By Stephanie Collins[1] and Alexa Romanelli[2]
Climate change litigation has a new frontier: proceedings before international courts that are grounded in human rights violations. This blog post focuses on three cases pending before the European Court of Human Rights (“ECtHR” or “the Court”), the rulings of which are expected on 9 April 2024: (i) KlimaSeniorinnen and ors. v Switzerland (Application no. 53600/20), (ii) Carême v. France (Application no. 7189/21), and (iii) Duarte Agostinho and Others v. Portugal and 32 Others (Application no. 39371/20) (also known as the “Portuguese Youth Climate Case”). We provide an overview of the challenging issues at play, and the ramifications that decisions in the applicants’ favour could have, including in the field of investment arbitration.
Climate Change: A Human Rights Issue
In the past decade, climate change has increasingly been framed as a human rights issue. A turning point was the 2015 Paris Agreement, which, in its recitals, acknowledges the interdependence of human rights and climate change (“Acknowledging that climate change is a common concern of humankind, Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights…”). On 26 July 2022, the United Nations General Assembly (“UNGA”) passed a resolution recognising a human right to a clean, healthy and sustainable environment. Various other developments on the international law plane have also focused the discussion of climate change in this way.
Meanwhile, presenting climate change as a rights-based issue has been a strategy deployed by claimants litigating before national courts (for example in Urgenda Foundation v. State of the Netherlands and, more recently, VZW Klimaatzaak v. Kingdom of Belgium & Others, where the claimants rely in part on the European Convention on Human Rights (“Convention”) as well as soft law human rights instruments), regional courts (for example, Chile and Columbia’s January 2023 request to the Inter-American Court of Human Rights on the scope of State obligations for responding to the climate emergency), and international courts (for example, the UNGA’s April 2023 request that the International Court of Justice render an advisory opinion on the obligations of States to ensure protection of the climate system from greenhouse gas emissions—which includes reference to “the rights recognized in the Universal Declaration of Human Rights”).
Cases before the ECtHR
Three of the most important cases in this space are currently being deliberated by the Grand Chamber of the ECtHR: (i) KlimaSeniorinnen and ors. v. Switzerland, (ii) Carême v. France, and (iii) the Portuguese Youth Climate Case. In all three of these cases, the applicants have presented similar legal arguments; in essence, that the respondent States have violated their rights under the Convention by failing to take sufficient action on climate change. In particular—and even though the Convention does not enshrine any right to a healthy environment as such—the ECtHR has been called upon to develop its case-law on account of the fact that Article 2 (right to life) and Article 8 (respect for home, family life, private life) may be undermined by the existence of harm to the environment and exposure to environmental risks. Part of the question for the ECtHR is whether these provisions can be read to impose a positive obligation on the respondent States in relation to climate change mitigation.
The ECtHR’s Jurisdiction and Admissibility
The ECtHR has jurisdiction to decide complaints submitted by any person, group of individuals, company or NGO having a complaint about a violation of their rights set out in the Convention. States may also bring inter-State applications. The Convention, which entered into force in 1953, has been incorporated into the legislation of the High Contracting Parties, which have undertaken to protect the rights defined therein.
To bring a claim before the ECtHR, pursuant to Article 34 of the Convention, an applicant must be personally and directly a victim of a violation and must have suffered a significant disadvantage—often referred to as “victim status”. According to the ECtHR’s well-established case-law, this involves demonstrating the necessary condition of causation.
In each of the three climate cases, the ECtHR must be satisfied that it has jurisdiction to hear the claims of the groups of applicants, and that those claims are admissible.
KlimaSeniorinnen and ors. v Switzerland
The first of the three climate cases before the ECtHR, KlimaSeniorinnen, was heard before the Grand Chamber on 29 March 2023.
In KlimaSeniorinnen, the applicants include an association of more than 1,800 senior women, who claim they are significantly at risk due to climate change-induced heatwaves in the past, currently and in the future. Other applicants, including four women between the ages of 78 and 89 years, claim they have already suffered and continue to suffer from heat-related illnesses because of the warming planet.
