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Academic literature and international legal documents on transitional justice have concentrated on transitions from dictatorships or armed conflicts, while neglecting hybrid regimes. In such regimes, physical violence is less characteristic (even though not unknown), but centralised corruption, state-organised plunder of resources, and the gradual demolition of the guarantees of democracy and the rule of law during the ancien régime require exceptional transitional measures when building a new democratic regime. Just as the questions of democracy and the rule of law are not binary (“yes” or “no”), transitional measures after hybrid regimes should also be proportionate. In European cases, as far as the legal framework is concerned, besides general international law, the case-law of the ECtHR is mostly relevant. The present piece does not outline a precise roadmap, but it can be helpful for those who are or will be planning such roadmaps by conceptualising certain key dilemmas.

Concepts

“Transitional justice” includes various legal techniques, norms, and processes, de facto practices, and political narratives that are designed to help the transition from a non-democratic state (dictatorship, hybrid regime) into a democracy. It is much more than just court-like procedures about crimes by officials of the ancien régime.

By hybrid regimes, I mean regimes that are between well-functioning (embedded, consolidated) democracies and dictatorships (i.e. violent, oppressive regimes with systematic and severe human rights violations). Instead of having an adjective attached either to “autocracy” or “democracy”, the terminology “hybrid regime” expresses better the in-between status that I would like to stress here.

By “Europe”, I mean the signatories to the ECHR. Therefore, it is not a geographical, but a legal concept which is relevant in order to establish the relevant legal framework (especially ECtHR case-law) of potential transitional justice processes.

Hiatuses of the current transitional justice discourse

If you try to find solutions for the questions of what kind of transitional measures should be taken in the future after a hybrid regime ends in Europe, you will be disappointed. In the literature on transitional justice there is little that can be used – just bits and pieces here and there, some fragments, but nothing specifically addressing these issues. Concerning the topic of the present piece, the discourse suffers from four hiatuses:

First, it is based on a mistaken premise of the “end of history paradigm” (according to which relapse is just an exceptional accident). The way most of the literature writes about transitional justice still mirrors the mood of the 1990s: non-democratic regimes tend to become democracies (“end of history” euphoria), and even if there are relapses (it would be difficult to deny this historically), these are rather just unfortunate accidents. To use medical language, transitional justice is conceived as a one-off “post-traumatic” treatment of exceptional accidents. I suggest that it should rather be seen as a continuous “anti-alcoholic” treatment aimed at avoiding future relapses. The emergence of dictatorships or hybrid regimes nowadays does not just “happen” to countries as an externally caused accident, these developments grow out of inherited cultural patterns.¹⁾ And even if they are externally caused (e.g. via military invasion), in the long run they often distort the local culture (i.e. attitudes and beliefs of the local population) into a feeding ground for their own regime. I call this “institutional alcoholism”.

The usual German translation of transitional justice “Vergangenheitsbewältigung” (literally “dealing with the past”) expresses exactly this misunderstanding of equating transitional justice with just dealing with what has happened in the past. This is not simply a “framing issue”, as it actually has practical consequences for what type of measures are recommended and for how you weigh trade-offs between various measures. If non-democratic relapses are only exceptional accidents, then you do not have to worry about the demoralising effects of amnesties – you just want to get it done and get back to normalcy. But if you think that relapses are culturally conditioned and that they can easily happen (just like an alcoholic tends to relapse without external help), then you are much more careful with letting perpetrators get away and just move on.

Second, it lacks focus on hybrid regimes (ie its triggering threshold is too high). Both the academic literature and dedicated international documents on transitional justice have concentrated so far mainly on transitions from full-blown dictatorships or civil wars, normally requiring “severe and systematic” violent incidents (mass tortures, abductions, killings, rapes, etc.), often in the context of international armed conflicts or civil wars. In hybrid regimes, however, physical violence is less characteristic (even though not unknown), but centralised corruption, state-organised plunder of resources, and the gradual, often informal and systematic demolition of the guarantees of democracy and the rule of law during the ancien régime require exceptional transitional measures when building the new democratic regime.

