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2022 Austria Belgium Cyprus Denmark European Court of Human Rights France Germany Greece Luxembourg Private and family life Right to life Sweden Switzerland The Netherlands The United Kingdom

Five Young People v. France, Germany, the UK, and 9 other States

Summary:
On 21 June 2022, the Guardian reported that an application had been filed at the European Court of Human Rights concerning membership in the Energy Charter Treaty of 1994 (ECT), which entered into force in 1998. The case was brought by five young people, aged between 17 and 31, who allege that the 12 respondent States’ membership of the ECT stymies climate action, thereby violating their rights under Articles 2 (right to life) and 8 (right to respect for private and family life) ECHR.

Reuters reports that the 12 respondent States in this case are Austria, Belgium, Cyprus, Denmark, France, Germany, Greece, Luxembourg, Netherlands, Sweden, Switzerland and Britain. In these States, corporate actors in the fossil fuel sector can bring legal action against the respective governments for losses of profits due to energy-related measures, thereby raising the costs of the green energy transition or making it illusory. The applicants argue that their Convention rights have been violated as a result.

In this regard, the IPCC pointed out in Chapter 14 of its 6th Assessment Report in 2022 that “bilateral and multilateral agreements, including the 1994 Energy Charter Treaty, include provisions for using a system of investor-state dispute settlement (ISDS) designed to protect the interests of investors in energy projects from national policies that could lead their assets to be stranded. Numerous scholars have pointed to ISDS being able to be used by fossil-fuel companies to block national legislation aimed at phasing out the use of their assets”. It also noted that “international investment agreements may lead to ‘regulatory chill’, which may lead to countries refraining from or delaying the adoption of mitigation policies, such as phasing out fossil fuels”.

Categories
2022 Emissions reductions European Court of Human Rights France Private and family life Right to life

Carême v. France

Summary:
On 7 June 2022, the European Court of Human Rights announced the relinquishment of an application against France concerning the municipality of Grande-Synthe to the Court’s Grand Chamber. The applicant in this case, in his capacity as mayor of the municipality
of Grande-Synthe, was originally involved in the Grande-Synthe case, but the Conseil d’État held on 19 November 2020 that, unlike the municipality itself, Mr Carême could not prove that he had an interest in bringing proceedings.

This is the second climate case to reach the Grand Chamber, after the Klimaseniorinnen application. The case was lodged on 28 January 2021. The Court summarized the applicant’s complaint as follows:

The applicant submits that the failure of the authorities to take all appropriate measures to enable France to comply with the maximum levels of greenhouse gas emissions that it has set itself constitutes a violation of the obligation to guarantee the right to life, enshrined in Article 2 of the Convention, and to guarantee the “right to a normal private and family life”, under Article 8 of the Convention. In particular, the applicant argues that Article 2 imposes an obligation on States to take the necessary measures to protect the lives of persons under their jurisdiction, including in relation to environmental hazards that might cause harm to life. Under Article 8 he argues that by dismissing his action on the grounds that he had no interest in bringing proceedings, the Conseil d’État disregarded his “right to a normal private and family life”. He submits that he is directly affected by the Government’s failure to take sufficient steps in the combat against climate change, since this failure increases the risk that his home might be affected in the years to come, and in any event by 2030, and that it is already affecting the conditions in which he occupies his property, in particular by not allowing him to plan his life peacefully there. He adds that the extent of the risks to his home will depend in particular on the results obtained by the French Government in the prevention of climate change.

More information to follow. The Court’s press release can be found here.

Categories
Children and young people Emissions reductions European Convention on Human Rights European Court of Human Rights Norway

Greenpeace Nordic and Others v. Norway

Summary:
The fourth climate change case at the European Court of Human Rights has been announced, and it has been brought by six young Norwegian climate activists aged between 20 and 27, along with two organisations who allege that their members’ lives, health and well-being are being directly affected by the escalating climate crisis. The six individual applicants also allege that, as young people, they are being disproportionately affected by the climate crisis.

The application concerns the Norwegian State’s decision to license continuing exploration for oil and gas in new areas of the Arctic (Barents Sea), and its intention to bring new fossil fuels to market after 2035. The applicants argue that the best available science shows that the emissions from known reserves of fossil fuels will already exceed the carbon budget that remains given the 1.5°C temperature target set in the Paris Agreement.

