Racialised Climate Justice

9 April 2024 was a big day for international lawyers. The European Court of Human Rights (ECtHR) rendered judgment in three major climate change cases. One of these much-anticipated decisions, KlimaSeniorinnen, found a violation of the right to private life under Article 8 ECHR, confirming that climate change is an issue covered by the ECHR. As these decisions were being handed down in Strasbourg, the International Court of Justice (ICJ) in the Hague held hearings in the case of Nicaragua v. Germany, in which Nicaragua is challenging, inter alia, the German supply of arms to Israel (for the Court’s subsequent order, see here). International law Twitter was abuzz. I alternated somewhat frantically between watching the livestream from the Hague and reading live tweets from Strasbourg.

That these two major events took place simultaneously is of course a mere coincidence. I would suggest, however, that we can use this simultaneity as a springboard for thinking about the ECtHR’s decisions with a broader perspective than has been the case so far. Most of the initial reactions in the blogosphere have focussed on technical legal issues and doctrinal criticism – the human rights version of what Julian Hettihewa, writing on the legal treatment of Palestine, calls “technical international law”. Despite some disappointment as to the “mixed judicial bag”, the overall mood regarding the ECtHR’s climate decisions has been celebratory: they are seen as “trailblazing”, “historic and unprecedented”, and as a “milestone for human rights protection”. In this blogpost, I aim to trouble this celebratory atmosphere. The climate decisions should not be read in isolation, but rather against the backdrop of the ECtHR’s approach in other areas such as migration and in relation to discussions on international law more broadly. I will argue that reading the climate decisions in this light brings their implicit racialisation to the foreground.

Reading Back, Reading Black

In contrast to the largely affirmative commentary on the ECtHR’s decisions, a wealth of critical commentary has accompanied the case of Nicaragua v. Germany as well as the other ongoing proceedings that have brought Palestine back into the judicial spotlight: the case of South Africa v. Israel, regarding the ongoing genocide in Palestine, and the advisory opinion sought on policies and practices of Israel in the Occupied Palestinian Territory more generally. Most recently, the International Criminal Court’s investigations into the situation in Palestine have also received renewed attention given the application for arrest warrants for both Israeli officials and leaders of Hamas. Taken together, these proceedings are widely regarded as a key moment to gauge the orientation of international law and its judicial institutions, particularly with a view to their limited emancipatory potential for the global South. As a recent event announcement by the TWAIL Review  put it, “the question of Palestine continues to operate as a ‘limit experience’ for much critical jurisprudence on race and international law today” (a recording of the event is available here). The proceedings before the ICJ and the application of international criminal law to the situation in Palestine thus serve as a kind of focal point for discussions about race, racism and international law.

The ECtHR’s climate decisions do not mention race at all. Similarly, while the ECtHR’s failure to meaningfully engage with gender in KlimaSeniorinnen has been criticised, most academic commentary so far does not mention race. But this does not mean that the climate decisions are racially neutral. In his essay Reading Back, Reading Black, Bennett Capers suggests reading legal texts including judicial decisions contextually and critically, “sensitive to the stated and the unstated”, and “particularly attuned to the frequencies and registers of race” (p. 12). Crucially, this includes those cases which “on their face do not appear to be engaged in ‘race work’ at all” (p. 13). I would suggest that the ECtHR’s climate decisions, like other climate litigation within Europe, lends itself to such a reading: although they do not mention race, they are wholly saturated with it. Including climate change within the remit of the ECHR through the judgment in KlimaSeniorinnen has been said to provide at least some measure of hope. My question in what follows is: hope for whom?

No Surprises

To approach this question, I focus not primarily on KlimaSeniorinnen but on one of the other cases simultaneously decided by the ECtHR: the inadmissibility decision in Duarte Agostinho. This case saw a group of children and youths from Portugal challenge climate change policy not only in Portugal, but also in a large number of other states parties to the ECHR, thus raising the issue of extraterritoriality. Let’s start out, as the ECtHR does in its decision, with the basics. While its case-law on extraterritoriality is hardly known for its clarity, several principles have emerged that made its decision in Duarte Agostinho relatively predictable. The ECtHR conceives of jurisdiction under Article 1 ECHR as primarily territorial. Extraterritorial jurisdiction is possible only under “exceptional circumstances” (e.g. Al-Skeini, paras. 131, 149). The primary exceptions are effective control over an area or state agent authority and control, neither of which are of much help when trying to challenge the effects of climate-related policies (Duarte Agostinho, paras. 181-182).

In the case of M.N. and Others, the ECtHR had already held that the “mere fact that decisions taken at national level had an impact on the situation of persons resident abroad is also not such as to establish the jurisdiction of the State concerned over those persons outside its territory” (para. 112). In that case, the applicants, a Syrian family, had applied for visas at the Belgian embassy in Beirut so that they might lodge an asylum claim upon their arrival in Belgium. The ECtHR held that the negative decision as to these visa applications did not suffice to bring the applicants within Belgium’s extraterritorial jurisdiction. In Duarte Agostinho, the ECtHR transposed its impact-does-not-equal-jurisdiction argument from the area of migration to that of climate change (para. 184). Existing case-law thus provided no basis for extraterritorial jurisdiction; the bulk of the ECtHR’s reasoning is geared at establishing that even in climate change cases, there are no grounds for changing its settled case-law.

