up when the world has sorted itself out.
Don’t forget Covid!
“People who make the rules made a rule which said nobody – not even they themselves – could break the rule so that means the rule was not broken because they said so, so there.”
If nothing makes sense, it’s usually money wot did it.
Eugyppius has some substantial reservations regarding Hersh’s article too.
Why is it so difficult to believe an underwater device could survive 3 months? Flight data recorders carry on transmiitting underwater for 90 days. An explosive device would need only enough power to pick up the detonation signal and to detonate the charge.
The legal argument is predicated on the assumption that those involved are honest and honourable, and as we know politicians and those in the security services are the epitomy of honour and honesty. It seems a bit like defending a criminal on the grounds that he knows crime is illegal so why would he commit one?
If the start assumption is that the people in power will violate the rules, anyway, the whole maneuvering to avoid doing so described in the Hersh-article could have been avoided by simply violating the rules.
Why did the US try to get a resolution passed in the UN to invade Iraq if they were going to do it anyway?
Why is it so difficult to believe an underwater device could survive 3 months?
Indeed. In fact such a device would be very simple to design and construct. There may even be off-the-shelf versions available.
“The legal argument is predicated on the assumption that those involved are honest and honourable”
The C1984 was authorised despite every law and rule in the damned world being broken.
“Rule of law?”
Give me a break – Jeez!
I seem to remember that the West has instituted a “rules based order” because the “international law based order” doesn’t get us what we want. But it’s still useful to wave the law flag bacause Joe Public has not been told about the new rules.
That sums it up.
Agreed. The Baltic at this site is not particularly cold or deep. 67m give or take a few metres. and bottom temperatures in June will be about +3degC. Thermoclines capable of accoustically masking a submarine are improbable in these shallow depths.
Presumably it would be a fairly straightforward technical matter, given US resources, to get an AUV (autonomous underwater vehicle) to do the job, which could be launched from many miles away.
I spoke to a merchant navy guy who does underwater engineering/maintenance stuff, and he said yes they’d use an ROV. But I’m not sure. For one thing, Russia has sonar sensors on those pipes (but I suppose there could be stealthy ROVs). Another thing is that Sweden has said these were larger, non-precision bombs that were placed near the pipes, not on them, so they could have been dropped from a ship (or perhaps a sub). In fact, the pipes are so vulnerable that anyone with some explosives and a small boat (no transponder) could have done it and probably got away with it. There’s an NYT article with a few more details. Maybe we’ll never know for sure who did it.
I think an AUV would be more likely than an ROV (which would be tethered to the mother vessel and have very limited range, thus necessitating the mother vessel to loiter over the site while the explosives were being laid. I agree with RichardTechnik that a submarine, at least a full-size submarine, would be an unlikely platform to use for this task.
If the explosives were indeed large, non-precision bombs then perhaps (as alluded to in the NYT article) the best way to lay them would be off the back of a motor vessel, tracking along the top of the pipelines (which could be visible on a multibeam sonar). On a second run over the target the multibeam could be used to check the explosives were sufficiently close to the pipelines to do the deed. No doubt such an exercise would have be practised to perfection in some secret location.
Detonate some time later, perhaps months later, at a moment of choice. The technology would be similar to that of an acoustic mine, adapted to fire in response to a given acoustic transmission rather than a ship passing overhead.
The technology isn’t difficult, but given the extent to which most Western navies have been run down, their independent technology bases hollowed out by spending cuts over decades now, my guess for the culprit would be the one nation that has more or less kept up to speed – the US.
I agree almost anyone could have done it, via a small boat and divers for example, but if the explosives were large this rules out divers. And getting away with it – absolutely vital in the circumstances – would be another matter.
I do wonder how effective the protective sonar sensors would be, in that whether there were enough of them to detect if something untoward was going on – simple dumping of explosive packages from above for example.
An oft-stated reason Putin did not go for the Donbas in 2014 was to keep the gas flowing through Ukrainian pipelines which Nordstream would eventually replace. Thus the Trump administration under legislation proposed by Senator Ted Cruz applied sanctions to Nordstream 2 which – the very next day – halted the construction process. In an act of almost childish stupidity, Biden lifted those sanctions – with 100pc Democrat backing – simply because they were a Trump policy, and despite warnings, and the pleading of Zelensky that such a move would be a green light to Putin to move on Donbas. And so it proved. No wonder Biden blurted out that Nordstream could be taken out…You look a fool to deny otherwise.
The Russians doing it doesn’t add up either. It would be quite easy to dismantle the case that the Russians did it.
So where does that leave us?
