Climate Change Hearings and the ECtHR Round II

On Wednesday the 26^th of September, the Grand Chamber of the European Court of Human Rights held oral hearings in Duarte Agostinho and Others v. Portugal and 32 others, which is one of the three climate change cases currently pending before the Grand Chamber (seven other cases have been adjourned pending the Grand Chamber’s decision in these cases). Hearings in the other two cases before the Grand Chamber, Verein KlimaSenorinnen Schweitz and Others v Switzerland and Carême v. France, were held in March and are discussed here.

The Duarte case, discussed previously here and here, is arguably the most ambitious of the claims before the Court and arguably also the most challenging as far as the applicants’ claims go. As noted in the blog posts on the previous hearings, attempting to distill too much and trying to predict what the Grand Chamber’s final decision might be based purely on the hearing and the written submissions is challenging. That being said, if one clear point does emerge from the parties’ submissions and the questions of the judges, it is that the Grand Chamber’s task at hand is very challenging indeed (the hearing itself took five hours).

In short, the claimants, who are six young citizens and residents of Portugal, argue that their articles 2, 8, and 14 rights are impaired because of the effects of climate change in general, including forest fires, and that, as young people, they stand to experience the worst effects of these impacts. They argue, moreover, that the 33 states are under a positive obligation to enact effective domestic responses to climate change which satisfy what the applicants call the ‘overriding obligation’ of meeting the aspirational 1.5C target in the Paris Agreement.

On the merits, and in principle, this argument is entirely reasonable. Although the responding states argued that applying the Convention to the present claim would represent not an ‘evolution but a revolution’, the applicants have repeatedly stressed, with force and authority, that the Court’s environmental risk doctrine ought to apply in climate change cases. In short, it ought not matter if the risk to the applicants’ private and family life comes from industrial pollution or from climate change; the positive obligations on the state to put in place regulatory and administrative responses still applie. But before the Grand Chamber gets a chance to consider that, the matter of admissibility needs to be disposed of.

Precisely on the question of admissibility the hearing indicates just how challenging the applicants’ claim is compared, for example, to the claimants’ case in KlimaSeniorinnen. There are two primary reasons for this, and these were probed in detail in the written submissions of the parties as well as at the hearing.

First, much attention was directed to the issue of jurisdiction and whether the applicants are within the scope of article 1 in respect to the 32 non-territorial states. There is no dispute as to whether the applicants fall within Portugal’s territorial jurisdiction. The responding states argue that extending the scope of article 1 to cover the extraterritorial effects of climate change amounts to building an entire new model of extraterritoriality. In response, the applicants partly accepted that their jurisdictional claims do not fall within the existing rules of jurisdiction but instead that the Grand Chamber ought to direct itself to the underlying principles of the doctrine and find jurisdiction where there is ‘sufficient factual or legal connection’ between a state and the alleged Convention breach. In this case, when there is sufficient connection between emissions and the threat to the applicants’ human rights there is jurisdiction.

This argument rests, among other things, on an assumption that the doctrines of extraterritoriality developed in Bankovic and Al-Skeini ought to evolve in light of the Committee on the Rights of the Child’s decision in Sacchi. Sacchi itself drew on the Inter American Court of Human Right’s 2017 Advisory Opinion on Human Rights and the Environment, which famously implied that applicants are within the jurisdiction of the state on whose territory the emissions originate if there is a causal link between the emissions and the extraterritorial harm. Building on this, the applicants argued that the ‘control test’ arising from Bankovic and Al-Skeini, ought not focus exclusively on direct/physical control. It is sufficient that the 32 responding states control their emissions. Consequently, the applicants argue, not finding jurisdiction is out of step with developments in international law. Against this, a slippery slope argument implicit in the responding states’ argument indicates that if jurisdiction is established it would result in the contracting states being responsible for a wide range of impacts not necessarily directly related to their territory. On this, Judge Guyomar pondered whether such extraterritorial jurisdiction would extend to outside the Convention space, i.e. beyond Europe, which it presumably would?

Second, a potentially significant stumbling block for the applicants is the fact that they have not exhausted domestic remedies as required by article 35. The applicants argue that they have not pursued domestic proceedings because doing so would be impractical across the 33 responding states and that, were they to file complaints before domestic courts, doing so would not provide an effective remedy. This is partly because the courts in each state would not be able to take a comprehensive view of the accumulating emissions of the other 32 responding states, being instead confined to the regulatory responses and emissions of one state much like what the domestic courts have done in The Netherlands and Germany in the significant Urgenda and Neubauer cases (as a result, counsel for the Netherlands argued the Urgenda decision is evidence of the effective remedies that are in place in that jurisdiction).

