Climate Change and Positive Obligations in the ECHR

Stoyanova’s book, Positive Obligations under the European Convention on Human Rights: Within and Beyond Boundaries, rigorously analyses positive obligations under the European Convention on Human Rights (ECHR), proposing a characterisation based on the communitarian and technical contingency of human rights. The argument does not include an analysis of positive state obligations relating to climate change and the harms it causes. Because of the timing of the monograph and owing to the methodological focus on law and practice as they stood at the time of writing, this is certainly not a criticism. However, since its publication, the European Court of Human Rights (ECtHR) has clarified its stance on how it aims to adjudicate climate cases in three judgments handed down on 9 April 2024: Verein KlimaSeniorinnen v Switzerland, Carême v France, and Duarte Agostinho v Portugal and others.

The nature of climate harms is such that they primarily (although not exclusively) relate to positive state obligations and accordingly I will take this opportunity to relate some of the book’s arguments to the emerging strand of case law on climate change at the ECtHR. I will focus on the role of state knowledge of harms, which relates to positive obligations as it captures scientific knowability – a major theme in adjudicating climate harms (which extends to causation: see here). First, I outline how I understand the account of state knowledge, relying on Stoyanova’s analysis and the emphasis and tools the book provides. Second, I outline the ECtHR’s findings in KlimaSeniorinnen v Switzerland, where it held Switzerland in violation of its positive obligations under article 8 of the ECHR. I focus again on state knowledge because it is least prominent in the judgment as an analytic category, but it is very important because of the role the ECtHR assigns to scientific findings and methodology. Finally, I illustrate that – as the book argues – assessing state knowledge and the integration of science in adjudication is not about facts alone but imbued with normative considerations.

Positive Obligations and the Role of State Knowledge

Positive human rights obligations are positive because they require states to do something rather than to avoid any specific actions. This leaves two options for their violation. A state may have omitted a required action or – in a version of this scenario – may have done some of the right things but not enough of them, or, alternatively, what the state did was the wrong thing to do. In any event, as Stoyanova emphasises from the start, these obligations are usually violated by omission (p. 14-16). In part because the Convention specifies rights rather than obligations, rights’ violations by omissions have no direct opposite (p. 14). While this is not an insurmountable problem, it requires the Court to specify on a case-by-case basis what a plausible opposite course of action would have needed to look like for the ECtHR not to find a violation (p. 14). That is, the Court needs to consider a host of counterfactuals that are not foreseen in the Convention in order to outline what it expects of states. Rather than to specify what type of obligations flow from the Convention and what the required stringency is in the abstract, Stoyanova shows that the Court turns to standards and factors to determine both the obligations and their stringency: state knowledge, causation, and reasonableness (p. 18, and chapters 2, 3, 4). All aspects are important in the context of climate change, but I will focus on state knowledge in what follows – largely because the Court does not single out this aspect.

State knowledge may be actual or putative and relates to the risk of harm that the positive obligation is intended to minimise or avert. The putative ‘ought to have known’ standard is necessary because a state is an organisational unit without a mind of its own and so cannot strictly speaking know about anything at all (p. 23). Knowledge, in turn, is important because positive obligations in the ECHR do not imply strict liability but instead require due diligence to be exercised (p. 23). That is, their violation requires fault on part of the state and such fault can only be found if the state knew about the risk in question. Depending on whether the state needs to offer general protection (arguably, climate change) or specific operational protection measures (individual risk of being the victim of a crime as in Osman v UK), the knowledge in question should extend to the specific situation, or the general problem, respectively (pp. 24-26). Finally, state knowledge may be necessary to trigger a positive obligation, i.e. to bring it into existence, or in the determination whether it has actually been breached.

State Knowledge and Positive Obligations to Mitigate Climate Change

KlimaSeniorinnen is squarely about positive obligations. The applicants complained that Switzerland had failed to take adequate measures to protect them – elderly women – from the impacts of climate change (general analysis here, here, and here). The ECtHR found a violation of article 8 of the ECHR and held that ‘the State’s primary duty is to adopt, and to effectively apply in practice, regulations and measures capable of mitigating the existing and potentially irreversible, future effects of climate change’ (para. 545).

