Blog of the European Journal of International Law
Today the Grand Chamber of the European Court of Human Rights delivered a monumental trio of decisions – one admissibility decision and two judgments – on climate change.
In Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, the Court, by 16 votes to 1 (Judge Eicke dissenting), set forth new principles on standing (victim status) in climate change cases, and on how Article 2 and 8 of the Convention would substantively apply to such cases. Briefly, it found the applicant organization to have standing, while the individual applicants lacked standing. It then examined the case from the standpoint of Article 8, found that mitigating climate change is a duty that can fall under the umbrella concept of the right to private life under Article 8, and that Switzerland failed to do all it could have done to mitigate climate change.
This is a VERY sophisticated judgment, which quite transparently weighs various competing considerations and shows a particular kind of awareness of the Court’s role in ensuring that states do something to mitigate climate change. While the implications of this case will probably be substantial, especially once it is used before national courts in the following waves of climate change litigation, the Court’s own approach is ultimately proceduralist and modest.
Paras. 423-457 of the judgment are quite impressive. They set out the general parameters of the Court’s approach to climate change litigation. Their precise implications will require quite a bit of digesting, by the Court and by states, scholars and litigants. The key points I suppose are that climate change mitigation and adaptation must fall within the ambit of the Convention, at least sometimes, and that issues of burden-sharing and causation, difficult as they are, cannot exclude the Court deciding on some such cases. They cardinal problem, however, is one of institutional competence, and the boundary between policy and law. Here’s what the Court had to say:
449. The Court is mindful of the fact that in a context such as the present one it may be difficult to clearly distinguish issues of law from questions of policy and political choices and, therefore, of the fundamentally subsidiary role of the Convention, particularly given the complexity of the issues involved with regard to environmental policy-making (see Dubetska and Others v. Ukraine, no. 30499/03, § 142, 10 February 2011). It has stressed that national authorities have direct democratic legitimation and are in principle better placed than an international court to evaluate the relevant needs and conditions. In matters of general policy, or political choices, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy-maker is given special weight (see Hatton and Others, cited above, § 97).
450. However, this does not exclude the possibility that where complaints raised before the Court relate to State policy with respect to an issue affecting the Convention rights of an individual or group of individuals, this subject matter is no longer merely an issue of politics or policy but also a matter of law having a bearing on the interpretation and application of the Convention. In such instances, the Court retains competence, albeit with substantial deference to the domestic policy-maker and the measures resulting from the democratic process concerned and/or the judicial review by the domestic courts. Accordingly, the margin of appreciation for the domestic authorities is not unlimited and goes hand in hand with a European supervision by the Court, which must be satisfied that the effects produced by the impugned national measures were compatible with the Convention.
451. It follows from the above considerations that the Court’s competence in the context of climate-change litigation cannot, as a matter of principle, be excluded. Indeed, given the necessity of addressing the urgent threat posed by climate change, and bearing in mind the general acceptance that climate change is a common concern of humankind (see paragraphs 420 and 436 above), there is force in the argument put forward by the UN Special Rapporteurs that the question is no longer whether, but how, human rights courts should address the impacts of environmental harms on the enjoyment of human rights (see paragraph 379 above).
When it comes to standing, KlimaSeniorinnen makes some important innovation at paras. 478 et seq of the judgment. The tension in the Court’s approach is between allowing, on the one hand, some effective challenges to be brought to the Court and, on the other hand, not allowing for actio popularis and completely unlimited litigation of climate changes issues before the Court. This led the Court to decide that:
(1) Associations (NGOs) will have standing in their own right if they meet certain conditions, EVEN IF their members do not individually meet conditions for victim status:
502. Thus, taking into account the above-noted considerations, the following factors will determine the standing of associations before the Court in the present context.
In order to be recognised as having locus standi to lodge an application under Article 34 of the Convention on account of the alleged failure of a Contracting State to take adequate measures to protect individuals against the adverse effects of climate change on human lives and health, the association in question must be: (a) lawfully established in the jurisdiction concerned or have standing to act there; (b) able to demonstrate that it pursues a dedicated purpose in accordance with its statutory objectives in the defence of the human rights of its members or other affected individuals within the jurisdiction concerned, whether limited to or including collective action for the protection of those rights against the threats arising from climate change; and (c) able to demonstrate that it can be regarded as 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 on their lives, health or well-being as protected under the Convention.