Third, it lacks focus on crony capitalism, plundering and corruption (ie it almost exclusively focuses on physical violence and violations of civil and political rights). Another feature of the discourse is its almost exclusive focus on physical violence (“past widespread or systematic violence”, see Zunino p. 5) or violations of civil and political rights (ibid 49 and 51). Economic questions normally come up only either as the (triggering) economic context of physical violence or when there is a transition from a non-market-economy (typically socialist regime) into market economy. The discourse is traditionally understood as a subfield of international human rights law – issues such as crony capitalism, resource plundering and corruption are, however, difficult to conceptualise as human rights violations. If you leave these untouched though, then non-democratic forces will have the resources to return and it will convey the message that you can get away with it, so in the future it is worth trying it again.

Fourth, it is legalistic and almost exclusively principle-driven. The discourse generally lacks good empirical studies, thus the effects of the measures are still unclear. Besides classical legal-doctrinal analyses, most of the literature is about implementing moral principles (to date the best comprehensive study is still an almost twenty-year-old Canadian paper).

Why do we need transitional justice?

While saying that ordinary justice measures suffice when returning from a hybrid regime back to democracy might sound theoretically appealing, this viewpoint actually ignores the nature of non-democratic regimes (dictatorships and hybrid regimes). Even though transitional justice does not necessarily need to be illegal according to the legal system of the ancien régime (breaking legal continuity, ie revolutions in a Kelsenian sense, can actually be quite risky both from a practical and a legitimacy perspective), it does need to address transitional issues specifically.

The primary and overarching purpose is to avoid relapse, the question is though how sub-goals can help this. Non-democratic regimes do not have the cultural and legal immune systems that are necessary to avoid future relapses, and these immune systems need to be built up. Officials of the ancien régime will not automatically deal with past injustices either (some of them also lack the necessary credibility to do so), you thus need some impulses or personal changes to set the machines into motion. These points hold both for dictatorships and for hybrid regimes.

Unavoidable trade-offs

There are often conflicting purposes regarding transitional justice processes. While the overarching purpose is clearly to avoid a relapse, it is not clear through which mix of sub-goals this can be achieved. Whether it is “justice”, “truth”, “reconciliation”, “stability”, “prosperity”, “legitimacy”, “democracy”, or “the rule of law” (which are all very much open-ended concepts themselves), remains somewhat opaque. Moreover, there are also unavoidable trade-offs between these goals. To illustrate the dilemmas, Jon Elster notes the contradicting expectations concerning trials in transitional justice situations (Closing the Books: Transitional Justice in Historical Perspectives at 212):

• Trials should be speedy, in the sense of starting up immediately […].
• They should be swift, in the sense of being concluded quickly.
• They should be severe, using […] long prison sentences.
• They should be just, both in the substantive sense of punishment according to desert and in the procedural sense of respecting the rule of law.
• They should be thorough, in the sense of convicting a large fraction of the collaborators.
• They should be efficacious, in the sense of using scarce resources as efficiently as possible.

Well, good luck with fulfilling all these expectations at the same time! The best, but admittedly somewhat vague, advice to transitional governments is thus “to pursue as much transitional justice as possible and yet only as much as is prudent”.

The toolbox

It is important to emphasise that transitional justice is not just about legal measures, and especially much more than just trials. The various measures do not exclude each other: they can and should be applied together. Their application can also be quite messy: one person can belong at the same time to the victims and the perpetrators. As the 2004 Report of the UN Secretary-General formulates about the applicable toolbox: “We must learn as well to eschew one-size-fits-all formulas and the importation of foreign models, and, instead, base our support on national assessments, national participation and national needs and aspirations.” This is exactly why we have to rethink transitional justice for hybrid regimes.

There are three main categories of measures in the toolbox: First, measures of Transformative Justice Reshaping the Political Community. These include symbolic ruptures, maybe a new constitution (or rather not, as this can easily re-ignite polarisation in transitional situations, thereby undermining future liberal democracy), institutional reforms, vetting/lustration, and measures aimed at discovering/remembering the past. Second, measures of Restorative Justice Helping Victims. While this can be part of the toolbox, after hybrid regimes this is less central (cf. above the lack of massive and severe human rights violations). Third, measures of Retributive Justice Punishing Perpetrators and Beneficiaries. This can include “naming and shaming”, expropriation and asset recovery (partly through non-conviction-based confiscation, whereby especially Article 1 of Protocol 1 ECHR needs to be considered), vetting/lustration (within the limits of Article 8 ECHR, inter alia), and criminal trials (whereby especially Articles 6 and 7 ECHR need to be respected).