Unsurprisingly, and resonating with Stoyanova’s overall account, KlimaSeniorinnen explicitly addresses causation in climate change cases (see paras. 424-26 and 437-440, in particular) and makes numerous mentions of reasonableness or reasonable measures. The issue of state knowledge is not explicitly prominent because Switzerland’s government did not seek to argue that they did not know (or ought to have known) about climate change, its effects, or what to do about it. Its strategy was to argue that the measures taken were adequate (paras. 83-102). However, the judgment prominently discusses and assesses relevant scientific findings and what they mean for states’ positive obligation in the context of climate change (paras. 553-572).

The Court relies on its reading of scientific findings in paras. 546-574 of the judgment, where it identifies the criteria to assess national policy frameworks and applies them to the situation in Switzerland. For example, the ECtHR sets out that states should take into account the need to ‘… 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’ (para. 550). It then goes on to probe what evidence the Swiss government based its policy on. The Court found that, given the stated aim of the national mitigation pathway, the proposed reductions in greenhouse gas emissions by 2020 had been insufficient and in any event had been missed (paras. 558-59).

This assessment contains several methodologically contentious or at least debated points. National carbon budgets, for example, are not an obvious choice as a basis for positive human rights obligations to mitigate change and there are several ways to calculate them even if the methodological framework as such is accepted. The Court uses the premise of equal global per capita emissions (e.g. para 569) – but this is not the only possibility in terms of allocation. Others discuss points of scientific methodology and its validity much more eloquently and authoritatively than I could (see here and here). However, the Court’s framing is also interesting for positive obligations and state knowledge more generally.

The Normativity of State Knowledge

The Court’s framing introduced above is interesting because it illustrates how any assessment of state knowledge or the science it is based on are deeply normative – as Stoyanova lucidly points out in her book (p. 28-29). In fact, what the ECtHR is doing when it connects carbon budgets and emission reduction targets to positive obligations is a comparison of what the state did and what it should have done. To my mind, this shows that an assessment of state knowledge is not only connected to causation and, in particular, reasonableness, but could in fact specify the content of positive obligations. This is, of course, what the Court is required to do. But, as is evident form the quote above, the ECtHR does not actually mandate that states adopt a particular methodology, thus explicitly making space for ‘equivalent methodology[ies]’ (para 550).

None of what the ECtHR is doing is directly dictated by science. Instead, the choice of methodology it imbues with ‘discursive authority’ seems to be guided by two different – largely normative – reasons. First, the choice of forward-looking national carbon (or emissions) budgets is politically modest in terms of mitigation ambition. Models based on historical responsibility would be much more ambitious. But they would also be unattainable for some Council of Europe states (a calculation for Germany is available here at 43) because these states have long overshot their historical emissions share. In addition to being modest and so institutionally prudent, this choice may also be guided by a version of the ‘ought implies can’-principle. Second, the ‘equal global per capita emissions’ premise seems to respond to a requirement of equity in climate change mitigation, even if the Court does not go so far as declaring its use a positive obligation. Again, however, this is not the only available option. Whatever the Court’s reasons for any of these choices: they are normative, not scientifically mandated. What determines state knowledge is tied to how the Court expects states to behave before scientific evidence and whether it was available to authorities even enters the equation (p. 26-28).

Concluding Reflections

None of this is a criticism of either the Court or Stoyanova’s remarkable work, to be clear. Rather, the normativity of state knowledge the book points to is reproduced in the latest Strasbourg case law. The judgment discussed in this post has been called the case of the century and a new dawn. But the core aspects of its approach can be analysed and explained relying on Stoyanova’s arguments. At least this is what I hope to have shown. The only complaint one might have is that Stoyanova does not analyse normative considerations with regard to state knowledge more comprehensively. The book treats normative tensions regarding, for example, extraterritorial positive obligations (chapter 8) much more deeply than it does for state knowledge. Nevertheless, that judgments rendered after a book is published lend themselves to be analysed based on the book’s propositions is testament to how astute the work’s observations are. This, I would suggest, means that Stoyanova’s work will prove as lasting as it is useful.