No Global Climate Justice from this Court

On 9 April 2024, the European Court of Human Rights (the Court) published its rulings in three climate change cases. Certainly, the judgments will be considered as historical. Not only for being the Court’s first decisions concerning climate change, but more importantly for their outcome: confirming the positive obligation to guarantee effective climate protection as a human right. From now on, the climate policy of States party to the ECHR is justiciable.

The rulings in KlimaSeniorinnen and Duarte Agostinho set the framework for future European climate litigation. In KlimaSeniorinnen, the Court establishes a high threshold for the admissibility of individual complaints while granting wider standing to climate change associations. In Duarte Agostinho, the Court rejects extraterritorial jurisdiction of States in relation to climate change and therefore only allows individuals or associations to complain against the State they reside in.

The combination of the Court’s approach to these two separate questions of victim-status and extraterritoriality predetermines future strategic climate litigation cases: complaints will be brought forward by climate change associations representing the perspective of European residents. I argue that this outcome favours a eurocentric perspective in climate litigation that excludes the perspective of the Most Affected People and Areas (MAPA).

The KlimaSeniorinnen Case: The Climate Protection Obligation

In Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, older women living in Switzerland – four individuals and one association – complained that the Swiss State is not taking sufficient climate protection measures. The Court declared the individual applications inadmissible for lacking victim-status under Article 34 of the Convention. The association’s application, in contrast, is considered admissible. The Court finds a violation of Article 8 of the Convention (the right to respect for private and family life). It found a specific right to enjoy effective protection by the State authorities from serious adverse climate change effects on people’s life, health, well-being and quality of life. States are obligated to adopt and effectively apply mitigation measures that shall be supplemented by adaptation measures. The Court argues that the Swiss State is violating its positive obligations by failing to quantify national GHG emissions limitations (paras 544, 552 and 573).

The Victim-Status Criteria: Low Prospects for Complaints of Individuals

Besides the far-reaching substantive findings, the Court’s procedural decisions on victim-status (Article 34 of the Convention) bear important consequences for future climate litigation. In general, victim-status requires applicants to be directly, indirectly or potentially affected by the alleged violation of the Convention (para 463).

Regarding the climate crisis, the fact that every human being is potentially affected by this global threat raises the danger to de facto allow an actio popularis (paras 479-484). The Court therefore establishes an especially strict threshold for victim-status in climate change cases consisting of two criteria:

Firstly, applicants must be “subject to a high intensity of exposure to the adverse effects of climate change” (para 487). In KlimaSeniorinnen, the individual applicants succeed in demonstrating their particular vulnerability as older women to the impacts of climate change (paras 528-532).

Secondly, “there must be a pressing need to ensure the applicant’s individual protection, owing to the absence or inadequacy of any reasonable measures to reduce harm” (para 487). The threshold for this criterion is not reached in the KlimaSeniorinnen case. The Court finds the risks linked to heatwaves could be alleviated by adaptation measures available in Switzerland and that the applicants failed to demonstrate exceptional circumstances (para 533).

At present, in light of the available adaptation measures, this threshold is hardly reachable by individual applicants residing in Europe. The prospects for future individual complaints are thus rather low.

Wide Standing for Climate Change Associations

In contrast to this restrictive approach to individual complaints, the Court opens wide possibilities for climate litigation by associations. Most importantly, an association’s standing does not require its individual members to fulfil the strict criteria for individual victim-status (para 502). Thus, associations are significantly privileged in comparison to individual applicants.

However, the Court establishes three specific criteria for locus standi of associations in climate change cases. Such an association must (a) have standing to act in the jurisdiction concerned. Further, it must (b) aim to, under its statute, and (c) be genuinely qualified and representative to act on behalf of members or other affected individuals within the jurisdiction who are subject to specific threats or adverse effects of climate change (para 502).

These criteria link the questions of victim-status and jurisdiction in an inconsistent manner.  On the one hand, the Court exempts associations from the strict victim-status test established for individuals and instead formulates criteria that are based on legal standing, statutory objectives and qualification, thus aiming to enable professionalized collective climate litigation. The Court explicitly bases this abstraction of access to human rights protection on the “special feature of climate change as a common concern of humankind and the necessity of promoting intergenerational burden-sharing in this context” (para 499). On the other hand, the criteria developed by the Court are based on jurisdiction. Associations must have standing and represent individuals within the jurisdiction concerned. This is not convincing. If associations are granted standing particularly because of the special nature of climate change as a common global and intergenerational concern, there is no reason to base this standing on the representation of individuals within the jurisdiction concerned.

