The implications of current climate change encompass some of the greatest threats to human welfare and development. The problem of prolonged droughts and intense rainfall, alongside other extreme weather conditions, may result in the violation of human rights, including the rights to life, private and family life, housing, health, self-determination, and many others.
A NEW GENERATION IS TAKING OVER
On 3 September 2020, six Portuguese children and young adults aged 8 to 21 submitted an application to the European Court of Human Rights (ECtHR) against all states within the European Union, as well as the United Kingdom, Switzerland, Norway, Russia, Turkey, and Ukraine.
In the case proceedings, the applicants relied upon article 2, article 8, and article 14 of the European Convention on Human Rights (“ECHR”). Firstly, they argued that the ongoing and worsening impact of climate change will directly affect their right to life (article 2), as well as their right to private and family life (article 8). For instance, Portugal recorded its hottest summer in 90 years at the time of submitting the case to Strasburg. In 2018, Lisbon recorded 44⁰C heat. This is particularly relevant since four of the applicants are from Leiria, where in 2017, forest fires led to the deaths of 120 people and the forced evacuation of many more from numerous towns and villages.
Secondly, the applicants relied upon article 14, which requires that all of the rights and freedoms in the ECHR are applied and protected without discrimination. The applicants pointed to their young ages and claimed that any violation of their rights would potentially have a worse impact on their futures, given that they will live longer than the older people currently maintaining the unsustainable status quo.
The applicants went beyond arguing that the states are failing to reduce their territorial emission. They highlighted the importance of holding states accountable for overseas emissions caused by the export of fossil fuels, goods in general, and the contribution to fossil fuel extraction or the finance of it elsewhere. It has been further argued that the 33 states will most likely fail to meet the goals of the Paris Agreement, the international instrument that requires all signatories to, among other things, pursue efforts to limit the global temperature increase to 1.5⁰C through “nationally determined contributions”. The substantial freedom afforded to states with regards to how they choose to tackle climate change has allowed states to create weak national policies that do not align with the Paris Agreement.
ADMISSIBILITY
Although the case can set a new milestone in climate change litigation, it faces potential problems with its admissibility.First and foremost, for the case to become admissible, the applicants must exhaust all potential local remedies. Article 35 of the ECHR clearly states that the ECtHR can only deal with the claim once all domestic remedies have been exhausted. Considering that the applicants filed an application against 33 states, they should potentially first look for remedies in each country individually. The applicants countered this by arguing that it is not practical for them to look for remedies in every single country that is a party to the ECHR, as climate change is happening now, and there is no time to wait. Moreover, the national courts in Europe so far have not provided adequate remedies relating to climate mitigation policies.
Secondly, according to the ECHR, the applicant must suffer a significant disadvantage with regards to their rights being violated. Case law also highlights the importance of being directly affected by the violation. Therefore, proving the victimhood of the applicants in this case is firmly grounded on submitting sufficient evidence to back this claim, and showing that the potential violation of the ECHR is having a severe impact on their lives.
A NEW DAWN FOR CLIMATE CHANGE LITIGATION
The impact of this case, if admissible, could determine whether the failure of the states concerned to combat global temperature rise is a violation of the ECHR. Moreover, if the violation is found, the 33 states would have to tackle not just the emissions within their territories, but also the overseas contributions.
According to Gerry Liston, legal officer with Global Legal Action Network, taking 33 states to the ECtHR at the same time could establish the highest number of states ever taken before the ECtHR. Additionally, these proceedings could trigger more national cases similar to the Urgenda case in the Netherlands. In that case, the Supreme Court found that article 2 and 8 of the ECHR triggered positive obligations on states to take measures to protect its citizens from the consequences of climate change. Therefore, the Netherlands must lower its gas emissions by 25% by the end of 2020. The scope of this unique case could soon apply to other states in Europe and beyond.
Sylwester is a recent graduate in International Politics and Law from Middlesex University in London. He is currently doing an LLM in Public International Law at the University of Amsterdam. Recently, he volunteered at IHLIA LGBT Heritage - Europe's largest heritage collection for the community. His research interest is looking at the treatment of LGBT+ communities through the lens of international law and humanitarian law.