Maya 19 years old, Julia 17 years old, Alexandros 21 years old, Damien 23 years old, Marion 31 years old. These five young people have one thing in common. All of them have been victims of climate change, whether during Hurricane Irma in 2017, the deadly floods in Germany, Switzerland and Belgium last summer or the devastating fires in Greece the same year. All five have also chosen to file a complaint, this Tuesday, June 21, before the European Court of Human Rights (ECHR). They attack twelve States (France, Germany, the United Kingdom, Switzerland, the Netherlands, Austria, Greece, Belgium, Denmark, Sweden, Luxembourg and Cyprus), signatories of a treaty unknown to the general public and which could jeopardize the fight against climate change. This is the Energy Charter Treaty (ECT), signed by 53 countries in the early 1990s.
In essence, the suspects are asking the Court, in order to protect their rights, to contradict the States concerned to leave this treaty or to reform it in depth. According to Clémentine Baldon, their lawyer at the Paris Bar, this treaty is incompatible with international climate commitments made under the Paris Agreement and violates the obligations of States under the European Convention on Human Rights. man.
46 coal-fired power plants protected by the treaty
To better understand this legal action, one must understand the scope of this treaty and the context in which it was born. This text provides for the possibility for investors to sue governments before arbitration tribunals when the latter modify their energy policies in a direction contrary to their interests. At the time, the context seemed to justify this device: after the Gulf War in 1991 and the collapse of Soviet Russia the same year, investors demanded a serene international framework to maintain their investments.
But today, this regulation espouses national energy policies and the associated costs can be massive if a State is condemned.
The treaty isobsolete, it protects, among other things, investments in fossil fuels and is therefore no longer adapted to the energy and climate challenges of our time, following the Paris Agreement”had declared before the National Assembly, in June 2021, Barbara Pompili, then Minister for the Ecological Transition.
According to the United Nations Conference on Trade and Development, 135 disputes under the ECT have been postponed since the birth of the treaty. In July 2021, the amount of compensation granted amounted to 55 billion euros. Moreover, a recent survey by a group of European journalists valued the protected fossil assets at 345 billion euros. For example, 46 coal-fired power stations are today protected by the TCE.
Between 523 billion and 1,300 billion euros in costs for the States
According to another assessment, phasing out fossil fuels could cost states between €523 billion and €1.3 trillion by 2050, in terms of ECT compensation. So much money not used for the deployment of public policies dedicated to the mitigation and adaptation to climate change.
“TCE is a form of life insurance for investors in fossil fuels. It discourages state action on climate change and diverts huge amounts of taxpayers’ money into mitigation and adaptation [climatiques, ndlr] to meet our international commitments and protect human lives,” denounces Mathilde Dupré, co-director of the Veblen Institute, a think tank on sustainable development. “If these contradictions are obvious for the victims of the impacts of climate change, why are they not for the heads of state and government? »she wonders again.
December 2019, this text is the subject of tough negotiations with a view to its modernization to “green” it, but an agreement seems very difficult to obtain given the different positions between the signatory countries. A consensus is blocked on two major points: the revision of the mechanism of arbitration tribunals and the definition of the economic activities concerned by the treaty.
Negotiations bogged down
The European position is articulated around a common basis aimed at not excluding from the charter the protection of all investments in fossil energy. This position, considered by some NGOs as an ambition already at a discount, is not even accepted by all of the Twenty-Seven European countries, and even less by the other parties concerned. Japan, in particular, blocked any possibility of an agreement with four irons, as did Kazakhstan.
Given the difficulties in advancing these negotiations, France and other European countries, such as Poland, had reaffirmed that they were considering a coordinated European exit. But, here too, no certainty can be drawn, as long as the positions within the Twenty-Seven may be different.
As for a unilateral withdrawal from the treaty, this would not be without consequences. Indeed, a clausetwilight», incorporated into the historic treaty, extends the responsibility of States up to 20 years after their exit. A collective exit would therefore give more weight and would require the countries concerned to no longer respect this clause. An umpteenth round of negotiations is scheduled for June 23 and 24.