In this connection, the Court will have regard to such factors as the purpose for which the association was established, that it is of non-profit character, the nature and extent of its activities within the relevant jurisdiction, its membership and representativeness, its principles and transparency of governance and whether on the whole, in the particular circumstances of a case, the grant of such standing is in the interests of the proper administration of justice.
In accordance with the specific features of recourse to legal action by associations in this context (see paragraphs 497-499 above), the standing of an association to act on behalf of the members or other affected individuals within the jurisdiction concerned will not be subject to a separate requirement of showing that those on whose behalf the case has been brought would themselves have met the victim-status requirements for individuals in the climate-change context as established in paragraphs 487 to 488 above.
(2) On the facts, the applicant association KlimaSeniorinnen did have standing, only for the purpose of Art. 8 of the Convention (521-526).
(3) Individuals will have standing in climate change mitigation cases only if there is’ (a) high intensity of exposure of the applicant to the adverse effects of climate change; and (b) a pressing need to ensure the applicant’s individual protection’ (478-488).
(4) The applicant individuals in this case did NOT have standing (523-527).
This seems right to me. I’ve always found the argument that little old ladies in Switzerland are somehow especially affected by climate change to be entirely bogus. If they are affected, why wouldn’t I be – why would their interests matter more than mine (or anyone else’s), simply because they have fewer years left to live (well I hope) and are more affected by summer heat? If the individual applicants had standing, then so would everybody, in other words. And this is precisely what the Court wanted to avoid, an actio popularis. Which is why it gave associations standing even when their individual members wouldn’t have it – again, it is the policy tension that explains the approach here, one reminiscent e.g. of the standing jurisprudence of English courts in judicial review cases, which grants some organizations standing on account of their expertise and lack of a better claimant, even if their individual members are not directly affected (e.g. the Greenpeace and WDM cases).
Turning to the merits, the Court ruled that mitigating climate change is an obligation that can fall within the ambit of Articles 2 and 8 ECHR. However, it was fully aware of the risks of subjecting the acts and failures of state authorities to very strict scrutiny on a matter as complex as climate change mitigation. The Court therefore does not require all that much from states:
550. When assessing whether a State has remained within its margin of appreciation (see paragraph 543 above), the Court will examine whether the competent domestic authorities, be it at the legislative, executive or judicial level, have had due regard to the need to:
(a) 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;
(b) set out intermediate GHG emissions reduction targets and pathways (by sector or other relevant methodologies) that are deemed capable, in principle, of meeting the overall national GHG reduction goals within the relevant time frames undertaken in national policies;
(c) provide evidence showing whether they have duly complied, or are in the process of complying, with the relevant GHG reduction targets (see sub-paragraphs (a)‑(b) above);
(d) keep the relevant GHG reduction targets updated with due diligence, and based on the best available evidence; and
(e) act in good time and in an appropriate and consistent manner when devising and implementing the relevant legislation and measures.
551. The Court’s assessment of whether the above requirements have been met will, in principle, be of an overall nature, meaning that a shortcoming in one particular respect alone will not necessarily entail that the State would be considered to have overstepped its relevant margin of appreciation (see paragraph 543 above).
Even on this fairly minimal standard, however, Switzerland was found wanting:
573. In conclusion, there were some critical lacunae in the Swiss authorities’ process of putting in place the relevant domestic regulatory framework, including a failure by them to quantify, through a carbon budget or otherwise, national GHG emissions limitations. Furthermore, the Court has noted that, as recognised by the relevant authorities, the State had previously failed to meet its past GHG emission reduction targets (see paragraphs 558 to 559 above). By failing to act in good time and in an appropriate and consistent manner regarding the devising, development and implementation of the relevant legislative and administrative framework, the respondent State exceeded its margin of appreciation and failed to comply with its positive obligations in the present context.
The Court was even more minimalist when it comes to remedies – essentially it said that a declaratory judgment was enough, and that the proper implementation of the judgment was up to Switzerland and the supervision of the Committee of Ministers, who are ‘better placed than the Court to assess the specific measures to be taken’ (657).
So, there you have it. Switzerland was found not to have done all it could have done to mitigate climate change, and that is that. The Court’s hope, I’m sure, is that domestic litigation on the basis of the principles it has set out will provide the real impetus to address any lack of mitigation ambition within states. This is not a process that it thinks it is institutionally competent to manage.
This brings us to the second case, Careme v. France, which was about climate change adaptation. However, the Court declared the case inadmissible because the applicant no longer had any connection to the place in which the harmful consequences of climate change allegedly arose. The case is a more or less straightforward application of the approach to standing it set out in KlimaSeniorinnen and outside the climate change context. Essentially, litigation on matters of climate change adaptation will require finding actual victims of a state’s failure to act – this does not strike me as unreasonable, especially because the Court’s more generous approach to standing for associations could conceivably apply here too.
