Climate Change hearings and the ECtHR

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On March the 29th, the Grand Chamber of the European Court of Human Rights held oral hearings in two of the three climate change claims before the Chamber. The two cases are Verein KlimaSeniorinnen Schweiz and Others v. Switzerland and Carême v. France. Both cases were relinquished to the Grand Chamber last year and the Chamber has scheduled oral hearings in the third climate case, Duarte Agostinho and Others v. Portugal, later this year (see e.g. the fact sheet on climate change). In light of the hearings, this post considers what are likely to be the main points of contention in the Chamber’s final decisions. However, a couple of preliminary points should be noted.

First, trying to distil too much significance from the oral hearings from cases that raise novel and important legal points, and involve massive amounts of scientific information and technical evidence, is not easy nor necessarily bound to be accurate.

Second, the relatively brief oral hearings are just one aspect of the case and the judges have only 10-15 minutes to ask questions of the parties. As a result, only a small number of judges can ask questions and it is impossible to gauge anything from the ‘silent majority’ of judges who do not ask any questions.

Third, each case naturally turns on its merits and the claims will raise separate questions reflecting the applicants’ circumstances and the facts of each case. This point, stood out in respect to the hearing in Carême where several judges probed in detail the residency status of the applicant. This is because the applicant presently lives in Brussels (where he is an MEP) and consequently does not have residency in Grand-Synthe near Dunkirk, a part of France which the applicant argues is particularly vulnerable to climate change impacts, although he has been a long-term resident and former mayor there. Conversely, KlimaSeniorinnen is launched by a group of elderly women, arguing that they are particularly vulnerable to climate change because of the increased frequency of heat waves. Having said that, the hearings in the two cases do raise important points worth probing in more detail.

A key question which arose prominently in particular in KlimaSeniorinnen is the issue of victim status under art. 34 of the Convention and whether the Court ought to divert from its relatively strict interpretation of this (a matter also raised by the Court in its communications with the applicants). The issue centers on whether the fact that the individual applicants are effectively represented by an association ought to disable their claim to victim status under art. 34. A possible point of direction in dealing with this question was the potentially leading question posed by the Court’s President O’Leary when she asked:

should we, in the specific context either of environmental cases or in climate change, and given that the vast majority of Council of Europe States are parties to the Aarhus Convention, which gives specific rights to environmental associations, should we now in 2023, review our existing case law in relation to the victim status of associations? If not, why not?

In posing this question, President O’Leary specifically highlighted the significance of the present cases, given that a string of other climate change claims against several other states are stayed pending the decisions in the three Grand Chamber cases.

In light of the Court’s previous reliance on the Aarhus Convention, President O’Leary’s question is a pointed one. There is indeed ample scope for the Court to accommodate the claimants claim even if they are advanced via an association instead of by its individual members. In the Melox case, the Court specifically highlighted the importance played by environmental non-governmental organizations. In doing so, drawing on the Aarhus Convention, and in the process arguably strengthening the effectiveness of the Convention when finding art. 6 applicable to the circumstances of the case. Similarly, in the case of Campeanu, the Court relaxed the victim requirements when allowing an NGO to pursue a claim on behalf of a deceased individual. Importantly, this was done with specific reference to the vulnerability of the individual, an argument which arguably apply with force in respect to the elderly applicants in KlimaSeniorinnen. On this reading, there is reason to believe that the Grand Chamber is likely to declare the case admissible and probe the merits of the claim.

On this, a central issue in the hearings, in particular in KlimaSeniorinnen, was the questions posed in relation to the actual content and detail of the state’s positive obligation. Judge Bošnjak thus queried what criteria the Court ought to apply when establishing whether the mitigation efforts adopted by Switzerland were sufficient. This point arises as a result of the Court having held, in the past, that significant environmental risks give rise to positive obligations on the state. These obligations require that a state must put in place a legislative and administrative system which is effective in minimizing the risk confronting individuals. Arguably, this question poses one of the biggest challenges for all parties involved as well as for the Court. In their responses, the applicants in both cases relied heavily on the argument that this effectiveness assessment ought to be shaped by international law, obviously including the Paris Agreement 1.5C aspirations, and the so-called ‘fair share’ approach to defining state parties’ obligation under art 4(3) of the Paris Agreement. Central to this argument is the highly technical work developed by the independent scientific group known as the Climate Action Tracker (CAT) whose research was heavily cited before the Court in support of the argument that the responding states (and most developed countries in general) need to adopt emission reduction targets and NDCs that are much more ambitious than is currently the case.

