Climate Change and the ECHR: The Results Are In

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To much media attention, excitement and general anticipation, the European Court of Human Rights finally handed down judgments in the three climate change cases relinquished to the Grand Chamber. The three cases are Verein KlimaSeniorinnen Schweiz and Others v. Switzerland (application no. 53600/20), Carême v. France (no. 7189/21) and Duarte Agostinho and Others v. Portugal and 32 Others (no. 39371/20) and the build-up to today’s judgments have been discussed here, here and here. This post is an attempt – in addition to the excellent one by Marko – at trying to summarise the Grand Chamber’s main findings and to make sense of the three decisions amidst the noise. A couple of preliminary points should be noted.

First, although the cases all raise questions about the relevance of human rights in the context of climate change, they are different, and they raise separate points of law even if these are novel and, to varying degrees, forced the Court to reconsider established doctrines. Much attention has naturally been afforded to the Duarte case as this was arguably the most ambitious of the three cases whereas the KlimaSeniorinnen case arguably came the closest to resembling the Court’s existing environmental case law, which has for decades formed a stable part of the court’s docket.

Second, and somewhat simplistically, we might think of the three judgments as giving rise to a range of legal as well as non-legal consequences. That is to say, although a judgment might not come out in favour of the applicants challenging the responding states’ lack of climate change responses, it might nevertheless give rise to a series of effects, which can be symbolic, important and forceful although strictly speaking not doctrinally significant. Climate cases like the present ones, and strategic litigation in general, are likely to have a range of ‘knock-on’ effects beyond the doctrinal merits of each case, including on law- and policymaking internationally and domestically, and on public discourse in general. These impacts are obviously not immediately apparent, and the focus of this piece is, therefore, on the relatively confined doctrinal implications arising from each case. The focus is, therefore, on Duarte and KlimaSeniorinnen.

As far as Duarte is concerned, the applicants faced significant procedural stumbling blocks. In particular with respect to the question of 1) jurisdiction and 2) the failure to exhaust domestic remedies. Famously, this is because the applicants had brought their case against Portugal and 32 other states directly before the Court, alleging violations of Articles 2, 3, 8 and 14 of the Convention by reference to existing, and future, impacts of climate change, specifically in relation to heatwaves, wildfires and smoke from wildfires, which affected their lives, well-being, mental health and the amenities of their homes.

On jurisdiction, the Grand Chamber reiterated the primarily territorial delineation of jurisdiction under the Convention, which is ordinarily only overridden in exceptional circumstances such as those developed in the Court’s case law on ‘effective control’ and/or ‘state agent authority’, most recently elaborated in the inter-state cases. Not surprisingly, the Grand Chamber found no basis for establishing jurisdiction on either of the two tests (181-182). Consequently, the only basis on which to establish jurisdiction in respect of the other non-territorial responding states would be if the ‘exceptional circumstances’ were present.

Ultimately, the Grand Chamber found no scope for finding that the present claim amounted to such ‘exceptional circumstances’ although the Grand Chamber proceeded to recognise a series of key characteristics that set the climate change challenge apart from other claims before the court. Namely, that states do have control over public and private emissions emanating from their territory, that there is a causal relationship between these emissions and impacts outside the state’s territory, and that climate change is a genuinely existential problem (192-195). In reaching this conclusion, the Grand Chamber dismissed the somewhat novel argument advanced by the applicants that a basis for jurisdiction ought to be found by the very nature of the claim itself, that is, on the merits of the climate change challenge and the unique nature this gives rise to. In response to this ‘putting the cart before the horse claim’, the Grand Chamber reverted to the traditional approach noting that jurisdiction must be established prior to – as a condition for – the Court probing the merits of a claim.

Also of significance in respect to jurisdiction was the Grand Chamber’s rejection of the claim that the responding non-territorial states exercised control of the applicants ‘convention interests’ by virtue of their emissions. Here the Grand Chamber, relying on a slippery slope argument, held that using this test as a basis for finding jurisdiction would result in applicants from anywhere in the world being able to bring claims before the Court which would result in ‘a critical lack of foreseeability of the Convention’s reach ‘without any identifiable limits’ (206-207). Specifically, the Grand Chamber noted that accepting the applicants’ claim would turn the ‘Convention into a global climate-change treaty’ (208).