Citing the seriousness and urgency of the climate crisis, the applicants allege that the respondent State has failed to take the precautionary measures of prevention and protection required under Articles 2 and 8 ECHR (the right to life and the right to respect for private and family life, respectively). They furthermore allege a breach of the prohibition of discrimination in Article 14 ECHR. during the domestic court proceedings, as well as a violation of the right of access to an effective domestic remedy under Article 13 ECHR.

The applicants have sought the application of the Court’s priority policy under Rule 41 of the Rules of Court. In the two already-communicated climate cases, Duarte Agostinho v. 33 Member States and Klimaseniorinnen v. Switzerland, the Court has granted the applicants’ request for priority. A third case has not yet been communicated, making this the fourth climate case pending before the ECtHR.

Domestic proceedings and the reasoning of the Norwegian Supreme Court:
This case is a follow-up from domestic proceedings that were concluded by a judgment in favour of the State that was issued by the Norwegian Supreme Court on 22 December 2020.

In 2016, the two applicant organisations brought a case against the State’s decision to grant 10 licences in the Barents Sea. On 22 December 2020, the Norwegian Supreme Court ruled that this decision did not violate the right to a healthy environment under Article 112 of the Norwegian Constitution. It also found no violation of the ECHR. While it did find that climate impacts should have been assessed, it held that this could be remedied at the development stage (after the licences in question had been issued).

The Norwegian Supreme Court considered that there had been no violation of the ECHR in this case because that Convention only applies to “direct and immediate” environmental harms. Although the Supreme Court considered Articles 2 and 8 ECHR and referred to the pending Duarte Agostinho case in its oral ruling, it considered that the case-law as it stood at the time of decision had not been contravened.

Regarding Article 2 ECHR, the Supreme Court held that this only applies to real and immediate risks of loss of life. The question before the Supreme Court, it argued, was the issue of a sufficient link between the domestic administrative decisions and the risk of a loss of life. It considered that it was not clear whether the decisions would in fact lead to emissions, and the threat concerned was in the future.

Regarding Article 8 ECHR, the Court held that this did not cover every harm to the environment, that an impact had to be “direct and immediate” also here, and that efforts by the Committee of Ministers to add a separate right to a healthy environment to the ECHR had failed.

The Supreme Court also considered that the Dutch Urgenda judgment was not comparable to the case at hand, because that case concerned already-established climate targets, and not the possible invalidity of an administrative decision.

Submissions before the Court in greater detail:
The applicants argue that there is a real and serious risk to their lives and well-being, and to their ability to enjoy their private life, family life and home. They submit that the Norwegian State has failed to adopt the necessary and appropriate measures to address this risk, and that it has failed to describe and assess the total climate effects, including exported emissions, of continued and expanded extraction of oil and gas from the Arctic, thereby also violating the applicants’ rights.

The six individual applicants submit that they have experienced climate anxiety, emotional distress and great worry about the
current and imminent risks of serious climate harms, and the impact on their lives, life choices, and the lives of future generations. They refer to mental health literature, which increasingly draws attention to such concerns, described in the application as “pre-traumatic stress.”

The applicants note that, under current climate policies, the average temperature in Norway is expected to rise by more than 5.5 degrees Celsius by 2100. There has already been an increase in extreme rainfall events, flooding and landslides. Future impacts will include increased risk of drought and forest fire-inducing thunderstorms, changes to flood systems, sea level rise and ocean acidification.

The applicants note that there is a significant difference between planned fossil fuel extraction and Norwegian climate goals. The applicants submit that State representatives stated before the Norwegian Supreme Court that Norway will continue to produce and export petroleum as long as there are buyers. They note that Norway is the 7th largest exporter of emissions in the world, and the 3rd largest per capita, behind Qatar and Kuwait. There is no system in place to declare, assess, calculate, or reduce exported emissions from fossil fuels extraction projects, nor the exported emissions from oil and gas extraction overall.

Claims made:
On victim status, the applicants allege that the licencing of fossil fuels extraction is too complex for individuals and young people to challenge alone. The organisations in question are not only better suited to challenge such decisions, but they also claim to represent future generations.

The applicants allege Articles 2 and 8 have been violated because of the presence of a real, immediate and serious risk to these rights, of which the State had actual or putative knowledge and regarding which it failed to adopt reasonable and appropriate preventative measures. They invoke the principle of prevention, and argue that the State must adopt a legislative and administrative framework designed to provide effective deterrence against threats to the right to life. They argue that an unequal burden has been placed on younger generations, and those unborn. The applicants argue that the threats against their rights are ongoing since temperature increase cannot be reversed and the authorities must act immediately to prevent the harms in question.

Under Article 13, the applicants argue that the Norwegian courts did not assess the merits of the Convention claims in full and
based on ECtHR case law.

Under Article 14, they argue there are disproportionately prejudicial effects on a particular group, citing the factors of young age and the fact that two of the individual applicants are members of the indigenous Sami minority, whose traditions, land and resources are negatively impacted. Due to their age, the young applicants, it is submitted, had no opportunity to participate in the relevant decision-making while at the same time having to shoulder a heavier burden concerning the long-term consequences of the acts and omissions in question.

Date filed:
15 June 2021

Date communicated: 6 January 2022 (press release).

Suggested case citation:
ECtHR, Greenpeace Nordic and Others v. Norway, no. 34068/21, communicated on 16 December 2021.

Link to the text of the application: click here

Categories
Access to a remedy Austria Emissions reductions European Convention on Human Rights European Court of Human Rights Fair trial Paris Agreement Private and family life Right to life Victim status Vulnerability

Mex M. v. Austria

Summary:
On 25 March 2021, a yet-uncommunicated application was filed before the European Court of Human Rights concerning the impact of climate change (specifically, temperature increases) on an applicant suffering from temperature-sensitive multiple sclerosis and Uhthoff’s syndrome. The applicant, who has been identified only as ‘Mex M.’, alleges a violation of his rights under Article 8 ECHR by the failure by the Austrian government to set effective greenhouse gas emissions reduction measures.

The applicant alleged in particular that, at temperatures above 25 degrees Celsius, he is no longer able to walk, and that above 30 degrees Celsius, he loses complete control over his muscular movement. The applicant alleged that, by failing to sufficiently reduce its emissions to meet the goals set out in the Paris Agreement, the respondent State had not only made it impossible to meet the 1,5 degree Celsius warming target set out therein, but had even actively taken measures to exacerbate the climate crisis, including through subsidies and incentives. The applicant also alleged that the domestic State’s legal system systemically impeded him from challenging the climate policies at stake, and the government’s inaction in this regard. This, he submitted, reflects a systemic deficit in the domestic legal system, making it impossible to challenge inaction by the State.

He invoked the right to respect for private and family life in Article 8 ECHR, and subsidiarily the right to life in Article 2 ECHR, as well as the rights to access to a remedy and fair trial in Articles 13 and 6 ECHR.

Date:
pending

Adjudicating Body:
European Court of Human Rights

Status of case:
pending

Admissibility:
pending

Merits:
pending

Remedies:
pending

Separate opinions:
pending

Implementation measures taken:
N/A

Suggested case citation:
European Court of Human Rights, Mex M. v. Austria, application filed on 25 March 2021 (not yet communicated).

Links:
For the last-instance domestic judgment in this case, see here: https://www.vfgh.gv.at/downloads/VfGH_Beschluss_G_144_2020_vom_30._September_2020.pdf

For the full text of the application to the Court, see here: https://www.michaelakroemer.com/wp-content/uploads/2021/04/rechtsanwaeltin-michaela-kroemer-klimaklage-petition.pdf

For more information on the case from Fridays for Future Austria, see here.

For a statement from the applicant’s lawyer, Michaela Kroemer, see here.

Categories
Elderly Emissions reductions European Convention on Human Rights European Court of Human Rights Fair trial Keywords Margin of appreciation Paris Agreement Private and family life Right to life Switzerland Victim status

Verein Klimaseniorinnen et al. v. Switzerland

Summary:
In 2016, the Senior Women for Climate Protection Switzerland (German: ‘Verein Klimaseniorinnen’), a Swiss organisation, brought proceedings concerning the alleged omissions of the Swiss federal government to adopt an adequate climate protection policy. They submitted that current domestic climate targets and measures are not sufficient to limit global warming to a safe level. This failure to prevent climate-related disasters, they argue, represents a failure to protect the enjoyment of the rights under Articles 2 and 8 ECHR (the rights to life and respect for private and family life, respectively) of the organization’s members. The applicants also invoke two procedural rights under the Convention, namely the rights in Articles 6 and 13 ECHR (right to a fair trial and right to an effective remedy, respectively).

These claims were rejected by the domestic instances at three levels of jurisdiction. The Swiss Federal Supreme Court, in its ruling, considered that the case represented an actio popularis, concerned questions better suited to the political arena, and did not raise an arguable claim of a rights violation.

This case was only the second climate change-related case to come to Strasbourg. Like the Duarte Agostinho case, this application raises novel questions before the Court, including the issue of victim status in climate cases, the standing of (environmental) NGOs to bring cases to the Court, and the extent of the State margin of appreciation in regard to environmental protection measures related to climate change.

Third-party interventions:
There have been several third party interventions in this case.

For the full text of the joint intervention by the International Commission of Jurists (ICJ) and the Swiss Section of the International Commission of Jurists (ICJ-CH), click here.

For the full text of the third-party intervention submitted by the European Network of National Human Rights Institutions (ENNHRI), click here.

For the seven other third party interventions filed in the case, click here.

Admissibility:

Pending

Merits:

Pending

Remedies:

Pending

Separate opinions:

Pending

Implementation measures taken:

N/A

Date of decision:

Pending

Type of Forum:

Regional

Status of case:

Communicated to the respondent State on 17 March 2021

Suggested case citation:

ECtHR,Verein Klimaseniorinnen Schweiz and Others v. Switzerland, no. 53600/20, Communicated Case, 17 March 2021

Links:

Categories
Austria Belgium Bulgaria Children and young people Croatia Cyprus Czechia Denmark Emissions reductions Estonia European Convention on Human Rights European Court of Human Rights Finland France Germany Greece Hungary Ireland Italy Latvia Lithuania Luxembourg Malta Non-discrimination Norway Paris Agreement Poland Portugal Private and family life Prohibition of torture Right to life Romania Russian Federation Slovakia Slovenia Spain Sweden Switzerland The Netherlands The United Kingdom Turkey Ukraine

Duarte Agostinho et al. v. Austria et al.

Summary:
This case was brought by a group of six young people, acting together as the ‘Youth for Climate Justice’, against 33 Council of Europe Member States. Theirs is the first climate case to come before the ECtHR. In their application, the six applicants, who are aged between 8 and 21, argue that the 33 respondent States have failed to comply with their positive obligations under Articles 2 and 8 of the Convention, read in the light of the commitments made under the 2015 Paris Climate Agreement. They claim that their right to life (Art. 2 ECHR) is being threatened by the effects of climate change in their home State of Portugal, including through the harms caused by forest fires. Moreover, they claim that their right to respect for their private and family life under Art. 8 ECHR is being threatened by heatwaves that force them to spend more time indoors. They also note their anxiety about their uncertain future, and the fact that, as young people, they stand to experience the worst effects of climate change. They accordingly allege a violation of Article 14 ECHR (non-discrimination), given the particular impacts of climate change on their generation. According to the applicants, the absence of adequate measures to limit global emissions constitutes, in itself, a breach of the obligations incumbent on States.

This is the first climate application brought before the European Court of Human Rights, and it was brought with the support of the Global Legal Action Network (GLAN). The issues raised here are novel in the Strasbourg context. In addition, in communicating the case, the Court also proprio motu raised an issue under Article 3 ECHR, the prohibition of torture and inhuman and degrading treatment.

Domestic proceedings:
None, this case was brought directly to the ECtHR. The applicants submit that, given the complexity of the case and their limited financial means, requiring them to exhaust the domestic remedies in each of the 33 respondent States would impose an excessive and disproportionate burden on them.

Admissibility:
Pending

Merits:
Pending

Remedies:
Pending

Separate opinions:
Pending

Implementation measures taken:
N/A

Date:
Pending

Type of Forum:
Regional

Status of case:
Communicated by the Court on 30 November 2020

Suggested case citation:
ECtHR, Duarte Agostinho and Others v. Portugal and 32 Other Member States, no. 39371/20, Communicated Case, 30 November 2020

Links:

For more information on the case, see the following links.

  • For more background on the case and profiles on the applicants, click here: https://youth4climatejustice.org/
  • For the original application for as submitted to the Court, click here
  • To see all of the third party interventions filed in the case to date (eight in total), click here.
  • To read the observations of the 33 respondent states in this case, click here.