A few concrete pieces of advice on how to avoid pitfalls

In order not to be too academic, I finish with some concrete advice:

• Resist the temptation to do nothing: send a message to the future. At the same time, be aware that vengeance is usually a poor guide for institution-building.
• Trade-offs are unavoidable, so you consciously need to balance and prioritise your goals.
• Have a precise plan – with incrementalism and continuous self-corrections during implementation. Do outreach activities: explain and involve.
• Set traps: officials of the ancien régime have a tendency to betray each other, if they understand that the ancien régime is unlikely to return (“strategic defectors”), and if you give them the opportunity to do so (prisoner’s dilemma in the service of transitional justice).
• Be careful with the very top leader on trial: such a symbolic trial can mobilise hard-core supporters of that leader and can thus easily backfire. In contrast, trials against cronies and against other high officials (excluding the actual former leader) are safer options.
• Deal with property issues.
• Stay legal: respect the ECHR with the right legal technique. Revolutions in a legal (Kelsenian) sense have a high price in the long run.
• Be aware of how polarisation can undermine liberal democracy: avoid ideologically divisive measures as much as possible.
• Show a good example: be transparent in your goals, be fair in the procedure, and most importantly govern well.

Opinions expressed in this article are in personal capacity and do not engage the European Court of Human Rights.

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The victory of Péter Magyar and TISZA Party in the parliamentary elections of 12 April 2026 may be seen as a useful illustration of the theory of competitive authoritarianism developed by Steven Levitsky and Lucan Way. It suggests that even under uneven political conditions, electoral victory remains possible when an opposition movement is well organized, presents a credible program, and effectively capitalizes on the weaknesses and mistakes of the incumbent government. Consequently, claims about the demise of liberal democracy appear to be premature.

This victory comes 2.5 years after the pro-democratic and pro-European win in Poland – of the coalition led by the Prime Minister Donald Tusk. Since December 2023, Poland is getting through the difficult process of rule of law recovery and democratic revival. So, any comparison of the Polish and Hungarian case seems to be a natural starting point, especially as regards lessons drawn from the current Polish transition. This article compares the Polish and Hungarian case, arguing that the transition to democracy is not only about constitutional or legislative rebuilding of institutions, but requires commitment of various stakeholders to a meaningful democratic change. Poland’s experience could be interesting as regards regaining trust of European institutions. Hungarian authorities should also look closely to accountability challenges in order to meet high expectations of voters.

Regaining the trust of European institutions

In theory, a sweeping victory by TISZA and the acquisition of a two-thirds constitutional majority should make the process of political and institutional change in Hungary easier than it has been in Poland. The coalition led by Donald Tusk secured a parliamentary majority, but not enough seats to override a presidential veto, let alone obtain a constitutional majority. Moreover, several state institutions remained firmly controlled by loyalists of the previous regime. Finally, the presidential election in mid-2025 did not bring any substantial change as regards the institutional setting. Right-wing President Karol Nawrocki has continued the policies of his predecessor, Andrzej Duda, particularly with regard to the judiciary and other central state institutions. Instead of institutional repair, Poland has experienced the negative consequences of deepening political polarization. Nevertheless, many important reforms and initiatives have been implemented in Poland, and these experiences may prove valuable for Hungary.

Peter Magyar promised in his inaugural speech to unfreeze the EU money from the Recovery and Resilience Facility (RRF) funds. It could be possible, if Hungary fulfills all 27 milestones, including those relating to judicial independence. Changing legislation is no challenge for TISZA (as compared to Poland, which is still struggling with different laws concerning the judiciary). But there is one additional policy that Hungary could pursue – joining the European Public Prosecution Office. It is not one of the milestones. It was also not in the Polish case. But from a political point of view, this step sends a strong signal that the EU money is safe and could be the subject of effective and independent scrutiny in case of misuse. It is thus no surprise that the need to join the EPPO has been regularly stressed by Peter Magyar in his speeches.

