By Annalisa Savaresi, Professor of International Environmental Law at University of Eastern Finland, Linnéa Nordlander, Assistant Professor of Sustainability, Climate Change, and Human Rights at University of Copenhagen, and Margaretha Wewerinke-Singh, Associate Professor of Sustainability Law at University of Amsterdam. First published in the GNHRE blog on 12 April.
On 9 April 2024, the European Court of Human Rights (ECtHR) made history by becoming the first international court to grant a complaint filed by climate activists. In Verein Klimaseniorinnen Schweiz and Others v. Switzerland the court determined that the respondent state had violated its human rights obligations by failing to adhere to climate targets outlined in national law and to develop credible plans to mitigate future emissions. Simultaneously, the court dismissed two complaints – Duarte Agostinho and others v Portugal and 32 other states, and Carême v France – which were filed on broadly similar grounds, due to procedural deficiencies. In all three, the applicants alleged they had suffered human rights violations, as a result of states’ failure to take adequate action to reduce greenhouse gas (GHG) emissions. All three cases weredecided by the court’s Grand Chamber, indicating that they raised ‘a serious question affecting the interpretation’ of the 1950 European Convention on Human Rights (ECHR, article 30).
The ECtHR’s reasoning in these decisions builds and expands on its established jurisprudence on human rights and the environment. This body of caselaw comprises hundreds of decisions, evidencing the court’s consolidated stance that environmental damage can result in human rights violations. The KlimaSeniorinnen judgment marks a significant advancement in this jurisprudence, offering crucial clarification on the obligations of states in addressing the challenges posed by climate change. This post offers an initial analysis of the KlimaSeniorinnen judgment, alongside the decisions to dismiss Duarte Agostinho and Carême. It concludes by pondering the implications of these rulings on future climate change litigation.
KlimaSeniorinnen: Pushing the boundaries of the ECHR
KlimaSeniorinnen was brought by an NGO representing elderly women and four individuals, who argued that they are particularly vulnerable to the impacts of climate change due to the combination of their age and sex. Specifically, the applicants alleged that Switzerland’s inadequate action on climate change and failure to meet its GHG emissions reduction targets violated their rights to life (article 2 ECHR) and to private and family life, home and correspondence (article 8 ECHR). The applicants further claimed that despite attempting to bring their grievances before domestic courts, they were denied the opportunity to have their complaint heard on its merits. They therefore alleged violations of their rights to a fair trial (article 6 ECHR) and to a remedy (article13 ECHR). Switzerland contested the applicants’ claims, including by disputing the causal link between the alleged harm and Switzerland’s emissions.
Breach of the right to private and family life, home and correspondence (art. 8 ECHR)
The ECtHR found that shortcomings in the Swiss authorities’ climate law-making and enforcement amounted to a breach of obligations under article 8. Specifically, the court noted that the breach of the state’s obligations was the result of failure to quantify, through a carbon budget or otherwise, future national GHG emissions limitations, as well as failure to meet past GHG emission reduction targets (Paras. 558 – 559).
The ECtHR thus recognised for the first time that the ECHR entails positive obligations for states ‘to adopt, and to effectively apply in practice, regulations and measures capable of mitigating the existing and potentially irreversible, future effects of climate change’ (Para. 545). According to the court, this requires putting in place ‘the necessary regulations and measures aimed at preventing an increase in GHG concentrations in the Earth’s atmosphere and a rise in global average temperature beyond levels capable of producing serious and irreversible adverse effects on human rights’ (Para. 546). Under this interpretation of Article 8, each state party to the ECHR should take measures for the significant and gradual reduction of their GHG emission levels ‘in good time, in an appropriate and consistent manner’ with the aim to achieve ‘carbon neutrality’ by 2050 (Para. 543).
These findings bring the ECtHR in line with rulings from domestic courts – such as those in Urgenda and Neubauer cases – which affirmed that states’ obligations under human rights law include a responsibility to enact and enforce adequate regulations to mitigate climate-related harms. The ECtHR emphasized that while states have a wide margin of appreciation in addressing climate change, this margin is constrained by the state’s commitment to combat climate change and its adverse effects, as well as to achieve carbon neutrality (Para. 543). The court underscored that climate protection should carry significant weight in any balancing of competing considerations. The court identified five types of mitigation measures that the state should adhere to in order to align with Article 8 (Para. 550). However, consistent with its jurisprudence, it refrained from prescribing specific measures for Switzerland to undertake. Instead, it left it to the respondent state to determine the appropriate course of action within the outlined parameters.
