> Deep Dive: State Obligations to Protect People in their Jurisdiction from the Effects of Climate Change

Deep Dive: State Obligations to Protect People in their Jurisdiction from the Effects of Climate Change

10 Apr 2024

Introduction

Yesterday saw the publication of the three cases before the European Court of Human Rights (“ECtHR”) where applicants have asked the Court to extend state obligations to take positive action to protect the human rights of those within their jurisdiction from harms due to climate change. This is on the basis that the impacts of climate change interfere with a person’s rights protected by the European Convention on Human Rights (“ECHR”). As will likely be known to all readers, the Court found for the applicants in one (brought by a group of elderly Swiss women).

The argument is not novel. Several human rights courts and tribunals have recognised that the effects of climate change may interfere with human rights. Domestic courts around the world are increasingly being asked to adjudicate on a range of specific human rights issues arising in the context of the impacts of climate change. The Preamble to the Paris Agreement specifically links the Agreement to human rights, stating that Parties should “respect, promote and consider their respective obligations on human rights…”. The UN General Assembly has gone further and declared the right to a clean, healthy and sustainable environment is an emerging human right as a matter of customary international law.[1]

Determining the legal parameters of the underlying question – what exactly are the implications of climate change in terms of human rights? – was put squarely before the ECtHR in these three cases. This deep dive takes a look at the history leading to the ECtHR’s historic decision and sets out the key points arising.

The starting point: the Paris Agreement and the link between climate and human rights

The starting point when considering legal obligations regarding climate change is the Paris Agreement, adopted in 2015 by the (now 198) Parties to the United Nations Framework Convention on Climate Change (“UNFCCC”). Only three nations on earth have not ratified the Paris Agreement: Iran, Yemen and Libya. Even North Korea has ratified it.

The Parties to the Paris Agreement agreed, inter alia, to:

Aim to strengthen the global response to climate change (under Article 2) by:
1. Holding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C, recognising this would significantly reduce the risks and impacts of climate change;
2. Increasing the ability to adapt to the adverse impacts of climate change and foster climate resilience; and
Carry out efforts of the highest possible ambition to reduce GHG emissions under Articles 3 and 4. This is to be accomplished through progressive nationally determined contributions (“NDC”). Importantly, Article 3(3) emphasises the importance of precautionary measures to anticipate, prevent, or minimise the causes and adverse effects of climate change.

The lineage of international decisions

The first key international decision was by a UN human rights treaty body as a result of an individual making a complaint to the UN Human Rights Committee. This led to the landmark ruling in Teitiota v New Zealand[2] (2020). The complainant sought asylum protection from the effects of climate change and the Committee concluded that State parties must not extradite, deport, expel or otherwise remove a person from their territory when there are substantial grounds for believing that there is a real risk of irreparable harm to a person’s life and/or a real risk that the person will be subjected to cruel, inhuman or degrading treatment.

Then come Sacchi v Argentina and others[3] (2021) and Billy v Australia[4] (2022), again both before UN treaty bodies. These cases established that the rights to life, minority culture, and family and home under the International Convention on Civil and Political Rights may all be threatened by climate change. Critically, this was held to trigger States’ preventative obligations.[5]

Closer to home, the ECtHR has already linked States’ obligations under both Article 2 (the right to life) and Article 8 (the right to respect for private and family life and home) of the ECHR to the consequences of environmental damage or even an unsafe or disruptive environment.[6] States who have failed to take appropriate measures (such as implementing adequate land-use planning and emergency relief policies) have been held to breach the ECHR several times.[7] Longer term damage is still material: in Taşkin v Turkey the right to home and family life was held to extend to the threat of environmental pollution that might have materialised twenty to fifty years in the future.[8]

However, the ECtHR has, until now, never decided a case directly concerning climate change. National courts, on the other hand, have.

