Climate Change hearings and the ECtHR
ejiltalk.org/climate-change-hearings-and-the-ecthr/
By Ole W Pedersen
April 4, 2023
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:
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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.
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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.
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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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