Portuguese climate change claim in Strasbourg

18 September 2020 by

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?

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality prosecutions Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: