Climate Protection as a European Fundamental Right under the ECHR and beyond
Edited by:
Nathan de Arriba-Sellier
Climate Protection as a European Fundamental Right under the ECHR and beyond
Table of Contents
1. Introduction: Climate Protection as a European Fundamental Right under the ECHR and beyond
Nathan de Arriba-Sellier
2. Breaking Down Climate Litigation Justice in Europe: The ECtHR’s ruling on Duarte Agostinho and Others v. Portugal and 32 Other Member States
Carolina Ramalho dos Santos and Erriketi Tla da Silva
3. Verein KlimaSeniorinnen Schweiz v. Switzerland and Article 6(1) of the ECHR: Of Climate Change and Craftsmanship
Anaïs Brucher and Antoine De Spiegeleir
4. Legal Standing in Climate Litigation before the ECtHR and the CJEU
Mario Pagano
5. Climate Justice in the Jurisprudence of the European Court of Human Rights. Some notes on Carême v. France, Verein KlimaSeniorinnen v. Switzerland, Duarte Agostinho & al. v. Portugal & 32 Others
Marta Torre-Schaub
6. The Klimaseniorinnen Case: In Search of Substantive Standards
R. A. Lawson
7. No Nature, no Human Rights: Implications of KlimaSeniorinnen for Biodiversity
Niels Hoek and Justine Muller
8. Verein KlimaSeniorinnen Schweiz and others vs. Switzerland: paving the way for climate litigation in Europe Bas van Bockel
9. The Klimaseniorinnen Case: Clearing the Air for Corporate Climate Litigation
Sumeyra Arslan
10. Intersectionality in the KlimaSeniorinnen case – ‘Older Women’ in Action
Christa Tobler
11. Just as Ripples Spread out when a Single Pebble is Dropped into Water’- ECHR KlimaSeniorinnen Judgement’s Systemic Effects on the EU Legal Order
Alicja Sikora-Kaléda
12. Epilogue: “The Strasbourg Effect”
Daniel Sarmiento and Sara Iglesias Sánchez
Climate Protection as a European Fundamental Right under the ECHR and beyond
Climate Protection as a European Fundamental Right under the ECHR and beyond
Introduction: Climate Protection as a European Fundamental Right under the ECHR and beyond
Nathan de Arriba-Sellier
Verein KlimaSeniorinen Schweiz v Switzerland, Carême v France, Duarte Agostinho et al. v Portugal and 32 Other Member States: it is with this trilogy of judgments that the European Court of Human Rights (ECtHR) has fired the opening salvo of a momentous year for the recognition of climate protection in international law. The International Tribunal for the Law of the Sea shortly thereafter issued its Advisory Opinion and the International Court of Justice is expected to decide on its own soon. All these jurisdictions are deciding on States’ obligations with respect to to climate action under international law. After years of negotiations, breakthroughs and impasses behind the closed doors of the hallways of the COPs, [1] the future of international climate law is being decided differently. In an adversarial fashion, in the open, before well-established tribunals where experimented judges decide what the law is, not what it ought to be.
So it is on 9 April 2024 that the ECtHR ruled that the right to private and family life under Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms entailed a right to protection from the serious adverse effects of climate change. In other words, the Convention imposes positive obligations to take effective measures for climate change mitigation and adaptation in order to protect human life and health. While the ECtHR ruled the applications in Carême and Duarte Agostinho to be inadmissible, it found in KlimaSeniorinnen that Switzerland had violated Article 8 of the Convention by failing to take sufficient action to reduce its emissions of greenhouse gas.
Member States have a wide margin of discretion in deciding how to fulfill their obligations and what measures to take, yet the nature and extent of their positive obligations is unescapable. The ECtHR operated a remarkable reconciliation of international climate law and its own case-law in environmental matters to determine the positive obligations of Member States. To affirm the (individual) responsibility of the Member States, the Strasbourg Court invoked the well-known principle of common but differentiated responsibilities (§ 442) at the core of the United Nations Framework Convention on Climate Change and the Paris Agreement. With a view to the Paris Agreement, the ECtHR fleshed out the States’ positive obligations by recognizing that Article 8 of the Convention requires “the substantial and progressive reduction of their respective GHG emission levels, with a view to reaching net neutrality within, in principle, the next three decades.” (§ 548) It also paid particular attention to the importance of inter-generational burden-sharing that was first affirmed in the 1972 Stockholm Declaration adopted by the United Nations Conference on the Human Environment; for this reason, “immediate action needs to be taken and adequate intermediate reduction goals must be set” in order to reach climate neutrality (§ 549).
