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Any Role for the echr When it Comes to Climate Change?

In: European Convention on Human Rights Law Review
Author:
Ole W. Pedersen Professor of Environmental Law, Aarhus University, Aarhus, Denmark, owp@law.au.dk

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Presently, there are four climate change cases pending at various stages before the European Court of Human Rights (ECtHR).1 All of these cases build on an emerging case law from domestic courts in which claimants have, with varying degrees of success, argued that the European Convention on Human Rights (echr) requires states to take action in order to mitigate climate change risks. In many ways, the emergence of climate change claims before the Court is not surprising. The effects of a warming world are already showing, threatening the enjoyment of a series of fundamental rights, including those enshrined in the Convention.2 Added to this, there is a palpable sense of frustration with the international and domestic initiatives adopted by governments in response to the climate emergency, particularly among young people (one of the claims before the ECtHR was submitted by a group of Portuguese children). In such situations, human rights instruments and tribunals naturally emerge as a last resort for claimants who have been unsuccessful before domestic courts. This function as a last resort is in fact one which the ECtHR itself has come to develop over the years. In particular, the Court’s case law on environmental risks stands out as a good example of the Court providing an outlet for claimants who have received little support from their domestic governments in their attempt to protect themselves from environmental harm. There is no need to cover this case law in detail here, but the doctrine includes the now well-established rule that governments are under a positive obligation to facilitate regulatory and administrative regimes, governing the licensing, start-up, operation, and control of hazardous activities, and that these regimes must include appropriate provisions allowing for public participation in order to assess the risks.3 Importantly, these obligations apply to risks arising from natural disasters and severe weather events.4

Moreover, the ECtHR’s case law on environmental risks has been relied upon by domestic courts when hearing complaints that national climate change responses are inadequate (although claimants have not always been able to persuade domestic courts that the Convention adds much legal weight in this context). In addition, considering the Court’s doctrine of interpreting the Convention in light of present-day conditions, it is not surprising that the Court is called upon to examine the scope of the Convention against the risks posed by the most pressing collective action problem facing the people of Europe.5 In short, there are good reasons why the ECtHR finds itself facing climate change claims. Similar considerations were at play in October 2021, when the Council of Europe’s Parliamentary Assembly discussed once again the possibility of adopting an additional protocol to the Convention, providing expressly for a right to environment.6

However, just because there are good reasons to explain the Court being called upon to adjudicate on climate change risks, it does not follow that the Court is necessarily the best, let alone a useful, place to present climate change claims.7 Leaving aside the hurdles that claimants face with respect to establishing victim status8 and the need to exhaust domestic remedies under the Convention (both of which may prove a problem for the claimants in the Portuguese case),9 there are real questions as to whether the Court’s case law is able to provide the substantive relief sought by claimants.

The first potential limitation arises from the fact that the Court is an international tribunal, overseeing the compliance of contracting state parties with the Convention rather than providing an in abstracto examination of the effectiveness of domestic legal regimes. Only to the extent an alleged violation crosses the de minimis threshold of risk does the Convention become relevant. That is, a minimum level of interference and exposure to risk is necessarily part of everyday life. Against this, applicants in climate change claims can, with authority, point to the fact that climate change poses real existential risks. However, in several environmental cases, the ECtHR has ruled that it is not for the Court to second guess states’ policy choices and regulatory decisions in the ‘difficult social and technical sphere’ of environmental law.10 In other words, when it comes to striking a balance between competing socioeconomic interests and when dealing with complex environmental problems, the Court’s function is subsidiary. This necessarily entails a high degree of deference to the responding state when it comes to the precise content of the regulatory controls.

Related to this is the fact that in the cases in which the Court has found a state to be in violation of the Convention as a result of its failure to protect individuals from environmental risks, the Court has gone on to identify the main obligation of the state as being one of due diligence.11 The central obligation to emerge from the ECtHR’s environmental case law is, as noted above, the obligation to put in place regulatory and administrative regimes, providing for meaningful public participation and the access to independent mechanisms of oversight. Necessarily, this due diligence obligation also entails a significant degree of discretion for states with respect to the precise means employed to fulfil that obligation. In other words, the obligations emerging from the echr in the context of environmental risks provide no substantive targets, objectives, or emission-type standards, as is commonly the case in environmental and climate change law. Expecting the Court to move into this territory would require a significant expansion of its doctrine.