However, unfreezing the RRF funds is only one challenge. The second is the lifting of the Article 7 TEU procedure against Hungary. In April 2024, Poland presented its Action Plan, which was positively assessed by the Council, the European Commission, and almost all Member States (naturally, with the exception of Hungary). As a result, the Article 7 procedure against Poland was lifted, and the Polish government moved towards the gradual implementation of the Action Plan, with at times uneven and difficult progress. Although the process has not yet been completed, the relationship between the executive and judicial branches is today much closer to the standards of a traditional constitutional democracy than it was before elections in 2023. The upcoming end of term of the politicized National Council of Judiciary and the selection of its new judicial members could be important steps in Poland’s rule of law recovery.

Although a two-thirds majority in Hungary would empower the new Parliament to enact almost any constitutional or legislative reform, the key question is whether such changes should be carried out with self-restraint, moderation, and inclusiveness. This concerns, in particular, guarantees of judicial independence. It seems that those actors within Hungarian civil society who defended democratic standards throughout the sixteen years of Orbán’s rule would favor such an approach – one grounded in democratic values rather than in a “winner takes it all” mentality. Moreover, like in Poland, the Venice Commission may play an important role in evaluation of proposed long-term constitutional reforms in Hungary.

The Hungarian government, in order to gain trust of the EU institutions, may also consider changing its position towards European courts. On the first day in office, Radoslaw Sikorski, Minister of Foreign Affairs of Poland, declared that the government is not going to appeal the Wałęsa v. Poland pilot judgment (application no. 50849/21, judgment of 23 November 2023), concerning systemic problems with judicial appointments and the status of the infamous Chamber of Extraordinary Control and Public Affairs of the Supreme Court. It was an important signal to the Council of Europe that Poland is coming back to a family of like-minded countries. The government has also changed its positions in pending cases before the CJEU.

Regaining the trust of citizens: accountability for the past

Restoring the rule of law is not only about fixing judicial institutions. It also requires renewing strong democratic practices, including public access to documents, transparent decision-making, effective legislative procedures, and merit-based recruitment for public positions. Citizens need to experience these changes as genuine and meaningful – seeing institutions work daily to build trust, improve efficiency, and solve real problems. Although these reforms may appear less absorbing than rebuilding a major institution, they play a crucial role in reshaping the relationship between the state and its citizens. In this process, the state once again becomes a shared project of all people, rather than serving the interests of an oligarchic or privileged elite.

Taking into account Polish experiences, one of the most important challenges is the process of accountability for past abuses and corruption. Already in 2016, Balint Magyar described Hungary as a “mafia state”. 10 years later, the situation is even more dramatic, which is confirmed by relevant reports of international organizations, but also the position of Hungary in different rankings (such as e.g. the global Perception of Corruption Index by Transparency International – Hungary occupies place No. 84). Furthermore, voters expect accountability, and combating corruption was one of the main reasons for the change in regime. Therefore, expectations among TISZA supporters will be high, and over time the party will be judged on whether it has fulfilled its promises.

Accountability requires two key elements: effective institutions and committed individuals. With regard to institutions, accountability can be pursued through traditional mechanisms such as prosecution services, audit offices, tax inspections, and investigative committees. Over the past 2.5 years, the Polish authorities have relied on existing legal instruments to hold former politicians accountable for corruption (including use of funds for strictly political purposes) and for abusing state institutions to pursue political objectives (e.g. the use of Pegasus spyware to surveil prominent attorneys, judges, prosecutors, and politicians).

Effective institutions

The European Public Prosecutor’s Office (EPPO) may also play an important role in ensuring accountability. However, even if Hungary were to join EPPO in the near future, the institution would likely not become fully operational for at least a year. Hungarian authorities would first need to appoint a European Prosecutor and delegated European prosecutors, establish local offices, and adopt technical rules governing cooperation between the EPPO, the national prosecution service, the police, intelligence services, and tax authorities. Only after these steps are completed could one realistically expect the first investigations, arrests, and indictments on Hungarian territory. The key question is whether voters would be patient enough to wait for tangible results.

