Litigating the Energy Charter Treaty at the European Court of Human Rights

In June 2022. A group of young people lodged a claim with the European Court of Human Rights (ECHR) alleging that their rights under Article 2 and Article 8 of the European Convention were being violated by states’ continued compliance with the controversial Energy Charter Treaty. This article will chart out a potential pathway to success for this case, and in particular examine what effect, if any, it could have on the continued legitimacy of the sunset clause of the ECT, which binds member states to the provisions of the treaty for 20 years after formal withdrawal.

The Admissibility of the Case

The first challenge for the applicants will be the determination of whether their case is even admissible before the ECHR. Under the rules of the court, an individual or group of individuals has standing where they can demonstrate that they have been the victim of a violation under the European Convention and can prove that they have been directly affected by the challenged measure. This is challenging in the context of climate change, in that a victim may not be able to point to a specific or individualized incident that has been directly caused by the climate crisis. Here, this may be even more difficult, as the young people would need to demonstrate a link between membership of the ECT, and the extreme weather events that have afflicted their countries. However, It has been pointed out by Norlander that this case is novel in that, rather than relying on the potential future impacts of climate change, which has been the traditional approach to a climate case, this case seeks to use events that have already occurred to justify the finding of a human rights violation. This strategy should, as Schmid notes, assist with meeting the burden of demonstrating that the applicants have ‘victim’ status. However, this does not answer the question of how to demonstrate a link between the weather events in question and the states continued membership of a multilateral treaty.

A useful approach would be to adopt arguments made in the German court in Neubauer, et al. v. Germany concerning the rights of future generations. Here, the claimants argued that insufficient climate action by the German government would violate their rights under the German constitution. The court determined that an important aspect to the right to life was a duty to protect future generations. In this context, the continued protection of fossil fuel investments would have a disproportionate impact on future generations. It makes it far less likely that they will be able to adequately enjoy their rights as the worst effects of climate change take hold.  It therefore seems viable to argue that the threat posed to future generations by the ECT to climate action, particularly given the 20 year sunset clause, could form part of the evidence that the applicants are ‘victims’.  The concept of protecting the rights of future generations has been around for several decades now, dating back to to the Philippine case of  Oposa v. Factoran. Were the ECHR to look favorably on the concept, it would ease the standing requirements in the sense that the applicants can focus on future and likely threats rather than presents events that may or may not be directly attributable to the ECT.

The Merits of the Challenge

The case is unique in the sense that the ECHR is being asked to examine whether membership of this treaty can in and of itself constitute a violation of human rights. However, while such an approach may appear novel, this could be addressed by focusing on the domestic effects of the ECT within European Convention member states. This would essentially be an adaptation of the approach taken in Urgenda v the Netherlands. In that case the applicants relied on human rights arguments to make the case for a change to existing legislation and existing government commitments to climate change to force more radical climate measures.  Adopting this argument here, the applicants could make the case that continued adherence to the ECT while domestic legislation and objectives intend to achieve swift rights affirming changes to climate action is a violation of Articles 2 and 8. Rather than focusing on the international nature of the question, the applicants could levy their attention towards the domestic context of the ECT and thereby link membership to the proven obstruction and potential obstruction of further divestment from fossil fuels.

A counter argument could be made however that failing to provide compensation to fossil fuel companies could be seen as an unfair deprivation of property rights. In this regard, the applicants could rely on O’Sullivan McCarthy Mussel Development Ltd v. Ireland. Here the applicants had alleged that their property rights were violated when Ireland imposed a ban on mussel seed fishing to comply with EU environmental regulations and failed to compensate the business in question. The court held that State’s obligations under EU environmental law attract a wide margin of appreciation. Further that the company, as a commercial operator cannot disclaim all knowledge of relevant legal provisions and developments. Rather, it can be expected to display a high degree of caution in the pursuit of its activities.

The reference to the UNFCC in the preamble of the ECT arguably put the fossil fuel companies ‘on notice’ of the relevance of climate change to the treaty. As a result, they could have anticipated there would eventually be some effort made to utilize alternative sources of energy. As such, it is both within the state’s margin of appreciation and the foreseeability of the company for there to be no compensation for any loss of protection derived from withdrawing from the ECT.  Given the ECHR has allowed ‘extreme’ measures such as a ban on mussel fishing, there is no reason why it cannot do the same for anti-fossil fuel measures. Indeed, the margin of appreciation is arguably even wider in this instance, as all parties to the European Convention have committed to the Paris Agreement.

Potential Remedies

Questions remain however as to what remedy could the ECHR grant to the applicants should they prove successful. As Keller points out “Focusing on Article 46 ECHR measures instead of Article 41 awards can help to assuage docket-related fears in problems of a ‘systemic nature’ and can provide a remedy by, for example, calling for legislative or policy changes, administrative action or changes to domestic jurisprudence”.  In this instance, the ECHR could find that there to be a violation should states continue to comply with the ECT. It could then make a general recommendation that states remedy the situation without specifically ordering the state to withdraw or seek termination of the treaty. A similar approach was taken in Fadeyeva v Russia. Here the court found that a violation of Article 8 had occurred where Russia had failed to regulate the emissions from a steel plant in a local community. The court did not explicitly determine the best method the state could use to remedy this violation but did suggest: “As regards future measures to be adopted by the Government in order to comply with the Court’s finding of a violation of Article 8 of the Convention in the present case, the resettlement of the applicant in an ecologically safe area would be only one of many possible solutions”.  This may be useful in suggesting to states that they withdraw from the ECT or agree between themselves to neutralize its protection of fossil fuels without overstepping the court’s authority.

On the other hand, as Keller also notes, “today, the Court still displays a fondness for purely declaratory judgments, as an expression of deference to domestic authority”. This is not necessarily a bad thing in this context. A declaratory judgment provides fuel to activists to push for a neutralization or circumvention of the sunset clause by any means necessary, and makes it more difficult for companies to justify the attempted use of arbitration tribunals. Many oil companies such as Shell and Exxon express a commitment on paper to human rights and a sustainable economy. As such, a finding that the ECT is in violation of the European Convention may result in pressure from both within and outside of the company to desist in their efforts to use arbitration tribunals. It could also bolster states efforts to withdraw from the treaty, as they can cite both the violations of ECHR and EU law as a reason to no longer participate in the treaty.

Conclusion

The case taken by the activists would undoubtedly represent a significant expansion of how the ECHR conceives of its role in rights based jurisprudence. Regardless of its outcome, the case further demonstrates the interest of young people in tackling old perceptions of law to account for the existential threat at hand.