Finally, we come to the genuinely disappointing, but entirely predictable, judgment in Duarte Agostinho v. Portugal and 32 other states. The Court dismissed this case, which was also about mitigation, for two reasons. First, because the Portuguese applicants were only within the Article 1 jurisdiction of Portugal, and not the 32 other states. Second, because they did not exhaust any domestic remedies in Portugal (although that reasoning would apply to other states as well, at least those in which climate change issues could even conceivably have been litigated).
While I fully respect the view of the applicants and their legal representatives that doing something about the climate emergency requires ambitious litigation and challenging existing boundaries, as I actually told their representatives in person this was one of those cases where the structural problems with the cases were such that they were almost inevitably bound to fail, so much so that pursuing this litigation was potentially counterproductive. A negative judgment would be on the books and could potentially preclude other, maybe more modest attempts at litigation. DA was simply too much, too soon.
And that’s unfortunately exactly what happened. The applicants lost unanimously. Not a single judge was willing to go with either of their two arguments, and not a single judge was even willing to write separately – there are no separate opinions, with the Court (I’m sure deliberately) presenting a united front.
On extraterritoriality, the core problem is that, on the applicant’s argument, essentially everybody in the world would be within the jurisdiction of the ECHR member states. And the Court just wouldn’t buy that, nor any artificial way of limiting that argument. The Court wouldn’t buy that also because adopting a broad approach on climate change would necessarily require expanding its approach to extraterritoriality in other categories of cases. Moreover, the Court expressly disavows a functional approach to Article 1 jurisdiction that would look at control over the person’s rights or interests, rather than control over the person as such, and expressly disagrees with the converse approach adopted by the UN Committee on the Rights of the Child and (to an extent) by the Inter-American Court. Put differently, the Court was so allergic to the expansive implications of the applicant’s argument that it not only said no, but hell no in a way that might harm other types of cases (e.g. cyber transboundary harm). But we shall see.
205. As regards their reliance on a test of “control over the applicants’ Convention interests”, according to the Court’s established case-law, extraterritorial jurisdiction as conceived under Article 1 of the Convention requires control over the person himself or herself rather than the person’s interests as such (see Ukraine and the Netherlands v. Russia, cited above, § 571). Leaving aside the particular case-law under Article 2 concerning intentional deprivation of life by State agents, there is no support in the case-law for a criterion such as “control over the Convention interests” as a basis for extraterritorial jurisdiction. The Court does not consider that the scope of extraterritorial jurisdiction could be expanded in such a manner, which would entail a radical departure from established principles under Article 1.
206. In particular, reliance on control over the person’s interests as a criterion for establishing the State’s extraterritorial jurisdiction would lead to a critical lack of foreseeability of the Convention’s reach. Given, as the applicants themselves accepted, the multilateral dimension of climate change, almost anyone adversely affected by climate change wherever in the world he or she might feel its effects could be brought within the jurisdiction of any Contracting Party for the purposes of Article 1 of the Convention in relation to that Party’s actions or omissions to tackle climate change. Such a position could not be accommodated under the Convention (see Georgia v. Russia (II), cited above, § 134). The suggestion (see paragraphs 145 and 148 above) that such an extension of jurisdiction could be limited to the Convention’s legal space – notwithstanding the fact that only some of its Contracting States have been selected by the applicants as respondents – is also not convincing. Given the nature of climate change, including its causes and effects, an extension of extraterritorial jurisdiction by reference to that criterion would be artificial and difficult to justify (see, albeit in another context, Al-Skeini and Others, cited above, § 142).
207. It is also important to note that, while the sources of GHG emissions are not limited to specific activities that could be labelled as dangerous and cannot generally be localised or limited to specific installations from which harmful effects emanate, the major sources of GHG emissions are in fields such as industry, energy, transport, housing, construction and agriculture and arise in the context of basic human activities within a given territory. Accordingly, combating climate change through the reduction of GHG emissions at source is chiefly a matter of exercise of territorial jurisdiction. In contrast, as regards the harmful consequences produced by GHG emissions, these are the result of a chain of effects that is both complex and more unpredictable in terms of time and place and are therefore particularly diffuse, making it difficult to establish the respective contributions to the adverse impact of the emissions abroad. The scope of the extraterritorial jurisdiction sought by the applicants would in effect be without any identifiable limits (see, further, Verein KlimaSeniorinnen Schweiz and Others, cited above, § 417).
