Written by Alejandra Ureta Melcon

 

States’ blatant failure to take sufficient action, especially concerning mitigating emissions, has caused climate change to cross the line from a political talking point to a human rights emergency. Although the European Convention on Human Rights (“ECHR”) does not enshrine a specific right to a healthy environment, the European Court of Human Rights (“ECtHR”) has been called upon to develop its case law regarding environmental matters that may negatively affect certain rights in the ECHR. 

While no direct responsibility can be attributed to a contracting State under the ECHR for the acts of private individuals or State agents acting in their private capacity, the EctHR has considered that State responsibility may, nevertheless, be implicated through the obligation imposed by Article 1 of the ECHR1. In this regard, the court held that the obligation of contracting Parties under Article 1 to secure to everyone within their jurisdiction the rights and freedoms defined in the ECHR. Taken in conjunction with Article 32, this holding requires States to take measures to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment administered by private individuals. 

Under Articles 2, 3, and 8, States have well-established positive obligations to protect against harm to life and limb. This duty requires protection against ECHR violations of which the State ‘knew or ought to have known’, i.e., risks of which it had actual or putative knowledge. The substantive positive obligations on the State under Article 3 of the ECHR comprise, firstly, a responsibility to institute a legislative and regulatory framework of protection, and secondly, in certain well-defined circumstances, an obligation to take operational measures to protect specific individuals against a risk of treatment contrary to that provision. The ECtHR has examined States’ positive obligation to protect from ill-treatment in several different contexts. However, the ECtHR has yet to decide on a case discussing the positive obligation of contracting Parties regarding climate-related vulnerability and assessment of risk under Article 3. 

It is important to note that the ECHR is a “living instrument”. This doctrine is a method of judicial interpretation developed and used by the ECtHR to interpret the ECHR in light of present-day conditions. The doctrine was first articulated in Tyrer v. United Kingdom. Since then, the idea that “the Convention is a living instrument … which must be interpreted in the light of present-day conditions” has spread throughout the Strasbourg case law and has formed the basis for an interpretative approach which has enabled the Court to adapt, over time, the text of the ECHR to legal, social, ethical or scientific developments. 

 

Litigation 

On July 26, 2022, the NGO Humane Being filed an application to the ECtHR in the first case challenging factory farming in the UK. The application alleged that the UK Government breached its obligations under Articles 2, 3, and 8 of the ECHR for failing to address the risks of the climate crisis created by factory farming. This case posed novel climate arguments focusing on the danger of agricultural methane emissions and highlighting soy feed consumption in UK factory farming as a critical driver of deforestation in the Amazon basin. The application also cited for the first time before the ECtHR the ruling of the Brazilian Supreme Court in PSB et al. v Brazil, which recognized the Paris Agreement as a human rights treaty. However, in January 2023, the case was declared inadmissible. The Court found that the applicants were not sufficiently affected by the alleged breach of the ECHR or its Protocols to accurately claim to be the victims of a violation within the meaning of Article 34 of the ECHR. Accordingly, the Court held that these complaints were incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a). 

Similarly, on July 11, 2022, Plan B. Earth and Others filed an application at the ECtHR against the United Kingdom. The claimants alleged that in breach of its legal obligations arising under the Human Rights Act 1998 and the ECHR, the UK Government was systematically failing to take practical and effective measures to address the threats from  anthropogenic climate change. Articles 2, 3, 8, and 14 of the ECHR impose on governments the positive obligation to take reasonable and proportionate steps to safeguard the right to life and to family life and to do so without discrimination. In March 2022, the UK Court of Appeal refused to hear the Claimant’s case on the basis that the Paris Agreement was irrelevant, saying that “The fundamental difficulty which the Claimants face is that there is no authority from the ECtHR on which they can rely, citing the Paris Agreement as being relevant to the interpretation of the ECHR, Articles 2 and 8 [the rights to life and to family life]”. It also ruled that even though the family life of the three young people bringing the claim is inextricably linked to communities on the frontline of the crisis in the Global South, this fact was irrelevant to determining the scope of their right to family life, despite the prohibition against discrimination in safeguarding Convention rights. The UCtHR used the same reasoning in Human Being v. The United Kingdom to deem this case inadmissible.  

Soubeste and Others v. Austria and 11 Other States, which is currently pending, is the final case before the ECtHR dealing with climate-related vulnerability and assessment of risk under Article 3. Here, five young European citizens allege that several of their rights– including their right to life, right to be free of inhuman or degrading treatment, right to respect for their private and family life, and right not to be subjected to discrimination— have been adversely affected by the consequences of climate-change-induced extreme meteorological events that they have experienced. They contend, in particular, that the climate change that affects them is largely driven by the fossil energy industry and that the 1994 Energy Charter Treaty (ECT), ratified by all twelve Respondent States, protects investors in that sector from regulatory changes and gives them access to exorbitant remedies through investor-State dispute settlement mechanisms. These factors inhibit the Respondent States from taking immediate measures against climate change and make it impossible for them to attain goals enshrined in Article 2 of the 2015 Paris Agreement. 

