Can the ECHR Encompass the Transnational and Intertemporal Dimensions of Climate Harm?

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The irreversible harm caused by greenhouse gas emissions (GHG) transcends national borders and time, challenging traditional concepts of law. In this blog post, we discuss the applicability of the European Convention on Human Rights (ECHR) to these overarching consequences of climate change, based on new reports issued by the European Network of National Human Rights Institutions (ENNHRI) and the Norwegian NHRI.

It is well established that the ECHR does not, as such, guarantee a right to a “clean and quiet environment” (Hatton, para. 96). The European Court of Human Rights (ECtHR) is also yet to pronounce on the applicability of Convention rights to mitigate climate harm. It will have occasion to do so, should any of the two complaints from Portugal and Switzerland currently fast-tracked in Strasbourg, or a recent complaint from Norway, surmount the significant procedural hurdles they face (discussed here, here and here).

Meanwhile, cases concerning climate change and human rights are leaving a mark on national jurisprudence (see here, here, here and here). Recent additions to the Dutch Supreme Court’s holding that Articles 2 and 8 of the ECHR require emission cuts by at least 25 per cent by the end of 2020, include the German Federal Constitutional Court’s ruling against Germany in April, the Hague District Court’s order against Shell in May, and the First Instance Court in Brussels’ judgement against Belgium in June. They all conclude, unlike the Swiss Administrative Supreme Court last year, that Articles 2 and 8 of the ECHR (or parallel constitutional rights) require emissions cuts to avert dangerous climate change.

The Transnational Dimensions of Climate Harm and Article 1

A fundamental question under the ECHR is whether individual States can be held separately responsible for the effects of climate change, given that climate change is the result of cumulative, global emissions. Recent developments in national case law indicate that they can, with Courts in Germany (Neubauer and Others, paras. 175-178), France (Grande Synthe; Notre Affaire À Tous, para. 34), the Netherlands (Urgenda, paras. 5.7.7-5.7.8, Shell, para. 4.4.37), Belgium (Klimaatzaak, p. 61) and Australia (Sharma and Others, para. 253) holding that individual States are required to cut “their part” of global emissions to protect their own residents. While the ECtHR has not yet considered the issue of individual State responsibility for climate harm, this approach seems in principle compatible with the Court’s previous case law on Article 1, according to which a State may have jurisdiction even if the act complained of can be attributed to several States (Andrejeva, § 56). Under international law, moreover, a State’s responsibility is not diminished by the fact that other States are also responsible for the same act or effect (see Articles on State Responsibility for International Wrongful Acts art. 47 and the Corfu Channel Case p. 23).

GHG emissions, however, cause damage irrespective of where they are emitted. A different question is thus whether State responsibility may encompass territorial effects of exported GHG emissions under a State’s effective control. This question is particularly relevant to fossil fuel exporting countries, or indeed companies. Interestingly, both the Norwegian Supreme Court (para. 149) and the Federal Court of Australia (para. 84) have concluded that exported combustion emissions cause territorial damage under the producing State’s effective control, and therefore must be taken into account prior to the licensing of fossil fuel extraction. The Hague District Court, in an order subject to appeal, has gone one step further (para. 4.4.24). It held that emissions from oil and gas produced by Shell worldwide but combusted by consumers are under the effective control of the parent company and hence engage Shell’s responsibility to cut emissions. While none of these holdings pertain to the ECHR directly, the underlying rationale could be relevant to Article 1.

A far more difficult issue is whether a State can also be held accountable for the extra-territorial effects of GHG emissions under its effective control. The applicants in the Portuguese Youth Case  currently before the ECtHR argue that all 33 respondent States, through their territorial, imported and exported GHG emissions can be held responsible for climate-related harms occurring in Portugal. Their claim is ambitious. The ECtHR has consistently held that jurisdiction for the purposes of Article 1 is “primarily territorial”, but may exceptionally encompass “acts of the State Parties performed or producing effects outside their territories” (Al-Skeini and Others, § 131). Although GHG emissions producing effects abroad could in principle fit this description, the Court has never considered transboundary environmental harm.

To date, the extra-territorial exceptions established by the ECtHR pertain to situations where the respondent State has effective control over either territory or persons abroad. While the Court’s recent Big Brother Watch judgement may be read as an implicit opening for jurisdiction in cases of territorial acts with extra-territorial effects (discussed here and here), it could also be argued that any extra-territoriality assumed there concerned negative obligations, which might differ from the positive obligations invoked in relation to climate change (see here). On the other hand, the Court has often stressed that the applicable principles under positive and negative obligations in the environmental context are “broadly similar” (Hatton, § 119).