208. In sum, extending the Contracting Parties’ extraterritorial jurisdiction on the basis of the proposed criterion of “control over the applicants’ Convention interests” in the field of climate change – be it within or outside the Convention’s legal space – would lead to an untenable level of uncertainty for the States. Action taken in relation to some of the basic human activities mentioned above, or any omission in managing the activity’s potential harmful effects on climate change, could lead to the establishment of a State’s extraterritorial jurisdiction over the interests of persons outside its territory and without any particular link with the State concerned. More importantly, accepting the applicants’ arguments would entail an unlimited expansion of States’ extraterritorial jurisdiction under the Convention and responsibilities under the Convention towards people practically anywhere in the world. This would turn the Convention into a global climate-change treaty. An extension of its scope in the manner requested by the applicants finds no support in the Convention.
Again, when it comes to non-exhaustion the Court quite predictably held that the applicants should have litigated their case first in Portugal, the urgency of the climate change crisis notwithstanding:
225. Lastly, as regards the alleged difficulties in using the remedies impacting on their effectiveness, as alleged by the applicants (see paragraph 131 above), it is noted that the Portuguese legal system provides for both the mechanisms to overcome the parties’ lack of means for legal representation (see paragraphs 43 and 50 above) and effective remedies for the excessive length of proceedings (see Valada Matos das Neves, cited above, § 101). In any event, according to the Court’s case-law, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress (see paragraph 208 above, citing Vučković and Others, § 74, with further references).
226. In view of the above and having regard to the circumstances of the case as a whole, it cannot be considered that there were any special reasons for exempting the applicants from the requirement to exhaust domestic remedies in accordance with the applicable rules and the available procedures under domestic law. Had the applicants complied with this requirement, that would have given the domestic courts the opportunity which the rule of exhaustion of domestic remedies is designed to afford States, namely to determine the issue of compatibility of the impugned national measures, or omissions, with the Convention and, should the applicants have subsequently pursued their complaints before the Court, it would have had the benefit of the factual and legal findings and the assessment of the national courts. Thus, the applicants failed to take appropriate steps to enable the national courts to fulfil their fundamental role in the Convention protection system, that of the Court being subsidiary to theirs (compare Vučković and Others, cited above, § 90; see also Communauté genevoise d’action syndicale (CGAS), cited above, § 164).
227. It therefore follows that the applicants’ complaint against Portugal is inadmissible for non-exhaustion of domestic remedies and should be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
228. Lastly, the Court finds it difficult to accept the applicants’ vision of subsidiarity according to which the Court should rule on the issue of climate change before the opportunity has been given to the respondent States’ courts to do so (see paragraph 133 above). This stands in sharp contrast to the principle of subsidiarity underpinning the Convention system as a whole, and, most specifically, the rule of exhaustion of domestic remedies (see paragraph 208 above, citing Vučković and Others, §§ 69-70). As the Court explained in Demopoulos and Others (cited above, § 69), it is not a court of first instance. It does not have the capacity, nor is it appropriate to its function as an international court, to adjudicate on large numbers of cases which require the finding of basic facts which should, as a matter of principle and effective practice, be the domain of domestic jurisdictions (see paragraph 208 above, citing Vučković and Others, § 70 in fine).
Had the Court taken a more liberal approach to non-exhaustion here – one that entirely dispenses with this requirement simply because the issues are so important and involve many states – it would have opened the floodgates in all other areas as well, all while it’s trying to keep them closed because it is still overburdened and under-resourced. This just couldn’t happen, and so here we are. Plus the Court’s basic idea that domestic courts should spearhead climate change cases, per KlimaSeniorinnen, is wholly incompatible with what the DA applicants wanted. To be very frank, I think we are all worse off with this case being decided in the way in which it was decided, than with the case not being brought at all – but hindsight is easy. The one comfort here for those who think the Court and the ECHR can be a (somewhat) effective tool for inducing measures of climate change mitigation is that the approach adopted in KlimaSeniorinnen doesn’t really require looking at the interests of extraterritorial applicants. In other words, there will always be at least some association within a state’s territory that could bring a climate change case against it, and the evaluation of the merits of any such case would not seem to depend on the extraterritoriality point at all. So there we go, a mixed judicial bag if there ever was one.
Today the Grand Chamber of the European Court of Human Rights delivered a monumental trio of decisions – one admissibility decision and two judgments – on climate change.
In Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, the Court, by 16 votes to 1 (Judge Eicke dissenting), set forth new principles on standing (victim status) in climate change cases, and on how Article 2 and 8 of the Convention would substantively apply to such cases. Briefly, it found the applicant organization to have standing, while the individual applicants lacked standing. It then examined the case from the standpoint of Article 8, found that mitigating climate change is a duty that can fall under the umbrella concept of the right to private life under Article 8, and that Switzerland failed to do all it could have done to mitigate climate change.
This is a VERY sophisticated judgment, which quite transparently weighs various competing considerations and shows a particular kind of awareness of the Court’s role in ensuring that states do something to mitigate climate change. While the implications of this case will probably be substantial, especially once it is used before national courts in the following waves of climate change litigation, the Court’s own approach is ultimately proceduralist and modest.
Paras. 423-457 of the judgment are quite impressive. They set out the general parameters of the Court’s approach to climate change litigation. Their precise implications will require quite a bit of digesting, by the Court and by states, scholars and litigants. The key points I suppose are that climate change mitigation and adaptation must fall within the ambit of the Convention, at least sometimes, and that issues of burden-sharing and causation, difficult as they are, cannot exclude the Court deciding on some such cases. They cardinal problem, however, is one of institutional competence, and the boundary between policy and law. Here’s what the Court had to say:
449. The Court is mindful of the fact that in a context such as the present one it may be difficult to clearly distinguish issues of law from questions of policy and political choices and, therefore, of the fundamentally subsidiary role of the Convention, particularly given the complexity of the issues involved with regard to environmental policy-making (see Dubetska and Others v. Ukraine, no. 30499/03, § 142, 10 February 2011). It has stressed that national authorities have direct democratic legitimation and are in principle better placed than an international court to evaluate the relevant needs and conditions. In matters of general policy, or political choices, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy-maker is given special weight (see Hatton and Others, cited above, § 97).
450. However, this does not exclude the possibility that where complaints raised before the Court relate to State policy with respect to an issue affecting the Convention rights of an individual or group of individuals, this subject matter is no longer merely an issue of politics or policy but also a matter of law having a bearing on the interpretation and application of the Convention. In such instances, the Court retains competence, albeit with substantial deference to the domestic policy-maker and the measures resulting from the democratic process concerned and/or the judicial review by the domestic courts. Accordingly, the margin of appreciation for the domestic authorities is not unlimited and goes hand in hand with a European supervision by the Court, which must be satisfied that the effects produced by the impugned national measures were compatible with the Convention.
451. It follows from the above considerations that the Court’s competence in the context of climate-change litigation cannot, as a matter of principle, be excluded. Indeed, given the necessity of addressing the urgent threat posed by climate change, and bearing in mind the general acceptance that climate change is a common concern of humankind (see paragraphs 420 and 436 above), there is force in the argument put forward by the UN Special Rapporteurs that the question is no longer whether, but how, human rights courts should address the impacts of environmental harms on the enjoyment of human rights (see paragraph 379 above).
When it comes to standing, KlimaSeniorinnen makes some important innovation at paras. 478 et seq of the judgment. The tension in the Court’s approach is between allowing, on the one hand, some effective challenges to be brought to the Court and, on the other hand, not allowing for actio popularis and completely unlimited litigation of climate changes issues before the Court. This led the Court to decide that:
(1) Associations (NGOs) will have standing in their own right if they meet certain conditions, EVEN IF their members do not individually meet conditions for victim status:
502. Thus, taking into account the above-noted considerations, the following factors will determine the standing of associations before the Court in the present context.
In order to be recognised as having locus standi to lodge an application under Article 34 of the Convention on account of the alleged failure of a Contracting State to take adequate measures to protect individuals against the adverse effects of climate change on human lives and health, the association in question must be: (a) lawfully established in the jurisdiction concerned or have standing to act there; (b) able to demonstrate that it pursues a dedicated purpose in accordance with its statutory objectives in the defence of the human rights of its members or other affected individuals within the jurisdiction concerned, whether limited to or including collective action for the protection of those rights against the threats arising from climate change; and (c) able to demonstrate that it can be regarded as 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 on their lives, health or well-being as protected under the Convention.
In this connection, the Court will have regard to such factors as the purpose for which the association was established, that it is of non-profit character, the nature and extent of its activities within the relevant jurisdiction, its membership and representativeness, its principles and transparency of governance and whether on the whole, in the particular circumstances of a case, the grant of such standing is in the interests of the proper administration of justice.