 

Analysis 

The progression of anthropogenic climate change brings several acute and well-described risks of harm to human life and limb. While some types of climate change-related harms have already manifested, the brunt lies ahead and will occur when emissions reduction targets and temperature goals are not reached in time. However, the ability of the ECtHR to tackle climate change-related human rights harms is still largely unknown. Providing redress for these harms, especially concerning the risk of future impacts, is mainly a task that, for many rights, the ECHR has delegated to the States as a positive obligation.  

Because ECtHR uses foreseeability and the ability to influence harms to delimit causation, States can have positive obligations concerning environmental disasters that are not caused by State action. In imputing knowledge of the risk of environmental harm, the ECtHR relies on the information available to the authorities, including government studies and scientific evidence. Obtaining the relevant information, for example, by commissioning scientific studies and surveys, is part of the state’s obligations in relation to mitigating dangerous activities. 

One prominent example of how the ECtHR deals with risks of harm can be found in situations concerning asylum applicants. Under Article 3 of the ECHR, states have a duty of nonrefoulement in cases where an applicant would face an individual risk of ill-treatment if expelled from the respondent state. Where there is a ‘real and probable’ and individualized risk of ill-treatment, if the respondent state expels the applicant, the state has exposed the person to ill-treatment and thereby violated Article 3.   

It can be difficult for applicants to prove an individual risk, however, in contexts where human rights are systematically being violated, States bear the burden of establishing the particulars of the risk. Likewise, the ECtHR has noted that ‘a certain degree of speculation is inherent in the preventive purpose of Article 3 and that it is not a matter of requiring the persons concerned to provide clear proof of their claim that they would be exposed to proscribed treatment.’ This case law indicates the role that Article 3 can play in protecting against future or impending harm related to the environment. 

Having established that Article 3 requires a response to risks of ill-treatment, the core issue before the ECtHR is whether climate change-related harms can be considered ill-treatment that falls under Article 3.  If torture is the ‘radical denial of human dignity’, then inhuman and degrading treatment (and punishment), which are forms of ill-treatment, can be understood as less severe versions of that same denial of dignity. Multiple cases before the ECtHR have demonstrated that emotional extremes, such as humiliation, desperation, helplessness, fear, anguish, powerlessness, or feelings of having been exposed to arbitrary treatment or injustice, and experiences of indignity can violate Article 3. Along these lines, the Committee on the Rights of the Child’s decision of inadmissibility in the Sacchi case noted the particular impact of climate change on children. This type of argument requires seeing the threat of climate-related harm as an abstract fear that involves not only fearing for others or the environment but also as a very concrete fear for one’s future.  

However, one potential limitation arises from the fact that the Court is an international tribunal, overseeing the compliance of contracting State parties with the ECHR rather than providing an in abstracto examination of the effectiveness of domestic legal regimes.  The ECHR becomes relevant only to the extent an alleged violation crosses the de minimis threshold of risk. That is, a minimum level of interference and exposure to risk is necessarily part of everyday life. With this support, applicants in climate change claims can, with authority, point to the fact that climate change poses real existential risks. However, in several environmental cases, the ECtHR has ruled that it is not for the Court to second guess states’ policy choices and regulatory decisions in the ‘difficult social and technical sphere’ of environmental law. 

Likewise, in the cases in which the Court has found a State to be in violation of the ECHR because of its failure to protect individuals from environmental risks, the Court has gone on to identify the principal obligation of the State as being one of due diligence. The central obligation to emerge from the ECtHR’s environmental case law is the obligation to put in place regulatory and administrative regimes, providing for meaningful public participation and access to independent mechanisms of oversight.  This due diligence obligation also entails a significant degree of discretion for states concerning the precise means employed to fulfill that obligation. Therefore, the obligations emerging from the ECtHR in the context of environmental risks provide no substantive targets, objectives, or emission-type standards, as is commonly the case in environmental and climate change law, and expecting the Court to move into this territory would require a significant expansion of its doctrine. 

On the other hand, there are significant advantages arising from putting climate change claims before the ECtHR. One benefit is that the Court’s case law operates as a floor upon which domestic courts can build a more detailed and robust case law. This approach was taken in the Urgenda decision, where the Dutch Supreme Court relied extensively on the case law of the ECtHR when finding that the lack of ambition in the climate change plan of the Dutch government constituted a violation of Articles 2 and 8 ECHR. 

Considering these factors, positive obligations under the ECHR provide a viable option for climate change related cases to appear in front of the ECtHR. If the Court is able to overcome the hurdles described and delineate clear obligations of States, it will provide a powerful mechanism for people seeking redress from the threats of climate change.  

 

Works Cited

 

A. v. the United Kingdom, Eur. Ct. H. R. (1998).

Beganović v. Croatia, Eur. Ct. H. R. § 68 (2009).

Budayeva and Others v. Russia, Eur. Ct. H. R., No. 15339/02, ¶ 148 (2008).

Çevik v. Turkey, (no.2), Eur. Ct. H. R.  § 33 (2010).