The fog of war, people believing what they want to believe, chaos..
Cui bono?
A bit like the origins of covid, it may remain a mystery for a long time/forever. Also a bit like the origins of covid, it seems important to know so you’d expect those that govern us to be pulling out all the stops to find out the truth. Funny that doesn’t seem to be happening in either case. I’m sure it’s just a cock-up though. They did manage to fully investigate the Salisbury poisonings and established beyond a reasonable doubt that it was Russia wot dun it, same with US election interference, Hunter Biden laptop conspiracy theory. All completely believable.
and the excess deaths – due to eating too many eggs.
Cui bono?
The Yanks.
Therefore they did it.
Exactly. No need to overthink this.
So in addition to being a military specialist, Rons is also an expert in the interpretation of US law. Very impressive.
Further to Ian Rons’ well-researched points about the Hersh article,
A) Basing an entire journalistic investigation and its conclusions on revelations from ‘an unnamed source’ has exactly the same credibility as ‘it all came to me in a dream’.
It is perfectly possible that an individual did approach Seymour Hersh and present him with all the ‘information’ contained within this piece.
But without verifiable bona fides and corroborative evidence – of the sort that Mr Hersh would presumably have presented if available – the likelihood is that he was having a chat with a member of the FSB masquerading under the cunning guise of ‘Senior Agent Matt ‘The Rock’ Reacher, Deputy Sub-Director CIA Clandestine Section 14XJ, Undermine the Russian Federation With Extreme and If Necessary Illegal Prejudice’.
B) Even if it does turn out to have been a conglomeration of Western liberal democratic countries which were responsible for the destruction of this pipeline as Mr Hersh alleges, the intention was clearly to hamper the totalitarian Russian Federation’s neo-fascist project of mass destruction, murder and annexation / conquest in an independent and democratic member of the United Nations.
To put this moral and practical point in another way, how many genuinely life-preserving gas pipelines (to individual properties for central heating, hot water, cooking etc) have Russian Federation ‘liberation’ forces destroyed in Ukraine since the completely unprovoked invasion of February 2022;
And as a corollary of all this pipeline destruction (via aerial and artillery bombardment etc) –
How many lives?
Yes, there’s no indication Hersh ever tried to verify this source’s status in any way. And he clearly hasn’t asked experts (legal, military, engineering, etc.) about the key claims. There’s a reason he doesn’t write for the New York Times or the New Yorker any more, and it doesn’t look as though the NYT has even mentioned his claims this time, despite the fact that he was an excellent investigative reporter.
As to whodunnit, I’m very uncertain about all that (there are several possible culprits), but if it was the U.S. then I’d applaud them for having the audacity, and two fingers to Putin.
The ‘as to whodunnit’ cop-out implies you simply can’t be bothered to put together an argument that Russia destroyed their own pipeline because that would be ridiculous. And yet you refuse to jeopardise your own stated narrative by admitting all the evidence points to the Biden White House, not least of all its track record in disaster.
https://youtu.be/IAiZvKouZRw
P J Watson’s view.
Four minutes.
I’ve been reading this week about the Mỹ Lai massacre because I’m visiting the area this weekend. Hersh played such an important role in shedding light on that atrocity and subsequent events that I find it hard, not insulting to dismiss him as ‘gullible’.
It’s not a secret that the US has worked hard to make LNG from Qatar the primary source of Europe’s gas. So we have motive, something we don’t have in the case of Russia. For balance, maybe Rons should scrutinise the claims that it was Russia. Except he won’t, because he’s partisan.
Compared to what US strategic air warfare, ie undirected bombing of everything which could seen from the air, culminating in just unspecifically bombing the countryside after all of that had been eradicated, did to the people in SE Asia, the so-called Mỹ Lai massacre is a historical footnote. It’s also not really more gruesome than what invading Russian soldiers did to villagers in Eastern Prussia 1945. That’s just a lot less popular because they targetted The Right Kind of Victims[tm], ie, Germans.
Similar scenes have always occurred (and will likely keep reoccuring) whenever regular forces have to handle guerilla warriors, ie, enemies who dress up as non-combatants and prefer ambushes. When every supposed civilian could suddenly pull out a gun and start shooting at you, at lot of probably innocent civilians will end up being killed, either because they just happen to be in the wrong place at the wrong time or in retaliatory actions.
Another outstanding article from Mr Rons.
There are, in fact, only two countries that stood to benefit from the Nordstream destruction:
Russia: a ‘false flag’ operation to sow discord within NATO.
Ukraine: to remove the leverage Nordstream afforded Putin.
