First Climate Change Case at the European Court of Human Rights.
GHRTV2
In September 2020, six Portuguese children and young adults submitted an unprecedented legal action to the European Court of Human Rights (ECtHR), the main institution in Europe safeguarding human rights. They complained against 33 Council of Europe Member States, accusing them of failing to take effective measures against climate change. According to the plaintiffs, this lack of effective action violates their right to life; their right to respect for their private and family lives; and their right not to be discriminated against under the European Convention on Human Rights (ECHR). In their complaint, the Portuguese youth argued that the countries are not respecting the 1.5 C° target decided upon in the Paris Agreement. The latest reports confirm that the world is nowhere near being on track to achieving the goal.
How are their rights being violated?
They claim that the consequences of this inaction caused extreme heat and wildfires, which in turn worsened their living conditions, creating a higher risk to their lives. They argue that this risk is destined to increase if the situation continues on the current path, which is advancing toward a 3°C increase in warming by the end of the century.
The plaintiffs also deem that climate change affects their right to privacy: a right that covers their physical and mental wellbeing. During recent years, heatwaves have become more intense and prolonged, which prevented the applicants from exercising, spending time outdoors and even sleeping adequately. These heat waves, too, are bound to worsen drastically if governments continue at the current pace in the fight against climate change. Inevitably, these circumstances and the increased concern for their future take a heavy toll on the mental health of today’s youth.
Finally, they argue that the lack of efficient action interferes with their right not to be discriminated against because, since they are young and will live longer, they will be the ones facing the worst effects of climate change.
The emission cuts undertaken by the European governments are not sufficient to reach the 1.5°C target goal and consequently avoid more catastrophic consequences. It is of utmost importance to meet this goal to prevent drastic rises in both the sea level and temperatures that would ultimately affect our environment and economies in extreme ways.
In October, the ECtHR agreed to fast-track the case due to the urgency and relevance of the core issue, and requested the countries to provide their responses by February 26th. Statistics show that only a small number of complaints make it to this stage, which illustrates the significance of this case.
On February 26, the Court dismissed a coordinated effort by the 33 governments to overturn its October decision to fast-track the case. They also tried to argue the inadmissibility of the case, along with the request to defer the analysis of their climate change policies. The Court denied this request and extended the deadline for governments to submit their defences to May 27th, 2021.
This is just one high-profile climate case against governments around the world. In fact, over the past months, several cases have been brought before the national courts of numerous governments in relation to the same climate change issue. The European Court of Justice has, too, been presented with a similar case (People’s Climate Case). Contrary to the Portuguese Youth Climate Case, this case is taken against the EU as a whole. Nonetheless, it is fundamentally based on human rights arguments. However; the Portuguese Youth Climate case remains likely to be the most memorable one of all, having accused 33 governments, many of which are the world’s largest greenhouse emitters.
One of the main challenges faced by the plaintiffs is the admissibility of the complaint. Before the Court conducts an analysis of the merits of the case, the petition must pass through an admissibility analysis. This means that to be admitted, complaints must satisfy a series of requirements listed in Article 35 of the ECHR. One of these conditions requires the plaintiffs to exhaust all the national remedies available before turning to the ECtHR (art 35(1)). This includes bringing the case before the national courts first, something which the plaintiffs did not do. However, there is an exception to this rule, which applies when there is no adequate remedy reasonably available in the domestic sphere. As Marc Willers QC, the lawyer representing the petitioners explains, “the primary question in this case is whether or not the applicants could have obtained an effective remedy had they brought proceedings in a Portuguese court or perhaps in the other 32 member states’ courts”. He further explains that, regarding the possibility of bringing the case to a Portuguese court, the national court does not have the authority to impose any legally binding order on the other 32 member states to bring them in line with the Paris Agreement. Additionally, it is not feasible for the applicants to bring litigations to 32 for pragmatic reasons. To litigate the case in 33 different national courts would have been a costly and lengthy procedure; not to mention the possibility of being denied standing before the other 32 national courts. As Marc Willers QC points out, a decision from the ECtHR, in this case, could provide a single overarching approach to remedy the situation, which appears more effective than 33 different and uncoordinated measures.
Through this case, the six youth applicants aim to seek a legally binding decision from the Court requiring the governments to take urgent actions to stop the climate crisis. Due to the lack of a globally agreed approach to share the burden of the climate crisis, states opted for their own interpretations of what is a “fair share” of the global effort to fight climate change. Therefore, the applicants’ objective is to have the Court ensure that governments establish clear plants to cut emissions that are consistent with the 1.5°C target.
Climate change remains one of the greatest challenges to humankind. The magnitude of the damages that can be caused by the climate crisis is far greater than any crisis seen before. The covid-19 outbreak does not cancel the urgency of this imminent catastrophe. With governments investing billions to revive our economy, it is of utmost importance that they must use this money to end reliance on fossil fuels and to foster a transition towards a greener economy.
The legal actions brought nationally, regionally and internationally have the potential to bring about a positive change. Even if the Portuguese Youth Case turned out to be unsuccessful, it is already a significant step forward into raising awareness and taking active action to remedy the climate crisis.
This case is brought against the Member States of the EU (Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Germany, Greece, Denmark, Estonia, Finland, France, Croatia, Hungary, Ireland, Italy, Lithuania, Luxembourg, Latvia, Malta, the Netherlands, Poland, Portugal, Romania, Slovak Republic, Slovenia, Spain and Sweden) as well as Norway, Russia, Switzerland, Turkey, Ukraine and the United Kingdom.
Council of Europe. (1952). The European convention on human rights. Strasbourg: Directorate of Information. Article 2, 8, 14.
https://www.echr.coe.int/Documents/Convention_ENG.pdf
Climate Action Tracker. (2020, December 1). Temperatures. https://climateactiontracker.org/global/temperatures/
Climate Action Tracker. (2020, December 1). Temperatures. https://climateactiontracker.org/global/temperatures/