The applicants, moreover, argue that the ‘special circumstances’ and urgency surrounding the climate emergency justifies going straight to the ECtHR which is in a position to provide authoritative guidance for domestic courts. Underpinning this argument is the claim that in very few of the responding states (with a few exceptions) domestic courts have been provided with opportunities to interrogate whether domestic climate change responses are effective in light of the 1.5C objective.

There is a degree of circularity in this argument in so far as its premise is, not unreasonably, that human rights claims in the context of climate change is an emerging issue with which domestic and international courts are still grappling. However, the obvious way to remedy this would be to pursue complaints before domestic courts and install in national judiciaries a familiarity with the disruptive nature of climate change and the challenging legal questions it gives rise to. But the applicants’ argument is that not only does this very lack of climate change capacity in domestic courts call into question the effectiveness of domestic remedies but also that the special circumstances of climate change necessitate circumventing domestic courts. This thinking was partly reflected in the arguments advanced by counsel for the responding states when arguing that the applicants are themselves to blame for the failure to exhaust domestic remedies.

Related to this, one might also ponder, should the Grand Chamber end up ruling on the merits of the claim, whether the Court itself would be able to scrutinize and provide remedies that are in themselves effective albeit in a slightly different understanding than the one applied by the applicants. The question of effectiveness, on the understanding advanced by the applicants, goes to the breadth rather than the depth of the review and is linked to the argument that climate change requires an international and coordinated response. As noted above, this is because the applicants argue that only the ECtHR can offer a comprehensive review of the 33 responding states and that domestic courts are prevented from this.

There is, however, another understanding of effectiveness which is relevant to the claim. This is because of the limits that the Court ordinarily subjects itself to when adjudicating environmental claims, raising questions of social and economic policy. Often in these cases, the margin of appreciation is applied by the Court in a manner which affords responding states a significant degree of discretion. Specifically on this, the applicants correctly observed that it cannot be within the margin of appreciation for a state to decide whether or not to mitigate climate change (which does not seem to be disputed by the responding states). The margin of appreciation, however, usually entails a degree of deference, which limits the scope and the depth of review applied by the Court. Even if recent case law suggests a willingness to intensify the level of scrutiny in environmental claims, there might be limits to this specifically in the context of climate change.

Aside from these two critical points of admissibility, the responding governments placed emphasis on the argument that the applicants are not victims of a Convention violation as required by article 34. Instead, the applicants case takes the form of an actio popularis claim. This point also emerged in KlimaSeniorinnen although it arguably presents itself stronger in Duarte. The argument advanced here is in many ways classic to environmental litigation in general and the question of standing in particular. It rests on the premise that the applicants are not impacted by climate change in any specific, direct or particular way. The harms of climate change are general and felt by everyone. The rejoinder is of course that taking this line of thinking to its extreme means that the more people that are impacted by environmental harm, the less likelihood there is of anyone being able to impugn the harmful activity before a tribunal. In many of the responding states, and in the EU, the actio popularis argument has in many ways become historical because the Aarhus Convention now provides for access to justice in environmental matters for members of the public in general (with modifications). The applicants argue that these developments ought to influence the Court, which is far from unreasonable as the Court has in the past relied on the Aarhus Convention when developing its environmental rights case law. And specifically in the hearing in KlimasSeniorinnen, President O’Leary seemed open to the suggestion that the victim status doctrine ought to be modified in light of the Arhus Convention.

In summary, the applicants case looks potentially strong on the merits. Although the highly technical scientific evidence that the applicants rely on to furnish substantive emission reduction obligations out of articles 2 and 8, linked to the 1.5C aspiration and the ‘fair share’ calculations, might not convince the Court, the argument that the risks posed by climate change ought to trigger application of the Convention is straightforward. The challenge, however, is that the claim might be disabled before the Grand Chamber gets to that point. The applicants’ case faces significant hurdles when it comes to the admissibility question as this manifests itself in relation to jurisdiction and the failure to exhaust domestic remedies.

Faced with this, a careful guess might be that the Grand Chamber could strive to strike a pragmatic balance between the competing considerations emerging in the three climate cases. This might include a desire to hear at least one case on the merits, e.g. KlimaSeniorinnen, and thereby address the issue of climate change and in the process provide some general guidance on the application of the Convention to a genuinely pressing societal problem. In doing so, the Grand Chamber would avoid the risk of simply kicking the can down the road, resulting in subsequent cases ending up before the Court, which seems a certainty. This approach would also maintain the Court’s status as the leading human rights tribunal when it comes to developing the doctrine of environmental rights. A doctrine which has inspired numerous other human rights tribunals in other jurisdictions.