The ECtHR took the opportunity to address the arguments of judicial overreach that have been levelled at domestic courts in climate change litigation. The court did acknowledge that judicial intervention ‘cannot replace or provide any substitute for the action which must be taken by the legislative and executive branches of government’ (Para 412). However, it reasoned that ‘democracy cannot be reduced to the will of the majority of the electorate and elected representatives, in disregard of the requirements of the rule of law’ (ibid.) Consistent with its previous jurisprudence, the court reiterated that ‘the task of the judiciary is to ensure oversight of compliance with legal requirements’ (Ibid.) Essentially, states should, at the very least, comply with the laws that they have themselves adopted, including international obligations under climate change treaties that they have ratified (Paras. 420 and 546).
Breach of the right to a fair trial (art 6)
The ECtHR predictably found a breach of Article 6 ECHR, as the domestic courts had declined to hear the applicants’ complaint on the merits, dismissing it as actio popularis. In its judgement, the court highlighted states’ obligations under the Aarhus Convention (Para. 602), emphasizing the pivotal role of domestic courts in climate-change litigation (Para. 639). The court noted that, in the climate-change context, lawsuits brought by civil society associations are a means through which the Convention rights of those affected by climate change ‘can be defended and through which they can seek to obtain an adequate corrective action for the alleged failures and omissions on the part of the authorities ‘ (Para. 614) . The Court however also highlighted that, in accordance with the principles of shared responsibility and subsidiarity, it is primarily the responsibility of national authorities, including the courts, to uphold ECHR obligations (Para. 639).
Victimhood
The ECtHR only found a violation of the ECHR in relation to the association KlimaSeniorinnen, and not to the four individual applicants. The court acknowledged that the NGO served as a collective recourse aimed at defending the rights and interests of individuals against climate change threats in the respondent state (Para.489). The court also recognized that the individual applicants lacked access to a court in the respondent state, making it necessary to grant standing to the applicant association for the proper administration of justice (Para. 499). However, the court was not convinced that the individual applicants were exposed to the adverse effects of climate change or were at risk of such exposure in the future with a degree of intensity necessitating their individual protection. This finding seems disputable, given that the applicants did report various difficulties during heatwaves, including effects on their medical conditions. Their circumstances were in this connection not dissimilar to those experienced by other applicants found to be victims of violations of Article 8 in earlier ECtHR caselaw involving systemic pollution – such as for example Fadeyeva v Russia.
Duarte Agostinho andCarême: Bolting the gates of the ECtHR
As previously noted, the ECtHR dismissed the other two cases on procedural grounds, applying established doctrines concerning jurisdiction, exhaustion of domestic remedies, and victimhood.
Duarte Agostinho
Duarte Agostinho was brought by six Portuguese youths against 33 states, including all European Union as well as other Council of Europe (COE) member states. This case gained significant media attention, as testified by the packed oral hearings held in 2023. Similar to KlimaSeniorinnen, the applicants contended that their rights to life and private and family life were compromised by the adverse effects of climate change. Moreover, they alleged a violation of the prohibition of discrimination based on age under Article 14 of the ECHR. The applicants also complained about the existing and anticipated impacts of climate change on the enjoyment of their human rights under Article 3 of the ECHR, which protects against torture and inhuman or degrading treatment. The respondent states challenged the admissibility of the claims on grounds of the extraterritorial application of the Convention and the non-exhaustion of domestic remedies.
The court unanimously dismissed Duarte Agostinho as inadmissible.
Firstly, the court rejected the applicants’ contention that all respondent states held control over the applicants’ Convention interests’ concerning climate change, as this would significantly broaden contracting state’s jurisdiction and undermine the ‘foreseeability’ of the ECHR’s reach (Para. 207). Emphasizing that combating climate change primarily involves exercising territorial jurisdiction to reduce GHG emissions, the court noted that the consequences of these emissions stem from a complex and unpredictable chain of effects, making it challenging to ascertain each state’s contribution to adverse impacts abroad (ibid.). Reaffirming its established stance on jurisdiction, the court emphasized that while climate change poses an existential threat to humanity, such concerns alone cannot justify the creation of a new basis for extraterritorial jurisdiction or the expansion of existing ones through judicial interpretation (Para. 212). In doing so, the court appeared to diverge from the approach taken by the UN Committee on the Rights of the Child and the Inter-American Court on this same point. In reaffirming that the ECHR centres on control over individuals rather than their rights or interests, the ECtHR suggested that adopting the applicants’ arguments would effectively morph the ECHR into a global climate change treaty, a notion unsupported by the Convention itself (Para. 208).
