Priorities for Climate Litigation at the European Court of Human Rights

Written by Lea Raible

 May 2, 2024

The European Court of Human Rights’ judgments in KlimaSeniorinnen v Switzerland, Carême v France, and Duarte Agostinho v Portugal and others confirmed that climate litigation in the European human rights system is difficult (general analysis of the judgments here and here). The reasons were expected and have been discussed before: victim status proved to be a problem (in all cases), as did the exhaustion of domestic remedies and extraterritoriality (in Duarte Agostinho, in particular). Carême and Duarte Agostinho were inadmissible, while the Court in KlimaSeniorinnen found a violation of article 8 (but not 2) of the ECHR. The case against Switzerland is innovative because it relies on and engages with concepts of climate science (see here), and formulates special criteria for victim status and standing in climate cases (more below). KlimaSeniorinnen is a moderate success for the applicants and will be important in future litigation, but the cases taken together do not, in my view, constitute a breakthrough in using human rights to address climate harms, let alone injustice. This post considers the overall picture focusing on Duarte Agostinho and Klimaseniorinnen, potential justifications for the Court’s choices, and looks at what the judgments mean for future climate cases aimed to be brought to the ECtHR.

No Special Test for Extraterritorial Jurisdiction

Perhaps the most disappointing of the rulings handed down on 9 April 2024 is the decision in Duarte Agostinho and how it dealt with extraterritorial jurisdiction under article 1 of the ECHR (paras 168-214, analysis here). The case was brought by residents of Portugal against Portugal and 32 other states. The complaints against the latter required the Court to consider whether these states have extraterritorial jurisdiction because their emissions contributed to climate-related harms experienced by the applicants. Following settled case law and citing MN and others v Belgium, the Court outlined extraterritorial jurisdiction of a state by way of three models. It requires either that the state exercises effective control over an area abroad (Al-Skeini v UK), that one of their agents has control over a person, including in circumstances of lethal force with an element of proximity (Carter v Russia), or that there are procedural elements that warrant jurisdiction (Güzelyurtlu v Cyprus and Turkey). In HF v France the Court further recognised the possibility that ‘special features’ – factual or legal – could contribute to jurisdiction being established in cases where the above requirements are not met.

None of the established models fit a scenario in which greenhouse gas emissions in one state contribute to harms felt in another, forcing the applicants in Duarte Agostinho to make an argument relying on ‘special features’ instead (paras 121-127). The ECtHR in turn agreed climate change had special features, but did not find they were such as to warrant a novel approach to jurisdiction (paras 184-214, see also here and here). The most obvious, principled and (for applicants) promising way of establishing jurisdiction would have been to frame it as control over the source of harm (see here, and here). But the ECtHR resoundingly rejected this idea, holding that the resulting lack of foreseeability was untenable and – essentially – too burdensome for member states because it would lift most limits on (extraterritorial) jurisdiction.

To my mind, the Court is descriptively right about this. Whether it is normatively desirable and whether the Court could have tried to indicate other ways in which to draw principled lines in climate cases is a different question. However, there are at least some justifications for the Court’s choices. First, substantively, Duarte Agostinho is about positive obligations of states. Fulfilling these usually requires sophisticated regulatory frameworks that are in need of democratic legitimacy. Relatively thin connections to extraterritorial harm are not a good basis for establishing them, especially if this recognition is coupled with the need for the ECtHR’s ability to adjudicate resulting claims (see here, ch 8). Second, institutionally, the ECtHR has clear limitations. Finding that affecting somebody’s interests by way of a domestic decision could in and of itself be a ground of jurisdiction would also affect the exhaustion of domestic remedies. Few states allow claims to be brought on this basis in the first place. There is then no effective domestic remedy that applicants can be expected to make use of, essentially dispensing with the requirement. This could turn the ECtHR into a court of first instance for climate cases. For a body that is already stretched in terms of resources this direction of travel may be unwise. Such an approach could also contribute to undermining the Court’s and the Convention’s legitimacy more broadly. Even the fairly modest finding in KlimaSeniorinnen brought about almost immediate calls to leave the Convention in Switzerland (source in German – apologies) and the UK. Given this constellation, it seems unlikely that the Court is going to budge on extraterritoriality any time soon, as disappointing as this may be.

