Ongoing Climate Litigation in the ECHR

By: Bea Meyer

Introduction

The European Court of Human Rights (ECHR) recently conducted a hearing for an ongoing climate litigation case that may have significant impact around the world. The case was brought by six Portuguese youths against the 33 member states of the Council of Europe, and accuses the governments of failing to protect against the increasing impacts of climate change. Complainants assert that this failure to address human-caused climate change has violated their fundamental rights as guaranteed under the European Convention on Human Rights (“the Convention”). Respondents have challenged the admissibility of the case, as well as the Complainants’ status as victims of climate change. This case is significant because it is the first case of its kind to be filed with the ECHR.

Overview of the Case

The complaint was filed in September 2020. Complainants ground their argument in Articles 2, 8, and 14 of the European Convention on Human Rights (the Convention). These articles enshrine the right to life, right to privacy, and the right to not experience discrimination. Complainants assert that climate change infringes upon their right to life through its dangerous environmental effects, as well as their right to privacy in the form of their physical and mental wellbeing. Additionally, Complainants allege that as young people, they will be significantly more impacted by climate change than older generations, which violates their right to be free from discrimination.

In November 2020, the ECHR fast-tracked and communicated the case to the 33 defendants. The Court required Defendants to respond by February 2021. This marks a departure from how the Court typically handles cases, as only a very small percentage of cases are ever fast-tracked and communicated.

In June 2022, the Grand Chamber was given jurisdiction over the case because it raises serious interpretive questions about the Convention. This means that the case will be considered by all 17 judges of the Grand Chamber, rather than being considered by one of the smaller chambers within the ECHR.

Primary Issues of the Case

Complainants have a significant hurdle to overcome to meet the admissibility criteria of the ECHR. The ECHR requires complainants to exhaust domestic remedies before coming before the ECHR, as well as requiring that victims be directly affected by an alleged violation of the Convention.

Typically, Complainants must exhaust all domestic remedies before bringing a case before the ECHR. However, there can be exceptions to this rule when the Court finds appropriate reasoning to allow for it. Complainants in this case assert that it is not practically feasible for them to exhaust domestic remedies across all 33 countries, so the ECHR is the most appropriate forum. Additionally, Complainants assert that the issue of climate change requires urgent action, and domestic courts in Europe have failed to provide adequate remedies to this point. Complainants are requesting the Court to declare that Respondents have breached the Convention by failing to adequately address climate change, but they are not requesting that the Court order Respondents to reduce their emissions by a specific amount. This request for relief is supported by the principle of subsidiarity because it gives the Court the discretion to interpret the Convention, but still leaves the power to draft specific policy to the Respondents. This sort of ruling would likely push domestic courts to issue their own rulings to specify how states will mitigate climate change. This highlights the importance of the relationship between domestic and international courts in addressing the threat of climate change, and this case could set an important precedent in how these systems interact in this context.

Article 34 of the Convention requires that victims be directly affected by a violation in order to be admissible before the Court. However, Complainants assert that this requirement is not rigid, and that potential victimhood can be sufficient if there is reasonable and convincing evidence that a violation will occur. The Court’s ruling on this issue will have a significant impact on future litigants’ ability to pursue climate cases alleging future injuries caused by climate change.

Respondents assert that their individual contributions to climate change are not significant enough to prove that their actions caused Complainants’ injuries. However, Complainants assert that Respondents are collectively responsible for the impacts of climate change through their territorial emissions, export of fossil fuels, and participation in the international extraction and financing of fossil fuels. Complainants also argue that each Respondent state should be presumed to be responsible for the harm of climate change through their individual contributions, and that the burden should rest with the Respondents to rebut this presumption and prove they are not responsible.

 The principle of subsidiarity and the margin of appreciation doctrine will also be extremely relevant to this case. In the context of the ECHR, the principle of subsidiarity asserts that member states should be given some discretion in the interpretation and implementation of international law. However, this discretion is subject to a margin of appreciation. This doctrine asserts that international courts should defer to member states’ judgments, but only insofar as they do not infringe upon their international legal obligations.

These concepts are relevant in this case because the Court’s application of them will determine what action it can take. Respondents assert that the Court cannot order them to take any specific action on climate change, because they already have climate policies in place that should be respected under the margin of appreciation. However, Complainants assert that the margin of appreciation should not cover these policies, because they are insufficient to meet states’ international legal obligations. States’ individual policies have not mitigated climate change, and are not sufficient to meet their obligations under the Paris Agreement. Therefore, Complainants argue that the margin of appreciation should be limited to states’ choice of means to mitigate climate change, and the Court should find that Respondents are violating the Convention despite their existing policies.

Understanding this Case in a Global Context

This case may be the first of its kind, but it is unlikely to be the last. Other climate-related cases have been filed across Europe in the wake of this case. One notable case is brought by a group of Swiss retirees against the Swiss government, claiming that the State has failed to take sufficient steps to mitigate climate change. This case stands in contrast to the Portuguese youth case because the complaint addresses only a single government’s actions, and the complainants here have already exhausted domestic remedies in Switzerland. A ruling in this case is expected sometime in 2024, and the complainants hope for a ruling that will apply to all signatories of the Convention.

This case also stands in contrast to recent US climate litigation cases. Plaintiffs in Held v. Montana asserted many similar claims to the complainants here, but took a notably different approach. The ruling in Held hinged on a unique provision in the Montana state constitution and two specific Montana state laws. Plaintiffs were successful in that case, although the applicability of the case is narrow. The case at issue here takes a much broader approach by going before an international court and addressing the actions of 33 different states. This case will likely face far more significant hurdles because of its broader scope, but it also has the potential to have a much broader impact if successful.

Conclusion

This case marks an important step in the progress of global climate litigation. Complainants face significant hurdles in bringing the case to trial, but this case has the potential to reshape how international environmental law is approached in Europe and beyond. Similar cases will continue to be brought around the world, and this case will act as vital precedent in our global fight against climate change.