Decisions by national courts

The line of domestic jurisprudence starts with the Dutch Supreme Court’s decision in Urgenda Foundation v The Netherlands[9]. The Dutch Supreme Court found that the risks caused by climate change result in significant threats to rights guaranteed by the ECHR. As a precursor to what was later said in Billy, the Dutch Supreme Court found that the risks caused by climate change are real and imminent so as to engage States’ positive obligations.[10] The Dutch Supreme Court, therefore, found that the Netherlands was obliged to take suitable measures to protect residents from dangerous climate change and the failure to make an appropriate contribution to meeting the global temperature limit of 1.5°C duly breached ECHR Articles 2 and 8 (§5.71).

The German Constitutional Court then ruled in its historic 2021 Neubauer decision that “protection of life and physical integrity…encompasses protection against impairments of constitutionally guaranteed interests caused by environmental pollution, regardless of who or what circumstances are the cause.” The State’s duty of protection “also encompasses the duty to protect life and health against the risks posed by climate change” and can “give rise to an objective duty to protect future generations.” [11]

Finally, in another historic judgment, the Supreme Court of India recognised Article 21 (which recognises the right to life and personal liberty) and Article 14 (all persons shall have equality before law and the equal protection of laws) of the Indian Constitution include “the right against the adverse effects of climate change.”[12]

Putting the matter beyond doubt, the Chief Justice continued:

“24. Despite a plethora of decisions on the right to a clean environment, some decisions which recognise climate change as a serious threat, and national policies which seek to combat climate change, it is yet to be articulated that the people have a right against the adverse effects of climate change…As the havoc caused by climate change increases year by year, it becomes necessary to articulate this as a distinct right. It is recognised by Articles 14 and 21.”

Although the ECtHR’s incremental development of the right to private life and bodily integrity did not go as far as some of these national decisions, and in particular did not address the right to life under Article 2, it reflects some of the thinking of national courts.

The three ECtHR cases

In each the applicants argued that States’ human rights obligations extend to taking reasonable and proportionate positive measures to safeguard against the grave threat posed by climate change. The cases are:

Verein KlimaSeniorinnen Schweiz v Switzerland, App. no. 53600/20;
Agostinho v Portugal and 32 Other States, no. 39371/20; and
Carême v France, App. no. 7189/21.

KilmaSeniorinnen – the Swiss Elderley Women

Taking these in turn, in KlimaSeniorinnen, the applicants (a group of female senior citizens) contended that the contribution by multiple States to climate change does not preclude any individual State (in this case, Switzerland) bearing responsibility for its own part.[13] They argued the elderly were particularly vulnerable to the effects of climate change, being less able to adapt. As such, States are under an obligation to establish and enforce all necessary legislative and administrative measures within their power to achieve reductions of GHG emissions in line with international climate law and the best available science.[14]

The ECtHR recognised the nature and gravity of the threat posed by climate change was not appropriately dealt with in the existing case law of the ECtHR, and so “a more appropriate and tailored approach as regards the various [ECHR] issues which may arise in the context of climate change” will have to be developed.[15] It rejected the argument that matters in relation to tackling climate change were not justiciable, finding instead for a “reduced margin of appreciation” in relation to the necessity of State action to combat climate change and its adverse effects, and through setting targets, whereas the usual (wide) margin of appreciation applied in relation to operational choices and policies adopted in order to meet those targets.[16]

In the course of finding there had been a breach of (some) of the applicants’ Article 8 rights it noted the State’s “generally inadequate track record in taking action to address the risks of climate change that have become apparent in the past several decades, as evidenced by the IPCC’s finding of ‘a rapidly closing window of opportunity to secure a liveable and sustainable future for all…’”[17]

The decision on the nature of the positive obligations on States to protect Article 8 rights in the context of climate change was far reaching and profound. The key passages (§§545-552) find the “State’s primary duty is to adopt, and effectively apply in practice, regulations and measures capable of mitigating the existing and potentially irreversible future effects of climate change.”

