The European Convention of Human Rights and Climate Change – Finally!

It was only ever a matter of time before the European Court of Human Rights (ECtHR) would be called upon to interpret the application of the ECHR to the climate crisis. Climate change litigants have scored a series of notable successes in domestic courts of late. Most famously in the Urgenda decision delivered by the Dutch Supreme Court in December 2019, holding that the Dutch government’s climate change plans violated articles 2 (right to life) and 8 (right to respect for private and family life) of the ECHR as a result of the serious risks posed by climate change (discussed here). And more recently, the decision delivered by the Irish Supreme Court in Friends of the Irish Environment, finding that Irish climate change mitigation plans lacked important details (even if the arguments based on the ECHR were rejected by the Court), discussed here. At the time of writing, the so-called People’s Climate Case is pending before the CJEU.

Not surprisingly then, on September 3^rd six children from Portugal, aided by the Global Legal Action Network, filed a complaint before the ECtHR alleging that 33 European countries violate their article 2, 8 and 14 rights (right to enjoy ECHR rights without being discriminated). This post discusses three main challenges facing the claimants as these relate to the claimants’ reliance on international law, the margin of appreciation, the actual environmental standards developed under the ECHR and the fact that the applicants have one straight to the ECtHR without engaging domestic courts.

The first point to make is that the is little doubt that climate change threatens the enjoyment of a series of human rights provisions (e.g. the reports by the UN Special Rapporteur on Human Rights and the Environment). Under the ECHR, the human rights and climate change interplay specifically arises by virtue of the ECtHR’s case law on environmental risks developed over decades. In short, this case law sets out minimum requirements expected of states when responding to environmental risks. In Tătar v. Romania, the ECtHR held that governments are under a positive obligation to put in place regulatory initiatives, regulating the licensing, start-up, operation, and control of hazardous activities and that these administrative and regulatory regimes must include appropriate provisions allowing the public to assess the risks.

Even if the ECtHR has not yet engaged with climate change, the Court has also established that the requirements above apply to risks arising from natural disasters (e.g. Budayeva et al v Russia relating to mudslides and Kolyadenko et al v Russia relating to flash flooding) and in Urgenda the Dutch Supreme Court makes a compelling case for the application of the ECHR case law to climate change on the grounds that climate change impacts pose real and immediate risks to individuals living in the Netherlands (see paras 5.6.1-5.6.4). n the context of the present claimants living in Portugal, there is arguably stronger support for the claim that climate change risks cross the required minimum level of severity required by the Court’s case law given the increased likelihood of extreme heatwaves in Southern Europe.

In short, there is a compelling basis for pursuing climate change claims before the ECtHR and there have been important successes in domestic law laying some of the groundwork for the present claim. That does not mean, however, that the claimants have an easy job on their hands. In fact, there is reason to believe that they might have a trickier job than litigants in domestic courts.

Central to the claimants’ argument is that the obligations in articles 2 and 8 ought to be interpreted in light of various international instruments. These include: Article 2 of the Paris Agreement and its aspiration of limiting increases in global average temperatures to 1.5C; the objectives of the UNFCCC; as well as provisions in the UN Convention on the Rights of the Child. Calling on the ECtHR to interpret the environmental obligations of the Convention in light of international legal instruments is entirely reasonable. First, because the Convention itself has nothing to say about environmental risks and protection (for obvious reasons), the Court has over the years relied extensively on international and EU environmental law instruments when responding to environmental claims. Second, utilizing general international law as an interpretive background is a well-established practice of the Court (e.g. Loizidou v. Turkey). There is however an important limitation to the argument as advanced in the present case.

This is because a central aspect of the claimants’ argument is that none of the 33 responding states have enacted adequate administrative and legislative regimes that take into account the emissions generated outside those states’ territories even if these can be linked to the responding state, e.g. because it imports goods from overseas. This is the well-established problem of attributing emissions from carbon imports. The problem with this argument is that the international legal framework of the UNFCCC and the Paris Agreement does not attribute emissions from imports as inventories are based on emissions generated from within a state’s territory.

In effect, the claimants are asking the Court to supplement the provisions for attribution in the UNFCCC and the Paris Agreement by expanding its environmental rights case law. That is, to develop the rules of the international climate change regime through the ECHR. Imperfect as the climate change regime might be this seems an invitation the Court is unlikely to accept. Particularly as this invites the Court to take its environmental case law in a different direction from what has so far been the case. Up to this point, the Court has relied on international and EU environmental law to fill perceived gaps in the ECHR (i.e. as an aide in interpreting the Convention in light of present-day conditions) upon which domestic and international lawmakers can build more elaborate and precise standards.