Another problem with extra-territoriality for climate harm is universality. Since the effects of GHG emissions are global, extra-territorial jurisdiction would potentially be limitless. The ECtHR has recently warned against interpretations which would render jurisdiction unlimited and universal (M.N. and Others v. Belgium). However, unlike M.N. and Others, where Belgium merely denied to alter the status quo of Syrians seeking visa from Lebanon, a State emitting or allowing GHG emissions would, by its own actions or omissions, exarcerbate climate-induced harms on persons in other countries. In this regard, extra-territorial jurisdiction would be triggered by the State, and not “unilaterally” by a person abroad (M.N. and Others, para. 121).

Moreover, it is possible to envisage that any extra-territorial responsibility for climate harm could be limited to effects within the legal space of the Convention. This would echo previous case-law in which the Court has sought to avoid vacuums in human rights protection on territory normally covered by the Convention (Cyprus v. Turkey, § 78; Bankovic and Others, § 80). It is true (see here and here) that this limitation would differentiate identical extra-territorial effects, depending on their geographical location. Nonetheless, the special character of the ECHR as a treaty for the “collective enforcement of human rights” does lend some support for a duty for Contracting States to “act jointly and to cooperate” in the context of transborder violations within Europe (Güzelyurtlu and Others, § 232; Castaño § 81). 

Recent decisions by the UN Human Rights Committee and the Inter-American Court of Human Rights go further. Both bodies have stated that their respective Conventions apply extra-territorially where States’ activities affect human rights outside their territory in a “direct and reasonably foreseeable manner”, or if there is a “causal link” between the act and the infringement of the right. With regard to GHG emissions, in particular, the German Federal Constitutional Court has suggested that residents in other countries exposed to harm partly caused by emissions emanating from Germany, can invoke protection under the German Constitution due to the possible “connecting factor” between German emissions and severe climate-induced human rights impacts abroad (Neubauer and Others, §§ 101, 175-178).

In response, States will certainly point out that their nationally determined contributions to cut GHG emissions under the Paris Agreeement are based on territorial emissions. It seems clear, however, that this mechanism for emissions accounting was not meant to detract from the well-established “no-harm principle” of international law, recognised in the UN Framework Convention on Climate Change (UNFCCC) to which the Paris Agreement belongs, the Stockholm Declaration, the Rio Declaration, the Maastricht Principles, and by the International Court of Justice (para. 101). This principle prohibits States from knowingly conducting or permitting activities within their jurisdiction or control which cause transboundary harm to the environment in other States or to the properties or persons therein. As observed by the IACtHR (para. 94) and the CESCR (para. 31), moreover, extra-territoriality could ensure that a State does not undermine the fulfillment of human rights obligations in other Convention States.

The Intertemporal Dimensions of Climate Harm and Article 14

Another characteristic of GHG emissions is their intertemporal and irreversible effects. Let us suppose, for the sake of argument, that the ECtHR will allow complaints from potential victims exposed to generalised climate harm, establish jurisdiction at least for territorial harm, and reach the same conclusion as the Dutch Supreme Court and the German Federal Constitutional Court that the right to life and physical integrity, or indeed the right to property, apply to dangerous climate change (see here and here). Would Article 14 then require States to discharge these duties in a manner which does not inflict disparate long-term effects on younger generations?

It is recalled that Article 14 is an accessory right that applies within the wider ambit of substantive Convention rights. It prohibits not only direct discrimination but also indirect discrimination of “a general policy or measure that has disproportionately prejudicial effects on a particular group […] even where it is not specifically aimed at that group and there is no discriminatory intent” (S.A.S., § 161). Discriminatory effects must be based on the personal or innate characteristics of the groups in question. The ECtHR has previously considered age as a relevant ground for discrimination. One might say that while children are vulnerable to climate harm today due to young age, they will also be increasingly impacted by the latent effects of current emissions throughout their lives. They will ultimately live longer with and suffer more under the effects of climate change, and shoulder drastic emission cuts accumulated today. It is therefore not necessarily their age as of today that creates this long-term disparate impact, but more precisely the generation or birth cohort to which they belong (see here and here).

The Court has not yet recognised birth cohort as a basis for discrimination. The ECJ, on the other hand, has considered intergenerational equity in the context of anti-discrimination, cited as the objective of “balance between the generations” (see Petersen and Georgiev and Commission v. Hungary, §§ 65, 50-54 and 78). In these cases, the EU Commission interpreted the prohibition on age discrimination as a prohibition on discrimination between birth cohorts.