These are also the only two ‘hot’ protagonists engaged in this European war.
Take your pick.
But in the event, only the US economy has benefited from increased sales as well as German de-industrialisation, NATO members have murmured about US involvement but daren’t say it out loud, Ukraine has been largely destroyed, and Russia’s massive investment in the pipeline is lost. Pretty duff planning on both fronts – US false flags never cost them that much.
Still, it’s a relief to know that there are no other participants in the war, and that the stated US intentions for regime change in Russia and the breakup of the federation are just whistling in the wind and trusting Zelensky to deliver. The weapons, advisers, trainers, technical input and intelligence, “deserters” serving on the front, visiting leaders etc, are just to keep us informed.
Did you see Zelensky entering Westminster Hall with pretty much all 650 of our sycophant pretend MP,s clapping cheering & whistling in support of the Hero in a green tracksuit . There’s nothing else to say , we are living in cartoon world !
Those barstewards in Westminster do NOT speak for me – Andrew Bridgen excepted. Bloody cowards.
one of the most shameful sights in the history of this nation.
Yes – the hero who is now conscripting 16 year olds for the meat grinder. When it happens in Uganda it’s a war-crime.
Yes, indeed. Startling prescience, strategic grasp and administrative grip from a President who can barely tie up his own shoelaces……
Controls are for those following the flowchart of decision making. Bearing in mind how the Biden administration has treated the US, I can see how they might bypass all the controls to make this happen. I can also see, on the technical issues of getting devices planted on the pipeline and detonated. The idea that they would need some super leading edge prototype device to achieve the detonations, and then discount that as a possibility because they didn’t have time to make them or to a quality that would permit them to work is absurd. I wouldn’t be in the least surprised if you couldn’t just go to a storage room somewhere in the US Military, pick two, and heve them FedEx’ed to your mini-sub the following day.
I remain sceptical of everyone, but there is a strong smell of USA around this whole incident. It is really surprising to me how little has been made of it politically, diplomatically, and of course in the obedient media. I would be fuming if it was my pipeline and I’d want answers.
How can anyone doubt that lying Biden sabotaged NordStream 2?
When he officially promised that he would do it!
That it was a criminal act of sabotage, eco-terrorism and war is indisputable.
Few nations have the ability to pull off a stunt like this – so which ones profited from it?
Certainly not Russia, Europe or China – but America did, both financially and politically.
Why on earth would Putin sabotage a recent multi-million dollar investment that gave him huge political and financial sway over Europe? His “special op” practically depended on just that.
Why does Putin do anything? Why did his army not wear uniform when taking over Crimea? Why did he invade a country when he already occupied (uncontested, internationally accepted) a significant part of it?
Why did Russia do any of these things:
1921-6 Operation Trust, creating the pseudo-“Monarchist Union of Central Russia” (MUCR) in order to help the OGPU identify real monarchists and anti-Bolsheviks.
1939 False flag shelling Mainila before invading Finland
1968 Operation Progress, deployment of 20 KGB illegals to Czeckoslovakia
1999 Apartment buildings in Moscow, Buinaksk, and Volgodonsk were bombed by FSB, killing hundreds of Russian civilians, blamed on Chechens.
2014 Little green men, in fact Russian soldiers pose as freedom fighters in Eastern Ukraine
2017, Russia used footage from video game as evidence of the United States colluding with the Islamic State.
2022 Two explosions destroyed two radio antennas in the disputed Moldovan region of Transnistria.
Sorry but you lost me at “The most glaring issue is a legal one.” The Biden administration (and others before him) don’t care about the rule of law and most of Congress doesn’t either. Even if they were caught breaking the law, there would be no consequences. It’s laughable to think that “breaking the law” would stop them from doing it. Also, enforcing the law in this case would mean proving that the US did it and Biden covered it up. No one responsible for enforcing the law is going to do that.
Like the other commentator who brought this up, you’re missing the point: The Hersh-article goes to great lengths handling this legal issue. Hence, pointing out that the text doesn’t really make sense is a valid criticism of the article. Whether or not US politicians break the laws supposed to regulate their actions is unrelated to that,.
As RW said, that’s not really the issue, Walrus. The issue is that Hersh’s source is lying (and obviously so), because there’s no such exception to the Covert Action Statute of the sort he claims, never mind whether Biden would be prepared to break that law or not — although Hersh’s source implies he wouldn’t have been prepared to break it, so perhaps he’s being naive?
Ian Rons the globalist apologist strikes again…..is this just to wind up the (awake) non woke on this site.
It’s odd that someone this naive works at the daily sceptic.