Substantively orthodox: three takeaways from the ECHR climate change decisions

19 April 2024 by Guest Contributor

By Professor Stefan Theil

Introduction

On 9 April 2024 the Grand Chamber of the European Court of Human Rights (ECtHR) handed down its decision in three climate change cases: Carême v France, Duarte Agostinho v Portugal and 32 others, and Verein Klimaseniorinnen v Switzerland. Prompted in part by the dissenting opinion of the UK nominated Judge Eicke, Klimaseniorinnen has received a mixed reception. Critics deride it as a textbook example of judicial overreach, while supporters describe it as an innovative, ground-breaking decision.

I argue that both perspectives are misleading in some important respects. While there were some genuine innovations on standing, particularly for associations (which have been covered by others already), the decision on the substance of the Convention rights is far from a doctrinal revolution. Klimaseniorinnen is best understood as an extension of three well-established principles from ECHR environmental cases: (1) the crucial importance of procedural requirements, particularly the exhaustion of domestic remedies, (2) the application of Articles 2 and 8 ECHR requiring regulation and enforcement, including with respect to risks that have not (yet) materialised, and (3) the preference for Article 8 ECHR over the lex specialis in Article 2 ECHR.

Overall, the margin of appreciation looms large in the Klimaseniorinnen and ultimately, the ECHR remains on the outer margins of climate change policy: unless states do not have any greenhouse gas reduction targets, or choose not to enforce them, they are unlikely to exceed the margin of appreciation. Notably, the judgment does not require any particular reduction targets or mitigation measures ([547]), nor does it enforce the Paris Agreement via the Convention ([543]).

Procedural requirements

A crucial takeaway from the climate change decisions is the importance of procedural hurdles. Both Carême and Duarte Agostinho failed with their applications on procedural grounds, most notably in the latter case due to a failure to exhaust domestic remedies.

The application in Carême was brought by the (then) mayor of the French coastal town of Grande Synthe in the Nord-Pas de Calais region of France, both in his official capacity as well as in a personal capacity. The case was dismissed because as mayor he was a representative of the French state and had moved to Brussels upon being elected to the European Parliament.

The application in Duarte Agostinho was brought by six Portuguese youngsters against Portugal and 32 other Contracting States. The case was dismissed for two connected reasons: the ECHR declined to apply its case law on extraterritoriality in the context of climate change, and the applicants had not exhausted domestic remedies in Portugal.

In that sense, the decision follows Communications adopted by the Committee on the Rights of the Child in 2021, where the Committee dismissed the cases for failure to exhaust domestic remedies. Like the ECHR, it rejected the suggestion that domestic remedies would be unreasonably prolonged and unlikely to bring effective relief.

Limited positive obligations

The case of Klimaseniorinnen was more successful: it was brought by senior citizens to challenge shortcomings in Swiss climate change policy and implementation. They had gone through the trouble of exhausting domestic remedies and the ECtHR was therefore able to give a decision on merits.

It found that states were under a positive obligation under Article 8 ECHR to provide effective protection from ‘serious adverse effects of climate change on their life, health, well-being and quality of life’ ([519]). They must adopt and enforce regulations that are capable of mitigating current and future impacts of climate change, specifically by having a plausible plan for the reduction of greenhouse gas emissions and in principle achieving carbon neutrality over the next three decades ([548]).  

These positive obligations come with a considerable margin of appreciation, especially with respect to how any reduction in greenhouse gas emissions is accomplished. The limited requirements are only exceeded if states decide not to have any greenhouse gas reduction targets, or choose not to enforce them. Compliance is assessed wholistically on the basis of five criteria (with no individual criterion being decisive) ([551]): (1) specification of a timeline for carbon neutrality and the overall carbon budget of the state, (2) providing intermediate emission reduction targets and pathways, (3) evidencing state compliance with (or efforts towards achieving) the reduction targets, (4) updating the targets in line with the best available evidence, and (5) acting in good time and taking appropriate and consistent action in devising and implementing regulations and enforcement actions ([550]). In Klimaseniorinnen, Switzerland did not quantify a carbon budget, failed to set limits on greenhouse gas emissions, and exceeded its previous greenhouse gas emission reduction targets thus resulting in a violation ([573]).