They argue that Switzerland has “failed to set climate targets [i.e. greenhouse gas emissions reduction targets] that are in line with international climate law and the best available science”. Further, they argue that Switzerland’s 2020-2030 climate targets fail to meet the “outdated” 2°C increase in temperature limit, and that these “fail to meet the Paris 1.5°C limit all the more”. As such, the applicants argue that Switzerland has violated (inter alia) Article 2 and Article 8 of the Convention, read widely and purposively in light of the right to a safe, clean and healthy environment—which (as mentioned) is not a right enshrined in the Convention itself. According to the applicants:
“Art. 2 and 8 ECHR overlap in environmental matters and impose a positive obligation on Respondent to put in place a legislative and administrative framework to provide effective protection against threats to the right to life and to the right to family and private life, respectively.”
The applicants hence requested that the ECtHR order Switzerland to “adopt the necessary legislative and administrative framework to protect their rights, which is to do its share to prevent a global temperature increase of more than 1.5°C above pre-industrial levels”. This included “set[ting] a time-limit which is adequate in view of the Applicant’s requests to the Court . . . for the Respondent to implement such a framework.”
During the Q&A part of the KlimaSeniorinnen hearing—when each Grand Chamber judge has the opportunity to pose questions to the parties—it was apparent that the judges were interested in the establishment of “victim status”. On this issue, the Swiss government emphasised that the applicants cannot establish a causative link between the greenhouse gases emitted by Switzerland and their health conditions. Gauging from the questions posed by the judges, it seemed that the ECtHR may be open to the possibility of interpreting the victim status test in a way that does account for the particularities of climate change. In particular, Judge Bosnjak noted that Switzerland’s argument that emissions stemming from a particular State are a “drop in the ocean” simply “does not fly”. Similarly, the President of the Court, Judge O’Leary, explained that the term “victim” must be interpreted in an “evolutive manner”.
Another challenging question for the ECtHR is whether it can grant the relief sought by the applicants—the imposition of substantive targets on Switzerland to reduce greenhouse gas emissions in line with the Paris Agreement. It is clear from the Q&A that the Grand Chamber is acutely aware of the technical and scientific expertise required to do so, and of potentially infringing on High Contracting Parties’ ability to develop their own economic and social policies.
Carême v. France
The second case, Carême, was heard by the Grand Chamber on the same day as KlimaSeniorinnen. Carême concerns a complaint by a resident and former mayor of the municipality of Grande-Synthe, an area of France considered at very high risk of exposure to climate risks. The applicant submits that France has taken insufficient steps to prevent climate change and that this failure entails a violation of Article 2 and Article 8.
Specifically, the applicant argues that Article 2 imposes an obligation on States to take measures necessary to protect the lives of persons under their jurisdiction, including in relation to environmental hazards that might cause harm to life. Under Article 8, the applicant argues that the prior dismissal of his action by France’s Conseil d’État (on the basis that he had no interest in bringing proceedings), disregarded his right to a normal private and family life. In the applicant’s view, he is directly affected by France’s failure to take sufficient steps to address climate change, since this failure increases the risk that his home might be affected in the years to come, and in any event by 2030.
The Portuguese Youth Climate Case
The third case, the Portuguese Youth Climate Case, was heard by the Grand Chamber on 27 September 2023. In that case, the applicants are six Portuguese youths between 8 and 21 years old. The applicants claim that forest fires (which have occurred annually in Portugal since 2017) are a direct result of climate change and have negatively affected their health, such as by causing respiratory problems. They argue that Portugal—as well as over 30 other Council of Europe States including all EU Member States, the UK, Norway, Switzerland, Turkey and Russia[3]—failed to comply with their positive obligations pursuant to Articles 2 and 8 of the Convention, read in the light of the commitments made within the context of the Paris Agreement. The applicants have requested that the ECtHR:
“charge the signatory States with the obligation of adopting measures to regulate their contributions to climate change in an appropriate way: a) by decreasing the emissions on their territory and on the other territories over which they have jurisdiction; b) by prohibiting the export of fossil fuels; c) by compensating for their emissions arising from the import of goods; and d) by limiting the release of emissions abroad.”
This case poses additional challenges to the KlimaSeniorinnen and Carême cases.
