Description
The term ‘deep uncertainty’ is permeating public discourse in particular with respect to the occurrence of tipping points as a consequence of anthropogenic climate change. Pointing at the scientific uncertainty in Earth System Models, states around the world claim wide political discretion in devising their mitigation policy. This claim is further buttressed by the argument that choosing a specific level of greenhouse gas emissions reduction is a deeply normative decision and therefore ‘belongs to the political domain’ for reasons of democratic legitimization. The present article engages in a detailed analysis of this claim and its underlying premises from a political and legal theory perspective. The main argument put forward is that the law does not automatically grant wide political discretion for normative decisions, even in the context of ‘deep uncertainty’. Rather, in the case at hand, the scope for political leeway is tightly circumscribed, inter alia, by the equity principle and the obligation to protect inviolable fundamental rights. Indeed, a strong legal argument is to be advanced that state conduct not aligned with keeping the temperature rise below 1.5°C at an 83% likelihood not only classifies as an internationally wrongful act but, ultimately, is also deeply undemocratic.