In accordance with the specific features of recourse to legal action by associations in this context (see paragraphs 497-499 above), the standing of an association to act on behalf of the members or other affected individuals within the jurisdiction concerned will not be subject to a separate requirement of showing that those on whose behalf the case has been brought would themselves have met the victim-status requirements for individuals in the climate-change context as established in paragraphs 487 to 488 above.
(2) On the facts, the applicant association KlimaSeniorinnen did have standing, only for the purpose of Art. 8 of the Convention (521-526).
(3) Individuals will have standing in climate change mitigation cases only if there is’ (a) high intensity of exposure of the applicant to the adverse effects of climate change; and (b) a pressing need to ensure the applicant’s individual protection’ (478-488).
(4) The applicant individuals in this case did NOT have standing (523-527).
This seems right to me. I’ve always found the argument that little old ladies in Switzerland are somehow especially affected by climate change to be entirely bogus. If they are affected, why wouldn’t I be – why would their interests matter more than mine (or anyone else’s), simply because they have fewer years left to live (well I hope) and are more affected by summer heat? If the individual applicants had standing, then so would everybody, in other words. And this is precisely what the Court wanted to avoid, an actio popularis. Which is why it gave associations standing even when their individual members wouldn’t have it – again, it is the policy tension that explains the approach here, one reminiscent e.g. of the standing jurisprudence of English courts in judicial review cases, which grants some organizations standing on account of their expertise and lack of a better claimant, even if their individual members are not directly affected (e.g. the Greenpeace and WDM cases).
Turning to the merits, the Court ruled that mitigating climate change is an obligation that can fall within the ambit of Articles 2 and 8 ECHR. However, it was fully aware of the risks of subjecting the acts and failures of state authorities to very strict scrutiny on a matter as complex as climate change mitigation. The Court therefore does not require all that much from states:
550. When assessing whether a State has remained within its margin of appreciation (see paragraph 543 above), the Court will examine whether the competent domestic authorities, be it at the legislative, executive or judicial level, have had due regard to the need to:
(a) 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;
(b) set out intermediate GHG emissions reduction targets and pathways (by sector or other relevant methodologies) that are deemed capable, in principle, of meeting the overall national GHG reduction goals within the relevant time frames undertaken in national policies;
(c) provide evidence showing whether they have duly complied, or are in the process of complying, with the relevant GHG reduction targets (see sub-paragraphs (a)‑(b) above);
(d) keep the relevant GHG reduction targets updated with due diligence, and based on the best available evidence; and
(e) act in good time and in an appropriate and consistent manner when devising and implementing the relevant legislation and measures.
551. The Court’s assessment of whether the above requirements have been met will, in principle, be of an overall nature, meaning that a shortcoming in one particular respect alone will not necessarily entail that the State would be considered to have overstepped its relevant margin of appreciation (see paragraph 543 above).
Even on this fairly minimal standard, however, Switzerland was found wanting:
573. In conclusion, there were some critical lacunae in the Swiss authorities’ process of putting in place the relevant domestic regulatory framework, including a failure by them to quantify, through a carbon budget or otherwise, national GHG emissions limitations. Furthermore, the Court has noted that, as recognised by the relevant authorities, the State had previously failed to meet its past GHG emission reduction targets (see paragraphs 558 to 559 above). By failing to act in good time and in an appropriate and consistent manner regarding the devising, development and implementation of the relevant legislative and administrative framework, the respondent State exceeded its margin of appreciation and failed to comply with its positive obligations in the present context.
The Court was even more minimalist when it comes to remedies – essentially it said that a declaratory judgment was enough, and that the proper implementation of the judgment was up to Switzerland and the supervision of the Committee of Ministers, who are ‘better placed than the Court to assess the specific measures to be taken’ (657).
So, there you have it. Switzerland was found not to have done all it could have done to mitigate climate change, and that is that. The Court’s hope, I’m sure, is that domestic litigation on the basis of the principles it has set out will provide the real impetus to address any lack of mitigation ambition within states. This is not a process that it thinks it is institutionally competent to manage.
This brings us to the second case, Careme v. France, which was about climate change adaptation. However, the Court declared the case inadmissible because the applicant no longer had any connection to the place in which the harmful consequences of climate change allegedly arose. The case is a more or less straightforward application of the approach to standing it set out in KlimaSeniorinnen and outside the climate change context. Essentially, litigation on matters of climate change adaptation will require finding actual victims of a state’s failure to act – this does not strike me as unreasonable, especially because the Court’s more generous approach to standing for associations could conceivably apply here too.