But Hungarian authorities are in a good legislative position to seek for some new institutional solutions that could tackle question of accountability, including asset recovery. An interesting example comes from South Africa, where in 2018 the Judicial Commission of Inquiry into Allegations of State Capture has been created. It was led by Chief Justice of the South African Constitutional Court Raymond Zondo. It had extensive investigative powers, interrogated hundreds of witnesses and collected extensive evidence. Later on, results of its work and recommendations were taken over by the regular prosecution service. Chief Justice Zondo has been appreciated for his work with the 2025 Rule of Law Award by the World Justice Project. When receiving it, judge Zondo said that “South Africa must not go back to State capture, because State capture is the antithesis to the Rule of Law.”

Another idea is the set of instruments included into the draft additional protocol to the Warsaw Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism (CETS No. 198), to be adopted during the upcoming Chisinau Conference. It is a modern instrument, checked upon compliance with fair trial standards, providing for a possibility for the use of non-conviction based seizure and confiscation orders. It sets a number of institutions, such as financial investigation units, asset recovery offices or the possibility to undertake immediate and interim measures. Hungarian authorities could simply make an effort to set up some of those institutions directly in national legislation, especially when they are designed in accordance with fair trial standards.

Committed people

However, accountability cannot be successful without committed people, especially prosecutors and civil servants. The central question is whether people, who have actively supported or passively endured the regime of Victor Orbán throughout the past 16 years, are able to lead comprehensive and complex investigations, whether they are truly committed to the rule of law and decency in public life, whether they are able to be disconnected and independent from elites, especially in smaller cities and rural areas.

Accountability cannot include just a few most important investigations, prosecuted from the level of Budapest, with a few trusted and committed individuals. Sooner or later voters will start to ask a question about the fate of local oligarchs and corrupted FIDESZ politicians also in Eger, Miskolc or Szeged. Moreover, accountability is not only about prosecution of corrupt practices. It should also mean review of all those cases that have been dropped or discontinued over past 16 years due to political reasons. There were also many individuals who were affected by negative practices of the Hungarian state, such as intimidation campaigns, undue accusations, SLAPP cases etc. Those people, victims of the regime, would also expect some form of justice. Moreover, there could be an expectation of voters (and people affected by illiberal rule) to make some form of vetting of people responsible for running the prosecution service or other compromised state institutions.

Taking into account Polish experiences, one should remember that a number of people in the prosecution service and other state institutions may regard the Orbán era as a period of professional promotion, specialization, and recognition (just as some Polish prosecutors and judges were beneficiaries of the Zbigniew Ziobro era in Poland). This means that accountability measures may indirectly affect their own individual choices and compromises made during that time. The question is whether, after the initial revolutionary period, they will simply do their jobs, conduct independent investigations, and promote the values of the rule of law and fair trial, or whether they will instead seek various forms of professional or formal escapism, avoid taking responsibility, and merely wait for another regime change in Hungary. There is also a risk that people loyal to the former regime (or strongly intertwined in various opaque local networks) may impede the entire process of institutional change.

Voters expect quick results

These observations and potential risks should influence political choices regarding the design of institutions, the appointment of key officials, reforms within institutions, and possible vetting and disciplinary measures. One should not wait with those reforms. At the end of the day, voters will expect substantial results in terms of accountability. They cannot be achieved without independent prosecutors preparing charges, motions to lift parliamentary immunity, and bills of indictment.

To conclude, I do believe that Hungary will be successful in its rule of law recovery and democratic transition. Good and bad experiences from Poland may provide guidance. If Hungary succeeds, it would mean a lot for revival of liberal democracy in Visegrád Group as well as in the whole European Union.