Convention for the Protection of Human Rights and Fundamental Freedoms Rome, 4.XI.1950, Article 3 [hereinafter European Convention on Human Rights].

Corina Heri, Climate Change before the European Court of Human Rights: Capturing Risk, Ill-Treatment and Vulnerability, 33 Eur. J. of Int’l L. 925, 925–51 (2022).

Dzehtsiarou, Kanstantsin, European Consensus and the Evolutive Interpretation of the European Convention on Human Rights, 12 (10) German L. J. 1730, 1730-45 (2011).

European Convention on Human Rights.

European Court of Human Rights, Factsheet – Climate Change, Press Unit (Mar. 2023) (https://www.echr.coe.int/Documents/FS_Climate_change_ENG.pdf).

European Court of Human Rights, Guide on Article 3 of the European Convention on   Human Rights (2022) (https://www.echr.coe.int/Documents/Guide_Art_3_ENG.pdf).

F.G. v. Sweden, Eur. Ct. H. R., No. 43611/11, ¶ 120 (2016).

Filippovy v. Russia, Eur. Ct. H. R. (2022) (in the context of hazing and bullying in the military).

Hatton and Others v the United Kingdom, Eur. Ct. H. R. [gc] 36022/97 at 11 (2003).

Hirsi Jamaa and Others v. Italy, Eur. Ct. H. R., No. 27765/09, ¶¶ 131–38 (2012).

Humane Being v. the United Kingdom, Climate Case Chart (http://climatecasechart.com/non-us-case/factory-farming-v-uk/).

Intergovernmental Panel on Climate Change (IPCC), Climate Change 2014: Synthesis Report (2014).     IPCC, Global Warming of 1.5°C (2019).    IPCC, Climate Change 2021: The Physical Science Basis (2021).

Kolyadenko and Others v. Russia (n 4), Eur. Ct. H. R., No. 17423/05, 20534/05 (2012).

Linos-Alexander Sicilianos, The Contribution of the European Court of Human Rights to the Development of Public International Law (https://rm.coe.int/interpretation-of-the-european-convention-on-human-rights-remarks-on-t/1680a05732).

M.C. v. Bulgaria, Eur. Ct. H. R. (2003).

M.S.S. v. Belgium and Greece, Eur. Ct. H. R., No. 30696/09, ¶ 365 (2011)

Migration and Home Affairs, European Commission (https://home-affairs.ec.europa.eu/networks/european-migration-network-emn/emn-asylum-and-migration-glossary/glossary/non-refoulement_en).

Milanovic, Special Rules of Attribution of Conduct in International Law, 96 Int’l L. Stud. 295, 296 (2020).

Morrow, The ECHR, Environment-Based Human Rights Claims and the Search for Standards, Cambridge University Press 41, 45 ((2019).

Pedersen, Any Role for the ECHR When it Comes to Climate Change?.

Pedersen, Any Role for the ECHR When it Comes to Climate Change?.

Plan B.Earth and Others v United Kingdom, Climate Case Chart (http://climatecasechart.com/non-us-case/plan-bearth-and-others-v-united-kingdom/).

Plan B.Earth and Others v United Kingdom, Climate Case Chart (http://climatecasechart.com/non-us-case/plan-bearth-and-others-v-united-kingdom/).

Saadi v. Italy, Eur. Ct. H. R., No. 37201/06, ¶. 129 (2008)

Škorjanec v. Croatia, Eur. Ct. H. R. (2017) (in the context of violence inflicted on the basis of hatred).

Soubeste and Others v. Austria and 11 Other States, Climate Case Chart (http://climatecasechart.com/non-us-case/soubeste-and-others-v-austria-and-11-other-states/).

Stoyanova, Fault, Knowledge and Risk within the Framework of Positive Obligations under the European Convention on Human Rights, 33 L.J.I.L. 601, 604 (2020).

T.M. and C.M. v. the Republic of Moldova, Eur. Ct. H. R. (2014) (in the context of domestic violence).

Tarakhel v. Switzerland, Eur. Ct. H. R., No. 29217/12, ¶ 93 (2014).

Tătar v. Romania, Eur. Ct. H. R., No. 67021/01, ¶ 88 (2009).

The State of the Netherlands v Stichting Urgenda, Supreme Court of the Netherlands (19/00135) (Dec. 20, 2019).

Trabelsi v. Belgium, Eur. Ct. H. R., No. 120/10, ¶ 130 (2014).

Tyrer v. the United Kingdom, Eur. Ct. H. R. § 31, Series A no. 26 (1978).

UN Committee on the Rights of the Child, Sacchi and Others v. Argentina, Communication no. 104/2019, UN Doc. CRC/C/88/D/104/20192021 (2021).

United Nations Environment Programme, Emissions Gap Report 2020 (2020) (https://www.unep.org/emissions-gap-report-2020).

X and Others v. Bulgaria [GC], § 178 (2021).

Z and Others v. the United Kingdom [GC] § 73 (2001); O’Keeffe v. Ireland [GC] § 144 (2014).