Climate change in Strasbourg: a big victory for the human-rights agenda through the rigorous application of international human-rights law

by | Apr 15, 2024

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About Stephanos Stavros

Stephanos Stavros is a human-rights lawyer who has worked for the ECtHR and other Strasbourg-based monitoring mechanisms. The views expressed are, of course, personal.

All major challenges facing Europe today have a human-rights dimension, which sooner or later the ECtHR will be invited to examine. The Court, of course, provides legal answers to legal questions. Nevertheless, its decisions are also grounded on legal pragmatism, as evidenced by Burmych (not for the ECtHR but the CM to examine 12000 repetitive cases), Köksal (Turkey had remedies for post-attempted-coup alleged violations) and Georgia v. Russia (II) (hands-off approach during active-hostilities phase).

Against this background, many thought that all the climate-change cases that had started arriving in Strasbourg in 2020 would be quietly dismissed on formal grounds. The technical complexity of the underlying issues would have arguably justified restraint (an application concerning nuclear tests had already been rejected by the ECnHR). However, the ECtHR judges are obviously not intimidated by questions requiring advanced non-legal expertise (see the mass-surveillance judgments and Semenya). And Duarte Agostinho, Klimaseniorinnen and Carême were, instead, referred to the GC.

The ensuing three-and-a-half-year-long litigation gave rise to high expectations, as it was palpable to anyone who happened to be in the Human Rights Building on the (ironically grey and chilly) spring morning when the outcome of the three cases would be announced. But there were also doubts as to whether the Court could come up with anything beyond vague statements of principles and words of encouragement.

The Court managed not to disappoint. On 9.4.24 it delivered a judgment, finding a violation in Klimaseniorinnen, and two decisions, declaring Duarte Agostinho and Carême inadmissible, that are entirely persuasive as to their reasoning and the fine legal distinctions they make. They also seem (at least to those not fully versed in climate-change science) to take the need for certainty over states’ international obligations seriously.

The message of a combined reading of Duarte Agostinho, Klimaseniorinnen and Carême is clear. Environmental catastrophe is looming and the ECtHR should urgently play its role in averting it. However, not anyone may be permitted to sue any CoE member state before it. This is a case-law area where opening the Strasbourg floodgates carries great risks. E.g., complaints about ‘embedded GHG emissions’ (emissions generated abroad and attributed to European countries through the import of goods) were not excluded from the Court’s review in Klimaseniorinnen (case brought by an association and four individuals)

Obviously, limits had to be imposed on who might claim to be a ‘victim’ of a violation allegedly perpetrated by a specific state in connection with climate change. To do that, the Court turned to the distinction it had been trying, for years, to make between jurisdiction (primarily territorial) and responsibility. In the three 9.4.24 cases, this proved useful, providing the Court with a basis for only allowing actions by those living in the state against which they want to complain. This is why the ECtHR could not examine Carême and the complaints in Duarte Agostinho that did not concern Portugal. (The complaint against the latter was rejected for non-exhaustion.)

The Court also allowed for actions by associations like the one in Klimaseniorinnen that complied with certain conditions concerning their legal links with the state they wanted to sue, their dedicated purpose and their being genuinely qualified and representative. Such associations need not necessarily act for individuals who “pressingly need” protection because of the “high intensity of their exposure” to climate change. The four individuals’ claims in Klimaseniorinnen were, for example, rejected for not meeting this “high threshold”.

As expected, the part of the 9.4.24 judgment granting certain associations the right to sue has attracted criticism. This is not, however, entirely warranted. Far from installing a system of collective complaints like the ESC’s, Klimaseniorinnen could be seen as an exercise in pragmatism. An association with the applicant one’s network might not have taken long to identify an individual complying with the above “high threshold” criteria whose claim it could have espoused.

Having overcome the ‘victim’ hurdle, the Court proceeded to examine the applicant association’s complaints under Article 8 ECHR because of the undeniable effects of climate change on the health, well-being and quality of life of vulnerable groups like elderly women. The Court, following its standard line on positive obligations, did not have any trouble finding that CoE member states must take “mitigating” measures. §550 of the judgment gives a precise indication of the factors that the ECtHR will take into account when evaluating the adequacy of any member state’s response (not only Switzerland’s, which was the respondent in Klimaseniorinnen). This bold approach, setting clear parameters for the examination of future applications, is innovative and sets an excellent precedent for non-climate-change cases. The Court was undoubtedly assisted in this exercise by the existence of several relevant international agreements. It was also helped by its own case law making a distinction between obligations of ‘result’ and ‘means’. It was only in respect of the latter that the Court considered that states had, in the climate-change field, a margin of appreciation. Although this is one of the Convention’s best-known concepts, many questions have been asked about its practical functioning. Any insight into the Court’s general understanding of its operation is welcome (as pointed out here, please scroll down). And Klimaseniorinnen makes again, in this connection, a positive contribution to case-law development.

Of course, ECtHR judgments are about whether individual states have respected their Convention obligations. As already seen, in Klimaseniorinnen the Court considered that Switzerland had not. In the most challenging part of the judgment, the ECtHR accepted that a gradual approach was required to ensure compliance with Article 8 in the particular field (this is the case with many human rights). Past behaviour was, nevertheless, important. And Switzerland had shown few signs of having taken adequate measures to be able to meet its climate-change targets in the future.

As others have pointed out, the Court, in assessing Switzerland’s performance, was hugely helped by several national-court judgments. This is normal, because of the particularities of climate-change litigation and ‘subsidiarity’. As alluded to in the blogpost’s opening paragraph, the protection provided in Strasbourg is meant to reinforce that at member-state level and vice versa. This is what the ‘aside’ in §86 of Carême seems to be stressing. And this is why the ECtHR found an additional breach in Klimaseniorinnen, considering that the Swiss courts’ refusal to look into the substance of the applicants’ claim amounted to a violation of Article 6 (the applicability of which it has interpreted, in this case, rather generously).

The Klimaseniorinnen judgment, being a GC one, cannot be appealed against. However, it does not mark the end of the road but probably the beginning of Strasbourg’s involvement in climate-change litigation. Some have hastened to conclude that it has been drafted in a way that makes it too easy for other states to comply with Article 8. The Swiss-government representative, in a short TV interview given on 9.4.24, seemed to think that it did not.

Expectations concerning future litigation may well dictate some member states’ stance in the CoE processes that are designed to ensure compliance with ECtHR judgments (no need to warn about the risks of such myopic attitudes, in casu). The Court, for its part, has stressed CM’s special responsibly in climate-change cases. Peer pressure in Strasbourg ought to be, of course, one of the factors pushing recalcitrant states towards effective action to avert an environmental catastrophe at global level. Public opinion at home might, however, prove to be a more potent force. The considerable media attention that the three cases have received will certainly help in this connection.

Unfortunately, we are going through times when some (otherwise mainstream) politicians question the need for international human-rights engagements; when counties have been expelled from/left the CoE or are being convicted by the ECtHR for failure to comply with past judgments; and when populist leaders attack the very foundations of our regional protection-system. Cases like Klimaseniorinnen surely remind people that human rights do not only concern ‘the others’ (be they asylum-seekers, disabled, religious or sexual minorities, persons accused of serious crime or prisoners). They concern each one of us. Defending the right to a safe and healthy environment should help rebuild a broad coalition, cutting across state, political and class boundaries, in favour of the general human-rights agenda. Seen from this perspective, referring the three cases to the GC may have been one of the cleverest moves in the Court’s history. And Klimaseniorinnen may turn out to be a truly monumental judgment.

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