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In May, the High Court of Australia (HCA) will hear MACH Energy Australia v Denman Aberdeen Muswellbrook Scone Healthy Environment Group & Anor (“Denman”), the first climate case to reach Australia’s apex court. The case concerns the New South Wales Independent Planning Commission’s (IPC) decision to approve the continued and expanded operation of a coal mine. At issue is whether the environmental impact assessment for the project was required to consider downstream greenhouse gas (GHG) emissions from the burning of coal from the mine. In that respect, the case adds to a growing body of climate jurisprudence in which courts consider whether and how climate impacts must be integrated into environmental impact assessments. However, the Denman case raises a further question: whether the GHG emissions associated with a coal mine can be understood as being likely to cause climate and environmental impacts in a particular “locality”. The HCA’s treatment of this question is likely to be scrutinised in courts within Australia and beyond, with the case potentially having global implications given Australia’s position as a major fossil fuel exporter.

Based on an amicus curiae submission by the Centre for Climate Engagement (“CCE”) at Hughes Hall, University of Cambridge and the Sabin Center for Climate Change Law at Columbia University (“Sabin Center”), we argue that climate-related impacts stemming from the development’s GHG emissions can be considered likely impacts in the locality.

Background

In 2016, MACH Energy purchased a coal mine in Mount Pleasant in the Hunter Valley, a region in the Australian state of New South Wales (NSW). The mine was initially permitted to operate until December 2026 and extract up to 10.5 million tonnes of coal per annum. In January 2021, MACH Energy applied to the IPC to significantly expand operations, seeking to extend the life of the mine by 22 years and double its annual extraction rate. In December 2022, the IPC approved the application.

Denman Aberdeen Muswellbrook Scone Healthy Environment Group and Anor (“Denman”) challenged the IPC’s decision on multiple grounds, including that the IPC had not complied with section 4.15(1)(b) of the Environmental Planning and Assessment Act 1979 (EPA Act). That provision requires the IPC to consider “the significant likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality.” Denman argued that the IPC had failed to consider the impact of the mine’s Scope 3 emissions “in the locality.” Denman’s application was initially dismissed by the NSW Land and Environment Court but allowed on appeal by the Court of Appeal of the New South Wales Supreme Court. MACH Energy appealed the decision to the HCA, Australia’s highest court. And now here we are.

MACH Energy requested that the HCA consider three questions: (1) Must environmental impacts in the locality be considered under section 4.15(1)(b) of the EPA Act? (2) Does the requirement to consider environmental impacts require a decision-maker to consider the impacts of climate change? (3) Are climate impacts “capable of being considered an environmental impact of a development ‘in the locality’ within the meaning of section 4.15(1)(b)”? The submission filed by CCE and the Sabin Center addresses the third question.

Linking specific developments to local climate impacts in Australian courts

MACH Energy’s core argument in relation to Ground 3 is that environmental impacts are not capable of being considered “likely impacts” of the development “in the locality.” MACH Energy claims that it is not challenging the general link between climate change and negative environmental impacts, but the more specific link between emissions from a given source and impacts in a particular place. We argue that climate attribution science and the law are now sufficiently developed such that certain local climate impacts can reasonably be understood as a likely consequence of the Mount Pleasant coal mine’s Scope 3 emissions.

Importantly, for the purposes of the EPA Act, “likely impacts” do not need to be evidenced through a definitive causal relationship or meet a specific empirical threshold. In Gray v Minister for Planning and Others, the NSW Land and Environment Court held that the fact that the local impacts of a coal mine’s contribution to climate change were not, in its view, measurable “d[id] not suggest that the link to causation of an environmental impact is insufficient” (para 98). Similarly, the Federal Court of Australia’s climate-related decision in Pabai v Commonwealth recognised that while it may well be “that it is not possible to measure or quantify the precise extent to which” Australia’s GHG emissions “incrementally contributed to the impacts of climate change on the Torres Strait Islands,” it does not “necessarily follow…that there was no such impact” (para 1079). The key question is whether there is a “real chance or possibility” of impacts, a notably lower threshold than that which is required under, for example, many private law frameworks of causation.