The Court’s engagement with public participation in environmental matters is a case in point. Here the obligations developed by the Court set lower standards than the ones found in the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters, and the ECHR operates as a floor (e.g. Taşkin et al v Turkey). The present claim effectively turns this dynamic on its head, inviting the ECtHR to forge new ground by developing new environmental standards.

Second, there is a real inherent limit in the Court’s environmental case law as a result of the margin of appreciation, which plays a central role in environmental cases. The Court has repeatedly stressed that in the area of environmental risks, it is not for the Court to second guess policy choices in the ‘difficult social and technical sphere’ of environmental law (e.g. Hatton v United Kingdom). Consequently, the Court’s primary function is one of supervision. This point arguably becomes particularly important where claimants, as in the present case, also seek to rely on the precautionary principle; the status of which in international law is disputed. On this point, there is reason to assume that claimants building climate change cases around human rights are better served by domestic courts. This was indeed the case in Urgenda where the Dutch Supreme Court made several findings around the relevance of the precautionary principle to the ECHR, which were arguably not supported by the ECtHR’s own case law. Added to this is fact that the ECtHR has declined invitations to expressly expand its case law by reference to the precautionary principle (e.g. Hardy and Maile v United Kingdom).

Third, linked to the ECtHR’s role as an international tribunal exercising supervisory jurisdiction over states’ compliance with the Convention, there is another inherent limitation in the Court’s environmental case law. This limitation stems from the fact that the primary obligation to put in place administrative and regulatory regimes is in all but name an obligation of due diligence. Consequently, where responding states have put in place administrative and regulatory regimes aimed at minimizing environmental risks, the Court often finds itself deferring to the state when it comes to the finer details of these regimes (again cf. e.g. Hardy and Maile v United Kingdom). This point obviously links to the central role played by the margin of appreciation and taken together it is hard to imagine the ECtHR making findings similar to the Dutch Supreme Court in Urgenda when it comes to the specific details of emission reduction obligations.

Fourth, the fact the claimants have gone straight to the ECtHR without engaging domestic courts is likely to pose problems. The Convention itself requires that claimants must exhaust all domestic remedies prior to applying before the Court. The claimants contend, however, that the it simply is not feasible for the claimants to pursue claims against the 33 countries in the domestic jurisdictions and that the remedies presently available in domestic courts are not anyway adequate were they to do so. The first point about the practicability of bringing claims in 33 different countries might seem superficially attractive but it ought to be borne in mind that admissibility requirements in article 34 of the Convention do not provide for the type of actio popularis claim pursued by the claimants and is expressly designed to operate on a basis of subsidiarity.

Added to this, the ECtHR readily dismisses claims at the admissibility stage (see here for 2019 statistics) where claimants have not exhausted domestic remedies. As a matter of litigation tactic, bringing a case against 33 parties without having initiated proceedings in any of those jurisdictions, arguably sets up the claim to be dismissed very early on in the proceedings. This might be particularly relevant considering that dozens of climate change cases are making their way through the domestic courts in Europe, including in some of the 33 countries named in the claim.

One perhaps more obvious way to engage the ECtHR at this stage would therefore be to invite one of the domestic courts to request an advisory opinion from the ECtHR under Protocol 16 of the ECHR. Doing so would avoid the risk of presenting the ECtHR with an obvious justification for declaring the claim inadmissible, which carries with it the obvious risk of derailing some of the progress claimants have made inn this area. Moreover, there are strong reasons for the ECtHR to engage with a request for an advisory opinion. Not only does the urgency of the issue justify this but the fact that a critical mass of ECHR and climate change claims are emerging in domestic courts arguably makes the need for ECtHR guidance more compelling. There are of course also recent examples of international human rights tribunals taking steps to move environmental rights doctrines forward through advisory opinions: most notably the decision by Inter-American Court of Human Rights on the extraterritorial application of the San Salvador Protocol to the American Convention on Human Rights (in which the Court make heavy reference to the ECtHR’s environmental rights case law).

In the press materials accompanying the complaint, the claimants make the point that they are hoping that the ECtHR can act as a steer for domestic judicial actions. Apart from the questions of whether the ECtHR will want to do so and whether there are other means of achieving such a steer, another question is whether that is needed. Even if climate change litigants make increasing use of a range of judicial forums, recent domestic decisions highlight the scope for pursuing climate change claims before domestic courts. From the perspective of utilizing the ECHR as a tool in the climate litigation toolbox, the Urgenda decision indicates that there is potential to use the ECHR domestically (even if the real effects of the case are not yet clear). It is not yet clear that the same is the case before the ECtHR itself. At least not in the present claim.