A Special Test for Standing of NGOs

KlimaSeniorinnen was brought by four individuals and by an NGO representing elderly women in Switzerland. The individual applicants did not have standing because they were not seen to be affected significantly enough in their rights, and so lacked victim status. The Court held that in climate cases ‘(a)the applicant must be subject to a high intensity of exposure to the adverse effects of climate change, that is, the level and severity of (the risk of) adverse consequences of governmental action or inaction affecting the applicant must be significant; and (b) 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). It goes on to emphasise that this threshold is especially high and justifies this finding because of the continued need, under the Convention, to exclude an actio popularis.

The ECtHR does not explicitly say so, but it seems to me this high threshold responds to similar concerns as the cautionary approach to extraterritoriality does: Soon enough, everyone everywhere will be noticeably impacted by climate harms and most of these will be linked to state inaction in some way. Setting a lower bar would thus erode victim status’ function as a limiting criterion. A more sceptical perspective would be to point out that this approach to victim status makes human rights protection at the ECtHR less available the worse the climate crisis gets for everyone when a point of view informed by justice and urgency might suggest we should aim for the opposite. From an institutional perspective, however, the Court’s findings are at least understandable.

The ECtHR set out a special test of associations’ standing in climate cases. Para 502 of the judgment in KlimaSeniorinnen lists the criteria an association will have to meet to have standing. Roughly, the NGO in question must be lawfully established in the jurisdiction concerned, must be able to show that it has as its purpose (or one of its purposes) the defense of human rights of its members, and must able to demonstrate that it is genuinely qualified and representative to act on behalf of affected individuals. Such an NGO will have standing even if its members do not, which is precisely what the Court found in KlimaSeniorinnen. This somewhat remedies the strict test for individual standing. However, it is also only true for jurisdictions in which it is relatively straightforward to establish human rights focused NGOs.

A Bad Look for Europe and Priorities for Litigation

While the justifications of each of the restrictive findings are worth paying attention to, so is something else. The narrow approach to the territorial scope of the Convention all but excludes applications from the Global South. Combined with the special test for victim status where the Court emphasised again a special affectedness, this is a bad look for the European human rights system. It raises suspicions that the system has racist and neocolonial underpinnings – rooted in the Convention’s infamous article 56 that allows excluding the Convention’s application in colonies (more here). And the consequence for climate cases in fact confirms this suspicion: protection is more likely to be offered to property rights of affluent white Europeans (see the parallels to Held v Montana in this regard) than to people in cyclone-devastated Malawi who are facing the destruction of their already precarious livelihoods and homes. It has thus never been clearer that human rights as recognised and enforced in Europe are decisively not about climate justice. This is as sobering as it is unsurprising.

However, it also provides clarity on how to argue climate cases in Europe and, accordingly, on how to set priorities in human rights based climate litigation – at least as it targets unambitious mitigation measures. The picture detailed in this post warrants the following suggestions. First, potentially successful cases will focus on applicants who reside in the state whose mitigation measures are the application’s target. This circumvents issues of extraterritoriality. This is normatively not attractive, but more ambitious mitigation benefits everyone, just as a lack of ambition causes harm everywhere. Second, applicants should be impacted more than others but also have an easy time creating an NGO if they have to. The bar for individual standing is explicitly and deliberately high, whereas for NGOs it seems more moderate. However, it is still worth focusing on intersectionally affected individuals (see here): there remains the possibility that someday someone in this category clears the hurdle set by the ECtHR. It is, to my mind, more likely to achieve this than to get the Court to develop flexibility on extraterritorial jurisdiction.

Championing human rights as a remedy for rampant climate injustice may be difficult, but that should not stop litigation relying on them. We may have to use them strategically for now, while acknowledging that these tactics exclude many of the most important voices. This is just one more reason for seeking other avenues to argue for climate justice – including fundamental changes to how human rights are seen and enforced.

Lea Raible

Dr Lea Raible is a Senior Lecturer in Public Law at the University of Glasgow. Her research interests are in the areas of international and constitutional law, as well