Finally, we come to the genuinely disappointing, but entirely predictable, judgment in Duarte Agostinho v. Portugal and 32 other states. The Court dismissed this case, which was also about mitigation, for two reasons. First, because the Portuguese applicants were only within the Article 1 jurisdiction of Portugal, and not the 32 other states. Second, because they did not exhaust any domestic remedies in Portugal (although that reasoning would apply to other states as well, at least those in which climate change issues could even conceivably have been litigated).
While I fully respect the view of the applicants and their legal representatives that doing something about the climate emergency requires ambitious litigation and challenging existing boundaries, as I actually told their representatives in person this was one of those cases where the structural problems with the cases were such that they were almost inevitably bound to fail, so much so that pursuing this litigation was potentially counterproductive. A negative judgment would be on the books and could potentially preclude other, maybe more modest attempts at litigation. DA was simply too much, too soon.
And that’s unfortunately exactly what happened. The applicants lost unanimously. Not a single judge was willing to go with either of their two arguments, and not a single judge was even willing to write separately – there are no separate opinions, with the Court (I’m sure deliberately) presenting a united front.
On extraterritoriality, the core problem is that, on the applicant’s argument, essentially everybody in the world would be within the jurisdiction of the ECHR member states. And the Court just wouldn’t buy that, nor any artificial way of limiting that argument. The Court wouldn’t buy that also because adopting a broad approach on climate change would necessarily require expanding its approach to extraterritoriality in other categories of cases. Moreover, the Court expressly disavows a functional approach to Article 1 jurisdiction that would look at control over the person’s rights or interests, rather than control over the person as such, and expressly disagrees with the converse approach adopted by the UN Committee on the Rights of the Child and (to an extent) by the Inter-American Court. Put differently, the Court was so allergic to the expansive implications of the applicant’s argument that it not only said no, but hell no in a way that might harm other types of cases (e.g. cyber transboundary harm). But we shall see.
205. As regards their reliance on a test of “control over the applicants’ Convention interests”, according to the Court’s established case-law, extraterritorial jurisdiction as conceived under Article 1 of the Convention requires control over the person himself or herself rather than the person’s interests as such (see Ukraine and the Netherlands v. Russia, cited above, § 571). Leaving aside the particular case-law under Article 2 concerning intentional deprivation of life by State agents, there is no support in the case-law for a criterion such as “control over the Convention interests” as a basis for extraterritorial jurisdiction. The Court does not consider that the scope of extraterritorial jurisdiction could be expanded in such a manner, which would entail a radical departure from established principles under Article 1.
206. In particular, reliance on control over the person’s interests as a criterion for establishing the State’s extraterritorial jurisdiction would lead to a critical lack of foreseeability of the Convention’s reach. Given, as the applicants themselves accepted, the multilateral dimension of climate change, almost anyone adversely affected by climate change wherever in the world he or she might feel its effects could be brought within the jurisdiction of any Contracting Party for the purposes of Article 1 of the Convention in relation to that Party’s actions or omissions to tackle climate change. Such a position could not be accommodated under the Convention (see Georgia v. Russia (II), cited above, § 134). The suggestion (see paragraphs 145 and 148 above) that such an extension of jurisdiction could be limited to the Convention’s legal space – notwithstanding the fact that only some of its Contracting States have been selected by the applicants as respondents – is also not convincing. Given the nature of climate change, including its causes and effects, an extension of extraterritorial jurisdiction by reference to that criterion would be artificial and difficult to justify (see, albeit in another context, Al-Skeini and Others, cited above, § 142).
207. It is also important to note that, while the sources of GHG emissions are not limited to specific activities that could be labelled as dangerous and cannot generally be localised or limited to specific installations from which harmful effects emanate, the major sources of GHG emissions are in fields such as industry, energy, transport, housing, construction and agriculture and arise in the context of basic human activities within a given territory. Accordingly, combating climate change through the reduction of GHG emissions at source is chiefly a matter of exercise of territorial jurisdiction. In contrast, as regards the harmful consequences produced by GHG emissions, these are the result of a chain of effects that is both complex and more unpredictable in terms of time and place and are therefore particularly diffuse, making it difficult to establish the respective contributions to the adverse impact of the emissions abroad. The scope of the extraterritorial jurisdiction sought by the applicants would in effect be without any identifiable limits (see, further, Verein KlimaSeniorinnen Schweiz and Others, cited above, § 417).