Potentially significant, and in response to the argument that the support for an expansive approach to jurisdiction can be found in other international instruments, including the UNFCCC, the ILC’s Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, the Inter-American Court of Human Rights’ advisory opinion of 2017, and the UN Committee of the Rights of the Child’s decision in Sacchi, the Grand Chamber noted the inherent contingency of these instruments and decisions and the fact these are of a fundamentally different nature to the ECHR (212). Given the oft-made claim that the international nature of climate change requires a synergy between the various international instruments in place, and that the silence of the ECHR on environmental matters ought to be partly filled out by relying on other international legal instruments, it is evident that there is a limit to this internationalisation. In the least as far as jurisdiction goes.

With respect to the claim against Portugal (the only state with territorial jurisdiction), the failure to make any attempt at staging claims before the Portuguese courts was, not surprisingly, fatal to the applicants’ claim. Here the Grand Chamber emphasized the fact that several provisions and remedies exist in the Portuguese system, including constitutional provisions on the right to environment, enforceable through civil claims, and actio popularis provisions, allowing for challenges of the kind put forward here. In line with the recent decision in Pavlov, the Grand Chamber noted that a significant purpose of the requirement to exhaust domestic remedies is that these proceedings provide an important basis for the ECtHR to assess the strength of the domestic climate law system. The failure to make use of domestic proceedings effectively deprived the Grand Chamber of a domestic basis of fact-finding and legal assessment, which is so important in environmental cases in light of the margin of appreciation and nature of subsidiarity.

In light of this, the judgment in KlimaSeniorinnen is the standout decision. Of the many points worth highlighting in the case, a couple stands out.

First, the Grand Chamber notes the significant legal and political challenges posed by climate change and that the serious and existential risks arising from climate change are relevant to the Convention. But the Grand Chamber also noted that the challenges ultimately require political solutions and that a human rights tribunal cannot provide the necessary means for this. However, this is not a shield behind which national governments can hide with the view to avoid scrutiny of climate change responses (or lack thereof). The Grand Chamber specifically notes that ‘the Court’s competence in the context of climate-change litigation cannot, as a matter of principle, be excluded’. Related to this, the Grand Chamber recognized that the existing environmental case law of the Court needs to be adapted to the context of climate change.

A significant manner in which this adaptation took place is in relation to victim status under the Convention. This has already been discussed in Marko’s post to which there is little to add. The Grand Chamber’s decision to afford standing to the association squares with well-established norms of public participation in environmental law that associations with special interest in environmental matters generally ought to be afforded standing (even if the EU legal order remains an outlier in this respect). The Grand Chamber terms this ‘an evolution in contemporary society as regards recognition of the importance of associations’ (497)).

Tellingly, in its attempt to strike a balance between accommodating this evolution and being mindful of the fact that the ECHR does not contain an actio popularis provision, the Grand Chamber develops an ‘association test’ which can be characterized as the Aarhus Convention with an ECHR twist (502). This is because the test requires essentially the same of the association although it arguably is more liberal than the Arhus Convention in that it requires that the association must be lawfully established under national law; the Aarhus Convention requires that the association must meet ‘any requirements under national law’, which potentially leaves a wider scope for exclusion (art. 2(5)).

Standing aside, a significant feature of KlimaSeniorinnen is the extent to which the Grand Chamber spells out the content of the obligations that a state needs to comply with in order to discharge its Article 8 duties. On this, KlimaSeniorinnen leans heavily on the Court’s general environmental jurisprudence insofar as it initially notes that ‘states have an obligation to put in place regulations geared to the specific features of the activity in question, particularly with regard to the level of risk potentially involved’ (538). In this context, the margin of appreciation plays a central role as the burden upon the state must not be disproportionate, and the Court maintains a supervisory role. In a nutshell, as regards the states’ ‘choice of means, including operational choices and policies adopted in order to meet internationally anchored targets and commitments in the light of priorities and resources, the States should be accorded a wide margin of appreciation’ (543).

