Portuguese climate change claim in Strasbourg

18 September 2020 by David Hart KC

For a while, 6 Portuguese citizens, between the ages of 8 and 21, have been on the brink of starting proceedings in the European Court of Human Rights. Now it has happened. On 3 September 2020, they sent their claim to the ECtHR. They have been helped in its preparation by the Global Legal Network, which has helpfully put up here a summary as well as the salient parts of the documents sent to the Court.

The claim is against 33 Council of Europe countries (all the EU 27, plus the UK, Switzerland, Norway, Russia, Turkey and Ukraine) for failing to take sufficient steps to address climate change. The failures alleged include permitting emissions domestically, permitting the export of fossil fuels extracted from their territories, permitting the import of goods containing embedded carbon, and allowing entities domiciled in those countries to contribute to emissions abroad (via fossil fuel extraction elsewhere or its financing).

The applicants rely on current and future impacts of climate change on Portugal, including increases in mean and extreme high temperatures, with consequent increased death rates attributable to heat stress and respiratory disease. And the forest fires shown in the pic.

It is no surprise that the primary Convention breaches alleged are the Art.2 right to life and the Art.8 right to home and a healthy environment. A more interesting one is a claim under Art.14, when read with these Articles, namely discrimination on the grounds of “other status”, in this case, age. The applicants say that the interferences with their rights are all the greater than with older people, because they will live longer and the impacts of climate change will worsen over time. They rely on various breaches of international law as bolstering these claims (in particular, the principle of intergenerational equity as embedded in the 1992 Rio Declaration, and all respondent states’ obligations – bar the one non-member Turkey – under the 2015 Paris Agreement to limit global warming. The claim also exhibits an interesting experts’ reports setting out the predicted impacts on Portugal depending on the extent of temperature rise between now and 2100.

The fair share problem

Before we get to the inevitable challenges to admissibility which will be made by respondent states, have a think about a problem embedded in the Paris Agreement, hugely important though that Agreement may be in steering policy. State parties are obliged to submit and adhere to “nationally determined contributions”, which are to become more onerous as time goes on. But the problem is in the title: they are determined by the state, not by the Agreement. Nor are there set (fair share) rules that a state must adjust its ongoing emissions in the light of its historic emissions, its capacity to mitigate them, or indeed its current per capita emissions. There are exhortations/obligations to reflect the parties’ “highest possible ambition” and on developed countries to take the lead in setting targets, but there are no top-down binding targets on state parties. Also stir into the mix the fact that not every emission is unlawful; the worldwide target of 1.5C allows for some emissions – but whose? The applicants grapple with these difficulties at [29] of the Annex to their application: any ambiguity in the meaning of the Paris Agreement, and the concept of fair share, should be resolved in favour of the applicants. Burden-sharing is for states, not citizens, to work out. That said, the applicants invite the ECtHR to rely on an assessment carried out by Climate Action Tracker, which takes a view on the fairness of individual states’ mitigation measures by reference to the 1.5C target [31].

Admissibility

But, as I have said, there are considerable hurdles to clear before the substance of the case can be heard by the Strasbourg Court. The most pressing are (i) jurisdiction against states other than Portugal under Art.1 (ii) victim status under Art.34, and (iii) the obligation to exhaust local (i.e. Portuguese) remedies under Art.35.

Jurisdiction

Jurisdiction is dealt with at [14]ff of the Annex. The claim is that the applicants are within the extra-territorial jurisdiction of the other 32 states. They rely on the principle that acts performed within national boundaries which have external effects may give rise to jurisdiction in some instances. They cite a cluster of instances (where the extra-territorial effect is a direct consequence of a law operated by the state or an international obligation, where those effects were foreseeable, where the effects were felt both within and without that state, where the effects relate to resources under the control of the state, and where the protection of an interest required the intervention of more than one state). An example of a number of these questions arose in Ranstev, where Russia was held to owe obligations to prevent human trafficking both within and outside its territory. It will be seen that the obligation to mitigate climate change is, arguably at least within these various principles; hence the claim that there is “special justification” for the Court to recognise that the applicants are within the jurisdiction of all 33 states, not just Portugal: [22].

Victimhood

It may be thought that the applicants are obviously “victims” within Art.34 on the basis of the evidence filed. But Strasbourg case law requires that the applicants must be directly affected by a violation, which in turn requires that there is “reasonable and convincing evidence” of personal impact, rather than “mere suspicion or conjecture”: see the case law cited at [7] of the Annex. This is more complex because of the role of 33 separate states, all with their differing contributions to the problem. The applicants say there is no “but for” test of causation in the case law; each state is responsible : “The commission by multiple international persons of one or more internationally wrongful acts that contribute to an indivisible injury entails shared responsibility” : [9].

Presumption of inadequacy of mitigation measures

This argument (at [26] ff) is closely related to the victimhood one. It is a variant of a reversed burden of proof. It is argued that it is for the states in question to provide a satisfactory and convincing explanation that their contributions to the risk of harm are not excessive: [28].

Exhaustion of local remedies

The applicants have not brought proceedings in Portugal, nor indeed in any of the other respondent states.

Their arguments on Art.35 are to be found on p.10 of the application form as supplemented at [35]ff in the Annex. The key point is that the urgency of climate action prevents in practice the pursuit of an adequate remedy in each and every states’ domestic courts. The underlying principle is that going to Strasbourg should be a supervisory last report, because domestic authorities should themselves seek to enforce human rights. There is no hard and fast rule about this. The alternative domestic remedies must be real and practical, and effective. The applicants say that there simply is not the time to go through all 33 court systems and obtain an adequate remedy from them. It may be thought that a ruling by the ECtHR that each member state is presumptively responsible for climate change will assist resolution of climate change issues, via litigation if necessary, in individual member states.

They also rely on the lack of means of the applicants and their families when faced with the task of suing in 33 different countries.

Conclusion

This is evidently a challenging claim to win. States will say this is really all about politics, not law, given the nature of the obligations in issue. But who would have thought back in 2013 that a Dutch NGO, Urgenda, would succeed in persuading the Dutch Supreme Court in 2019 (full summary here, me on the Court of Appeal here) that the Dutch emissions targets set were unlawfully low, given its obligations under Arts 2 and 8?