That might appear as something of a sea change, a position notably taken by Judge Eicke in his dissenting opinion. He suggests that the Court has ([4]):

created a new right (under Article 8 and, possibly, Article 2) to “effective protection by the State authorities from serious adverse effects on their life, health, well-being and quality of life arising from the harmful effects and risks caused by climate change (…)

This, he suggests, has no basis in the Convention and presents an illegitimate use of the living instrument interpretative approach. Judge Eicke may well disagree with this interpretation of Articles 2 and 8, but as I show below, he is wrong to suggest that Klimaseniorinnen is out of step with their conventional interpretation.

Environmental case law

As I outlined in Towards the Environmental Minimum the environmental case law of the ECtHR is rich, the interpretation and development of governing legal principles has a sound doctrinal basis and is overall normatively justified. The Court follows these principles quite closely in Klimaseniorinnen, but I shall bore you only with a brief sketch of some of the main features.

Environmental issues have been litigated under the ECHR since the 1960s (Dr S v. Germany App no 715/60) touching on a wide variety of issues. Article 8 ECHR specifically has been central to environmental cases for over forty years, gaining significant prominence in airport noise emission cases and the case of Lopez Ostra v Spain. In its modern incarnation, Article 8 ECHR is characterised by (1) its broad scope, including in environmental cases, the (2) limited connection required to an applicant’s private and family life, (3) the low threshold of severity necessary to engage the provision, especially where state authorities failed to uphold domestic law and (4) the absence of any need for applications to causally establish a detrimental impact on their health. Given this doctrinal background, anything other than applying Article 8 ECHR to the issue of climate change would have been a major departure from established doctrine. It is far from being a ‘new right’ by any reasonable measure.

The ECHR is also no stranger to requiring proactive risk management. It has long recognised positive obligations to monitor, regulate, and take some adequate measures to mitigate environmental hazards. The case of Öneryildiz v Turkey also highlights the well-established lex specialis relationship between Article 2 and Article 8 ECHR. The Court only engages with Article 2 where it determines that a death has occurred or an individual was exposed to serious mortal health risk, regardless of whether that risk materialises. Both the requirement to manage the risks flowing from climate change and the preference of the Court to deal with the issue under Article 8 ECHR follow neatly from these precedents.

The only sense in which Klimaseniorinnen clearly departs from previous environmental case law is on the broad margin of appreciation. The Court suggests that complicated questions of causality and attribution, as well as the difficulty of specifying concrete measures and balancing competing interests within available resources render climate change meaningfully different to other environmental cases [414] – [422], thus requiring a particularly broad margin of appreciation [457], [540] – [543] (which Judge Eicke presumably favours).

Conclusion

One may well disagree with the living instrument interpretative approach and the doctrinal path taken by the Court, or indeed with the specific outcome of Klimaseniorinnen. However, claims that it constitutes an illegitimate, doctrinal revolution, or a departure from established principles that empower the Court to dictate climate change policy and threaten the democratic process are misleading. If one is inclined to critique the ECtHR on a normative basis then Klimaseniorinnen is also a poor case study. The inconvenient truth is that states remain in the driving seat: democratic deliberation and international cooperation are the crucial and primary paths towards achieving carbon neutrality. Most states do not need to amend their existing policies in response to the judgment precisely because the ECtHR does not take tough political choices out of their hands.

Stefan Theil is Assistant Professor in Public Law at the University of Cambridge, and a Fellow of Sidney Sussex College. His book Towards the Environmental Minimum (CUP 2021) developed a dataset of ECHR environmental decisions which is freely available for educational and research purposes here.

The cases in this post were also discussed by Rosalind English and David Hart KC in a recent episode of Law Pod UK.

Emma-Louise Fenelon of 1 Crown Office Row advised Save the Children in its third party intervention in Duarte Agostinho. She was not involved in the writing of this piece.