Intergenerational equity underpins the Stockholm Declaration, the Paris Agreement and the UNFCCC. In different variations, these instruments set out to “protect the climate system for the benefit of present and future generations of humankind”. Intergenerational equity has also guided court decisions from Colombia (Future Generations p. 34), the Netherlands (Urgenda para. 4.7) and Germany (Neubauer and Others, paras. 182-183). In Sharma and Others, the Federal Court of Australia noted that the consequences of climate change, inflicted by the inaction of present-day adults, “might fairly be described as the greatest intergenerational injustice ever inflicted by one generation of humans upon the next” (para. 293). Based on common law negligence and environmental legislation, the Australian Court established a duty of care to consider the personal harm inflicted on children over their lifetime by the facilitation of coal extraction and exportation.

These underlying considerations might have a bearing under the ECHR as well. For instance, Article 8 requires the State to accord “due weight” to the interests of the individual, including through “appropriate investigations and studies” to “predict and evaluate in advance the effects” of future harmful activities (Taşkin, para. 118-119). Read in conjunction with Article 14, States might arguably be required to consider the impacts of dangerous climate change on children over their lifetime, for instance by any facilitation of oil, gas or coal extraction and exportation. Whether these precautions could apply to exploration for oil and gas, is a question posed to the ECtHR in the Norwegian case. The Norwegian Supreme Court concluded that the connection between the exploration licenses in question and future emissions was too remote for Articles 2 and 8 to apply (paras. 168, 171). Shortly thereafter, the International Energy Agency clarified that any exploration for oil and gas in new fields is incompatible with limiting global warming to 1.5 °C.

The ECtHR has recognised that “in all decisions concerning children, their best interests must be paramount” (Popov v. France, para. 140). Recognising birth cohort as a relevant ground for discrimination under ECHR Article 14 would give the ECtHR the toolkit to address the intertemporal and latent dimensions of climate harm inflicted on children today. It appears in line with the ECtHR’s case law on age-based discrimination and the purpose of the provision, which seeks to protect against discrimination based on personal and innate characteristics. Moreover, it would resonate with a foundational purpose of the Statutes of the Council of Europe, namely “the preservation of human society and civilisation”, and the UN Charter’s promise to “save succeeding generations”. Certainly, both preambles were written with the scourge of war in mind, but the underlying intergenerational perspective arguably extends to the existential and man-made threat of climate change and cascading tipping points beyond 1.5 °C.

The Way Forward

Climate litigation is a silver bullet to some, and a concern to others. The Norwegian Supreme Court, for instance, set a very high threshold for overturning parliamentary environmental decisions on the view that far-reaching economic and political consequences require broader assessments by elected representatives (para. 141). At the same time, the Supreme Court of Canada and the Constitutional Court in Germany, pointed out that the interests that will be harmed by the omission to avert dangerous climate change are not necessarily represented in those democratic institutions, at state or federal levels, that decide the irreversible climate policies to their detriment today (para. 206, both). This asymmetry between harmed and represented interests could speak in favour of tighter judicial control. Moreover, since a failure to cut emissions sufficiently today would irreversibly offload a disproportionate or near impossible obligation to cut emissions in the near future, it may well be that deference to the legislature today could undermine political leeway tomorrow.

These tensions are reflected in the climate cases that have been decided on the merits to date. Courts appear to have granted considerable, but not unlimited, deference to the legislature. Standards of review have been rigorous with regard to the level of specifity of mitigation trajectories to meet politically adopted targets (Irish Supreme Court, French Conseil d’Etat, German Constitutional Court), the justifications for cutting less than a required minimum (Dutch Supreme Court), or a duty of care to consider personal harm to children when licensing new fossil fuel production (Australian Federal Court). While the Norwegian Supreme Court generally called for close procedural scrutiny in fossil fuel cases, it did not invalidate the oil and gas exploration licenses under review despite the State’s acknowledged omission to assess the climate change impacts from future combustion. In contrast to the Australian Federal Court and the German Constitutional Court, it did not consider the latent consequences for children, let alone future generations.

How the ECtHR will approach these questions remains to be seen. With CO2-levels in the atmosphere at 419 ppm., the stakes are high.

The Norwegian NHRI submitted an amicus brief in the Arctic Oil Case to the Norwegian Supreme Court.

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