Taken together, in the context of climate change, responding states that can point to extensive domestic climate change regimes in the form of legislative developments and regulatory initiatives (in the form of domestic climate acts, emission trading systems, flood mitigation measures etc.) may be able to discharge their due diligence obligations. Against this, claimants are, however, likely to argue that they are not seeking the Court’s endorsement of specific regulatory methods as a means of dealing with climate change. Rather, they are simply pointing out that the responding states are not doing enough and that this failure constitutes a violation of their fundamental rights.

The appraisal of the potential of the echr as a climate change forum put forward here is not to be understood as suggesting that there are no advantages emerging from the claims presently pending before the Court. There may of course be significant rhetorical and policy advantages arising from being able to frame climate change problems in the terminology of human rights. Even if states have shown significant reluctance towards including substantive human rights obligations in the international climate change regime,12 it cannot be ruled out that the use of human rights serve a useful purpose in highlighting the human plight of climate change faced, in particular, by vulnerable groups.13

There is, moreover, one potential significant advantage arising from putting climate change claims before the ECtHR. Real significance is arguably derived from the fact that the Court’s case law operates as a floor upon which domestic courts can build a more detailed and robust case law. This is precisely the approach taken in the Urgenda decision, where the Dutch Supreme Court relied extensively on the case law of the ECtHR when finding that the lack of ambition in the climate change plan of the Dutch government constituted a violation of Articles 2 and 8 echr.14 Even if it is too early to assess whether the revised climate change plan of the Dutch government will prove sufficient, and even though the Dutch legal system provides a unique context in which to bring claims founded on international law, there is little to fault in the Supreme Court’s interpretation of the ECtHR’s case law and its application to climate change.

Importantly, the Dutch Supreme Court uses the ECtHR’s case law as a launch pad for countering some of the limitations that claimants are likely to face when bringing climate change claims before the ECtHR itself. Most notably, this arises from the limitations inherent in the margin of appreciation and the scope of review applied by the ECtHR as an international court. The margin of appreciation poses real limitations on the extent to which the Court is willing to find in favour of claimants pursuing environmental claims. The case of Urgenda, however, illustrates how domestic courts may not be restricted by a similar degree of deference (although the level of deference will of course vary from jurisdiction to jurisdiction).15 Similarly, relying on the ECtHR’s case law before domestic tribunals is likely to make it easier to overcome any challenges around the issue of attribution and extraterritorial application of the due diligence obligations emerging from the Court’s case law.16 On this reading, one potentially significant outcome of the climate change claims before the ECtHR, even if the ECtHR itself might not be an ideal forum in which to advance these claims, is the authoritative guidance and clarificatory interpretation provided by the Court. This guidance has the potential to spur case law developments in the domestic jurisdictions of the contracting parties where courts are more likely to scrutinise domestic policy choices (and the lack thereof).

Climate change poses numerous challenges for courts, including international human rights tribunals like the ECtHR.17 Even where, as in the case of the ECtHR, human rights courts have developed a rich case law relating to environmental risks, expanding this law to the collective action problem of climate change is not straightforward. The relevance of the ECtHR’s environmental case law to the problem of climate change is, however, clear, and it is not surprising that the Court, which has played an instrumental role in developing environmental rights jurisprudence in general, finally finds itself having to deal with climate change. Of course, this does not mean that the claims currently before the Court do not present the Court with important challenges. They will likely force the Court to reconsider important aspects of its case law. This is because the Court’s case law with respect to environmental risks, as it has developed to date, poses significant limitations in the context of climate change. The Court will, therefore, have to give careful consideration as to precisely how to fit the problem of climate change in with its existing doctrine. This does not mean, however, that the climate change cases before the Court are without merit or that there is no role to play for the ECtHR when it comes to climate change. There is scope for the Court to play an important role in guiding domestic law and legal responses, although this impact will likely manifest itself over time and not immediately. Unfortunately, however, time is not a resource of which we have an infinite supply.