Of course, the ruling in KlimaSeniorinnen cannot be considered in isolation from the already long series of judgments from national courts that all paved the way to the Strasbourg Court’s finding of climate protection as a European fundamental right – some of them extensively cited by the ECtHR: Neubauer (BundesKlimaschutzgesetz), Grande Synthe, Friends of the Irish Environment, etc. Already in the landmark Urgenda case, Dutch courts have found that the government had the obligation to take meaningful action
Climate Protection as a European Fundamental Right under the ECHR and beyond
to reduce greenhouse gas emissions on the ground of the rights protected under Articles 2 and 8 of the Convention. While the ECtHR unanimously found in KlimaSeniorinnen that it is not necessary to examine the applicability of Article 2 (the right to life), it upheld the claim of the applicants regarding Article 8 of the Convention.
The consolidating jurisprudential movement around the recognition of climate protection as a fundamental right is undeniable. And its consequences are far-reaching. Solidly grounded in fact and law, extensively justified and compelling, these judgments competently disprove facile (if not pavlovian) accusations of judicial activism. Yet, they open another, more uncomfortable question. Isn’t this all a Pyrrhic victory? What have these judgments changed? From Urgenda and Grande Synthe, to KlimaSeniorinnen, judicial canons seem filled with wet powder, and governments have stubbornly refused to take the measures required by courts. Is it just a question of indifference and complacency or does it beg a broader question, essentially one of the Rule of Law?
It is not for this symposium to chop this gordian knot. Instead, the dozen contributions that have been successively published on EU Law Live and that are reproduced here seek to provide some answers to the myriads of questions that arose from the ECtHR’s cases and arose your curiosity.
On admissibility first. While much of the attention has been captured by the ruling in KlimaSeniorinnen, the decisions in Carême and Duarte Agostinho deserve as much scrutiny. We start with the latter as Carolina Ramalho dos Santos and Erriketi Tla da Silva break down for us questions of extraterritorial jurisdiction and exhaustion of domestic remedies faced by the ECtHR. Deciding on the victim status of the applicants was arguably one of the most difficult tasks of the Strasbourg Court, as it recognised that climate change is not only a global phenomenon, but also one that is urgent, grave and irreversible. The application in Carême v France was found to be inadmissible, but it is itself of great interest given that it concerns a person who used to live in an area highly vulnerable to sea rise resulting from climate change at the core of the Grande Synthe case. It is in KlimaSeniorinnen that the ECtHR provides an avenue for access to justice under Article 6 of the Convention, as remarkably discussed by Anaïs Brucher and Antoine de Spiegeleir. Mario Pagano then pursues the fascinating reflection on legal standing by contrasting the admissibility decisions of the ECtHR with the Court of Justice of the European Union’s obstinate adherence to the Plaumann criteria. Marta Tarre-Schaub finally brings competently the three rulings of the Strasbourg Court together from the important standpoint of climate justice.
The transition to substantive law is operated by Rick Lawson, who opens the exciting search for substantive standards in KlimaSeniorinnen and lays out some reflections on the path forward. Despite the certain proximity with the case-law in environmental matters, the consideration of climate change presented its own set of unique challenges for the ECtHR to consider. The same may arise from biodiversity loss, the parallel environmental crisis that has arisen alongside the climate crisis; Niels Hoek and Justine Muller explore the thought-provoking parallel and the possible transposition of KlimaSeniorinnen. By contrast, Bas van Bockel reads the ECtHR’s judgments from the interesting perspective of game theory. But the ramifications of KlimaSeniorinnen may be more strongly felt in another fast-emerging area of litigation; climate cases directed against companies and financial institutions as exposed by Sumeyra Arslan, herself involved in one of the most important of such cases.
To conclude this symposium, we go back to the sources. Source of the judicial landmark that KlimaSeniorinnen represents: the vulnerability of women and aged persons to the effects of climate change,
Climate Protection as a European Fundamental Right under the ECHR and beyond
an inspiring intersectionality perspective provided by Christa Tobler. And source of this symposium: what are the consequences of KlimaSeniorinnen for the EU legal order, questions Alicja Sikora-Kaléda pointedly. Will we finally see the recognition of a right to a clean and healthy environment as some may have read in the recent grand chamber judgment in the Ilva case? [2] This would be a welcome development, decades after ADBHU and Plaumann. It may indeed be high time the Court of Justice wakes up to the XXIst century.
Dr. Nathan de Arriba-Sellier is the director of the Erasmus Platform for Sustainable Value Creation at Rotterdam School of Management, Erasmus University.
[1] The Conference of the Parties of the United Nations Framework Convention on Climate Change (UNFCCC)
[2] Court of Justice (Grand Chamber), C-626/22, C.Z. and Others v Ilva SpA in Amministrazione Straordinaria, ECLI:EU:C:2024:542, paras 71 and 72.
SUGESTED CITATION: De Arriba-Sellier, N., “Climate Protection as a European Fundamental Right under the ECHR and beyond”, EU Law Live, Symposium on “Climate Protection as a European Fundamental Right under the ECHR and beyond”