Australian courts have consistently recognised the links between GHG emissions, climate change, and localised environmental harms. In Pabai, the Federal Court noted a “near linear relationship” (para 231) between emissions and global warming, and a “near or approximately linear relationship” between this warming and climate impacts “at both the global and local or regional level” (para 287). State and federal courts have made similar observations in the context of fossil fuel extraction, and when considering specific environmental impacts, such as bushfires and heatwaves. These decisions rely on a vast amount of scientific evidence prepared by institutions such as the Intergovernmental Panel on Climate Change and suggest that climate-related harms facing the Hunter Valley (where the Mount Pleasant mine is located), such as rising temperatures and increased precipitation, can be scientifically, and legally, linked to fossil fuel extraction.

Other Australian decisions are consistent with this view, such as the determination in Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment that “science is likely capable” of linking increased temperatures to measurable risks (paras 82-83), and the NSW Land and Environment Court’s decision in Gloucester Resources v Minister for Planning, which used climate attribution science to link GHG emissions from a coal mining project to “both direct and indirect environmental impacts” (para 494) occurring in specific localities, including in the context of coal mining and in instances where a project made up “a small fraction of the global total of GHG emissions” (para 515).

In short, climate attribution science can link localised climate impacts to specific developments, and this has been recognised by Australian and (as discussed further below) international and other domestic courts. It follows, then, that climate-related impacts stemming from the Mount Pleasant coal mine should be considered “likely impacts” of the development under s 4.15(1)(b) of the EPA Act.

Denman in an international context

Many international and domestic courts across the world have heard climate-related cases. Many of these courts’ decisions support the notion that climate attribution science can demonstrate relationships between specific local climate harms and specific emitters in a range of contexts. This includes the European Court of Human Rights’ decision in Verein KlimaSeniorinnen and Others v Switzerland, which found a causal relationship between Swiss climate policy and heat-related risks in Switzerland, such that the government’s failure to implement sufficient measures to reduce emissions violated fundamental rights. In a domestic context, the Supreme Court of the United States’ opinion in Massachusetts v EPA concluded that GHG emissions from motor vehicles in the U.S. were sufficiently causally connected to localized impacts, such as sea level rise in the state of Massachusetts, to confer standing on the state plaintiffs.  Courts in Belgium, Germany, and Colombia have found that government decisions on climate change can violate human rights and breach duties of care, confirming that these decisions caused harm to specific individuals within their respective countries in determining that individual plaintiffs had standing to bring each claim.

As noted, anticipated impacts do not need to meet the causal threshold generally required under private law principles to be considered “likely impacts” under section 4.15(1)(b). Nonetheless, even within private law contexts, courts in some jurisdictions have acknowledged the possibility that localised climate impacts may plausibly be attributed to specific emitters. This is evident in the German High Court of Hamm’s decision in Lliuya v RWE, which regarded a claim targeting a firm for its cumulative and substantial historical share of GHG emissions. While the claim was dismissed for other reasons, the court in Lliuya indicated that it was theoretically feasible for emitters to be held liable for climate-related harms. In upholding the admissibility of another claim targeting a company’s historical emissions, a Swiss cantonal court in Asmania v Holcim accepted that climate science can establish “known differences in causal contributions amongst emitters” (para 5.5.6). The Supreme Court of New Zealand made similar indications in Smith v Fonterra.

International courts have also supported the idea that it is possible to establish causal links between GHG emissions and climate damages. In its Advisory Opinion on the Obligations of States in respect of Climate Change, the International Court of Justice observed that establishing such links is “not impossible in the climate change context” (para 438). The Inter-American Court of Human Rights expressed a similar view in its Advisory Opinion on the Climate Emergency and Human Rights (para 533), as did the International Tribunal for the Law of the Sea in its Advisory Opinion on Climate Change and International Law (para 365).

Conclusion

If the HCA engages with the third ground of appeal in Denman, the Court will have an opportunity to affirm climate attribution science’s ability to trace GHG emissions from specific developments to specific local climate impacts. We argue that doing so would align with climate science, previous decisions in Australian and foreign courts, and recent Advisory Opinions delivered by international courts. Affirming that climate science can establish these links may help ensure that public decision making in Australia, a major fossil fuel producer and one of the world’s highest per-capita GHG emitters, reflects the best available science and matches the country’s climate ambitions. More broadly, the case may build on global trends in climate litigation, as climate attribution science continues to inform claims across the world.

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