The ECtHR (at §550) then set out factors the Court will examine (in the round) when assessing whether a State has, within its margin of appreciation, complied with its positive obligations. They will look at whether the competent domestic authorities, (at the legislative, executive or judicial level), have had due regard to the need to:

“(a) adopt general measures specifying a target timeline for achieving carbon neutrality and the overall remaining carbon budget for the same time frame, or another equivalent method of quantification of future GHG emissions, in line with the overarching goal for national and/or global climate-change mitigation commitments;
(b) set out intermediate GHG emissions reduction targets and pathways (by sector or other relevant methodologies) that are deemed capable, in principle, of meeting the overall national GHG reduction goals within the relevant time frames undertaken in national policies;
(c) provide evidence showing whether they have duly complied, or are in the process of complying, with the relevant GHG reduction targets (see sub-paragraphs (a)‑(b) above);
(d) keep the relevant GHG reduction targets updated with due diligence, and based on the best available evidence; and
(e) act in good time and in an appropriate and consistent manner when devising and implementing the relevant legislation and measures.”

Prompt and effective steps aimed at alleviating the most severe or imminent consequences of climate change (i.e. adaptation measures) may also be required, having regard to the best available science and consistent with the general structure of the State’s positive obligations.[18]

Procedural rights established under international law (not least by way of the Aarhus Convention) were also critical: amongst other procedural obligations, States must ensure the public has access to the conclusions of the relevant studies in order for them to assess the risks they are exposed to for themselves.[19]

Notably the disproportionate burden being imposed by past and present generations on future generations was cited at several points by the ECtHR in the decision. This takes us to the second case which sits on the other end of the age spectrum, Agostinho.

Agostinho – the Portuguese Young People

Here the applicants were Portuguese children/young adults between 10 and 23. They claimed that GHG from 33 European States contribute to global warming, resulting, among other things, in impacts affecting living conditions including damage to property and health (the latter including disrupted sleep patterns, allergies, respiratory problems, and anxiety). The applicants founded their argument under established principles of international law. They said States have shared responsibility for climate damage when they engage in conduct that is attributable to each of them separately, constitutes a breach of international obligations, and contributes to the indivisible injury of a person.^[20]

Despite the profound importance of the questions posed by the applicants, the ECtHR did not provide an answer, holding, first, the court lacked jurisdiction on the basis that Article 1 of the ECHR (the obligation to secure rights and freedoms) only extended to Portugal.[21] Whilst the ECHR may apply extraterritorially in limited circumstances, the Court “consistently rejected” the notion that extraterritorial jurisdiction can apply merely because a state takes a decision “which has an impact on the situation of a person abroad” thus, there was no basis in the Court’s case-law for applying the ECHR extraterritorially in this case.[22] Nor were there valid grounds or exceptional circumstances for developing the case-law in the climate change context. The Court held that doing so would “entail a radical departure from the rationale of the Convention protection system, which is primarily and fundamentally based on the principles of territorial jurisdiction and subsidiarity”.[23] The ECtHR held the claim inadmissible on a second basis, rejecting the argument that the domestic remedies available to the applicants would have been inadequate, finding that a “comprehensive system of remedies” existed in the Portuguese domestic courts.[24]

Carême – The French Former Mayor

Finally, in Carême, the former mayor of the city of Grande-Synthe in France brought a wide-ranging claim before the Council of State but was found not to have any interest in the case since his claims were limited to the argument that, as an individual, his home was situated in an area likely to be subject to flooding by 2040, which was unrelated to the Government’s refusal to take additional measures to meet the Paris Agreement objective of reducing GHG emissions by 40% by 2030. Based on Article 8 of the ECHR, the applicant argued that the Council of State erred in rejecting his action based on lack of standing because he was clearly exposed to climate risk caused by insufficient government action. Thus, as with the other cases, at issue was whether exposure to climate risk caused by insufficient government action is a breach of Article 8 of the ECHR. As with Agostinho, however, the ECtHR ruled this application was inadmissible. Here, it was due to the applicants’ lack of standing.