208. In sum, extending the Contracting Parties’ extraterritorial jurisdiction on the basis of the proposed criterion of “control over the applicants’ Convention interests” in the field of climate change – be it within or outside the Convention’s legal space – would lead to an untenable level of uncertainty for the States. Action taken in relation to some of the basic human activities mentioned above, or any omission in managing the activity’s potential harmful effects on climate change, could lead to the establishment of a State’s extraterritorial jurisdiction over the interests of persons outside its territory and without any particular link with the State concerned. More importantly, accepting the applicants’ arguments would entail an unlimited expansion of States’ extraterritorial jurisdiction under the Convention and responsibilities under the Convention towards people practically anywhere in the world. This would turn the Convention into a global climate-change treaty. An extension of its scope in the manner requested by the applicants finds no support in the Convention.
Again, when it comes to non-exhaustion the Court quite predictably held that the applicants should have litigated their case first in Portugal, the urgency of the climate change crisis notwithstanding:
225. Lastly, as regards the alleged difficulties in using the remedies impacting on their effectiveness, as alleged by the applicants (see paragraph 131 above), it is noted that the Portuguese legal system provides for both the mechanisms to overcome the parties’ lack of means for legal representation (see paragraphs 43 and 50 above) and effective remedies for the excessive length of proceedings (see Valada Matos das Neves, cited above, § 101). In any event, according to the Court’s case-law, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress (see paragraph 208 above, citing Vučković and Others, § 74, with further references).
226. In view of the above and having regard to the circumstances of the case as a whole, it cannot be considered that there were any special reasons for exempting the applicants from the requirement to exhaust domestic remedies in accordance with the applicable rules and the available procedures under domestic law. Had the applicants complied with this requirement, that would have given the domestic courts the opportunity which the rule of exhaustion of domestic remedies is designed to afford States, namely to determine the issue of compatibility of the impugned national measures, or omissions, with the Convention and, should the applicants have subsequently pursued their complaints before the Court, it would have had the benefit of the factual and legal findings and the assessment of the national courts. Thus, the applicants failed to take appropriate steps to enable the national courts to fulfil their fundamental role in the Convention protection system, that of the Court being subsidiary to theirs (compare Vučković and Others, cited above, § 90; see also Communauté genevoise d’action syndicale (CGAS), cited above, § 164).
227. It therefore follows that the applicants’ complaint against Portugal is inadmissible for non-exhaustion of domestic remedies and should be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
228. Lastly, the Court finds it difficult to accept the applicants’ vision of subsidiarity according to which the Court should rule on the issue of climate change before the opportunity has been given to the respondent States’ courts to do so (see paragraph 133 above). This stands in sharp contrast to the principle of subsidiarity underpinning the Convention system as a whole, and, most specifically, the rule of exhaustion of domestic remedies (see paragraph 208 above, citing Vučković and Others, §§ 69-70). As the Court explained in Demopoulos and Others (cited above, § 69), it is not a court of first instance. It does not have the capacity, nor is it appropriate to its function as an international court, to adjudicate on large numbers of cases which require the finding of basic facts which should, as a matter of principle and effective practice, be the domain of domestic jurisdictions (see paragraph 208 above, citing Vučković and Others, § 70 in fine).
Had the Court taken a more liberal approach to non-exhaustion here – one that entirely dispenses with this requirement simply because the issues are so important and involve many states – it would have opened the floodgates in all other areas as well, all while it’s trying to keep them closed because it is still overburdened and under-resourced. This just couldn’t happen, and so here we are. Plus the Court’s basic idea that domestic courts should spearhead climate change cases, per KlimaSeniorinnen, is wholly incompatible with what the DA applicants wanted. To be very frank, I think we are all worse off with this case being decided in the way in which it was decided, than with the case not being brought at all – but hindsight is easy. The one comfort here for those who think the Court and the ECHR can be a (somewhat) effective tool for inducing measures of climate change mitigation is that the approach adopted in KlimaSeniorinnen doesn’t really require looking at the interests of extraterritorial applicants. In other words, there will always be at least some association within a state’s territory that could bring a climate change case against it, and the evaluation of the merits of any such case would not seem to depend on the extraterritoriality point at all. So there we go, a mixed judicial bag if there ever was one.
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Marko Milanovic is Professor of Public International Law at the University of Reading School of Law. He is co-editor of EJIL: Talk! and a member of the EJIL’s Editorial Board.
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EJIL:Talk!
Blog of the European Journal of International Law