Invoking Humanity

In making this argument, it is clear that the ECtHR wishes to present itself as climate-conscious, even as it is arguing against extraterritorial jurisdiction for climate cases: it frames climate change as “of a truly existential nature for humankind” (para. 194). Readers of the decision may be forgiven some whiplash when the ECtHR continues, in the very next paragraph, that this fact cannot justify expanding the grounds for extraterritorial jurisdiction. Rather, certainty for the states parties as to the extent of their obligations under the ECHR is paramount (para. 208) and extraterritorial jurisdiction must retain “identifiable limits” (para. 207). Even an existential threat to humanity, it seems, cannot compete with the desire to prevent human rights inflation.

But there is another aspect to the ECtHR’s invocation of humanity besides how quickly it is set aside to assuage the states parties. In reaching for humanity, the ECtHR goes beyond Europe; in the same vein, it speaks of climate change as “a global phenomenon” involving “global challenges”, and it emphasises that its effects too are felt globally (paras. 193-194). This is a common framing of climate change, and it is not per se incorrect – but, as Esra Demir-Gürsel and I have previously pointed out with regard to other Council of Europe documents, it does distract from how unevenly both the causes and effects of climate change are distributed between the industrialised states of the global North and most states of the global South.

Not a Global Climate Change Treaty

Duarte Agostinho does not deal directly with these issues – after all, while the case raised questions of extraterritoriality it was brought by applicants from Portugal, not the global South. To the ECtHR’s credit, it explicitly declined to resurrect the doctrinal figure of the “Convention’s legal space” which would have limited jurisdiction to Europe entirely (§ 206). However, given how narrowly the ECtHR delimits the grounds of extraterritorial jurisdiction, much the same result is achieved even without explicit reliance on the Convention’s legal space. The ECtHR’s insistence that the effects of climate change are not sufficient to establish extraterritorial jurisdiction means that it is well-nigh impossible to bring climate cases from the global South before it – as Kilian Schayani has also pointed out on this blog.

Indeed, preventing litigation from the global South seems to be part of what drives the ECtHR’s restrictive approach. A more expansive approach, it argues, would entail “responsibilities under the Convention towards people practically anywhere in the world” and “turn the Convention into a global climate-change treaty” (para. 208, see also similarly para. 206). This can be read as a question of functional differentiation: the ECHR as a human rights treaty, not a climate change treaty. But it also highlights the ECHR’s regional orientation: a European treaty, not a global one. Those suffering the effects of climate change outside of Europe need not apply – it is NGOs from within Europe who are entrusted with bringing climate cases before the ECtHR, and they are limited to defending the rights of affected individuals from “within the jurisdiction concerned” (KlimaSeniorinnen, para. 502; see also Corina Heri’s commentary here). Overall, then, the ECtHR invisibilises the racialised distribution of the effects of climate change by invoking humanity – but it makes distinctions between Europe and the global South reappear when it comes to who receives a voice before court.

Beyond the Climate Cases

It is no coincidence, perhaps, that the primary reference from the ECtHR’s previous case-law in justifying its narrow approach to extraterritorial jurisdiction is M.N. and Others. As described above, in that case the ECtHR declined to bring visa applications in embassies outside of Europe within the ECHR’s scope. But given Europe’s non-entrée regime and the externalisation of its borders, it is precisely the impossibility of reaching Europe that makes claiming asylum impossible for most people. Policies such as visa controls, airline carrier sanctions and safe third-country agreements form part of what Tendayi Achiume calls “racial borders” geared at immobilising people from the global South. Again, there is no need for an explicit restriction to the Convention’s legal space to avoid challenges to these racial borders; a narrow overall approach to jurisdiction suffices. Again, we see the ECtHR’s restrictive approach to extraterritoriality applied in ostensibly race-neutral terms, but with clearly racialised effects.

None of this is new. Already during the drafting of the ECHR, Léopold Senghor, later the first president of Senegal, warned that the colonial clause (now Article 56 ECHR), geared at preventing the applicability of the ECHR in the states parties’ colonies, would “transform the European Declaration of Human Rights into the Declaration of European Human Rights” (see here). The ECtHR’s approach to extraterritoriality in Duarte Agostinho confirms that human rights may be restricted to Europe even in cases not covered by the colonial clause. It underlines one of the main limitations of climate change litigation in Europe – whatever small concessions courts may make to some applicants, they take care to restrict access for those outside of Europe who are most affected by climate change. Cases such as M.N. and Others demonstrate that similarly racialised dynamics play a role when other controversial topics like migration come before the ECtHR.

Outlook

Reading back and reading Black thus reveals that while race is left unstated, both the ECtHR’s climate decisions and its jurisprudence more broadly cannot be detached from a racialised notion of Europe. The simultaneity with the ICJ’s hearing in the case of Nicaragua v. Germany brought these issues into particularly stark relief. International law as a whole may indeed be at a crossroads as to how it handles its own colonial legacies and continuities, with Palestine as a litmus test – although it is difficult, at this point, to imagine what “success” for Palestine would look like. The ECtHR, at any rate, seems to have already chosen its path, holding onto a racialised notion of the “human” in human rights. I would suggest that the key question for international law now is not whether the ECtHR’s findings in the climate cases will or should be “exported” from Europe to other regional or international courts, but whether international law is capable of conceiving of a different relation between Europe and the global South.