A Handy Illusion? Interpretation of the ‘Unlikely to Bring Effective Relief’ Limb of Article 7(e) OPIC by the CRC in Saachi et. al.

In an EJIL Talk! blog post, Aoife Nolan laid out the salient aspects of the five inadmissibility decisions in Saachi et al. v. Argentina, Brazil, France, Germany and Turkey delivered by the UN Committee on the Rights of the Child on 8 October 2021. Her post focussed on how the Committee handled key questions concerning jurisdiction, victimhood and attribution under the Convention on the Rights of the Child in the context of climate crisis-related harms to children. Nolan’s post ended with an endorsement of the outcome in this case: five inadmissibility decisions on grounds that domestic remedies in none of the countries were exhausted. She held that ‘the decision reflects a strong grasp of principle, procedure and pragmatism: the Committee has made clear that climate change is a child rights crisis but one that it can only respond to where the admissibility criteria it is required to apply are complied with.’

In this blog post, my aim is to query whether the Committee correctly applied its admissibility criteria concerning the exhaustion of domestic remedies rule under its ‘unlikely to bring effective relief’ limb under Article 7 (e) OPIC. I do this by focussing on the inadmissibility decision with respect to Turkey. This focus on the decision with respect to Turkey is warranted because a) none of the complainants came from Turkey, so this was the first time for the Committee to apply the ‘unlikely to bring effective relief’ standard to a ‘purely’ extra-territorial case where none of the applicants were physically present in the country or held the nationality of that country and b) unlike some of the other respondent states, there has not been a single court case on human rights-based climate litigation before the Turkish Constitutional Court or the Supreme Administrative Court (or, to my knowledge, before any other domestic court).

The standard of ‘unlikely to bring effective relief’ under Article 7 (e) OPIC

Article 7(e) OPIC sets out an explicitly flexible exhaustion of domestic remedies regime. It provides that exhaustion of domestic remedies ‘shall not be the rule where the application of the remedies is unreasonably prolonged or unlikely to bring effective relief.’  The Committee’s earlier case law shows that the ‘unlikely to bring effective relief’ standard requires authors to show that judicial or administrative avenues have no prospect of success objectively. Objective determinations of the prospect of success developed by the Committee are similar to those of the regional human rights courts, including the European Court of Human Rights. If authors can show that under applicable domestic laws their claims would inevitably be dismissed or that the established jurisprudence of the highest domestic courts would clearly preclude a positive result, then these arguments have to be assessed under the ‘no prospect of success’ test.  Lack of prospect of success, of course, does not depend on authors raising mere doubts or assumptions, but on objectively verifiable evidence that cannot be rebutted by the state authorities.

The application of the ‘unlikely to bring effective relief’ standard by the Committee with respect to Turkey

In this case, sixteen children brought forward evidence before the Committee showing that the well-established jurisprudence of the Supreme Administrative Court and the Turkish Constitutional Court would clearly preclude a positive result in their case (as a matter of full disclosure, I wrote an expert report, together with Dr. Altıparmak, on the case law of the two courts for the authors). This is because the children lack locus standi before administrative courts and do not meet the direct victimhood requirement under the case law of the Turkish Constitutional Court. Under the well-established case law of both apex courts, sufficient connection to an environmental harm depends on a close and personal relationship to the location of the activity that causes alleged environmental harms for natural persons bringing cases. According to both courts, such a relationship can only be established by physically living in the location of the activity causing alleged environmental harms, or by owning a property in the vicinity. To substantiate this, the children provided evidence from cases that were declared admissible and cases that were declared inadmissible. Admissible cases all showed that courts accepted locus standi or victim status, only when individuals resided in or owned property by the location of the activity that caused environmental harms. Inadmissible cases, on the other hand, consistently showed that individuals that could not show personal and direct connection by physical presence or a property relationship failed on standing grounds.

In response, the state party provided three counter-case law examples (as cited in paras. 7.7. and 7.8 of the decision). None of these examples, however, could show that anyone who does not reside near the location of the activity that causes environmental harm can have standing before Turkish courts. In Ertuğrul Barka, the Turkish Constitutional Court held that the applicant had direct victimhood status because a high-power voltage line went (literally) above his house. In Binali Özkaradeniz, villagers were recognised as victims by the Constitutional Court because they were living near a contaminated river. The reason for the Supreme Administrative Court’s recognition of the locus standi of Greenpeace Turkey to challenge an environmental impact assessment report for a nuclear power plant, as a matter of administrative law’s concept of ‘having a legal interest to pursue a claim,’ was due to the very exacting and detailed purposes of Greenpeace Turkey, a Turkish association, espoused under its articles of association. This example was also not relevant given that what was at stake was the question of the locus standi of children as natural persons. The decision does not discuss the cases that were discussed inadmissible, precisely because persons were not deemed connected to the location of environmental harm.

What is more, under para 7.6 of the decision, when discussing why Turkey does not have jurisdiction, the state party underlined that ‘none of the authors are residing in Turkey’, and that ‘the complaints raised by the authors do not fall within or even come close to any of the established exceptions to territorial jurisdiction and that the authors have no legal or factual relationship with the State party.’

Instead of asking what this consistent case law on admissible and inadmissible claims mean for environmental harms litigation by children who live elsewhere, and what this means for the ‘unlikely to bring effective relief’ standard, the Committee relied on the mere fact that children were capable of filing a case before Turkish Courts. It held that:

Furthermore, the Committee notes the State party’s argument that legal avenues were available to the authors, in the form of an individual application before the Constitutional Court, an administrative proceeding, or a suit filed under the Law on the Environment before the domestic courts. In the absence of further reasoning from the authors as to why they did not attempt to pursue these remedies, other than generally expressing doubts about the prospects of success of any remedy the Committee considers that the authors have failed to exhaust all domestic remedies that were reasonably effective and available to them to challenge the alleged violation of their rights under the Convention.’

This one single paragraph reduces the ‘unlikely to bring effective relief’ standard of the Committee’s exhaustion of remedies rule to the ability to file a case, without asking whether the case filed as any prospect of success under rules of standing.  It treated a whole body of consistent case law requiring physical presence at the location of an activity that causes environmental harm to satisfy the direct and personal relationship to the alleged harm merely as ‘generally expressing doubts’ about prospects of success. So, the Committee’s interpretation of exhaustion of remedies rule now reads ‘it is better to try and fail than never try.’ But for the Committee to find that the authors were only ‘generally expressing doubts,’ it, at the very least, had to show not only that the case examples provided by the state authorities were relevant and sufficient to the situation of sixteen children, but also that the case examples provided by children, which all showed that even Turkish citizens cannot meet the standing tests of these Courts, were irrelevant and insufficient. What we see instead is the Committee erroneously regarding a mere ability to file a case as a sufficient condition for having reasonably effective and available remedies. 

A handy illusion?

The analysis above shows that the Committee’s inadmissibility decision, based on the non-exhaustion of domestic remedies rule, in this case, amounts to a ‘practical illusion’.  It is an illusion because there is no domestic case law precedent that would allow these children to have any prospect of success to have the merits of their arguments to be assessed by Turkish Courts, including its Constitutional Court.  It is handy because it allows to Committee to fend off backlash from states, whilst at the same time telling the children that the Committee is willing to take on the climate crisis, but only when children litigate and lose domestically. But let’s not mistake this strategy as a correct interpretation of the CRC’s rules on the exhaustion of domestic remedies. It is best understood as a leap of faith, an act of trust to domestic courts to do the ‘right thing’.

It seems that the next step for human rights-based climate litigation by children is to bring two cases before Turkish Courts, one by a Turkish citizen and one by individuals not physically present in Turkey to test which, if any, of these cases are able to pass the procedural hurdles of victim status (alongside attribution and jurisdictional requirements) before Turkish courts. Only then can we fully understand how this illusion created by the Committee makes any difference to the law’s encounter with the climate crisis.