First, the applicants (who reside in Portugal) have brought their cases against a number of other Council of Europe Member States. This raises complex issues related to the ECtHR’s extra-territorial jurisdiction. For the ECtHR to find jurisdiction over the claims relating to all (or even some) of the 33 respondent States would require a significant expansion of the reach of the existing exceptions to the territorial principle of jurisdiction.
Second, the applicants have not made any attempt to exhaust domestic remedies, as required by Article 35(1) of the Convention. It seemed clear from the Q&A part of the hearing in this case that a number of the ECtHR judges considered that there may be avenues open to the applicants before the Portuguese courts. It is also notable that the ECtHR may defer to existing remedies under EU law in respect of other complex questions that are involved in this case. As such, the Portuguese Youth Climate case, although arguably the most well-known of the three, has the lowest prospects of succeeding on jurisdiction and admissibility.
What are the potential consequences of these cases on High Contracting Parties?
As a matter of international law, judgments of the ECtHR finding violations of the Convention are binding on the respondent States, who are obliged to execute them, including by making legislative changes, if necessary. Should the ECtHR find a Convention violation in any of the three Grand Chamber cases, this could have wide ramifications on the High Contracting Parties to the Convention—some of which are highlighted below.
First, a finding in favour of the applicants in any of these cases could see a significant expansion of the Court’s jurisdiction as well as how “victim status” may be satisfied.
Second, the cases may also lead to the development of something close to a recognised right to a clean, healthy and sustainable environment (through the prism of Articles 2 and 8). This could impose positive obligations on the States concerned to make changes to their domestic legislation—including incorporating Paris Agreement targets, such as reducing greenhouse gas emissions to prevent a temperature increase above 1.5°C. In other words, the cases may lead to significant legislative activity at the national level in terms of States’ ensuring that they meet ambitious greenhouse gas emission reduction targets.
Third, a finding of a Convention violation in these cases could lead to a limitation of the margin of appreciation traditionally afforded by the ECtHR in areas of significant policy making (such as the environment and health), which will have implications for future litigation before the ECtHR.
Fourth, States may also be prompted to make substantive changes to the parameters of their national tort and environmental laws—for example, the incorporation of more flexible causation rules and further codification of environmental law principles (such as the no harm principle, the precautionary principle, the principle of prevention, the polluter pays principle and principle of intergenerational equity).
A positive outcome could also directly impact private actors—perhaps even effecting the imposition of legislation imposing specific greenhouse reduction targets on such actors, in particularly high emitting sectors such as the energy sector. We could also see, as an indirect effect, the enhancement of director liability for failure to engage with climate change risk in their value chains. It perhaps goes without saying that any rulings in the applicants’ favour will also galvanise strategic climate litigation against private actors as is already afoot in various European jurisdictions (for example, the Milieudefensie v. Royal Dutch Shell case in the Netherlands).
We could also see an impact on investor-State arbitration. That is, if States instigate measures in order to meet ambitious emissions reductions targets, these measures could give rise to claims by foreign investors under investment treaties, where those measures might be considered a breach of the States’ international law obligations. An example might be a State implementing legislation that phases out or severely restricts a particular fossil fuel, and which measure is imposed in a discriminatory or arbitrary fashion, or which constitutes an indirect expropriation of a particular asset without prompt, adequate and effective compensation. In that context, however, one could expect High Contracting Parties to use any positive obligations imposed by the ECtHR as a defence to such claims.
How the ECtHR will decide the climate cases remains unclear, but what is clear is that whatever the outcome, it will be significant for disputes in the climate change space.
Stephanie Collins is an English law qualified solicitor advocate and Senior Associate in the London office of Gibson, Dunn & Crutcher. She is a member of the firm’s International Arbitration Group, and also advises on matters of PIL and business and human rights, including climate change related litigation. ↑
Alexa Romanelli is a Senior Associate in the London office of Gibson, Dunn & Crutcher. Alexa represents clients in both commercial and investment treaty arbitrations. She also advises clients on matters of PIL, and on business and human rights matters such as emerging ESG legislation and regulatory requirements, and ESG-related disputes. ↑
Russia was excluded from the Council of Europe in March 2022. ↑