A Fresh Look at Margin of Appreciation Through Climate Cases

Abstract This contribution examines how the European Court of Human Rights (Court) should apply the margin of appreciation in climate mitigation cases concerning the substantive determination of states’ national emissions reductions. The analysis reflects on the rationale underlying the margin of appreciation doctrine and its application by the Court in environmental matters. This paper argues that in view of the failure of national authorities due to their self-interest to effectively protect human rights in the face of climate change, the justifications for allowing a broad margin in environmental cases do not apply to the transnational problem of climate change. The article concludes that while decisions regarding the temperature target should afford no margin, and determinations of the ‘fair share’ of national emissions reductions allow only a narrow margin, decisions concerning the choice of specific mitigation pathways should involve a relatively broad margin.