1

Duarte Agostinho and Others v Portugal and 32 Other States 39371/20 (ECtHR); Verein Klimaseniorinnen Schweiz and Others v Switzerland 53600/20 (ECtHR); a case brought against Austria on 25 March 2021 (see, <https://www.michaelakroemer.com/wp-content/uploads/2021/04/austrian_climate_lawsuite_ecthr_excerpt.pdf>); and the so-called ‘The People v Arctic Oil’ claim brought against Norway on 15 June 2021 (uncommunicated) (see, J Henley, ‘Climate Activists Take Norway to Human Rights Court Over Arctic Oil Plans’ (The Guardian, 16 June 2021): <https://www.theguardian.com/world/2021/jun/16/climate-activists-take-norway-european-human-rights-court-arctic-oil-drilling-plans>).

2

See, unga, ‘Safe Climate: A Report of the Special Rapporteur on the Issue of Human Rights and the Environment’ (1 October 2019) A/74/161.

3

Tătar v Romania 67021/01 (ECtHR, 27 January 2009).

4

Compare, Budayeva and Others v Russia 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02 (ECtHR, 20 March 2008), concerning mudslides, and Kolyadenko and Others v Russia 17423/05, 20534/05, 20678/05, 23263/05, 24283/05 and 35673/05 (ECtHR, 28 February 2012), relating to flash flooding.

5

Tyrer v the United Kingdom (ECtHR, 25 April 1978).

6

Parliamentary Assembly of the Council of Europe, ‘Anchoring the Right to a Healthy Environment: Need for Enhanced Action by the Council of Europe’ (29 September 2021) Resolution 2396.

7

See, for a general discussion, B. Mayer, ‘Climate Change Mitigation as an Obligation Under Human Rights Treaties?’ (2021) 115 American Journal of International Law 409, arguing for a limited utility of human rights claims and N. Pain, ‘Human Rights Law Can Drive Climate Change Mitigation’, in Debating Climate Law, B. Mayer and A. Zahar (eds), (Cambridge University Press 2021). In contrast, see, F. Thornton, ‘The Absurdity of Relying on Human Rights Law to Go After Emitters’, in Debating Climate Law, B. Mayer and A. Zahar (eds), (Cambridge University Press 2021).

8

Article 33 echr.

9

Article 34 echr. Whilst the failure to exhaust domestic remedies may prevent claimants from obtaining a substantive relief, it does not follow of course that the Court cannot provide interpretive guidance. See, for example, the decision by the UN Committee on the Rights of the Child, ‘Decision Adopted by the Committee on the Rights of the Child on a Communications Procedure in Respect of Communication No. 104/2019’ (8 October 2021) crc/c/88/d/104/2019.

10

Hatton and Others v the United Kingdom [gc] 36022/97 (ECtHR, 8 July 2003).

11

See, for example, Kolyadenko and Others v Russia (n 4).

12

L. Rajamani, ‘Human Rights in the Climate Change Regime’, in The Human Rights to a Healthy Environment, J. Knox and R. Pejan (eds), (Cambridge University Press 2018).

13

A. Sinden, ‘Climate Change and Human Rights’ (2007) 27(2) Journal of Land, Resources, & Environmental Law 255 and S. Trully, ‘Like Oil and Water: A Sceptical Appraisal of Climate Change and Human Rights’ (2009) 15 Australian International Law Journal 213. See also, the complaint before the UN Committee on the Rights of the Child (n 9).

14

The State of the Netherlands v Stichting Urgenda, Supreme Court of the Netherlands, 20 December 2019 (19/00135): <https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:HR:2019:2007>.

15

O. W. Pedersen, ‘The Networks of Human Rights and Climate Change’ (2020) 22(3) Environmental Law Review 227.

16

On the extraterritorial application of environmental rights, see, The Environment and Human Rights (State Obligations in Relation to the Environment in the Context of the Protection and Guarantee of the Right to Life and to Personal Integrity: Interpretation and Scope of Articles 4(1) and 5(1) in Relation to Articles 1(1) and 2 of the American Convention on Human Rights), Advisory Opinion oc-23/17, Inter-American Court of Human Rights Series A No 23 (15 November 2017).

17

E. Fisher and others, ‘The Legally Disruptive Nature of Climate Change’ (2017) 80(2) Modern Law Review 173.

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