Conclusion

There is now an established legal foundation before international, regional, and domestic courts and tribunals to argue a breach of human rights as a result of a State or public body’s failure to take reasonable and proportionate positive actions to prevent harm due to the effects of climate change. This is the fresh legal context for no less than three much-awaited Advisory Opinions on State obligations in relation to climate change due from: (i) the International Court of Justice,[25] (ii) the Inter-American Court of Human Rights,[26] and (iii) the International Tribunal for the Law of the Sea.[27] The link between failure to take sufficient positive action to tackle climate change and consequential breaches of fundamental legal rights looks set to become even firmer (and broader) in the year to come.

How will this be developed? We are likely to see further arguments based on Articles 1, 2, 8, and A1P1 of the ECHR based on the argument that climate change represents an imminent and serious threat to life, quality of life, and property. This is notwithstanding the relevant impacts may not be felt until well into the future. The fact that it is not possible to predict precisely who may be impacted, or how, is also highly likely to be the subject of litigation (as well as further arguments based on standing rules). The need to minimise risk by taking action now to avoid future harm and a disproportionate burden on future generations will mean greater scrutiny of decisions but if such arguments are brought before the courts they carry a risk of entering the forbidden territory of policy making. In the more conventional case of legislative interpretation, legislation ought to be interpreted in way which makes it more vs less effective in limiting greenhouse gas emissions.

Nina Pindham is a member of the Cornerstone Climate group. She’ll be speaking at several sessions during Cornerstone Climate Month this May.

Footnotes

[1] Resolution A/RES/76/300 (2022).
[2] Teitiota v New Zealand UN Doc. CCPR/C/127/D/2728/2016 (2020).
[3] Sacchi v Argentina and others, UN Doc. CRC/C/88/D/104/2019 (2021).
[4] Billy v Australia, UN Doc. CCPR/C/135/D/3624/2019 (2022).
[5] See Billy at §§8.3-8.14.
[6] Cordella v Italy (ECtHR 24 January 2019, nos 54414/13 and 54264/15); Fadeyeva v Russia (ECtHR 9 June 2005, no 55723/00) (§§68-69, §133-134); López Ostra v Spain (ECtHR 9 December 1994, no 16798/90) (§51).
[7] Article 2: Budayeva v Russia (ECtHR 20 March 2008, no. 15339/02) at §§147-158. Article 8: Cordella v Italy (ECtHR 24 January 2019, nos 54414/13 and 54264/15); Fadeyeva v Russia (ECtHR 9 June 2005, no 55723/00) (§§68-69, §133-134); and López Ostra v Spain (ECtHR 9 December 1994, no 16798/90) (§51).
[8] Taşkin v Turkey (ECtHR 10 November 2004, no. 46117/99), at §107 and §§111-114.
[9] Urgenda Foundation v Netherlands Case no. 19/00135.
[10] Urgenda decision at §5.2.2 and §5.6.2.
[11] Neubauer and others v. Germany, 29 April 2021.
[12] M K Ranjitsinh & Ors. V Union of India & Ors. 2024 INSC 280, §20.
[13] Applicants’ Reply at §69, §72, §75, §77, §§85-86.
[14] Applicants’ Statement of Facts and Grounds at §§8-13, §16.
[15] KlimaSeniorinnen decision at §422.
[16] KlimaSeniorinnen decision at §543.
[17] KlimaSeniorinnen decision at §542.
[18] KlimaSeniorinnen decision at §552.
[19] KlimaSeniorinnen decision at §544.
[20] Applicants’ Additional SFG at §§9-12.
[21] Agostinho ECtHR decision at §179.
[22] Agostinho ECtHR decision at §§184-185.
[23] Agostinho ECtHR decision at §201.
[24] Agostinho ECtHR decision at §204.
[25] Request for Advisory Opinion on “obligations of states in respect of climate change” made pursuant to General Assembly resolution 77/276 of 29 March 2023.
[26] Request for an Advisory Opinion submitted by Chile and Colombia before the Inter-American Court of Human Rights of January 9, 2023.
[27] Case 31 before ITLOS, Request for an Advisory Opinion submitted by the Commission of Small Island States on Climate Change and International Law of 12 December 2022