In the earlier posts probing the oral hearings, it was speculated that KlimaSeniorinnen would provide a basis for the Court to cautiously entertain climate change claims. Obviously, the Grand Chamber did just that, but it arguably also went further.

On this, the Grand Chamber arguably adds the human rights link which has been missing from the UNFCCC text by effectively borrowing the UNFCCC’s objective from Article 2 by noting the domestic measures must prevent ‘serious and irreversible adverse effects on human rights’ (546). But the Grand Chamber also goes further and spells out that this should be done with the view to ‘reaching net neutrality within, in principle, the next three decades’, which maps on to the objectives found in the EU’s Climate Law and in the domestic climate laws of many states, and that action should be taken immediately to avoid disproportionate burdens on, in particular, future generations. This latter point has a strong sense of intrageneration environmental justice to it and maps on to developments in domestic law, including the Neubauer decision.

The Grand Chamber, moreover, goes on to spell out a series of qualitative requirements of the domestic obligations. These include:

  • An expectation that the domestic measures are based on legally binding norms;
  • That these are adequately and effectively implemented;
  • That the measures establish carbon targets, timelines, intermediate targets, and sector pathways;
  • The state must evidence its progress toward meeting those targets and update the targets based on the best available evidence (550).

On the one hand, these requirements are significant if for no other reason than the Court has generally not gone through the trouble of spelling out in such detail what specific measures a state ought to adopt in its environmental case law. KlimaSeniorinnen is, therefore, in a sense, the classic environmental due diligence obligation with a climate change top-up. Moreover, the Grand Chamber specifically notes that states are required to not just take steps to mitigate climate change but also to take ‘adaptation measures aimed at alleviating the most severe or imminent consequences of climate change’ (552).

On the other hand, the requirements are not necessarily overly onerous, and most EU states would likely comply already. These minimum requirements map onto what is already found in many domestic legal orders. What is more, no doubt in the attempt to stem the volume of future claims, the Grand Chamber notes that the above requirements are not necessarily cumulative in the sense the failure of the state to comply with a single requirement necessarily entails a violation of the Convention (551).

For those of us who in the past have been critical of the Court’s often sparse reasoning with respect to its environmental cases, KlimaSeniorinnen is a significant step in the right direction. Consequently, the significance of the Grand Chamber’s decision is worth pondering. Commentators have been quick to label the decision transformative, arguing that it will have significant influence domestically and internationally. Whilst I don’t disagree with this, and whilst there is a great deal of symbolism arising from the decision, I would be more cautious for two reasons.

First, though the decision likely will provide an important background for domestic litigation in Europe, there was plenty of scope for doing so already. Domestic courts and tribunals can, and could prior to KlimaSeniorinnen, expand the application of the Convention and the Court’s environmental case law to climate change, and tailor this to the specific domestic contexts. Famously, this was what the Dutch courts did in Urgenda. Consequently, the decision does not as much lead as it follows. 

Second, the climate change law vacuum that emerged in Switzerland and formed the basis for the violation is, if not unique, then specific to Switzerland, where the lack of an effective domestic framework emerged on the back of domestic referendums, rejecting ambitious emission reduction obligations. In many other European states, there is little scope for this to happen as, at least as far as EU member states go, these are bound by the EU’s Climate Law, which creates binding emission reduction obligations upon the state. That is, the non-existing climate framework of Switzerland is unlikely to be found in many other states. Related to this, the Swiss vacuum has since been filled even if the enacted law is not yet in force and this initiative largely maps on to the requirements spelled out above.

To summarise, prior to the decisions, the Grand Chamber evidently had a tricky job on its hands, striking a balance between accommodating one of the most pressing societal challenges of modern times and preventing the Convention’s application got out of hand. On the face of it, the Grand Chamber struck an expected and entirely reasonable balance, relying extensively on its established doctrine and principles from its environmental case law. But it also expanded this doctrine in light of the special circumstances presented by climate change, setting the scene, no doubt, for numerous follow-up challenges internationally as well domestically.

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