Despite the at times technical discussions, and perhaps sensing a slight hesitation on behalf of the Court in respect to wanting to probe the details of the CAT argument, the response from the applicant’s Counsel in KlimaSeniorinnen sought to assure the Court. Primarily, this was done by noting that the applicants are merely asking for the Court to apply its existing case law from its environmental jurisprudence to the issue of climate change. This is, in many ways, an entirely reasonable and rather straightforward assertion, considering the ways that this case law has evolved over the years (a similar point was also made by the applicant’s Counsel in Carême).

Insofar as the Court is looking for a point on which to peck the argument about the content of the positive obligation, support might be found in its recent decision in Pavlov v Russia, relating not to climate change but industrial pollution. In Pavlov, the Court arguably took its traditional environmental risk doctrine a step further by criticizing the government for relying on outdated technological measures as well as for not effectively enforcing these through criminal proceedings and fines. To put it another way, the domestic legal regime aimed at minimizing environmental risks must be effectively and proportionately enforced and achieve the intended outcomes. The challenge is of course to figure out what this means in the context of climate change and whether this means that the Paris Agreement, and/or the CAT methodology provides the benchmark for this. As argued earlier, there is a risk that the Court is seen as being called upon to prop up the failings of the UNFCCC regime and the consensus achieved in the Paris Agreement.

Perhaps as a way to counter this, the applicants in both hearings were keen to stress the principle of ‘harmonious interpretation’ through which the Court takes inspiration from international environmental law when filling in the gaps emerging from the application of the Convention to environmental challenges. In the response given by Counsel in Carême, several references were thus made to human rights and climate change developments before other tribunals, including in domestic and international law, perhaps suggesting that a clear path has already been laid for the Grand Chamber to follow. Another way to interpret the many references to the decisions made by courts in the USA, Nigeria, Pakistan and elsewhere, is perhaps as an invitation to the Grand Chamber to act as a steer on the matter of climate change and human rights. Much as the Court has done in the context of environmental rights more generally.

Were the Grand Chamber to respond to the invitation affirmatively, and support the applicants’ argument, support for doing so may once again be found in Pavlov. This is because in Pavlov the Court arguably engaged with the scientific information before it in a manner favourable to climate change challenges. The Court thus noted that a characteristic of environmental claims is the ‘evidentiary difficulties’ these often pose (para 62). Moreover, in Pavlov, the Court found in favour of the applicants who were exposed to significant levels of pollution for prolonged periods of time despite the applicants failing to produce medical evidence in support of their claims (para 68). These points might prove a useful background for the Grand Chamber when tackling the inherent uncertainty arising in relation to the causality issue (which was also raised by Judge Bošnjak in KlimaSeniorinnen). Importantly for the applicants, it might also provide underpinning support for the ‘fair share’ argument.

Ultimately, were the Grand Chamber to find in favour of the applicants, it would arguably result in a significantly intensified level of scrutiny in environmental claims going forward (even more so than the one developed in Pavlov). It would also provide a basis for pursuing a range of similar environmental risk claims before the Court, including in the area of air pollution where many European states are presently struggling to live up to minimum legal requirements. Going down this route, would potentially present the ECtHR as the leading human rights tribunal when it comes to ‘greening’ human rights.

Another way for the Grand Chamber to respond would be by way of a more cautious judgment. A judgment which expands the case law on standing by recognizing environmental organizations as victims under art. 34 where there is a clear link between the organization’s interests, its statutory purposes and those of its members that are particularly vulnerable and directly impacted by a particular risk. A cautious judgment might also reasonably apply the Court’s existing environmental risk doctrine to climate change simply on the grounds that a significant risk is evident. The real challenge obviously surrounds the content of the due diligence obligation and the precise form of the domestic legal response required by the positive obligation. Instead of weighing in on the ‘fair share’ question through a reliance on the CAT calculations, the Grand Chamber may simply declare that the due diligence obligation requires states to put in place domestically binding emission reduction obligations, through a process open to the public via consultations and participation, and that these ought to be established in accordance with a responding state’s obligations in international law.

Doing so would strike a pragmatic balance between the Court’s function as an international human rights tribunal with a supervisory jurisdiction, the limitations this inevitably entails, and the argument that not engaging climate change risks in the present cases would likely only succeed in the Grand Chamber kicking the can down the road for the numerous other cases likely to follow (although in the case of Carême the claimant’s resident situation arguably poses significant admissibility issues). Importantly, one such judgment would also provide a basis for claimants to press ahead with claims in domestic courts where tribunals arguably would be better placed to develop more tangible remedies and specify in more detail, under domestic law, the precise form and content of emission reduction obligations. It would, in other words, allow the Grand Chamber to provide a steer for future proceedings.

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