Secondly, the complaint against Portugal was also dismissed, due to lack of exhaustion of domestic remedies. In considering access to justice in Portugal’s courts, the ECtHR highlighted relevant domestic environmental legislation and procedural safeguards that could have provided redress for the applicants. The court emphasized the constitutional recognition of the ‘right to a healthy and ecologically balanced environment,’ which is directly enforceable by domestic courts (Para. 219). In the absence of ‘special reasons for exempting the applicants from the requirement to exhaust domestic remedies’ (Para. 226), and in line with its subsidiary role, the court found that the applicants’ failure to bring the matter before Portuguese courts rendered the application inadmissible.
Carême v France
Carême v France was brought by the former mayor of the French city of Grande-Synthe. The latter municipality successfully challenged the French State for inadequate climate action before domestic courts. Like the applicants in KlimaSeniorinnen and Duarte Agostinho, Carême argued that climate change threatened his rights to life and private and family life, particularly due to flooding risks. He contended that France’s climate change mitigation measures do not align with the Paris Agreement, posing a risk to his home and preventing him from planning his life peacefully there.
The court found the case inadmissible ratione personae. It agreed with the French courts that the prospective harm complained of was too uncertain. Moreover, the court noted that, since filing his complaint, the applicant had relocated to Brussels. The ECtHR concluded that ‘the applicant had no relevant links with Grande-Synthe’ (Para. 83) and that he could not claim to have victim status under Article 34 of the Convention as regards the alleged risks linked to climate change threatening that municipality (Para. 85). According to the court, finding otherwise would essentially permit an actio popularis claim for climate anxiety, given the general nature of the effects of climate change (Para. 84). The court reiterated that actio popularis is not permitted in the ECHR system and distinguished the applicant’s situation from those ‘where there is a pressing need to ensure an applicant’s individual protection from the harm which the effects of climate change may have on the enjoyment of their human rights’ (Ibid).
Looking ahead: the role of human rights in climate change litigation
The three ECtHR decisions issued on 9 April 2024 significantly contribute to the burgeoning body of jurisprudence on human rights and climate change.
In KlimaSeniorinnen, the court drew upon its existing case law to develop what it described as ‘a more appropriate and tailored approach’ (Para. 434) to ECHR issues arising in the context of climate change. The judgement reflects an understanding that the systemic harms associated with climate change necessitate re-evaluating the court’s approach to environmental cases. KlimaSeniorinnen is thus poised to become a pivotal milestone in the ECtHR’s jurisprudence, influencing the court’s approach for years to come. The court’s acknowledgment of this significance is apparent in the issuance of a comprehensive 260-page judgment, and in the judgement itself.
The KlimaSeniorinnen judgement relied on the vast body of national and international practice on human rights and climate change, exceeding many observers’ expectations in recognising and defining the substantive obligations of states to address GHG emissions under the Convention. It determined that failure to comply with climate law targets and lack of credible plans to reduce emissions constitute human rights violations – a significant finding providing a framework for future and pending cases which are based on similar grounds.
KlimaSeniorinnen aligns the ECtHR with milestone domestic court decisions, paving the way for more cases of this nature across the 46 member states of the COE and beyond. The global implications of this decision are substantial, as they demonstrate that international human rights bodies can and will increasingly serve to demand the enhancement and enforcement of climate change laws.
However, the court’s inadmissibility decisions in Duarte Agostinho and Carême indicate an intent to maintain the existing approach to the admissibility of complaints within the ECHR framework, focused on territorial jurisdiction and subsidiarity. These decisions imply that domestic courts should take the lead in handling climate change cases.
Duarte Agostinho represented a legal gamble that did not pay off, instead resulting in the entrenchment of a narrow interpretation of jurisdiction that appeared to diverge from the more progressive approach of the UN Committee on the Rights of the Child and the Inter-American Court. The court’s findings on this point, along with its considerations regarding victimhood and exhaustion of domestic remedies, did not come as a surprise to experts well-versed in the practices of the ECtHR. However, they do risk limiting access to justice for those most vulnerable to climate harms.
Overall, the court’s findings on admissibility offer a useful, if restrictive, compass for future climate litigants within the COE, particularly those in the climate cases pending before the ECtHR, which will now need to be decided. The KlimaSeniorinnen decision’s significance is substantial, demonstrating that international human rights bodies – as well as domestic courts – can demand climate action. However, the court’s narrow jurisdictional interpretation in Duarte Agostinho is a missed opportunity to fully grapple with the extraterritorial human rights implications of climate change.