Duarte Agostinho: Extraterritoriality Based on Control over GHG Emissions?

The Court tackled the question of (climate change) jurisdiction in another case. Under Article 1 of the Convention, the Parties shall secure Convention Rights to everyone within their jurisdiction. Broadly speaking, a State has jurisdiction in relation to its residents and not to persons residing in other States. The Court however sometimes establishes extraterritorial jurisdiction in exceptional circumstances.

Duarte Agostinho and Others v. Portugal and 32 Others raised the question of extraterritorial jurisdiction in relation to climate change. Six young persons from Portugal complained against the insufficient climate change measures of not only the Portuguese State, but 32 other States party to the Convention.

They argued that extraterritorial jurisdiction should be established due to the exceptional nature of the climate crisis. A causal and foreseeable human rights impact follows from a combination of climate change’s global effects and the national dimension of individual States’ control over their GHG emissions. Further, effective protection of Convention rights cannot be ensured by one State alone, but requires global action – and thus the possibility of legal action against other States (para 127).

This argumentation is in line with the Inter-American Court of Human Rights’ findings on jurisdiction in relation to the obligation to prevent transboundary damage. The IACtHR bases extraterritorial jurisdiction in an environmental context on the effective control over an activity that originates in a State’s territory and causes transboundary damage that infringes the human rights of persons outside its territory (paras 101-102 of the 2017 Advisory Opinion on the Environment and Human Rights).

Further, the German Federal Constitutional Court considers that the German State’s positive climate protection obligations under the Basic Law also apply to applicants living in the global south based on the causal contribution of GHG emissions in Germany to the climate change impacts outside Germany (para 175 of the Order of 24 March 2021).

No Extraterritorial Jurisdiction in Climate Change Cases

Regrettably, the Court does not follow the applicants’ arguments and misses the opportunity to learn from the Global South by adopting a “consciously transnational” approach. It rejects the applications as inadmissible due to non-exhaustion of domestic remedies in Portugal and due to lack of jurisdiction in relation to the other respondent States.

The Court considers the global nature of climate change but does not accept this as an argument for extraterritorial jurisdiction (paras 184-207). To the contrary, it is precisely the global human rights impacts of climate change that lead the Court to rejecting extraterritorial jurisdiction in relation to climate change. It argues that basing jurisdiction on the State’s control over human rights impacts from its emissions would lead to an unlimited expansion of States’ extraterritorial jurisdiction and to human rights responsibilities towards people practically anywhere in the world. This would create an untenable level of uncertainty for States and turn the Convention into a global climate change treaty (para 208).

The Court’s approach to base climate change jurisdiction on control over the victim instead of control over the source does not match to the nature of the positive climate protection obligation under Article 8 that focuses on mitigation measures. This mitigation obligation is based on the insight that the effects of GHG emissions are “potentially irreversible” (para 545 of KlimaSeniorinnen). As soon as GHG are emitted, the State’s control over their human rights impacts is limited to adaptation measures. In terms of the obligation to mitigate climate change, the State does not have control over the victim but only over the source. In light of this and from a perspective of effective human rights protection, the fact that a State’s GHG emissions lead to human rights infringements all around the world should therefore not lead to refusing, but to granting extraterritorial access to legal protection.

What About the MAPA?

The Court thus excludes individuals residing outside the territory of States party to the ECHR from access to climate litigation through the representation by associations. It excludes the Most Affected People and Areas (MAPA) in the Global South, that have been historically colonized or marginalized and now suffer environmental consequences. It precisely excludes those people from climate litigation that are most severely exposed to climate change impacts and who do not have access to adaptation measures and would thus fulfil the victim-status criteria as defined by the Court.

The framework set by the Court for future climate litigation is that European associations will file complaints against ‘their’ State that exclusively represent the climate change related needs of European residents, while the really pressing needs of MAPA are not justiciable. While a global justice approach to the climate crisis should reflect the fundamental importance of the perspective and needs of MAPA, future climate litigation risks to cement a eurocentric perspective on the climate crisis that focuses on European residents and ignores those who are most threatened. (Stragetic) litigators should therefore reflect on the implications of the framework set by the ECtHR before enthusiastically following the KlimaSeniorinnen case.